*1 crime, essential element of the negate
mistake of fact would that essential
element. In this case the state mind of
the defendant does define an essential ele-
ment of the crime. The mental element re-
quired by the statute is that the defendant arousing, appealing
have “the intent of to or lust,
gratifying passion, or sexual desires child, person, party.”
of such minor or third
Here, age a mistake as to the victim’s would any way negate
not in the existence of the
specific element; is, intent Oar’s intent arouse, to, gratify- his carnal
desires. Thus mistake of fact is irrelevant to charge
the criminal here and cannot serve as agree defense to the crime. I
district court instructing was correct in not defense, on the mistake of fact al-
though I do so for a different reason than
that articulated the Court. Bayard MILLER, M.D.,
J.
Plaintiff-Respondent, HALLER, M.D.,
Frederick R. and Jane Haller, wife;
Doe husband and Thomas Prenger, M.D.,
F. Prenger, and Jane Doe wife;
husband and and Silverton Medi- Clinic, general partnership
cal consist-
ing Haller, M.D., of Frederick R. Prenger, M.D., Partners, F.
Thomas De-
fendants-Appellants.
Docket No. 21842. Opinion No. 118.
Supreme Idaho, Court of
Boise, April 1996 Term.
Sept. 1996.
Rehearing Denied Oct. *3 d’Alene; Lyons, Hup-
Ramsden & Coeur pin Paul, d’Alene, Ewing Anderson & Coeur appellants. Lyons argued. for Marc A Sahlin, d’Alene; (argued), John H. Coeur Firestone, Bay, Marvin H. Half Moon Cali- fornia, respondent. for TROUT, Justice This arises from the district court’s grant respondent’s motion for a new trial 60(b)(6). pursuant to I.R.C.P.
I.
BACKGROUND Bayard against Dr. J. Miller filed suit Dr. Frederick Prenger Haller and Dr. Thomas (Haller), partners his former the Silverton Partnership, Medical Clinic alleging, among things, other that Haller had breached an oral alleged contract with him. This oral that, provided contract if Miller withdrew from Partnership, the Silverton Haller would patients general surgery continue to refer for pattern Miller the same as when the physicians partners. were Miller further that, claimed at the time the oral contract made, was Haller had no intention refer- ring him, surgery patients they as had agreed, misrepresentations and that Haller’s to that fraudulently effect induced Miller to enter into this contract with them. also from the time he left the partnership, engaged in conduct that interfered with Miller’s business and contrac- tual relations. trial,
At the close of Miller’s case at
brought a motion
directed verdict with
contract,
order,
judgment,
pro-
regard
contending
to the
that months
oral
after
illegal
against
public
ceeding
such a contract was
was entered
taken.”
I.R.C.P.
60(b)
added).
Although
policy.
(emphasis
was denied
the dis-
motion
time
instructed,
jury
when
actions must
taken can often
trict court.
was
howev-
some
be
er, that,
enlarged by
sponte,
sua
they
agreement
if
district court
found an
to refer
requirement
set forth in Rule
patients existed that would conflict with the
time
jurisdictional
patient, they
not be extended
best interests
must find
“except
extent
the condi-
issue of
to the
and under
in favor
Haller on the
the oral
tions stated”
the Rule itself. I.R.C.P.
contract. The
rendered a verdict that a
patients
oral contract for the referral of
valid
60(b) explicitly provides that
Rule
parties;
Hal-
did not exist between the
motion
“made”
months of
must be
within six
misrepresenta-
ler did
commit fraud
*4
entry
judgment
the
not set forth
of
but does
tion; and that
did not interfere with
Haller
is,
fact,
a
how motion
“made”
order to
prospective
advantage
Miller’s
economic
satisfy
requirements
the time
of the statute.
relationship.
his business and contractual
case,
Sep
In this
Miller’s motion was served
1,1994.
Judgment
April
was entered
1994,
9,
tember
within
months of
six
the
or,
judgment
a
Miller filed motion for
NOV
entry
judgment,
April
of
which occurred
1.
trial,
alternative,
raising juror
in the
a new
court,
Miller failed to file the motion with the
ground
support
bias as one
to
the motion.
however,
28,
until
Haller in
October
an
motion
denied and
amended
Miller’s
was
“filed,”
synonymous
is
sists that “made”
with
judgment awarding
their
and
costs
Gordon,
citing
opinion in
v.
our
Gordon
118
18,1994.
attorney
May
was
fees
filed
Miller
804,
(1990),
Idaho
1018
where we
judg-
a
then served motion for relief from
party seeking
stated
relief from a
“[a]
that
60(b)
pursuant
to
on Haller’s
ment
I.R.C.P.
judgment
provisions
final
of
under
9,1994,
September
along
counsel
with affida-
60(b) must file a motion within six
I.R.C.P.
jurors
of
who
vits of certain
had served
entry
the judgment.”
months after
of
Id. at
itself, however,
trial. The
at the
motion
was
806,
P.2d at 1020.
not faced in
We were
28,1994.
until
not filed
October
Gordon, however,
present
with the situation
granted
The district court
motion con-
was
ed here
which
motion
served
juror
of
cluding
portions
on
two
based
applicable
period but
within the
time
filed
affidavits,
in-
had heard extraneous
A
expired.
after
months had
more
the six
physically
formation that
had
abused a
Rule,
interpretation
which
reasonable
of
wife and
this information materi-
former
is
with our
in Gor
still
consistent
statement
ally
jury’s
influenced the
decision. Haller
60(b)
don,
in Rule
is that “made” as used
appeals
granting
the district court’s order
service,
filing
such
contemplates either
motion
trial
in addi-
Miller’s
for a new
timely
if it either
that a motion is
“made”
is
tion,
interlocutory
the district court’s
denial
limit or
prior
filed
to the six month time
motion for a directed verdict.
of their
period
time
and then filed
served within that
“within a reasonable
time
thereafter.”
II.
thus,
5(d)(1).
motion,
Miller’s
was
I.R.C.P.
60(b)
timely
it
served within
“made” because was
RELIEF
I.R.C.P.
FOR
MOTION
entry
judgment
of
and then
of the
six months
FROM JUDGMENT
forty-five days later.
approximately
filed
Timeliness of
A.
Motion
initially
the district
asserts
Review
B.
Standard
grant
jurisdiction to
Mil-
court was without
party may obtain relief
judgment
aggrieved
An
motion for
from
because
ler’s
relief
served,
by making motion
motion,
judgment
from a
although timely
not
final
was
court under I.R.C.P.
Such
required
time frame. A mo-
trial
filed within
however,
used,
as
not be
judgment pursuant
to motion should
for relief from
tion
60(b)(6)
timely
v.
appeal.
for a
Johnston
made within a reason-
substitute
Rule
“shall be
(6)
Pascoe,
time,
599 P.2d
100 Idaho
and ... not more than six
able
(1979) (citations omitted).
reason,
juror
For that
The district court
misconduct.
did
although the court is vested
broad dis
apply
“unique
compelling”
and
standard
determining
grant
cretion
whether
determining
the circumstances
whether
60(b)
deny
motion,
60(b)
a Rule
justified
its discretion is
considering the Rule
motion.
granted only
limited and
on a show
apply
legal
Failure
correct
standard
ing
“unique
compelling
and
circumstances”
evaluating
motion
to a
Miller’s
amounts
clear
justifying
Bagley,
relief. Matter
Estate
abuse
district court’s discretion. See
1091, 1093,
793 P.2d
Ctr.,
Valley Shopping
Sun
119 Idaho at
(Ct.App.1990) (citing Puphal
Puphal,
We, thus,
compelled
must be
100 Idaho at
curring during
jury’s
the
of
course
the
Evidence offered that informa presence extraneous verdict must information that the court thus, tion the verdict led to affected prejudi determines both extraneous and than different result would have occurred I.R.E. previously cial. While we Wright Gold, opportunity supra, not had trial. & have an define these See Rule, terms within context of this we apply the same standards of construction as argues jurors’ that state begin utilized with are statutes. We with they prejudicial ments add were not because examination the literal words of the rule present nothing properly ed to the evidence give plain, the language its obvious and specifically ed during the trial. refers Canyon meaning. rational Grand Dones statements made several witnesses Commission, 1, 5,
Idaho State Tax Idaho his and that his had battered wife (1993). 855 P.2d parents restraining placed wife’s had a order evaluating him In admis on at one time. First, considering affidavits, however, sibility juror “extraneous,” begin by information is we not district did not take into account the court expect jurors bring ing that we them testimony regarding trial conduct. Miller’s background, knowledge service their instead, court, Thus, noted its memorandum experience. kind of informa *6 opinion any not not that it could recall evidence tion should considered extraneous. A be juror’s involving beating” coming out specific brought fact to a attention Miller’s “wife itself, however, during jurors’ outside of the trial and that the trial should ruled regarded as extraneous information that were admissible. statements must be evaluated further to determine its deputy Although the introduction admissibility. Gold, e.g. Wright & Fed See clearly jury exposed the statements sheriffs Practice Procedure: eral Evidence tenden- allegations to about Miller’s violent (1990). portions § The of affidavits cies, equally it court is clear that the district by found to be court in admissible district prop- failed into account the evidence to take clearly specific involving facts this case were erly already presented trial that had dem- at parties brought and were this action intemperance to the onstrated Miller’s jurors The inquiry of the trial. outside prior deputy obser- to the time the sheriff’s might jurors have whether the heard testimony vations were revealed. The trial trial, only It is information as well. beating and the involving Miller his wife information purported extraneous that we placed on restraining order that had been it, indeed, to determine if is extrane- examine by him the dis- should have been considered ous, trial, irrespective i.e. heard outside of depu- determining trict court whether might that information also whether same statements, certainly ty although ex- sheriff’s Here, been at trial. the state- have heard traneous, Although prejudicial, were as well. properly were termed extraneous. ments had once that Miller’s wife statement That, however, inquiry, not end the does than the hospitalized egregious been is more because, in- ruling on the extraneous before trial, district testimony presented admissibility, the court formation’s district the rec- court’s to recall and examine failure in- the extraneous must determine whether presenta- ord to determine whether evidence prejudicial. I.R.E. formation also was reasonably tion of information the extraneous Union, 680, 684, resulted in a different result was Fed. Credit might 114 Idaho have (1988) Quintana v. Antho (citing an abuse of the district court’s discretion. ny, 977, 981, 712 P.2d 109 Idaho by When the discretion exercised (Ct.App.1985)). question this case is law, by trial court is affected an error of whereby agreement an oral one appellate role of the court is to the error note physician agrees patients to refer to another appropriate made and remand the case for physician exchange agreement by for Brazier, findings. Brazier v. 111 Idaho part physician existing the latter to leave an over (Ct.App.1986), 726 P.2d nership physician former is either grounds by Swope Swope, ruled on other ilegal against pubic polcy, or as a matter of (1987). Accord law. ingly, remand we this case to the district court for a determination as to whether practice privi of medicine is a “unique compelling Idaho, circumstances” exist lege granted the state of which justify that consideration of Miller’s motion authority regulate retains the to Icense and so, juror if whether the affidavits were physicians practicing in this state in order to properly admissible evaluate the motion’s pubic citizenry. assure the health of the merits. authority, § I.C. 54-1802. Pursuant to that provides
the Idaho the state board of Code specific grounds III. disciplin medicine with for ing physician, a Icensed which includes: ILLEGALITY OF ORAL CONTRACT (8) gifts agreement Division of fees or appeals Haller also the district court’s de- spit gifts or divide fees or received for nial of their motion for a directed verdict professional any person, in- services with brought at the close of Miller’s case and corporation exchange stitution or for argues agreement oral referral. patients refer is unenforceable. § I.C. 54r-1814. initially argues review addition, government In the federal the district court’s denial of Haller’s motion giving receiving has made premature a directed verdict is and some remuneration, directly indirectly, in ex improper how usurps that it the function change involving pa for referrals Medicare the trial court. A notice of from an 1320a-7b(b). felony. tients a 42 U.S.C. granting order a motion for a trial new under interpreted Federal courts have this statute 11(a)(5) LAR. is deemed also to include all broadly only and have held even if one *7 interlocutory prior orders entered to the or purpose payment of a is to induce future 17(e)(1)(A). appealed der from. IAR. Hal referrals, the statute has been violated. ler’s motion for a directed verdict was Greber, (3d 68, United States v. 760 F.2d 69 brought at the close of Miller’s case. The Cir.1985) (referring previous version of denied, motion was and the trial continued on Kats, statute); accord United States v. this completion. the matter to its The denial of (9th 105, 108 Cir.1989). 871 F.2d verdict, thus, Haller’s motion for a directed is As a result of these and similar state stat order, interlocutory of which is utes, courts have voided contracts between proper at this time under IAR. 17. professionals health care in which some form argues aleged given exchange Haler here that of consideration is in Peters, County, referrals. Polk agreement” illegal “referral Texas is and void as 800 (E.D.Tex.1992); Beck v. Ameri against public policy. general F.Supp. The rule is 1451 Int'l, Inc., Group can Health prohibited by illegal that a contract Cal.App.3d law is 211 hence unenforceable. Williams v. Con Ma Cal.Rptr. (Ct.App.1989); 260 237 Co., Hosta, tinental & Accident son v. Cal.App.3d 152 199 Cal. Life (1979). 593 Rptr. (Ct.App.1984). 710 This same rule 859 court in As the noted, apples equaly to contracts that are violative Beck the evil to be avoided in such “ Smith v. pubic polcy. Idaho St. Univ. agreements ‘any relationship where the alleged to enforceability of the oral contract by be induced considerations referral ” parties to this action. patient.’ exist between the of the other than the best interests Beck, Ops. (quoting Cal.Rptr. (1980)). Atty. JOHNSON, J., McDEVITT,
Cal. Gen. C.J. and concur. ease, however, alleged In this III, Justice, contemplates SILAK, no or Part dissenting contract division from
oral gifts SCHROEDER, J., agreement joins nor is there divide fees dissent. giving receiving of remuneration III of the respectfully dissent from Part I oral contract exchange for referrals. The alleged contract to opinion. The oral Court’s into with Miller allegedly that Haller entered violates patients from Haller to Miller refer that, voluntarily merely provided if Miller law and is unenforcea- both federal and state Partnership, surgical refer left the Silverton Therefore, should be the district court ble. by made would continue to be rals to Miller mo- grant Haller’s instructed on remand referrals pattern “in same as such issue, in the verdict on this tion for a directed previously. This is not the had been made” court does not set the district event by strictly proscribed form of consideration granting a new trial. its order aside reason, statutes, oral for that agreed to that Miller The evidence shows cannot be termed ille contract here partnership. from the voluntarily withdraw gal, a matter of law. as Voluntary “Agreement for With- written although alleged oral Similarly, provided that consider- drawal of Partner” pa might require that Haller refer contract withdraw, agreement ation of Miller’s might conflict on a basis that tients Miller forgive repayment remaining partners would patients, resolu the best interests of note, and waive promissory and a of a loan clearly question of fact tion of that issue is noncompetition clause of the enforcement correctly court jury. The district for the also Agreement. Miller Partnership denying iri Haller’s mo the same concluded agreement provided that that an oral claimed including a verdict and tion for a directed partner- from the voluntarily if withdrew he issue. This instruc jury instruction on the surgical continue to refer ship Haller would if found that an provided tion pattern that in the same patients to Miller required Haller to agreement existed that partner- in the Miller was had existed when that con patients to Miller on basis refer this testimony, Miller described ship. In his patient, the best interests of the flicted with “the final determina- agreement as referral jury must find in favor of Haller. Mil- my partnership.” tion of value Haller, fact, jury, did find favor surgical refer- of the value ler’s estimate finding no oral contract” existed “valid him made to have been rals which should pa parties for the referral of between in excess of 1990 was in 1989 and court’s deci affirm the district tients. We $200,000. jury in determination to the sion to leave this agreement violated U.S.C. This oral for a directed ver denying Haller’s motion 1320a-7b(b), giving makes which dict on this issue. *8 remuneration, directly or indi- receiving of involving exchange for referrals rectly, IV. felony. The Third Cir- patients a Medicare CONCLUSION one “[i]f has stated that Appeals cuit Court future to induce payment was purpose dis- given, we vacate the the reasons For referrals, has been vio- statute the Medicare granting Miller’s motion order trict court’s Greber, 760 F.2d v. United States and lated.” pursuant to I.R.C.P. for a new trial Cir.1985). (3rd Here, the remuneration court for to the district remand the ease indirect, remuneration but it is might be motion under of this reconsideration accepted a referral nonetheless: affirm the herein. standards discussed We terms, exchange agreement, and other denying interlocutory order court’s district partnership of his voluntary his termination on the a directed verdict motion for Haller’s interest. Haller received the benefit of Mil- voluntary partner-
ler’s withdrawal from the exchange
ship continuing for a flow of
referrals and other consideration. Because
the referrals would have been made to satis-
fy agreement, they the oral would have been
made in violation of the Medicare/Medicaid statute,
Anti-Fraud Abuse U.S.C. 1320a-7b(b).
§ potential violation of the federal stat-
ute would also have constituted a violation of grounds
state law. The for medical disci-
pline set forth I.C. 54-1814 include:
“(21) constituting Commission of act
felony ...” Violation of the Medieare/Med-
icaid Anti-Fraud and Abuse would statutes felony accordingly
constitute a would prohibited have been under Idaho law. Trout, J., part, concurred dissented part, opinion. and filed upon Based the federal and state law cited above, public policy prohibiting and the clear upon
financial influence the referral of Medi- patients,
care I would hold that the provided
oral contract which for Miller to exchange
receive referrals in for his volun-
tary partnership withdrawal from the violat- applicable
ed state public and federal law and
policy. The district court therefore should granted
have Haller’s motion for a directed
verdict illegal. because the oral contract was Idaho, Lexington
STATE of Insurance
Company, Hawley Mount Insurance
Company, Lloyds’ Underwriters Lon
don, and Commonwealth Insurance
Company, Plaintiffs-Appellants, INCORPORATED,
RUBBERMAID corporation,
Ohio Defendant-
Respondent.
No. 21566. Idaho,
Supreme Court of
Boise, February 1996 Term.
Sept.