This is а breach of contract case in which the following rulings of the trial court are at issue:
1. the admission of testimony by the majority owner and president of a closely-held corporation concerning the loss of market value and profits of the corporation;
2. the denial of motions for a directed verdict and judgment not withstanding the verdict (n.o.v.);
3. the denial of a motion for new trial madе under I.R.C.P. 59(a)(6);
4. the amount of attorney fees awarded pursuant to I.C. § 12-120(3);
5. the denial of attorney fees requested under I.C. § 12-121;
6. the denial of sanctions requested under I.R.C.P. 11(a)(1) and I.C. § 12-123; and
7. the award of prejudgment interest on a liquidated award to one party, even though there was an unliquidated award to the other party.
We affirm all of these rulings.
I.
THE BACKGROUND AND PRIOR PROCEEDINGS.
Pocatello Auto Color, Inc. (PAC), a closely-held corporation owned by Linda Yack and her husband, was the exclusive distributor in eastern and southcentral Idaho for Akzo Coatings, Inc. (Akzo), a manufacturer of automotive paint, pursuant to a wholesaler agreement (the agreement). Akzo terminated the agreement without giving PAC the ninety-day written notice specified in the contract. PAC sued Akzo for breach of contract, alleging that the breach had destroyed the marketаbility of its business. Akzo brought a counterclaim for breach of contract, alleging that PAC had failed to pay $36,460.07 due for paint Akzo had delivered pursuant to the agreement. The trial court granted Akzo summary judgment on this counterclaim, and awarded prejudgment interest, together with costs and attorney fees.
The trial court denied Akzo’s motion for directed verdict, and the jury awarded PAC $147,000.00 in damages. The trial court denied Akzo’s motions for judgment n.o.v. and for new trial, but reduced PAC’s award by the amount of the judgment awarded on Akzo’s counterclaim. The trial court also awarded PAC attorney fees pursuant to I.C. § 12-120(3).
Akzo appealed, and PAC cross-appealed. This Court аssigned the ease to the Court of Appeals, which reversed the trial court’s denial of Akzo’s motions for directed verdict and for judgment n.o.v., and affirmed the trial court’s award of prejudgment interest to Akzo. This Court granted PAC’s petition for review.
II.
THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN ADMITTING THE TESTIMONY OF LINDA YACK CONCERNING PAC’S MARKET VALUE.
Akzo asserts that the trial court abused its discretion by allowing Linda Yack to give her opinion of PAC’s market value. We disagree.
For more than eighty-five years, this Court hаs followed the rule that the owner of property is a competent witness concerning its value.
E.g., Howes v. Curtis,
Akzo argues, however, that Linda Yack was not the owner оf PAC’s business, but only of fifty-one percent of its stock. Here, in addition to owning the majority interest in the company, with her husband owning the remaining shares, Linda Yack served as president of the corporation, trav-elled from her home in Utah to Pocatello weekly to attended to the affairs of the business, received the company’s daily bookkeeping by mail, paid the suppliers, steppеd in on the bookkeeper’s request to help collect the accounts receivable, and provided the accountants with the information to prepare the company’s tax returns and financial statements. Under these circumstances, Linda Yack was effectively the owner of the business, even though the business operated in a corporate form. She exercisеd the same dominion and control of the business that an individual owner of a business would. Therefore, it was appropriate for the trial court to consider her testimony concerning the market value of the business.
Akzo also challenges Linda Yack’s testimony on the ground that she did not have any personal knowledge of the market value, as required by I.R.E. 602, pointing out her admission on cross-examination that she did not actually know the fair market value of PAC’s business. We first note that Akzo’s objection to Linda Yack’s opinion testimony concerning PAC’s fair market value was on “the grounds of lack of foundation. She’s not an expert on the fair market value of her company.” Akzo did not premise its objection on the personal knowledge requirement of I.R.E. 602. Accordingly, we address only the objection Akzo made.
Next, we note that in
Beech v. American Sur. Co.,
“The general rule, that to qualify a witness to testify as to market value, a proper foundation must be laid showing the witness to have knowledge upon the subject, does not apply to a party who is testifying to the value of property which he owns. The owner of property is presumed, in a way, to be familiar with its value, by reason of inquiries, comparisons, purchases and salеs. The weight of such testimony is another question, and may be affected by disclosures made upon cross-examination as to the basis for such knowledge, but this will not disqualify the owner as a witness.”
It was for the jury to evaluate whether the weight of Linda Yaek’s testimony was affected by her admissions on cross-examination. The trial court did not abuse its discretion in admitting Linda Yack’s testimony concerning the fair market value of PAC’s business.
III.
THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN ALLOWING LINDA YACK TO TESTIFY CONCERNING PAC’S LOSS OF PROFITS.
Akzo asserts that the trial court abused its discretion in admitting Linda Yack’s testimony concerning PAC’s loss of profit in the fiscal year when Akzo breached the agreement. We disagree.
This Court has held that a trial court does not abuse its discretion in finding an owner competent to testify concerning profits where the owner’s testimony was based on “previous years of experience” аnd “personal knowledge of the market,” and was substantiated by business records.
Nora v. Safeco Ins. Co.,
On appeal, Akzo challenges Linda Yack’s testimony on the ground she did not have the personal knowledge required by I.R.E. 602. At trial, however, Akzo’s objection was that she was not an expert because she was not an accountant. Therefore, we address only the objection preserved before the trial сourt.
In her testimony, Linda Yack took the profit indicated on PAC’s financial report for the first seven months of the fiscal year, which was admitted in evidence without objection, and by extrapolation estimated the profit for the entire fiscal year. She did this by multiplying the profit for the first seven months by three, based on her experience that gross sales revenue for the first seven months would be equal tо one-third of what the company would have grossed for the entire year, if Akzo had not breached the agreement. The trial court did not abuse its discretion in admitting this testimony.
Akzo points out that Linda Yack’s testimony was depreciated on cross-examination because she did not know the percentage of gross sales represented by PAC’s profits during the first seven months of the fiscal year. We first note that this cross-examination did not attack Linda Yack’s opinion that gross sales revenue for the first seven months of the fiscal year would represent one-third of the gross sales revenue for the entire fiscal year. In any event, the jury had this cross-examination available to it in considering the weight to be given to Linda Yack’s opinion. It did not affect the trial court’s exercise of discretion in admitting her opinion of the loss of profits.
IV.
THE TRIAL COURT PROPERLY DENIED AKZO’S MOTIONS FOR DIRECTED VERDICT AND JUDGMENT N.O.V.
Akzo asserts that the trial court should have granted Akzo’s motions for a directed verdict and for judgment n.o.v. because there was not substantial evidence to support PAC’s claims for loss of market value and loss of profits. We disagree.
Although there are two motions, one for directed verdict and the other for judgment n.o.v., we need make only one ruling bеcause both are governed by the same standard.
Quick v. Crane,
In making the motion, the defendants necessarily admitted the truth of all of theplaintiffs’ evidence and every legitimate inference that could be drawn therefrom in the light most favorable to the plaintiff. Whether that evidence is sufficient to create an issue of fact is purely a question of law. The question is not whether there is literally no evidence supporting the party against whom the motion is made, but whether there is substantial evidence upon which the jury could properly find a verdict for that party. Hence, the trial judge is not free to weigh the evidence or pass on the credibility of witnesses and make his own separate findings of fact and compare them to the jury’s findings as [the judge] would in deciding on a motion for a new trial. Rather the trial judge must view all of the evidence and all inferences drawn therefrom in favor of the non-moving party, and decide if there was substantial evidence to justify submitting the case to the jury, or, in other words, that there can be but one conclusion as to the verdict that reasonable minds could have reached.
Id.
at 763-64,
On appeal, this Court “applies the same standard as does the trial cоurt, and grants no deference to that court’s views.”
Bott v. Idaho State Bldg. Authority,
Examining the evidence in this manner, the motions were prоperly denied because taken as true Linda Yaek’s testimony would clearly allow a reasonable mind to reach the conclusion the jury did in awarding damages for PAC’s loss of market value and profits.
Y.
THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN DENYING AKZO’S MOTION FOR A NEW TRIAL.
Akzo asserts that the trial court abused its discretion by not granting a new trial pursuant to I.R.C.P. 59(a)(6). We disagree. “A new trial may be granted ... for any of the following reasons:_ 6. Insufficiency of the evidence to justify thе verdict or other decision, or that it is against the law.” I.R.C.P. 59(a)(6) (1994).
In ruling on a motion for a new trial on the ground that the verdict is not supported by sufficient evidence, the trial court must weigh the evidence, and grant the motion only if “the verdict is not in accord with [its] assessment of the clear weight of the evidence.”
Quick v. Crane,
We will not disturb the trial court’s decision to grant or deny a new trial unless the trial court’s discretion “clearly appears to have been applied unwisely, and to have been manifestly abused.”
Westfall v. Caterpillar, Inc.,
The test we apply to determine whether a trial court has abused its discretion is to ask:
(1) whether the trial court correctly perceived the issue as one of discretion;
(2) whether the trial court acted within the outer boundaries of its discretion and consistently with the legal standards applicable to the specific choices available to it; and
(3) whether the trial court reachеd its decision by an exercise of reason.
Bott,
With regard to defendant’s motion for a new trial, this Court has weighed the evidence and the credibility of the witnesses in this matter. The evidence in this ease was conflicting; however, it was within the province of the jury to weigh the credibility of the witnesses. This Court concludes the jury verdict was not based on passion or prejudice, but rather upon the evidence and testimony of the witnesses. This Court, after weighing the evidence and the credibility of the witnesses who testified in this matter does conclude that the verdict is in accord with the clear weight of the evidence; consequently defendant’s motion for a new trial is DENIED.
The trial court clearly perceived the issue as one of discretion. The statements of the trial court also indicate that it reached its decision by an exercise of reason. The trial court also acted within the outer boundaries of its discretion and applied the proper legal standards. Although Akzo contends that Linda Yack’s testimony concerning PAC’s loss of market value and loss of profit is of dubious probative value, for this Court to оverturn the trial court’s denial of the motion for a new trial we would have to conclude that Linda Yack’s testimony was “entirely worthless.”
See Bancroft v. Smith,
VI.
THE TRIAL COURT PROPERLY AWARDED PREJUDGMENT INTEREST ON AKZO’S LIQUIDATED AWARD.
PAC asserts that the trial court improperly awarded prejudgment interest on Akzo’s liquidated award by failing to set off PAC’s unliquidated award before calculating the prejudgment interest. We disagree.
Prejudgment interest should be awarded on a claim that is “liquidated or ascertainable by mere mathematical process.”
Ervin Const. Co. v. Van Orden,
In
Seubert,
a general contractor was charged $10,622.93 pursuant to a liquidated damages agreement with the principal for late completion of a road construction project. The general contractor attempted to pass on this cost to its -subcontractor, which the general contractor held responsible for the delay. The general contractor subsequently sued the subcontractor and received a judgment of $1,032.00 for road maintenance costs incurred due to the subcontractor’s delay on the project. The subcontractor successfully counterclaimed for the $10,622.93 the general contractor had withheld. The trial court found the subcontractor’s counterclaim was for a liquidated amount and awarded prejudgment interest on the amount remaining after subtracting the general contractor’s unliquidated award of $1,032.00.
Seubert,
In
Ervin,
the Court addressed a different situation. A contractor was terminated and sued the owners to compel payment under the contract for the “percentage of work completed based on net contract amount and value of materials installed.”
Ervin,
The underlying premise of
Ervin
is that where there аre offsetting claims, one liquidated and the other unliquidated, no prejudgment interest may be awarded on the liquidated claim if the unliquidated claim directly affects or makes uncertain the value of the liquidated claim. In effect, this is only a refinement of the rule that prejudgment interest may be awarded only on liquidated amounts. As the Court in
Seubert
characterized the holding in
Ervin:
“In
Ervin,
we reversed the trial court’s award of prejudgment interest becаuse the
principal
amount of liability under the contract was unascer-tainable.”
Seubert,
Reading
Ervin
and
Seubert
together resolves the prejudgment issue here. Under
Ervin,
prejudgment interest is precluded where the amount awardable on ° one party’s claim for a liquidated amount cannot be ascertained because of the other party’s unliquidated claim.
See Ervin,
The present case, however, is closer to Seubert. The two claims in this case, like the claims in Seubert, arise under the same contract but are not so closely related that the unliquidated claim renders the liquidated claim unascertainable. Therefore, it was proper for the trial court to award prejudgment interest to Akzo. Because there is no provision of the agreement that provides for a deduction of any unliquidated amount owed PAC from the amount owed Akzo, the offsetting allowed in Seubert is not applicable here.
VII.
THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN AWARDING PAC ATTORNEY FEES PURSUANT TO I.C.
§ 12-120(3).
Akzo asserts that the trial court abused its discretion in awarding PAC attorney fees pursuant to I.C. § 12-120(3) without deducting the fees attributable to tort claims which PAC dismissed before trial. We disagree.
In
Fuller v. Wolters,
Akzo fails to focus on the fact that PAC requested $49,000 in attorney fees, consistent with the contingent fee agreement it had with its counsel, while the trial court awarded only $18,972.50, which was the value of attorney fees calculated at an hourly rate ($20,972.50), less $2,000.00 representing the trial court’s determination of the attorney fees related to PAC’s defense of Akzo’s counterclaim.
The calculation of reasonable attorney fees is within the discretion of the trial court.
See, e.g., Garnett v. Transamerica Ins. Servs.,
VII.
THE TRIAL COURT DID NOT ABUSE ITS DISCRETION BY REFUSING TO AWARD AKZO ATTORNEY FEES PURSUANT TO I.C. § 12-121 OR SANCTIONS PURSUANT TO I.R.C.P. 11(A)(1) AND I.C. § 12-123.
Akzo asserts that the trial court abused its discretion by refusing to award
I.C. § 12-121, as modified by I.R.C.P. 54(e)(1), provides for an award of attorney fees, and I.R.C.P. 11(a)(1) and I.C. § 12-123 provide for sanctions where frivolous claims are made. When a case involves “multiple claims and multiple defenses, however, it is not appropriate to segregate those claims and defenses to determine which were or were not frivolously defended or pursued.”
Magic Valley Radiology Assocs. v. Professional Business Servs., Inc.,
Considering the entire course of the litigation in the present case, rather than focusing on PAC’s aborted tort claims, it is clear that the trial court did not abuse its discretion in refusing to award attorney fees or to sanction PAC pursuant to I.C. § 12-121, I.R.C.P. 11(a)(1), or I.C. § 12-123.
See Sun Valley Shopping Ctr., Inc. v. Idaho Power Co.,
VIII.
CONCLUSION.
We affirm the trial court.
We award PAC costs on appeal together with attorney fees on appeal, pursuant to I.C. § 12-120(3).