Litke v. Munkhoff , 417 P.3d 224 ( 2018 )

IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 44735
BAERBEL LITKE, surviving spouse and )
successor in interest for Klaus Kummerling, )
and the marital community composed thereof, )
)
Plaintiff-Respondent, ) Moscow, April 2018 Term
)
v. ) 2018 Opinion No. 44
)
MARK MUNKHOFF and ROBYN ) Filed: April 27, 2018
MUNKHOFF, husband and wife, and the )
marital community composed thereof, ) Karel A. Lehrman, Clerk
)
Defendants-Appellants, )
)
and )
)
CITY OF COEUR D’ALENE, IDAHO, a )
political subdivision of the State of Idaho, )
COEUR D’ALENE IDAHO POLICE CHIEF )
RON CLARK; and SAM MUNKHOFF, a )
single person, )
)
Defendants. )
)
Appeal from the District Court of the First Judicial District, State
of Idaho, Kootenai County. Hon. Cynthia K. C. Meyer, District Judge.
The judgment of the district court is affirmed. Costs on appeal are
awarded to respondent.
Winston & Cashatt, Spokane, for Appellants. Collette C. Leland argued.
Powell, Kuznetz & Parker, PS, Spokane, for Respondent. Michael Parker argued.
_______________________________________________
BEVAN, Justice
Mark and Robyn Munkhoff (the “Munkhoffs”) appeal the district court’s denial of their
motions for summary judgment and a new trial or remittitur under Idaho Code section 6-807 and
Idaho Rules of Civil Procedure 59, 59.1, and 60. We affirm the district court’s judgment.
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I. FACTS AND PROCEDURE
On November 26, Animal Control Officer Laurie Deus responded to a report of a vicious
dog. When she arrived on scene, Officer Deus observed a black and white pit bull, later
identified as “Bo,” aggressively charging at anyone who got near him. Bo was so aggressive that
Officer Deus had to call in a second officer to help capture him. Bo was declared aggressive by
Officer Deus the same day. The two officers were finally forced to use a Taser on Bo to subdue
and control him. The following day the Munkhoffs’ son Sam Munkhoff (“Sam”) called Animal
Control to report Bo missing. Over the phone, Officer Deus informed Sam that she was declaring
Bo aggressive, that Sam must follow the provisions contained in Coeur d’Alene City Ordinance
6.20.030, and that Sam must sign the declaration form which explained the requirements for
keeping and controlling an aggressive dog before he could claim him.
Sam told Officer Deus that Bo would be better controlled at the Munkhoffs’ home than at
his apartment. Officer Deus met Sam at the Munkhoffs’ home and determined the fence met the
specifications contained in Ordinance 6.20.030. Under this ordinance, Officer Deus also
informed Sam that signs must be posted warning the public to “Beware of Dog,” and if Bo left
the enclosed yard he needed to be muzzled. Sam was given a written copy of Ordinance 6.20.030
and signed the declaration form. Before Officer Deus left, Mark Munkhoff (“Mark”) arrived.
Because Bo was expected to stay with the Munkhoffs Officer Deus explained to Mark the
requirements for keeping and controlling an aggressive dog and asked if he was willing to
contain Bo according to Ordinance 6.20.030. Mark verbally agreed to follow the requirements as
Officer Deus explained them to him.
On April 30, 2013, Officer Deus received a report of a dog bite that occurred on April 29,
2013, near the Munkhoffs’ home. Animal Control Officer Gilbertson responded to the call. The
owner of the dog was identified as Sam. Sam was cited for having an animal running at large, an
animal attacking, biting or chasing, and Bo was declared dangerous. Officer Gilbertson cited
Mark as well, whose dog Dexter was also running at large. At the same time, Officer Gilbertson
told Mark that he was declaring Bo dangerous. Mark told Officer Gilbertson that “Sam is
absolutely not allowed to move back in nor is he allowed to bring Bo back even for a visit.”
Officer Deus, who was trying to locate Sam and Bo, followed up with Mark the next day to have
either Sam or Mark sign the form declaring Bo dangerous. Officer Deus could not reach Sam,
but she spoke with Mark on the phone. Mark stated that “if that dog shows up [I] will shoot it.”
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In the weeks before Bo bit Klaus Kummerling 1 (“Kummerling”), Sam took a job in North
Dakota. Sam left Bo at the Munkhoffs’ home beginning on July 5, 2013. Kummerling, his wife
Baerbel Litke (the “Kummerlings”), and the Munkhoffs are neighbors, whose properly line is
separated by a wooden fence. Kummerling had often seen Bo in the Munkhoffs’ backyard prior
to the incident, and Bo would frequently bark at Kummerling and charge the fence in an
aggressive manner whenever Kummerling was working in his yard. On July 25, 2013, Sam
returned from North Dakota for a visit and was staying with the Munkhoffs. That afternoon Sam
took Bo for a walk. Bo was not muzzled as required under Coeur d’Alene City Ordinance
6.20.030. When Sam and Bo walked past the Kummerlings’ driveway, Kummerling asked Sam
if it was “okay to pet the dog.” Kummerling stated that if he could make friends with Bo, then
maybe Bo would stop charging at the fence. Sam, who was holding Bo’s leash, gave
Kummerling permission to pet the dog. When Kummerling bent down and reached out to pet
him, Bo lunged at him, knocked him to the ground, and bit his face. Kummerling’s lower lip and
chin were partially torn from his face, and a segment of his face was torn away completely.
On July 29, 2015, the Kummerlings filed a complaint, alleging claims for negligence,
gross negligence, outrage, and nuisance against the City of Coeur d’Alene, Coeur d’Alene Police
Chief Ron Clark, the Munkhoffs, and Sam. The Kummerlings did not allege in their complaint
that the Munkhoffs were vicariously liable for Sam’s conduct. The district court dismissed the
claims against the City and Chief Clark. The Munkhoffs filed a motion for summary judgment
on March 17, 2016. The district court granted the Munkhoffs’ motion as to all claims except the
claim for negligence. Sam, who represented himself, did not join in the Munkhoffs’ summary
judgment motion.
On September 19-22, 2016, this case was tried to a jury. The jury returned a special
verdict, finding that the Munkhoffs and their son Sam were negligent, negligent per se, and that
their negligence was the actual and proximate cause of Kummerling’s injuries. The jury allocated
fault and calculated damages. Kummerling was awarded $16,603.00 in economic damages and
$185,000.00 in non-economic damages. The Munkhoffs moved for a new trial pursuant to Idaho
Rules of Civil Procedure 59(a)(1)(A), (F), and (G), for remittitur pursuant to Idaho Code section
6-807 and Rule 59.1, and for relief from judgment pursuant to Rule 60(b)(3). The district court
1
Klaus Kummerling passed away while this appeal was pending. His wife, Baerbel Litke was then substituted as
the proper party in interest by Order of this Court.
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denied the motions, and a judgment was entered on November 7, 2016. On December 14, 2016,
the Munkhoffs timely filed a notice of appeal.
II. STANDARD OF REVIEW
When this Court reviews the district court’s ruling on a motion for summary judgment, it
employs the same standard as the district court’s original ruling on the motion. Infanger v. City
of Salmon, 137 Idaho 45, 46–47, 44 P.3d 1100, 1101–02 (2002). In a motion for summary
judgment, the moving party bears the burden of proving the absence of a material fact. Sadid v.
Idaho State University, 151 Idaho 932, 938, 265 P.3d 1144, 1150 (2011) (citation omitted).
“When considering whether the evidence in the record shows that there is no genuine issue of
material fact, the trial court must liberally construe the facts, and draw all reasonable inferences,
in favor of the nonmoving party.” Liberty Bankers Life Ins. Co. v. Witherspoon, Kelley,
Davenport & Toole, P.S., 159 Idaho 679, 685, 365 P.3d 1033, 1040 (2016). Although
circumstantial evidence can create a genuine issue for trial, a mere scintilla of evidence is
insufficient to demonstrate the existence of a genuine issue of material fact. Callies v. O’Neal,
147 Idaho 841, 846, 216 P.3d 130, 165 (2009) (citation omitted). This Court reviews “only that
portion of the record which was before the trial court at the time the summary judgment motion
was presented.” Brown v. Matthews Mortuary, Inc., 118 Idaho 830, 833, 801 P.2d 37, 40 (1990).
“If the evidence reveals no disputed issues of material fact, then only a question of law remains,
over which this Court exercises free review.” Lapham v. Stewart, 137 Idaho 582, 585, 51 P.3d
396, 399 (2002) (citation omitted).
The standard of review applicable to a district court’s decision to grant or deny a new
trial under Idaho Rule of Civil Procedure 59(a) is abuse of discretion. Burggraf v. Chaffin, 121
Idaho 171, 173, 823 P.2d 775, 777 (1991). “The decision by a trial court to grant or deny a
motion for a new trial rests within the sound discretion of the trial court and will not be disturbed
on appeal absent a showing of a clear and manifest abuse of discretion.” Barnett v. Eagle
Helicopters, Inc., 123 Idaho 361, 363, 848 P.2d 419, 421 (1992) (citation omitted). When a
district court’s discretionary decision is reviewed on appeal, “this Court considers: (1) whether
the trial court correctly perceived the issue as one of discretion; (2) whether the trial court acted
within the boundaries of this discretion and consistent with the legal standards applicable to the
specific choices available to it; and (3) whether the trial court reached its decision by an exercise
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of reason.” Rockefeller v. Grabow, 139 Idaho 538, 545, 82 P.3d 450, 457 (2003) (citation
omitted).
III. ANALYSIS
A. This Court will not address whether the district court erred when it denied the
Munkhoffs’ motion for summary judgment.
In their motion for summary judgment, the Munkhoffs argued that, as a matter of law,
they had no affirmative duty to prevent Kummerling’s injuries because they were not in control
of Bo at the time of the incident. Furthermore, while the Munkhoffs conceded that it might have
been foreseeable Bo could cause harm while on their property, they asserted that the district
court did not examine whether or not the Munkhoffs were Bo’s custodians at the time of the
incident. As a result, the Munkhoffs maintained the district court imposed upon them expanded
duties of care when it found they had a duty to prevent an injury from occurring away from their
property. Finally, the Munkhoffs asserted that even if a genuine issue of material fact existed that
they had a duty and somehow breached that duty, there was no causal connection between the
alleged breach and Kummerling’s injuries. The Munkhoffs made this assertion because Sam’s
act of walking Bo without a muzzle was a superseding cause. The trial court denied the motion
and Munkhoffs claim error in that decision as their first issue on appeal. We will not review the
denial of the Munkhoffs’ motion for summary judgment.
“An order denying summary judgment is neither a final order that can be directly
appealed, nor is it an order that can be reviewed on an appeal from a final judgment in the
action.” Bach v. Bagley, 148 Idaho 784, 795–96, 229 P.3d 1146, 1157–58 (2010)
(quoting Courtney v. Big O Tires, Inc., 139 Idaho 821, 823, 87 P.3d 930, 932 (2003)). While the
issue was not raised by either party on appeal, this Court has recognized two exceptions to the
general rule that a denial of summary judgment is non-appealable and non-reviewable. “A denial
of summary judgment by a district judge is not appealable unless the district judge was acting as
an appellate court or unless [this Court] grant[s] permission to appeal.” North Pac. Ins. Co. v.
Mai, 130 Idaho 251, 252, 939 P.2d 580, 571 (1997) (citing I.A.R. 11(a)(1) and 12; Bluestone v.
Mathewson, 103 Idaho 453, 454, 649 P.2d 1209, 1210 (1982)).
Here, the district court was not acting in any sort of appellate capacity when it denied the
Munkhoffs’ motion for summary judgment. Further, the first time the Munkhoffs sought this
Court’s permission to appeal the district court’s denial of their motion for summary judgment
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pursuant to Idaho Appellate Rule 12 was during Appellant’s oral argument. Rule 12 states in
pertinent part:
(a) Criteria for permission to appeal. Permission may be granted by the Supreme
Court to appeal from an interlocutory order or judgment of a district court in a
civil or criminal action, or from the interlocutory order of an administrative
agency, which is not otherwise appealable under these rules, but which
involves a controlling question of law as to which there is substantial grounds
for difference of opinion and in which an immediate appeal from the order or
decree may materially advance the orderly resolution of the litigation.
I.A.R. 12. Under Rule 12, permissive appeals are only accepted in the most exceptional cases,
with the intent to resolve substantial legal issues of great public interest or legal questions of first
impression. Hall v. State, 155 Idaho 610, 620, 315 P.3d 798, 808 (2013). Therefore, the district
court’s denial of the Munkhoffs’ motion for summary judgment is non-reviewable for three
reasons: (1) the Munkhoffs failed to timely request permission to appeal; (2) the Munkhoffs’
appeal does not contain an issue of great public interest or a question of first impression; and (3)
the Munkhoffs’ appeal does not involve purely an issue of law.
First, Idaho Appellate Rule 12(b) requires that a party seeking permission to appeal an
interlocutory order must file a motion with the district court within fourteen days of the entry of
the judgment. Here, the Munkhoffs failed to file a motion as required within the specified time.
Instead, they asked this Court to consider their untimely appeal at oral argument. Second, this
case does not present a question of first impression of law in Idaho. The Munkhoffs cite
numerous Idaho cases analyzing the issue of the exercise of ordinary care for the custodian or
owner of an aggressive or dangerous dog. Finally, this appeal does not involve purely a question
of law with regard to causation because causation is generally a question of fact for the jury.
Fragnella v. Petrovich, 153 Idaho 266, 272, 281 P.3d 103, 109 (2012).
Because the district court was not acting in an appellate capacity and because the
Munkhoffs did not seek permission to appeal the interlocutory order under Idaho Appellate Rule
12 before they appeared before this Court at oral argument, no exception to the general rule that
a denial of summary judgment is non-appealable and non-reviewable applies in this case.
Therefore, we decline to review the questions presented in the denial of summary judgment.
B. The Munkhoffs’ motion for a new trial or remittitur was properly denied.
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The Munkhoffs appeal the district court’s decision to deny their motion for new trial or
remittitur on four legal bases: (1) the excessive award was given under the influence of passion
or prejudice pursuant to Rule 59(a)(1)(F); (2) the record lacks sufficient evidence to support the
verdict pursuant to Rule 59(a)(1)(G); (3) the necessity of remittitur in lieu of a new trial pursuant
to Idaho Code section 6-807 and Rule 59(a)(1); and (4) justice requires relief from judgment
pursuant to Rule 60(b). We disagree.
1. The jury’s damages award was supported by substantial and competent evidence.
“A new trial is warranted where the jury’s determination of damages appears to have
resulted from passion or prejudice.” Kuhn v. Coldwell Banker Landmark, Inc., 150 Idaho 240,
248, 245 P.3d 992, 1000 (2010). To determine whether damages are excessive or inadequate, the
district court must “weigh the evidence and compare the jury award with the award that it would
have imposed.” Id. “If the disparity is so great that it appears to the trial court that the award was
given under the influence of passion or prejudice, the verdict ought not to stand.” Quick v.
Crane, 111 Idaho 759, 768, 727 P.2d 1187, 1196 (1986). “[R]espect for the collective wisdom of
the jury and the function entrusted to it under our constitution suggests the trial judge should, in
most cases, accept the jury’s findings even though [s]he may have doubts about some of their
conclusions.” Id.
[S]ince it is a jury function to set the damage award based on its sense of fairness
and justice, the trial judge must defer to the jury, unless it is apparent to the trial
judge that there is a great disparity between the two damage awards and that
disparity cannot be explained away as simply the product of two separate entities
valuing the proof of the plaintiff’s injuries in two equally fair ways.
Id. at 769, 727 P.2d at 1197 (emphasis in original). Finally, the court is not required to state the
dollar amount it would have awarded, but must weigh the evidence and determine the disparity
between what it would have awarded and the jury’s award. Pratton v. Gage, 122 Idaho, 848, 852,
840 P.2d 392, 397 (1992).
The Munkhoffs claim that because the non-economic damages award is eleven and a half
times the economic damages award this Court should find it so excessive as to shock the
conscience, or, alternatively, that it was the product of passion or prejudice. We disagree. Here,
as required, the district court assessed and weighed the credibility of the evidence. See Collins v.
Jones, 131 Idaho 556, 558, 961 P.2d 647, 649 (1998). The district court performed this exercise
as required.
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The court found Kummerling was a credible witness. The district court also found
Kummerling’s wife, Baerbel Litke, to be credible. On the other hand, the court found Sam lacked
credibility for two reasons. First, Sam admitted that he lied to Animal Control to claim
ownership of Bo at the time of the November 2012 incident when Bo had to be tasered. Second,
Sam admitted he lied to Animal Control when he said that he had moved out of state. Sam
testified at trial that Bo was actually owned by his roommate, and that he misrepresented to
Animal Control that he owned Bo so that he could retrieve him from the shelter. After Bo was
declared aggressive, Sam also testified that he misrepresented to Animal Control that he moved
to Southern California and had taken Bo with him, even though he had not moved from Coeur
d’Alene and had no intention of moving.
The district court also found that the Munkhoffs lacked credibility. First, the district court
did not believe Robyn’s testimony when she said she did not know Bo had dangerous
propensities or that he had several encounters with Animal Control. Likewise, the district court
did not believe that Mark was ignorant of the City Ordinances for harboring an aggressive or
dangerous dog. On direct examination, Mark insisted that he was not given formal
documentation outlining the requirements under Ordinances 6.20.030 and 6.20.040. Although he
did not receive written notice, he did admit that Officer Deus explained the requirements to him.
Additionally, Mark stated he did not know that Bo had been declared dangerous. In light of the
evidence adduced at trial, the district court did not find Mark’s testimony to be particularly
persuasive.
Moreover, the district court determined that the Munkhoffs lacked credibility when they
testified that they had no control or influence over Sam while he and Bo were staying at the
Munkhoffs’ home. When the dog bite occurred, Sam was twenty years old, he was staying at the
Munkhoffs’ home when he was not working in North Dakota, and the Munkhoffs were taking
care of Bo while Sam was away. Furthermore, Office Deus testified that in November 2012 she
had gone over the requirements for harboring an aggressive dog with Mark after she had gone
over them with Sam. Based upon the testimony and evidence in the record, the district court
found the Munkhoffs had more knowledge, influence, and control over Sam and Bo than they
claimed.
Furthermore, the district court did not find the Munkhoff family’s claims that Bo was
gentle and loving to be very credible. Robyn in particular testified that Bo was “very kind and
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loving. He was sweet to our dogs. He was sweet. We had kids come over, I had friends come
over, and he was nothing but sweet, tail wagging. He did nothing wrong.” Sam also testified that
many people had asked him if they could pet Bo, including kids. In fact, Sam explained he had a
routine that he would follow to calm Bo down before anyone was allowed to pet him. Sam stated
he would “get him settled,” “get him to sit down” and “when [Sam] felt [it] was safe” he would
let people approach Bo. Sam testified he did not follow this routine on July 30, 2013, when Bo
bit Kummerling. The district court found that it was more likely than not that the Munkhoffs
knew Bo had dangerous propensities, even if he was well-controlled in certain situations and
environments.
For the district court to properly uphold the jury’s damages award, it must be evident that
the court (1) contemplated what it would have awarded if it had been the finder of fact and (2)
determined that any difference between the jury award and what the court would have awarded is
not so great as to show a verdict based on prejudice or passion. Barnett, 123 Idaho at 365, 848
P.2d at 423. The district court, after it weighed all of the evidence, determined the credibility of
the witnesses, considered the permanent nature of Kummerling’s injuries, found that the jury
award was not only reasonable but very close to what the court would have awarded. The district
court also found that the Munkhoffs’ failed to present evidence that the verdict of the jury was
the result of prejudice, sympathy, or was a compromise verdict, nor do we discern any such
evidence. As such, the district court did not abuse its discretion when it denied the Munkhoffs a
new trial.
2. The jury’s verdict was supported by substantial and competent evidence.
“To grant a new trial, the court must apply a two-prong test: (1) the court must find that
the verdict is against the clear weight of the evidence and that the ends of justice would be served
by vacating the verdict; and (2) the court must conclude that a retrial would produce a different
result.” Lanham v. Idaho Power Co., 130 Idaho 486, 498, 943 P.2d 912, 924 (1997) (internal
citation omitted). “This standard requires more than a mere possibility; there must be a
probability that a different result would be obtained in a new trial.” Sheridan v. St. Luke’s Reg’l
Med. Ctr., 135 Idaho 775, 782, 25 P.3d 88, 95 (2001). The analysis for a Rule 59 motion alleging
that there is insufficient evidence to support the verdict is similar to the analysis for an argument
claiming the jury’s damages award was excessive. That is, “the court must weigh the evidence
presented at trial and grant the motion only where the verdict is not in accord with its assessment
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of the clear weight of the evidence.” Id. In this case, the district court weighed the evidence and
the credibility of the witnesses. In doing so, the court considered how it would have allocated
fault based on the evidence and found the disparity was nominal.
The Munkhoffs’ appeal offers little in the way of legal argument to support a “probability
that a different result will be obtained in a new trial.” They argue there is no evidence proving
they were custodians of Bo at the time of the incident, no evidence proving they had influence or
control over Sam, and that the jury was motivated by a desire to punish parents whose adult
children cause an injury through their own lack of judgment.
In its order denying the Munkhoffs a new trial, the district court weighed the evidence
and allocated how it would have assigned fault to each party based on that evidence, ultimately
concluding that a retrial would not produce a different result. The court exercised its discretion
appropriately.
First, the district court concluded that Kummerling was aware of Bo’s aggressive
propensities based upon Bo’s behavior whenever Kummerling worked in his yard. This includes
excessive barking and charging at the fence. The district court also found that Kummerling
voluntarily took the risk of petting Bo, a dog he knew was aggressive and threatening, even
though he acted with Sam’s permission and assurance that Bo would not bite him. Based upon
the evidence and testimony, the district court concluded that, like the jury, it would have
allocated some degree of fault to Kummerling.
Second, the court agreed with the jury’s allocation of fault to Robyn because it did not
find her testimony credible. The court did not believe she did not know that Bo was aggressive
until after he bit Kummerling. Further, the court did not believe her testimony that Bo was a kind
and loving dog at all times. Furthermore, she had an opportunity to warn Kummerling that Bo
was dangerous, but instead told him to spray Bo with water whenever he charged the fence.
Third, the court agreed with the jury that Sam, as Bo’s owner, had the greatest
responsibility for the dog when he was in town and staying with the Munkhoffs. The court also
determined that Sam had the most knowledge of Bo’s propensities and, therefore, knew exactly
how dangerous Bo was. Sam even stated it was not safe for his mother to walk the dog because
she could not control him. Additionally, the court found Sam’s testimony to be the least credible,
especially after he admitted he lied to Officer Deus to retrieve Bo from the shelter and then lied
to her again about where he was living to “get her off [his] back.”
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Finally, as the district court considered the evidence, it found: 1) that Mark had
knowledge of Bo’s propensities; 2) that Mark knew what was required by the Ordinance to
harbor an aggressive and dangerous animal; 3) that Mark agreed to harbor the dog; 4) that Mark
was Bo’s primary caretaker in July 2013; and 5) that Mark considered Bo “part of the family.”
Based on this evidence, the court allocated a degree of fault for Mark that closely matched that
assigned by the jury. More importantly, the disparity between the jury and the court’s allocation
did not shock the conscience; rather, the court stated it was convinced of the reasonableness of
the jury’s allocation and found that it was not based on passion or prejudice.
In its assignment of fault to the parties, the district court considered the probability that a
different result may occur if the case were retried. The court, in its discretion, stated that its
allocation of fault was nominally different from the jury’s allocation and supported its decision
with reasoned analysis, ultimately negating the probability of a different result at a new trial.
This Court will not “overrule the trial court concerning request for additur or a new trial .
. . where the trial court stated the reasons for its ruling with sufficient particularity, unless the
bases for the ruling [are] obvious from the record, and where the trial court did not abuse its
discretion.” Tuttle v. Wayment Farms, Inc., 131 Idaho 105, 107, 952 P.2d 1241, 1244 (1998).
Accordingly, we hold that the district court did not abuse its discretion because it weighed the
evidence and found the jury’s non-economic damages award was not unconscionable and that a
retrial would not produce a different result.
3. Remittitur of damages.
If the district court determines that a jury’s damages award is so excessive that it can only
have been the result of passion or prejudice, the court may condition the denial of a motion for a
new trial on acceptance of a remittitur. Quick, 111 Idaho at 770, 727 P.2d at 1198; I.C. § 6-807.
A remittitur is only an alternative to a new trial, and the decision to reduce a damage award is
discretionary. Id.; see also I.C. § 6-807(2) (“the district court may exercise its discretion to
reduce or increase such award in order to make the same consistent with the losses as shown by
the evidence”). If the district court decides to reduce the amount of a jury award, it must enter
detailed findings of fact and conclusions of law explaining its reasoning and the basis for the
reduction. Sanchez v. Galey, 112 Idaho 609, 616, 733 P.2d 1234, 1241 (1986); I.C. § 6-807(2).
Here, the Munkhoffs offer the same arguments for the district court’s denial of their
motion for remittitur as they did for their motion to grant a new trial under Idaho Rules of Civil
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Procedure 59(a)(F) and 59(a)(G)—passion or prejudice and insufficiency of the evidence,
respectively. In its amended memorandum decision and order denying the Munkhoffs’ motion
for new trial or remittitur, the district court specifically addressed the four criteria in Idaho Code
section 6-807. The district court found: (1) the jury verdict was supported by the evidence,
including the fact that the court would have come to the same conclusion and allocated the
liability to a similar degree as the jury; (2) the injuries to Kummerling were so severe and
commensurate with the damages awarded that the jury’s award did not shock the conscience of
the court; (3) there was no factual or legal error during the presentation of the evidence; and (4)
the award was not a result of passion or prejudice. Hei v. Holzer, 145 Idaho 563, 569, 181 P.3d
489, 495 (2008). Because the district court articulated its reasons for denying a new trial or
remittitur, we affirm the court’s exercise of discretion in that regard.
4. The Munkhoffs’ motion for a new trial did not identify a legal error.
The Munkhoffs moved for a new trial pursuant to Rule 60(b)(3), alleging fraud,
misrepresentation, or misconduct by an opposing party. In their motion, The Munkhoffs claimed
Kummerling’s representations that he was hard of hearing were untruthful, contending that
Kummerling’s alleged conduct constituted fraud. On appeal, the Munkhoffs attempt to preserve
this issue by claiming they are entitled to relief under Rule 60(b)(6). Rather than offer legal
argument or authority to support their request for relief, the Munkhoffs generally contend they
were denied relief from judgment pursuant to I.R.C.P 60(b). All of the foregoing
reasons justify relief from final judgment. The excessive damages assessed
against Mark and Robyn Munkhoff and the fact that such damages were awarded
based on grossly insufficient evidence to support the Munkhoffs’ culpability are
more than sufficient to justify relief from final judgment in this case. The trial
court abused its discretion in denying the Munkhoffs relief from final judgment.
This is a blanket statement that attempts to incorporate all arguments and authority cited
for each issue into the Munkhoffs’ request for relief under Rule 60(b)(6). This Court has stated
that “[a] general attack on the findings and conclusions of the district court without specific
reference to evidentiary or legal errors, is insufficient to preserve an issue.” Jeffcoat v. Idaho
Department of Corrections, 161 Idaho 594, 596, 389 P.3d 139, 141 (2016) (internal quotations
and citation omitted). The Munkhoffs do not present any case law, relevant statutes, or evidence
from the trial to allow this Court to discern how relief pursuant to any section of Rule 60(b)
might be legally supported. “Where an appellant fails to assert his assignment of error with
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particularity and to support his position with sufficient authority, those assignments of error are
too indefinite to be heard by the Court.” Bach v. Bagley, 148 Idaho at 790, 229 P.3d at 1152.
Indeed, “[t]his Court will not search the record on appeal for error.” Id. Thus, as a general rule,
“[t]his Court does not consider issues cited on appeal that are not supported by propositions of
law, authority or argument.” Carney v. Heinson, 133 Idaho 275, 283, 985 P.2d 1137, 1145
(1999) (internal quotations and citation omitted); I.A.R. 35(6). “Consequently, to the extent that
an assignment of error is not argued and supported in compliance with the I.A.R., it is deemed to
be waived.” Bagley, 148 Idaho at 790, 229 P.3d at 1152. Because the Munkhoffs have not
presented this Court with any authority to support their argument, they have waived this issue on
appeal.
C. We award costs to Baerbel Litke
Neither party seeks an award of costs or attorney fees on appeal. However, Idaho
Appellate Rule 40 provides this Court with discretion to award costs on appeal “as a matter
of course to the prevailing party unless otherwise provided by law or order of the Court.”
Accordingly, Baerbel Litke is entitled to costs as the prevailing party on appeal.
IV. CONCLUSION
We affirm the district court’s denial of the Munkhoffs’ motion for summary judgment
and for new trial or remittitur. Costs are awarded to respondent.
Chief Justice BURDICK, Justices HORTON, BRODY and Justice pro tem HAYNES,
CONCUR.
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