SAFARIS UNLIMITED, LLC, a Georgia limited liability company, Plaintiff-Respondent-Cross Appellant,
MIKE VON JONES, Defendant-Appellant-Cross Respondent.
from the District Court of the Fifth Judicial District, State
of Idaho, Twin Falls County. Hon. Randy J. Stoker, District
court decision following jury trial, affirmed in part,
vacated in part and remanded.
Williams, Meservy & Lothspeich, LLP, Jerome, for
appellant. Theodore R. Larsen argued.
Fitzgerald & Stover, PLLC, Twin Falls, for respondent.
David W. Gadd argued.
BURDICK, CHIEF JUSTICE.
appeal comes from the Twin Falls County district court. In
January 2017, a jury in that court found that an enforceable
contract bound Mike Von Jones to pay Safaris Unlimited, LLC,
(Safaris) $26, 040 for a 2012 big game hunt Jones went on in
Zimbabwe, Africa (2012 hunt). After the jury's verdict,
Safaris was awarded attorney fees plus interest on the
judgment, bringing the judgment against Jones to $122,
984.82. Safaris obtained a writ of execution in June 2017 and
attended the sheriff sale as the only bidder. At the sale,
Safaris purchased a pending lawsuit arising from Jones's
business venture by making a $2, 500 credit bid. Jones was
later successful in moving to vacate the sale.
appeals three issues from the jury trial: (1) the admission
of a handwriting exemplar; (2) certain statements made by the
district court concerning the handwriting exemplar; and (3) a
jury instruction on agency law. Safaris cross appeals the
district court's decision to vacate the sheriff sale. For
the reasons below, we affirm in part, vacate in part, and
FACTUAL AND PROCEDURAL BACKGROUND
case comes to this Court on appeal for the second time. In
July 2015, we reversed the district court's order
granting summary judgment to Safaris after concluding triable
issues of fact surrounded whether an enforceable contract
bound Jones to pay Safaris for the 2012 hunt. Safaris
Unlimited, LLC v. Von Jones (Safaris I), 158
Idaho 846, 850-51, 353 P.3d 108, 1084-85 (2015). In seeking
to establish the existence of an enforceable contract,
Safaris pointed to an invoice for the 2012 hunt that Jones
purportedly signed, but this Court rejected that argument.
Id. As we explained in Safaris I, "the
purported signature of Jones at the bottom of an invoice is
not sufficient to show any kind of contract between Jones and
Safaris Unlimited for the 2012 hunt." Id. at
851, 353 P.3d at 1085.
remand, a three-day jury trial was held in January 2017.
Safaris called three witnesses. Jones testified as the only
witness in his defense. Jones testified, as relevant here,
that a hunting application and an invoice for the 2012 hunt
did not contain his authentic signature. Jones's
testimony contradicted the testimony of Safaris's
witnesses. As such, Safaris moved to admit a handwriting
exemplar, exhibit 40, so as to allow the jury to determine
whether the hunting application and invoice for the 2012 hunt
contained Jones's authentic signature. Outside the
jury's presence, Jones initially admitted exhibit 40
contained his authentic signature. But when later questioned
in front of the jury about his signature on exhibit 40, he
equivocated and hedged his testimony when Safaris's
counsel began laying a foundation for its admission.
Jones's equivocation prompted the district court to
intervene by instructing Jones to give a "yes-or-no
answer" to whether exhibit 40 contained his authentic
signature. Jones eventually confirmed that exhibit 40
contained his authentic signature, and it was admitted into
the district court charged the jury, the jury deliberated for
approximately 81 minutes before reaching a unanimous verdict
in Safaris's favor. The jury found that an enforceable
contract existed between Jones and Safaris to bind Jones to
pay Safaris $26, 040 for the 2012 hunt. The district court
thus entered judgment in Safaris's favor on January 17,
2017, and later amended that judgment by awarding Safaris
interest and attorney fees on April 17, 2017. Under the
amended judgment, Safaris was awarded $122, 984.82.
2017, Safaris had collected $287.01 on the judgment against
Jones. Safaris petitioned for and obtained a writ of
execution. The writ of execution, issued on June 2, 2017,
reads in relevant part:
NOW, THEREFORE, you, the Sheriff, are hereby required to
satisfy said Judgment, including accrued interest, out of the
personal and real property of Mike Von Jones, including,
without limitation, all right, title, claim, and interest of
Defendant Mike Von Jones in and to all claims, demands,
damages, debts, liabilities, accounts, reckonings,
obligations, bonds, guarantees, warranties, costs, expenses,
losses, liens, actions, and causes of action of each and
every kind, nature and description, whether now known or
unknown, suspected or unsuspected, which Jones might have,
own, or hold, or at any time heretofore ever had, owned, or
held against Jeremy Sligar and/or Overtime Garage, LLC,
including, without limitation, those claims that are the
subject of the lawsuit of Mike Jones v. Jeremy Sligar and
Overtime Garage, LLC; Twin Falls County Case No.
CV42-16-1554, [(the Sligar litigation)] and any and all
and make return of this Writ within twenty (20) days after
receipt hereof, entering that which you have done thereon.
sheriff sale was conducted as scheduled, and Safaris, the
only bidder in attendance, purchased the Sligar
litigation by making a $2, 500 credit bid. Jones did not
attend the sale. Jones, however, was successful in moving to
vacate the sale.
timely appeals the admission of exhibit 40 as a handwriting
exemplar, statements made by the district court concerning
exhibit 40, and a jury instruction concerning agency law.
Safaris timely cross appeals the district court's
decision to vacate the sheriff sale.
ISSUES ON APPEAL
1. Did the district court abuse its discretion by admitting
exhibit 40 as a handwriting exemplar?
2. Did the district court violate Jones's procedural due
process rights by instructing Jones to answer whether he
signed exhibit 40?
3. Did the district court err by giving jury instruction 13?
4. Did the district court abuse its discretion by setting
aside the sheriff sale?
5. Should attorney fees be awarded on appeal?
The district court did not abuse its discretion by admitting
exhibit 40 as a handwriting exemplar.
contends the district court abused its discretion by
admitting exhibit 40 as a handwriting exemplar after Jones
disputed whether the signatures on exhibits 34 and 35 were
authentic. Exhibit 34 is the invoice for the 2012
hunt that Jones purportedly signed. Exhibit 35 is a hunting
application for the 2012 hunt that Jones purportedly signed.
Exhibit 40 is a temporary protective order that was entered
in the Sligar litigation, but all contents, less
Jones's signature, were redacted. Exhibit 40 was
therefore offered and admitted for the limited purpose of
allowing the jury to compare Jones's signatures on
exhibits 34, 35, and 40 to determine whether the signatures
on exhibits 34 and 35 were authentic.
contends the district court erred by admitting exhibit 40
into evidence as a handwriting exemplar, and therefore,
"[v]acation of the jury verdict and remand for a new
trial is required." Idaho Rule of Evidence 901(b)(3)
specifically authorizes handwriting comparisons to be
performed "by the trier of fact or by expert witnesses
with specimens which have been
authenticated." Accord D. Craig Lewis, Idaho
Trial Handbook § 21:2 (2d ed. 2017). As an evidentiary
decision, the district court's decision to admit exhibit
40 is reviewed for an abuse of discretion. E.g.,
Mulford v. Union Pac. R.R., 156 Idaho 134, 138, 321
P.3d 684, 688 (2014). To determine whether the district court
abused its discretion, this Court evaluates whether the
district court: (1) correctly perceived the issue as one of
discretion; (2) acted within the outer boundaries of its
discretion; (3) acted consistently with relevant legal
standards; and (4) reached its decision by an exercise of
reason. Lunneborg v. My Fun Life, slip op. 45200 at
p. 7 (June 28, 2018). Jones does not isolate which prong of
the abuse of discretion standard he targets. In fact, he does
not identify the abuse of discretion standard at all.
However, given that Jones contends the admission of exhibit
40 contravenes case law holding that handwriting exemplars
are admissible except in "extreme and unusual"
circumstances, Jones's argument implicates whether the
district court failed to act consistently with relevant legal
support of Jones's "[e]xtreme and unusual"
circumstances argument, he cites to federal case law that
posits "extreme and unusual" circumstances involve
instances in which "the authenticity of the handwriting
is the primary issue in the case, as where forgery is
alleged." United States v. Jenkins, 785 F.2d
1387, 1395 (9th Cir. 1986). In this case, forgery was never
alleged. Further, the authenticity of Jones's signatures
on exhibits 34 and 35 was not the primary issue in the case.
The primary issue was whether an enforceable contract bound
Jones to pay Safaris. The authenticity of Jones's
signature on exhibits 34 and 35 is not outcome determinative
of that issue. As this Court succinctly explained in
Safaris I, "the purported signature of Jones at
the bottom of an invoice is not sufficient to show any kind
of contract between Jones and Safaris Unlimited for the 2012
hunt." 158 Idaho at 851, 353 P.3d at 1085. While Jones
refers to the authenticity of his signature on exhibits 34
and 35 as "a central issue," it is clearly not
"the primary issue" in this case.
identifies several circumstances that he calls "extreme
and unusual." First, Jones contends he had no
opportunity to rebut the irrelevant and prejudicial contents
of exhibit 40. Below, Jones objected to the admission of
exhibit 40 by pointing to "the amount of confusion the
jury's going to face . . . . There's so much in that
document that has no relation to this case whatsoever.
Grossly misleading." Although Jones did not specifically
reference Idaho Rule of Evidence 403, this argument
implicates Rule 403, which permits the exclusion of relevant
evidence "if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of
the issues, or misleading the jury, or by considerations of
undue delay, waste of time, or needless presentation of
cumulative evidence." The district court did not agree with
Jones that exhibit 40 would confuse or mislead the jury. But
the district court did find exhibit 40 implicated another
basis of Rule 403-unfair prejudice. The district court thus
redacted exhibit 40 so that only Jones's signature on
exhibit 40 was submitted to the jury and admonished the jury
that exhibit 40 was to be considered for the "limited
purpose of . . . considering whether, what Mr. Jones'
signature is." By doing so, the district court acted in
accord with a cornerstone purpose of the Idaho Rules of
Evidence, which is to construe the rules "to secure
fairness in administration, elimination of unjustifiable
expense and delay, and promotion of growth and development of
the law of evidence, to the end that the truth may be
ascertained and proceedings justly
determined." I.R.E. 102 (emphasis added).
redaction creates another issue, according to Jones. As he
the redaction of it makes additional inquiry from me or any
recuperation impossible. I want it redacted because it's
prejudicial, right? Then the signature, here's the
situation, you're presented with a protection order, and
you've been through a protection order hearing. Nobody
comes out of that hearing feeling great, nobody comes out of
those with their wits calm, cool, and collected, to sign a
document with the prettiest cursive, [y]our Honor. The fact
this is redacted gives me no opportunity to go into that he
may have been anxious, that he may have been upset, that he
may have been shaking. There may have been factors relating
to this document that affected his signature on that date,
but we don't redact it, then you've got all the
prejudicial evidence, all the prejudicial effect of it. So
this document puts me between a rock and a hard place, and
it's a catch 22. I feel that there needs to be a record
made of that reality that its [sic] creates.
elaborates that the redaction "left Jones with no
ability to effectively offer rebuttal testimony. . . . Jones
could not explain that his signature was hasty and hurried as
he signed the document in a frustrated and emotional state .
. . ."
not persuaded. For one, Jones cites to no legal authority in
support of this argument. State v. Zichko, 129 Idaho
259, 263, 923 P.2d 966, 970 (1996) ("A party waives an
issue cited on appeal if either authority or argument is
lacking, not just if both are lacking."). In addition,
Jones's argument is directed at the weight he believes
exhibit 40 should have received from the jury, not at
admissibility. Jones's argument is therefore
improvidently made at this juncture. "Indeed, allowing
the court to re-weigh the evidence would infringe upon the
parties' right to a jury trial under Article I, sec. 7,
of the Idaho Constitution." Nava v. Rivas-Del
Toro, 151 Idaho 853, 858, 264 P.3d 960, 965 (2011).
"It is not our role to reweigh the evidence."
Frontier Dev. Grp., LLC v. Caravella, 157 Idaho 589,
595, 338 P.3d 1193, 1199 (2014) (quoting In re Doe
2009-19, 150 Idaho 201, 209, 245 P.3d 953, 961 (2010)).
Jones takes issue with how exhibit 40 was not disclosed
before trial. Jones made this argument below, and the
district court properly rejected it. Exhibit 40, which
contains Jones's signature dated nine days before trial,
was offered to impeach Jones's denial that he signed
exhibits 34 and 35. Impeachment evidence need not be
disclosed before trial. I.R.C.P. 16(d) ("The court may
order the parties to file a list of all trial exhibits and
names and addresses of witnesses who may testify, except
impeachment exhibits and witnesses." (emphasis
final three contentions-that exhibit 40 was cumulative, came
from a case that should have been sealed and inaccessible by
Safaris, and inspired improper statements from the district
court-were not argued below. Thus, Jones failed to preserve
these arguments for appeal. See, e.g., Obenchain
v. McAlvain Constr., Inc., 143 Idaho 56, 57, 137 P.3d
443, 444 ...