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Safaris Unlimited, LLC v. Jones

Supreme Court of Idaho

June 29, 2018

SAFARIS UNLIMITED, LLC, a Georgia limited liability company, Plaintiff-Respondent-Cross Appellant,
v.
MIKE VON JONES, Defendant-Appellant-Cross Respondent.

          Appeal from the District Court of the Fifth Judicial District, State of Idaho, Twin Falls County. Hon. Randy J. Stoker, District Judge.

         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.

          Worst, Fitzgerald & Stover, PLLC, Twin Falls, for respondent. David W. Gadd argued.

          BURDICK, CHIEF JUSTICE.

         This 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.

         Jones 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 remand.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         This 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.

         On 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 evidence.

         After 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.

         By June 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[1])] and any and all proceeds thereon,
and make return of this Writ within twenty (20) days after receipt hereof, entering that which you have done thereon.

         The 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.

         Jones 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.

         II. 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?

         III. ANALYSIS

         A. The district court did not abuse its discretion by admitting exhibit 40 as a handwriting exemplar.

         Jones 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.[2] 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.

         Jones 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."[3] 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 standards.

         In 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.

         Jones 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."[4] 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."[5] I.R.E. 102 (emphasis added).

         But the redaction creates another issue, according to Jones. As he argued below,

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.

         Jones 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 . . . ."

         We are 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)).

         Second, 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 added)).

         Jones's 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 ...


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