Hawes v. Western Pacific Timber LLC ( 2020 )

IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 47133
ANDREW HAWES, )
)
Plaintiff-Counterdefendant- )
Respondent, ) Boise, September 2020 Term
)
v. ) Opinion Filed: December 18, 2020
)
WESTERN PACIFIC TIMBER, LLC, ) Melanie Gagnepain, Clerk
)
Defendant-Counterclaimant- )
Appellant. )
Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
County. Gerald F. Schroeder, Senior District Judge.
The judgment of the district court is affirmed.
Givens Pursley, LLP, Boise, for Appellant. Amber Dina argued.
Hepworth Holzer, LLP Boise, for Respondent. John J. Janis argued.
_____________________
STEGNER, Justice.
This case involves an alleged severance agreement between Andrew Hawes (Hawes) and
Western Pacific Timber, LLC (WPT). Originally, WPT was solely owned by Timothy Blixseth
(Blixseth). The crux of this case is Hawes’ contention that Blixseth hired him to be general counsel
for WPT in 2005, and that when he was hired, Blixseth agreed on behalf of WPT to provide him
with a severance package based on the length of his employment. After 2012, Blixseth no longer
retained any ownership interest or management responsibility in WPT. When WPT terminated
Hawes’ employment in 2017, Hawes asserted that he had a severance agreement in place—that
had been negotiated with Blixseth on behalf of WPT—by which he would receive $100,000 for
each year of employment, capped at five years, for a total of $500,000. However, Hawes could not
produce a signed copy of any agreement. WPT refused to pay the claimed severance pay, and
instead offered a significantly smaller severance package. Hawes rejected WPT’s offer.
Hawes then sued WPT for breach of contract. The case proceeded to trial on Hawes’ claim
of an oral contract. Ultimately, the jury returned a special verdict finding that WPT was liable to
1
Hawes for $500,000 in severance pay, an award which was later trebled by the district court. The
district court also awarded Hawes the full amount of his requested attorney fees which constituted
35% of Hawes’ gross recovery. WPT unsuccessfully moved for a new trial. This timely appeal
followed.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Factual Background.
Hawes is a licensed attorney in several states, including Idaho, Oregon, and Washington.
WPT is a limited liability company which manages, purchases, and sells timber property in Idaho
and Washington.
At the outset, it is important to understand that several issues raised by WPT on appeal are
based on the fact that Blixseth owned and managed various other companies separate and distinct
from WPT when he hired Hawes. In particular, WPT’s appeal relies on its contention that when
Blixseth hired Hawes, Blixseth did not hire Hawes to work for WPT; rather, WPT contends that
Blixseth hired Hawes to work for Blixseth’s associated entities which are unrelated to and legally
separate from WPT. For this reason, a general background of the involved business entities is
necessary.
1. The business entities at issue.
In 2005, Blixseth and his wife Edra were the sole owners of Blixseth Group, Inc. (BGI), a
corporation based in California. BGI had several affiliated entities for which it performed
administrative functions such as payroll and human resources. These entities included:
 WPT, a timber company created and originally owned by Blixseth in his individual
capacity. WPT focused on acquisition, sale, and management of timber property in
Idaho and Washington.1
 Yellowstone Development, LLC, a company that managed a resort in Big Sky,
Montana.
 Yellowstone Club, a resort and residential community in Montana.
1
Much of WPT’s business strategy focused on land exchanges (“land swaps”), where privately owned property would
be traded to the United States Forest Service (USFS) in exchange for similarly valued land owned elsewhere by the
USFS. WPT acquired a key piece of property at the heart of its operations in Idaho in 2005, which was known as
“Lochsa lands,” 40,000 acres in remote Idaho County on the Montana border. WPT owned this property in a
“checkerboard” ownership where every other section was owned by the USFS. The USFS was apparently interested
in the exchange because it would enable the USFS to consolidate its land holdings in the Lochsa area from owning
every other section to owning every section. Despite significant work to finalize a “land swap,” i.e., trading the Lochsa
lands for public land elsewhere, this exchange never came to fruition.
2
 Yellowstone Club World (YCW), a “private international vacation club,” which
was owned by Yellowstone Club.
In 2007, Blixseth and his wife initiated divorce proceedings and began to separate their
assets. Blixseth subsequently formed Blixseth Group of Washington, LLC (BGW), which Blixseth
owned in its entirety. For several months in 2009, BGW took over the administrative function
previously performed by BGI, the administration of payroll and human resources, for Blixseth’s
other companies including WPT. In 2009, WPT began to administer its own payroll.
Between 2005 and 2017, ownership and management of WPT changed at two crucial
junctures. The first ownership change occurred in 2006, when an entity owned by James Dolan
(Dolan) acquired a one-third interest in WPT, as did an entity owned by Wayne Prim (Prim).
Blixseth’s role as manager of WPT did not change when Dolan’s and Prim’s entities acquired their
two-thirds ownership interest in WPT. The second ownership change occurred in 2012, when
Blixseth’s ownership shares in WPT were acquired by an entity owned by Prim. After this change,
Blixseth no longer had any ownership interest in or managerial responsibility for WPT.
2. Negotiations between Hawes and Blixseth. Hawes begins his employment.
In 2005, Hawes practiced law at Elam & Burke, a Boise law firm. At the time, Blixseth
and his wife Edra were co-owners of BGI. Blixseth was also the sole owner of WPT, an LLC
organized under the laws of Oregon.
In January 2005, Blixseth retained Elam & Burke to perform legal services, including
drafting and filing documents to register WPT to enable it to conduct business in Idaho.2 As Elam
& Burke’s real estate specialist, Hawes performed this work for WPT between January and June
2005. Hawes was listed as WPT’s registered agent on its application for registration as a foreign
limited liability company, which was filed with the Idaho Secretary of State in February 2005.
Hawes claimed that in June 2005, Blixseth contacted him and asked if he would be
interested in leaving Elam & Burke and working full-time for Blixseth as general counsel of WPT.
Hawes contends that after negotiation on employment terms, Hawes agreed to work for WPT.
According to Hawes, this agreement was reached during a dinner meeting with Blixseth in
downtown Boise in June 2005. Hawes testified that Blixseth hired him to work primarily for WPT,
but that “from time to time” he would do “other projects for other entities [Blixseth] owned.”
2
WPT was in the process of purchasing Boise Cascade’s timberlands and needed to be licensed to do business in
Idaho.
3
Hawes’ chief hesitation with the offer was that the salary presented by Blixseth was
roughly equivalent to what he anticipated earning at Elam & Burke, and that in moving to an in-
house position he would be leaving behind a more lucrative long-term opportunity at Elam &
Burke. As a result, Hawes negotiated terms that would compensate him for the risk he would be
undertaking by accepting Blixseth’s offer. Hawes also wanted to ensure that he could continue to
work as a commissioner for the Idaho State Bar (ISB). Hawes stated that Blixseth’s response was
to offer an annual salary of $100,000, and that Hawes would be free to continue his commissioner
work. Blixseth also offered a severance package commensurate with the amount of time Hawes
worked for Blixseth. Hawes testified that this severance package would provide Hawes with
$100,000 for each year worked, capped at a total of 5 years, or $500,000. When asked by Blixseth
if he “was in,” Hawes said he agreed to these terms and shook hands with Blixseth.3
On July 8, 2005, Hawes sent a follow-up email to Blixseth, attaching an outline that
detailed the employment terms regarding the severance agreement and Hawes’ ability to continue
his work as an ISB commissioner. Blixseth cryptically replied that he would “take a look,” but
apparently did not directly respond further to this email. Three days later, on July 11, 2005, Hawes
emailed an employment agreement to Blixseth. This employment agreement lists the “Blixseth
Group and its affiliates” as his employer. The agreement contained the same terms with respect to
severance and added a 30-day written notice requirement for termination of the employment
relationship. A series of emails between July 11 and 18 detailed Blixseth’s attempt to have this
agreement faxed to his Montana residence, as well as an additional discussion about how often
Hawes would be paid.
On July 21, 2005, Hawes signed an Employment Application/At-Will Employee Statement
listing his employer as “Blixseth Company” and alternately “Blixseth Group Porcupine Creek.”
The document contained a term stating that there were no additional employment agreements;
however, Hawes made a handwritten and initialed annotation on the document by this term, stating
“Subject to that certain employment agreement by and between Mr. Blixseth and Mr. Hawes
relating to certain terms and conditions of employment.” He emailed this signed agreement to
Patrick Ratte (Ratte), controller for BGI and its affiliated entities, with an explanation that the
3
In the subsequent email discussion regarding the proposed employment agreement, Hawes’ official start date was to
be August 1, 2005, to give him time to wrap up work for his other clients at Elam & Burke. However, Hawes also
testified that he began work for Blixseth on a particular transaction the next day—namely, purchase of the Lochsa
lands.
4
additional employment agreement had been separately negotiated with Blixseth. Ratte’s response
was that the notation was “fine.”4
Hawes claimed that thereafter he worked for WPT as its in-house general counsel. He
testified that his business cards listed “Western Pacific Timber” as his employer. At times he would
do limited projects for other Blixseth entities, such as YCW or BGI. However, Hawes testified that
over his entire tenure “99 percent of [his] work was with Western Pacific Timber.” He conceded
that between 2005 and 2007, the amount was closer to “90 percent.”
In contrast to Hawes’ recitation of events, WPT maintained that Hawes was actually hired
by and became an employee of BGI upon his hiring, and pointed to work Hawes performed for
YCW and other Blixseth-related entities in the early years of his employment. In particular, Hawes
testified on cross-examination that he had traveled internationally to work for YCW between 2005
and 2007.
In 2006, as explained above, ownership of WPT changed. Previously, Blixseth owned
WPT in its entirety; after 2006, Blixseth retained only a one-third interest in WPT. Two-thirds of
WPT was controlled by entities owned by Dolan and Prim. However, as Hawes described it,
Blixseth continued to manage WPT, with Dolan and Prim acting as “silent partners.”
3. Hawes relocates to Portland, BGI becomes BGW, and Hawes returns to Boise.
In 2007, BGI continued to administer human resources and payroll functions for WPT.
However, a significant portion of WPT’s timber property in Idaho was sold. This sale eliminated
the need for WPT to maintain a presence in Idaho. As a result, other WPT employees in Idaho
were discharged. However, WPT had just opened an office in Portland, Oregon, and Hawes was
asked to transfer with his paralegal to the new Portland location. Hawes and his family moved to
Portland in early 2008, and continued working in the same role for WPT as general counsel, this
time with respect to the Washington properties.
During this time, the Blixseths divorced and their assets were divided. As part of the
divorce, BGI was dissolved. In its place, Blixseth created Blixseth Group Washington, Inc.
(BGW), a company which was owned solely by Blixseth. In September 2009, Hawes completed
an employment application with BGW, noting that he was transferring from BGI to BGW but
4
Ratte managed much of Blixseth’s day-to-day communications. When Blixseth ceased to be a manager at WPT,
Ratte’s employment was terminated by the new owners. Ratte declined to come to Idaho for trial in this case. His
testimony was instead presented via a video deposition which was recorded and then played at trial.
5
continuing to work as general counsel for WPT. This application again contained an at-will
employee statement, to which Hawes again added an initialed annotation—materially identical to
that on the BGI application—stating, “Subject to that certain employment agreement by and
between Tim Blixseth and Andy Hawes relating to certain terms and conditions of employment.”
This application was also signed by Carolyn Wheeler, Blixseth’s sister who had worked for BGI,
managed human resources for WPT, and transferred her employment to BGW after its creation.
For a few months in 2009, BGW continued to perform the payroll function for WPT.
However, by the end of 2009, WPT began conducting its own payroll functions so that Hawes
received his paychecks not from BGW, but from WPT itself. This “transfer” of employment from
BGW to WPT was also reflected in Hawes’ retirement account and health insurance. While
Hawes’ W-2s prior to 2009 listed either BGI or BGW as his employer, after 2009, WPT was the
listed employer on Hawes’ paychecks and his W-2s. WPT contended that this transfer of
employment in 2009 constituted the termination of Hawes’ employment by BGW and his hiring
by WPT.
According to Hawes, in 2010, WPT’s focus returned to the Lochsa lands and the potential
for a land exchange with the USFS. WPT requested that Hawes return to Boise to reopen its office
there, so Hawes and his family moved to Boise, Idaho, in the summer of 2010.
4. Blixseth’s ownership interest in WPT is terminated.
In 2012, a major transition occurred in WPT’s ownership and management, leaving the
company entirely disassociated from Blixseth. In 2009, Blixseth substituted an entity owned by
him—Desert Ranch, LLLP (Desert Ranch)—as member and manager of WPT. According to
Hawes, Blixseth borrowed money from Prim, using Desert Ranch’s shares in WPT as collateral
for the loan. When Blixseth defaulted on the loan in 2012, Desert Ranch’s shares were transferred
to Prim’s entity pursuant to a membership pledge agreement and collateral assignment, and neither
Blixseth nor Desert Ranch retained any management responsibility or ownership interest in WPT.
This series of events was the subject of unrelated litigation, which was ultimately resolved when
Blixseth conceded that he was no longer the manager of WPT. Following this concession, Prim
and Dolan became co-managers of WPT, with Prim owning two-thirds and Dolan one-third of the
company through other entities.5 Blixseth was no longer an owner or manager of WPT.
5
Prim held his WPT shares in 395 Lampe, LLC, and Kingsberry Timber, LLC. Dolan’s holding company was Voyager
II.
6
According to Dolan, the protracted litigation over the termination of Blixseth’s
involvement in WPT left several questions, first among them being who should remain an
employee of WPT, given the original entanglement between Blixseth’s and WPT’s operations.
Several employees, including Ratte and Wheeler, had their employment terminated. All of WPT’s
personnel files had to be moved from BGW’s offices to WPT’s. In addition, Dolan was concerned
about “who was on the team and who wasn’t on the team.” According to Dolan, he asked Hawes
to “tell [him] everything [he] need[ed] to know” about WPT because Prim wanted to fire Hawes.
Hawes did not inform Dolan or Prim about the existence of the severance agreement.
After Blixseth’s management of WPT was ended, Hawes took on more managerial
responsibilities at the company between 2012 and 2017. He spent significant time on the Lochsa
lands exchange. Over time, however, the land exchange became more complicated than expected,
requiring congressional lobbying in Washington, D.C. In addition, there was significant public
pushback regarding the proposal. By the end of 2016, the Lochsa lands exchange was “dead.”
5. WPT fires Hawes in 2017.
According to Doug Hein (Hein), the CFO of Voyager II (Dolan’s holding company), both
Prim and Dolan were concerned about WPT’s financial solvency beginning in 2015. In addition,
Prim and Dolan concluded that the Lochsa lands exchange was unlikely to ever come to fruition.
On December 16, 2016, a telephone conference was held, which included Prim, Dolan, and other
executive officers from the entities with ownership interests in WPT. A decision was made to
eliminate WPT’s in-house legal department, which at the time consisted of Hawes and the
paralegal he had hired in 2005.
Hein informed Hawes of WPT’s decision January 10, 2017.6 The termination of Hawes’
employment was effective immediately. Hawes was offered a severance agreement of three
month’s salary and a retainer for an additional six months of legal consulting.
Hawes informed Hein that he had a separate severance agreement with WPT, which should
be in his personnel file. After the meeting, Hein requested that Lightner look through Hawes’
personnel file for the employment agreement. Lightner found “a draft-like agreement between
6
This was an in-person meeting in Boise that Hawes believed would cover only the budget for fiscal year 2017. Also
present was John Lightner (Lightner), who served as WPT’s controller between 2005 and 2007, and then again from
2012 forward.
7
[Hawes] and BGI.” This agreement was unsigned and detailed the severance terms Hawes had
asserted: $100,000 for each year of employment, capped at five years, or $500,000.
WPT refused Hawes’ demanded severance pay.
B. Procedural History.
1. Complaint filed; discovery and cross-motions for summary judgment.
Hawes filed suit against WPT on July 5, 2017, alleging breach of contract and demanding
the severance pay he claimed he was owed. WPT answered also filing a counterclaim for breach
of confidentiality and breach of fiduciary duty.
After conducting extensive discovery, the parties filed cross-motions for summary
judgment. After the parties presented oral argument, the district court ruled from the bench,
granting in part WPT’s motion for summary judgment on the breach of a written contract claim.
This was granted because Hawes could not produce a signed written agreement. However, the
district court denied WPT’s summary judgment motion to the extent that there was a genuine issue
of material fact as to the existence of an oral agreement between the parties that had purportedly
been breached. The district court concluded that it was in the jury’s province to determine the
terms of the alleged oral contract, if in fact one existed.
2. Jury trial; motion for directed verdict; the jury’s verdict.
The jury trial was conducted over five days between April 29 and May 3, 2019. By this
time, WPT’s breach of confidentiality claim had been abandoned pursuant to a stipulation of the
parties. In response to Hawes’ breach of contract claim, WPT continued to assert the affirmative
defense of equitable estoppel, arguing that Hawes breached a duty to reveal the terms of his alleged
severance agreement. WPT also continued to assert its counterclaim of breach of fiduciary duty.
At the close of Hawes’ case, WPT moved for a directed verdict on the breach of contract
claim on the basis that Hawes had failed to present substantial evidence that he and Blixseth had a
meeting of the minds and reached an agreement on the severance terms that would bind WPT. The
district court denied this motion.
Two hours after the jury retired to begin its deliberations, the jury sent the following note
to the trial judge: “What is the legal point at which a company or entity becomes a persons’ [sic]
employer?” Discussion was held between counsel and the trial judge in crafting an answer. The
answer the trial judge ultimately read to the jury was: “The legal point of employment is when the
parties agree.”
8
The jury returned a verdict soon after,7 finding that Blixseth, on behalf of WPT, had entered
into an oral agreement with Hawes for severance pay in 2005. The jury determined that Hawes
had suffered damages in the amount of $500,000. The jury also determined that WPT had failed
to prove its affirmative defense of equitable estoppel, or its counterclaim for breach of fiduciary
duty.
3. Entry of judgment; motion for new trial; attorney fee dispute.
On May 9, 2019, the district court trebled the jury’s award (pursuant to Idaho Code section
45-615(2)), added prejudgment interest, and entered judgment against WPT in the amount of
$1,639,726.80. The district court’s judgment did not include attorney fees or costs as those issues
remained unresolved. Hawes later requested costs and attorney fees under Idaho Code section 49-
615 and Idaho Rule of Civil Procedure 54(d)(1), seeking attorney fees in the amount of 35% of the
total damages award, or $573,904.38. WPT opposed this request, arguing that an award of attorney
fees in this amount would constitute an unreasonable windfall to Hawes and punish WPT too
harshly. After extensive briefing by the parties, the district court granted Hawes’ request for
attorney fees and costs.
WPT moved for a new trial. This motion was denied in a ruling from the bench at the
hearing.
WPT filed its original notice of appeal seeking relief from the judgment entered. After the
district court entered a second judgment adding the attorney fees and costs awarded by the court,
WPT filed an amended notice of appeal which included the award of attorney fees and costs as an
issue on appeal.
II. ANALYSIS
A. The district court did not err in denying WPT’s motion for a directed verdict.
1. Standard of Review.
“In determining whether a directed verdict or judgment n.o.v. should have been granted,
the appellate court applies the same standard as does the trial court which passed on the motion
originally.” Thurston Enterprises, Inc. v. Safeguard Bus. Sys., Inc., 164 Idaho 709, 716, 435 P.3d
489, 496 (2019) (quoting Quick v. Crane, 111 Idaho 759, 764, 727 P.2d 1187, 1192 (1986)).
When a trial judge receives such a motion, the judge begins the inquiry by
asking him or herself whether there is substantial evidence in the record upon which
7
WPT has characterized this time period as “minutes later.” However, it is not possible to tell from the transcript itself
how much time elapsed between the trial judge answering the jury’s question and the jury rendering its verdict.
9
the jury could properly find a verdict for the party against whom the judgment
notwithstanding the verdict is sought. See Quick[, 111 Idaho at 763, 727 P.2d at
1191]. The judge’s task in answering this question is to review all the evidence and
draw all the reasonable inferences therefrom in the light most favorable to the non-
moving party. Id. at 764, 727 P.2d at 1192. (The party seeking a judgment
notwithstanding the verdict admits the truth of all the other side’s evidence and
every legitimate inference that can be drawn from it. Stephens v. Stearns, 106 Idaho
249, 252–53, 678 P.2d 41, 44–45 (1984).) The judge is not an extra juror, though;
there is no weighing of evidence or passing on the credibility of witnesses or
making of independent findings on factual issues. Gmeiner v. Yacte, 100 Idaho 1,
4, 592 P.2d 57, 60 (1979). Instead, the judge must determine whether the evidence
is substantial—that is, whether it is of sufficient quality and probative value that
reasonable minds could arrive at the same conclusion as did the jury. Mann v.
Safeway Stores, Inc., 95 Idaho 732, 736, 518 P.2d 1194, 1198 (1974).
Thurston Enterprises, Inc., 164 Idaho at 716–17, 435 P.3d at 496–97 (2019) (quoting Schwan’s
Sales Enterprises, Inc. v. Idaho Transp. Dep’t, 142 Idaho 826, 830, 136 P.3d 297, 301 (2006)).
2. Discussion.
Following the close of Hawes’ evidence, WPT moved the district court for a directed
verdict, claiming that there was insufficient evidence to submit Hawes’ claim of an oral severance
agreement to the jury.8 In particular, WPT argued that there was insufficient evidence that Hawes
and Blixseth had come to a meeting of the minds on the $500,000 severance term that would bind
WPT.
In response, Hawes asserted that there was “abundant evidence in the record” to establish
a meeting of the minds on the essential terms of Hawes’ severance agreement with WPT. The
district court agreed, denying WPT’s motion and concluding that there was sufficient “evidence
that the parties reached a specific agreement orally as to the duration of time and the amount of
compensation in the event that there was a termination of employment.”
On appeal, WPT details Hawes’ evidence on the issue of the alleged severance agreement,
arguing that Hawes’ showing was insufficient to demonstrate that Hawes and Blixseth had a
“meeting of the minds” regarding Hawes’ severance agreement. Hawes contends that WPT’s
argument does not fairly address the standard applicable to ruling on a motion for directed verdict.
8
The briefing on this motion has not been included in the record on appeal. Consequently, the only argument available
for this Court to review is what was argued at trial. See Gibson v. Ada Cnty., 138 Idaho 787, 790, 69 P.3d 1048, 1051
(2003) (“When a party appealing an issue presents an incomplete record, this Court will presume that the absent
portion supports the findings of the district court.”).
10
Hawes further argues that “the standard in ruling on the directed verdict motion requires accepting
[the non-moving party’s] testimony as true.”
The crux of a motion for a directed verdict is the movant’s argument that the non-movant’s
evidence is insufficient to justify even submitting the claim to the jury. Irish v. Hall, 163 Idaho
603, 607, 416 P.3d 975, 979 (2018). “A directed verdict is proper only where the evidence is so
clear that all reasonable minds could reach only one conclusion: that the moving party should
prevail.” Student Loan Fund of Idaho, Inc. v. Duerner, 131 Idaho 45, 51, 951 P.2d 1272, 1278
(1997). The evidence presented by the non-movant does not need to be “uncontradicted” for the
non-movant to prevail, requiring “only that it be of sufficient quantity and probative value that
reasonable minds could conclude that a verdict in favor of the [non-movant] is proper.” Irish, 163
Idaho at 607, 416 P.3d at 979 (italics added) (quotation omitted).
The district court did not err in denying WPT’s motion for a directed verdict. WPT’s
arguments focus entirely on the “meeting of the minds” element of an oral contract’s formation,
arguing that there was insufficient evidence to establish that the agreement had been reached on
WPT’s behalf. Hawes put forward the following evidence to establish that an agreement had been
reached:
 Hawes’ testimony about his negotiations with Blixseth at the June 2005 dinner
meeting;
 Emails between Hawes, Blixseth, and Ratte that include further discussion about
the terms of Hawes’ employment as well as Ratte’s confirmation that Hawes’
notation on the at-will employment agreement was “fine”;
 Testimony by Ratte corroborating that any notation on employment forms would
have to have been approved by Blixseth and HR;
 A copy of the unsigned employment and severance agreement in Hawes’ personnel
file;
 Testimony by WPT’s controller Lightner that this agreement, although unsigned,
was located where Hawes said it would be; and
 Hawes’ testimony that it was reasonable for him to demand and receive a severance
agreement given that he would be giving up a lucrative partnership in a law firm
and needed some financial security to entice him to make the change.
11
Hawes put forward the following evidence to establish that the agreement had been reached
on WPT’s behalf:
 Hawes’ testimony that Blixseth’s intention was to hire him as in-house counsel for
WPT;
 An email from Ratte stating that all “BGI employees, including the folks at WPT[,]
are on a bi-weekly payroll” (italics added);
 Ratte’s testimony that he understood Hawes had been hired to work for WPT, and
that Hawes was an employee of WPT;
 Lightner’s testimony that he understood Hawes was general counsel for WPT at all
times;
 Hawes’ business cards listing him as in-house counsel for WPT; and
 Hawes’ testimony that an overwhelming majority of his work was conducted for
WPT.
Hawes’ evidence did not need to be undisputed for the district judge to deny the motion for
a directed verdict. Irish, 163 Idaho at 607, 416 P.3d at 979. Taking all legitimate inferences in
favor of Hawes, there was sufficient evidence to submit the claim of breach of an oral contract to
the jury. Hawes’ evidence was of sufficient quantity and probative value that reasonable minds
could determine that Hawes and Blixseth (on WPT’s behalf) came to an agreement in 2005
regarding Hawes’ severance terms. Consequently, the district court did not err in denying WPT’s
motion for a directed verdict.
B. The jury’s finding that an oral agreement had been formed in 2005 between Hawes
and Blixseth on WPT’s behalf is supported by substantial and competent evidence.
1. Standard of Review.
“This Court will not set aside a jury verdict on appeal if it is supported by
substantial and competent evidence.” Van v. Portneuf Med. Ctr., Inc., 156 Idaho
696, 700, 330 P.3d 1054, 1058 (2014). “[W]hen reviewing a jury verdict on appeal
the evidence adduced at trial is construed in a light most favorable to the party who
prevailed at trial.” Id. (quoting Garrett Freightlines, Inc. v. Bannock Paving Co.,
Inc., 112 Idaho 722, 726, 735 P.2d 1033, 1037 (1987)).
Ballard v. Kerr, 160 Idaho 674, 686, 378 P.3d 464, 476 (2016). “This Court will not second guess
the jury’s determinations as to the weight of the evidence and witness credibility.” Id. (citation
omitted).
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 2. Discussion.
Hawes’ complaint survived summary judgment because the district court determined that
a genuine issue of material fact remained as to the existence and terms of an oral contract between
WPT and Hawes. The claimed breach of oral contract went to trial, and the jury determined that
an oral agreement regarding severance had been reached in 2005 between WPT and Hawes.
On appeal, WPT has attacked the jury’s special verdict that an oral severance agreement
was created in 2005. WPT argues that “no reasonable jury should have found there was a sufficient
meeting of the minds” because Hawes’ subsequent emails to Blixseth proposed different terms in
the weeks following. WPT also argues that Hawes’ evidence did not establish that any such
agreement was binding on WPT.
Hawes responds by reiterating the showing needed to disturb the jury’s verdict. Hawes
points to additional evidence other than his own testimony as supporting a meeting of the minds,
such as the emails following his dinner with Blixseth, and the deposition testimony of Ratte, who
approved Hawes’ notation on his employment form. Hawes also argues that the subsequent emails
do not change the three essential terms agreed upon at the dinner meeting—salary, severance, and
Hawes’ continued ability to work as an ISB Commissioner.
WPT counters, arguing that the evidence Hawes contends supports the jury verdict is
neither competent nor substantial. WPT’s attack on the competency of the evidence is a return to
its argument that Hawes should not have been permitted to testify about Blixseth’s statements
without laying a proper foundation that Blixseth was an agent of (and speaking for) a party-
opponent. WPT continues to argue that Hawes’ challenged testimony was the only evidence
establishing than an oral severance agreement had been reached. WPT further contends that there
is “no evidence” other than Hawes’ testimony to show “that Blixseth was acting on behalf of WPT
in hiring Hawes or making any agreement concerning severance.” (Emphasis in original). WPT
argues that Hawes’ work with other Blixseth-affiliated entities cuts against the assertion that the
severance agreement was intended to bind WPT.
There are two inquiries presented by this argument: (1) whether substantial and competent
evidence supports a finding that an agreement was reached in 2005; and (2) whether substantial
and competent evidence supports a finding that this agreement, if reached, was binding on WPT
as opposed to some other entity.
13
a. The subsequent emails concerning other employment terms do not render the jury’s
special verdict unsupported by substantial and competent evidence.
A contract requires mutual assent. Gray v. Tri–Way Const. Servs., Inc., 147
Idaho 378, 384, 210 P.3d 63, 69 (2009). This requires “[a] distinct understanding
common to both parties” to exist. Id. Therefore, mutual assent or a “meeting of the
minds” must occur on every material term in the contract. Barry v. Pac. W. Const.,
Inc., 140 Idaho 827, 831, 103 P.3d 440, 444 (2004).
Bremer, LLC v. E. Greenacres Irrigation Dist., 155 Idaho 736, 741, 316 P.3d 652, 657 (2013). “If
terms necessary to a contract are left for future negotiation, the contract cannot be enforced.”
Dursteler v. Dursteler, 108 Idaho 230, 234, 697 P.2d 1244, 1248 (Ct. App. 1985) (citing Brothers
v. Arave, 67 Idaho 171, 174 P.2d 202 (1946)).
The thrust of WPT’s argument is that the emails Hawes sent after the June 2005 meeting
contained such divergent employment terms that Hawes and Blixseth could not have come to a
“meeting of the minds” about the terms of employment (particularly, severance) at their meeting.
This argument is unpersuasive. A reasonable jury could find that these emails did not constitute
negotiation about material terms to the employment contract, but rather constituted confirmation
of the terms already negotiated, and addition of less necessary terms, i.e., “some items that we
[Hawes and Blixseth] didn’t touch upon[,]” specifically employee benefits and insurance. Hawes
testified that he used a boilerplate employment agreement form but modified it to include the three
essential terms he and Blixseth had agreed to at the dinner meeting. These three terms—salary,
severance, and his ability to continue work as an ISB commissioner—were not in dispute; instead,
the only term that necessitated change was the payment schedule. Further, based on the tone of the
emails and Ratte’s additional testimony about the exchange, a jury could reasonably conclude that
the agreement had already been reached.
While it is true that the clearest evidence of Blixseth’s agreement is Hawes’ testimony, the
district court determined that proper foundation had been laid in order to admit Hawes’ testimony
as to Blixseth’s statements as an admission of a party-opponent. The jury weighed Hawes’
credibility and found his testimony convincing. On appeal, this Court does not “second guess the
jury’s determinations as to the weight of the evidence and witness credibility.” Ballard, 160 Idaho
at 686, 378 P.3d at 476. Instead, when this Court reviews a jury verdict on appeal, we construe
“the evidence adduced at trial . . . in a light most favorable to” the party who prevailed at trial. Id.
Substantial and competent evidence supports the jury’s finding that the severance agreement was
reached at the 2005 meeting.
14
b. Substantial and competent evidence supports the jury’s special verdict that the
severance agreement had been reached between Hawes and Blixseth on behalf of
WPT.
WPT’s attack on the jury verdict is based on its contention that any agreement reached
between Hawes and Blixseth was not binding on WPT. In support of its argument, WPT points to
evidence that Hawes did work for Blixseth-affiliated entities other than WPT in the first few years
of employment. It also points to various documents indicating that Hawes was employed by BGI
and BGW before his employment by WPT.
In its special verdict, the jury determined that the severance agreement had been reached
between Hawes and Blixseth on WPT’s behalf. In support of this determination, Hawes presented
substantial evidence, as detailed above, to support this conclusion. WPT challenges this evidence
arguing that Hawes performed work for and was paid by other Blixseth-affiliated entities at the
beginning of his employment when whatever agreement between them had been reached.
Substantial and competent evidence supports the jury’s special verdict that the severance
agreement had been reached by Hawes and WPT. The jury apparently believed Hawes’ testimony
that notwithstanding the multiplicity of entities owned and managed by Blixseth, the vast majority
of the work Hawes performed was for WPT and that from the inception of his employment he was
employed by WPT. Consequently, if the jury found Hawes’ admissible testimony credible, a
reasonable jury could conclude that Hawes’ testimony explained the prevalence of the references
to BGI and BGW in his personnel file and financial records, instead of contradicting the
involvement of BGI and BGW in WPT business operations. The jury must have found Hawes
credible. This Court has long-standing reluctance to “second guess the jury’s determinations as to
the weight of the evidence and witness credibility.” Ballard, 160 Idaho at 686, 378 P.3d at 476.
Although Hawes’ testimony at trial did not go unchallenged, his testimony explained and
overcame WPT’s opposing evidence. This Court affirms the jury’s verdict as supported by
substantial and competent evidence on the formation of an oral agreement regarding severance
which would bind WPT.
C. Substantial and competent evidence supports the jury’s finding that WPT did not
establish its affirmative defense of equitable estoppel.
1. Standard of Review.
“This Court will not set aside a jury verdict on appeal if it is supported by substantial and
competent evidence.” Ballard, 160 Idaho at 686, 378 P.3d at 476 (quoting Van, 156 Idaho at 700,
15
330 P.3d at 1058. “This Court will not second guess the jury’s determinations as to the weight of
the evidence and witness credibility.” Id. (citation omitted).
2. Discussion.
At trial, WPT sought to establish the affirmative defense of equitable estoppel, contending
that Hawes had breached a duty to reveal the alleged severance agreement when Dolan had asked
Hawes to tell him everything he needed to know about WPT, and Hawes did not mention his
severance agreement. Hawes argued that there was no need to talk about the severance agreement
in 2012 and that there was certainly no duty to reveal an agreement he believed his employer had
placed in his personnel file. The issue was presented to the jury, which rejected WPT’s affirmative
defense.
On appeal, WPT argues that there was substantial and competent evidence such that the
jury should have found that WPT had established its affirmative defense of equitable estoppel.
WPT argues that Hawes intended to conceal the severance agreement from WPT’s new owners
after Blixseth’s involvement was terminated in 2012. WPT contends Hawes succeeded in keeping
the agreement secret because WPT’s owners and managers were unaware of the agreement “and
had no way of discovering [its] existence[.]” WPT further contends that it relied on this
concealment “to its prejudice” when Hawes was asked to disclose any potential conflicts he had
related to Blixseth; WPT contends that after this disclosure, Prim and Dolan decided not to fire
Hawes and instead continued to employ him. WPT argues that “Hawes should not be allowed to
now take an inconsistent position to his advantage.”
In order to obtain equitable estoppel, a party must show:
(1) a false representation or concealment of a material fact made with actual or
constructive knowledge of the truth; (2) that the party asserting estoppel did not and
could not have discovered the truth; (3) an intent that the misrepresentation or
concealment be relied upon; and (4) that the party asserting estoppel relied on the
misrepresentation or concealment to his or her prejudice.
Weitz v. Green, 148 Idaho 851, 861, 230 P.3d 743, 753 (2010) (quoting Willig v. State, Dep’t of
Health & Welfare, 127 Idaho 259, 261, 899 P.2d 969, 971 (1995)).
Substantial and competent evidence supports the jury’s determination that WPT failed to
prove its affirmative defense of equitable estoppel. First, the evidence WPT presented to suggest
that Hawes intended to conceal the severance agreement from Prim and Dolan was hardly
substantial. Although Hawes admits he never told Prim or Dolan about the severance agreement
he had entered into with Blixseth, he also testified that he was never asked about it. The presence
16
of the unsigned employment agreement in Hawes’ personnel file—a file in the possession of WPT,
not Hawes—also cuts against WPT’s contention that Hawes intended to keep the severance terms
a secret, or that WPT could not have discovered its existence.
Further, the jury could have reasonably concluded that WPT did not rely on its lack of
knowledge about the severance terms to its prejudice. WPT has not alleged any prejudice beyond
continuing to pay Hawes his salary between 2012 and 2017. WPT argues that had it known about
the severance agreement, it would have fired Hawes in 2012. However, equitable estoppel is an
affirmative defense: “[a] defendant’s assertion of facts and arguments that, if true, will defeat the
plaintiff’s or prosecution’s claim, even if all the allegations in the complaint are true.” Kenworth
Sales Co. v. Skinner Trucking, Inc., 165 Idaho 938, 943, 454 P.3d 580, 585 (2019) (quoting
Affirmative Defense, BLACK’S LAW DICTIONARY (11th ed. 2019)). Taking Hawes’ allegation as
true that this severance agreement existed with WPT, the terms of the severance agreement would
have fully vested by 2010. WPT would have been required to pay Hawes his full severance if it
had fired Hawes in 2012. At its base, WPT’s position is that it would like a second opportunity to
prove an affirmative defense it failed to prove at trial. We are disinclined to grant such a request.
As a result, this Court affirms the jury’s special verdict that WPT failed to establish its affirmative
defense of equitable estoppel.
D. The district court did not abuse its discretion in allowing Hawes to testify about
Blixseth’s statements during their negotiations of Hawes’ employment agreement.
1. Standard of Review.
“This Court reviews challenges to the district court’s evidentiary rulings under the abuse
of discretion standard.” Phillips v. E. Idaho Health Servs., Inc., 166 Idaho 731, 741, 463 P.3d 365,
375 (2020) (citation omitted).
When this Court reviews for an abuse of discretion, this Court determines
“[w]hether the trial court: (1) correctly perceived the issue as one of discretion; (2)
acted within the outer boundaries of its discretion; (3) acted consistently with the
legal standards applicable to the specific choices available to it; and (4) reached its
decision by the exercise of reason.”
Id. (quoting Lunneborg v. My Fun Life, 163 Idaho 856, 863, 421 P.3d 187, 194 (2018)).
2. Discussion.
To establish the existence of an oral agreement, Hawes testified about his conversation
with Blixseth. WPT objected to Hawes’ testimony recounting Blixseth’s statements, arguing that
this testimony constituted inadmissible hearsay. Hawes responded, arguing that Blixseth, as the
17
sole member of WPT at the time, was speaking for WPT, a party-opponent under Idaho Rule of
Evidence 801(d)(2)(D). The district court overruled these objections, permitting Hawes to testify
about Blixseth’s statements with respect to WPT. In overruling WPT’s objection the district court
added, “[a]s far as interest in other companies [than WPT], that’s subject to cross-examination and
to additional evidence as to whether this was a conversation limited to [WPT] or whether it was
broader or whether it had any meaning in that context.”
On appeal, WPT sets forth the same argument contending that Hawes’ testimony
constituted inadmissible hearsay. WPT maintains that Hawes set forth no independent evidence of
an agency relationship between Blixseth and WPT such that Blixseth’s statements during the June
2005 dinner meeting could bind WPT. WPT also argues that this ruling was “particularly
prejudicial and egregious given that Hawes’ testimony [was] the only evidence offered at trial
concerning an oral agreement binding upon WPT that resulted in a multi-million dollar judgment
against WPT.” (Emphasis in original.)
Hawes responds, observing that it was “undisputed that [Blixseth] was the sole owner of
WPT in 2005 when the severance agreement was reached.” Hawes also points to the work Hawes
had done for Blixseth and WPT between January and June 2005, arguing that this provided Hawes
with “a wealth of experience working for WPT only through [Blixseth] as its sole owner and agent
prior to the dinner meeting in June 2005.”
WPT argues that Blixseth’s status as sole owner of WPT is immaterial because Blixseth
“also was the owner of multiple other entities in 2005, including BGI and YCW, for which Hawes
acted as general counsel.” (Emphasis in original.) WPT argues that “if the Court were to apply
Hawes’ argument, any employer that owns multiple affiliated entities could risk liability for all
entities based on an oral agreement only intended to bind a particular entity.” WPT frames Hawes’
testimony about the June 2005 dinner as “self-serving and uncorroborated[.]”
Hearsay is an out-of-court statement offered to prove the truth of the matter asserted, and
is generally not admissible. See I.R.E. 801(c), 802. However, statements made by and offered
against a party-opponent do not constitute hearsay. See I.R.E. 801(d)(2). A statement can qualify
as having been made by the party-opponent if the statement “was made by the party’s agent or
employee on a matter within the scope of that relationship and while it existed[.]” I.R.E.
801(d)(2)(D).
18
The district court did not abuse its discretion in allowing Hawes to testify about Blixseth’s
statements at the June 2005 dinner meeting. There is independent evidence in the record that
Blixseth was speaking on behalf of WPT when negotiating with Hawes on the terms of his
employment. First, as noted, both Ratte, the former controller of BGI, and Lightner, WPT’s
controller at the time Hawes was hired and then again when he was fired, testified that they thought
Hawes had been employed by WPT during his tenure. Second, Blixseth undisputedly had the
power to bind WPT at the time; WPT has not disputed that in 2005, Blixseth was WPT’s owner
and sole member. Third, there is significant evidence that Blixseth’s intention in hiring Hawes was
so that he could continue the work he had done earlier in 2005 for WPT. In particular, Hawes filed
the paperwork required for WPT to conduct business in Idaho, negotiated the purchase of several
key WPT properties, and was identified as WPT’s registered agent. Finally, despite WPT’s dispute
about who Hawes worked for in the next twelve years, Hawes testified that nearly all of his work
was conducted for WPT, beginning as soon as the day after the meeting.
Blixseth’s status as the sole member of WPT established his capacity to bind WPT in the
way the jury found he had. While it may be true that Hawes’ testimony was “self-serving,” that is
not a basis upon which to reject his testimony. If testimony could be rejected on this basis, the
testimony of almost any party containing otherwise admissible testimony would suddenly become
inadmissible.9 Likewise, WPT’s claim that Hawes’ testimony is “uncorroborated” is simply not
supported by this record. WPT’s real complaint appears to be that it had no way to contradict
Hawes because Blixseth was nowhere to be found and therefore unavailable to testify. However,
despite significant obstacles to pursuing his case, Hawes overcame them. These obstacles were
noted by Senior District Judge Gerald Schroeder, who served as the trial judge. As he observed in
his order on attorney fees and costs, “[a]t the outset this court saw little likelihood that the plaintiff
could prevail. However, as the trial progressed and the threats of public humiliation diminished
and the comparative integrity and credibility of the witnesses evolved, the balance shifted, as
evidenced by the jury verdict.” For the reasons stated, the district court did not abuse its discretion
in allowing Hawes to testify regarding Blixseth’s statements during the June 2005 dinner meeting.
9
Further, attacking the testimony of a party as “self-serving” is more akin to impeaching a witness for bias, which
ultimately goes to the weight of the testimony, not its admissibility. More importantly, the hearsay rules do not provide
that an admission of a party is hearsay merely because the party testifying about the statement has an interest in the
outcome. By definition, virtually any admission of a party opponent is offered because the offering party is attempting
to support his position.
19
E. WPT did not object to the jury instruction given in response to the jury’s question.
1. Standard of Review.
“This Court reviews the grant or denial of a motion for new trial based on an abuse of
discretion standard.” Gillingham Const., Inc. v. Newby-Wiggins Const., Inc., 142 Idaho 15, 23, 121
P.3d 946, 954 (2005).
“The propriety of jury instructions is a question of law over which this Court
exercises free review, and the standard of review of whether a jury instruction
should or should not have been given is whether there is evidence at trial to support
the instruction, and whether the instruction is a correct statement of the law.” Clark
v. Klein, 137 Idaho 154, 156, 45 P.3d 810, 812 (2002) (internal citations omitted).
This Court reviews jury instructions as a whole to determine whether the
instructions fairly and adequately present the issues and state the law. Silver Creek
Computers, Inc. v. Petra, Inc., 136 Idaho 879, 882, 42 P.3d 672, 675 (2002). Even
where an instruction is erroneous, the error is not reversible unless the jury
instructions taken as a whole mislead or prejudice a party. Id.
Mackay v. Four Rivers Packing Co., 151 Idaho 388, 391, 257 P.3d 755, 758 (2011). This Court
“will not hold that a trial court erred in making a decision on an issue or a party’s position on an
issue that it did not have the opportunity to address.” Eagle Springs Homeowners Ass’n, Inc. v.
Rodina, 165 Idaho 862, 869, 454 P.3d 504, 511 (2019) (quotation omitted).
2. Discussion.
During the jury’s deliberations, the district court received an inquiry from the presiding
juror, asking: “What is the legal point of employment?” The district court and counsel for both
parties worked together in crafting an answer: “The legal point of employment is when the parties
agree.” This answer was returned to the jury after the following exchange between the district
court and counsel:
THE COURT: On the record.
Here’s what we have. A question has been submitted by the jury: What is
the legal point at which a company or entity becomes a person’s employer?
Answer: The legal point of employment is when the parties agree.
Any objection?
[Hawes’ counsel]: We’ll accept that, your Honor.
[WPT’s counsel]: Yes, your Honor.
After all the jury’s questions had been answered,10 the jury returned, finding that Hawes and
Blixseth, on behalf of WPT, entered into an oral severance agreement in 2005.
10
While the jury also asked other questions, this was the only answer identified by WPT as objectionable.
20
WPT filed a motion for a new trial, arguing that it had objected to the district court’s answer
given to the jury’s question. In particular, WPT contended that the instruction was “both factually
and legally incorrect, incomplete and highly prejudicial to WPT[.]” WPT argued that it had
objected to this answer “because the parties had not had the opportunity to research the question[.]”
WPT also asserted that legally, the point of Hawes’ employment was when he completed his
employment application and other preliminary employment requirements. Hawes countered by
first arguing that WPT had not objected to this jury instruction, and second contending that the
jury instruction was legally correct.
The district court denied this motion, ruling from the bench at a hearing, as follows:
It was indicated the question of whether there was a waiver probably doesn’t
depend on what’s in my head, it depends on what the record says. I proceeded on
the basis that I thought there was an agreement, but if the record isn’t sufficient to
support that, then that will be for another body to say. In [the] context of the
question asked and the instructions given, I don’t believe it is an erroneous
instruction that would mislead the jury if it followed, as I believe it would follow,
all instructions given and the instructions upon which they should consider matters.
Consequently, I will deny the motion for a new trial.
On appeal, WPT argues that its motion for a new trial should have been granted because
the answer to the jury’s question was “highly prejudicial and erroneous[.]” In so arguing, WPT
continues to assert that the exchange at trial about how to answer the jury’s question constituted
an objection. WPT also contends the answer itself was misleading to the jury because under general
contract principles, an employment relationship between Hawes and Blixseth was not legally
formed at the June 2005 dinner. WPT reiterates its claim that the additional employment
requirements were not finalized until August 1, 2005.
Hawes argues that WPT failed to object to the district court’s answer to the jury, and that
even if the issue had been preserved, the jury instruction was legally correct because it captured
the mutual agreement required to create an employment relationship. Hawes points out that while
WPT raised objections earlier in the answer-crafting process, the ultimate answer was one sentence
taken word-for-word from WPT’s proposed answer. Hawes further argues that there was no
indication that the employment agreement on the three essential terms of salary, severance, and
Hawes’ work as an ISB commissioner was contingent on employment requirements such as filling
out forms.
In response, WPT continues to argue that its objection was preserved, citing “additional
discussion of proposed jury instruction that was not recorded by [the] court reporter[.]” WPT cites
21
Garcia v. Windley, 144 Idaho 539, 542–43, 164 P.3d 819, 822–23 (2007), for the proposition that
the mere possibility of prejudice is sufficient to merit a new trial where a jury instruction has been
given erroneously.
“A party cannot raise an issue on appeal which relates to ‘the giving of a jury instruction
that misstates the law unless the party timely objected to the specific instruction on the record,
stating the grounds of the objection.’ ” Hoffer v. Shappard, 160 Idaho 868, 875, 380 P.3d 681, 688
(2016) (quoting Bolognese v. Forte, 153 Idaho 857, 867 n.6, 292 P.3d 248, 258 n.6 (2012)); see
also I.R.C.P. 51(b). “All objections to instructions proposed by the court, and any objections to
the giving or the failure to give an instruction, and the court’s ruling on the objection, must be
made a part of the record.” I.R.C.P. 51.
Based on the transcript of the discussion between counsel and the district court, WPT did
not object to the answer suggested by and then provided to the jury by the district court. Despite
WPT’s characterization of the exchange, the sentence provided to the jury was materially identical
to WPT’s proposed answer. The transcript reflects that WPT’s counsel stated: “What if we say:
‘The legal point of employment is when the parties agree. You must determine that point based on
the concepts of contract law that have been provided to you. Because they are entering into an
employment relationship and that is different than just any other relationship because you have
certain obligations once you are an employee.’ ” (Italics added.) After further discussion, the
district court asked, “So just send back: ‘The legal point of employment is when the parties
agree?’ ” In response, counsel for WPT added, “Mutually agree, yeah.” Hawes’ counsel chimed
in: “Fine by us. May as well. We’ve got to get an answer, that’s the only one we are going to get
agreement on. I don’t think it’s controversial.” Another discussion was held, this time off the
record, after which the district court stated:
THE COURT: On the record.
Here’s what we have. A question has been submitted by the jury: What is
the legal point at which a company or entity becomes a person’s employer?
Answer: The legal point of employment is when the parties agree.
Any objection?
[Hawes’ counsel]: We’ll accept that, your Honor.
[WPT’s counsel]: Yes, your Honor.
Although WPT has claimed that this exchange was rife with its objections, even pointing
to portions of this discussion held off the record, this Court assumes that what is not included in
the record supports the district court’s decision. See Gibson, 138 Idaho at 790, 69 P.3d at 1051
22
(“When a party appealing an issue presents an incomplete record, this Court will presume that the
absent portion supports the findings of the district court.”). The transcript, such as it is, does not
support WPT’s assertion that an objection was made, much less that the basis for this objection
was made clear to the district court. In fact, the transcript reflects WPT’s agreement with the
answer proposed by the district court. There is no ruling on the record based on an objection for
this Court to review. See I.R.C.P. 51. WPT failed to object, on the record, to the answer given to
the jury. As a result, there is no need to reach WPT’s argument that the jury instruction was an
incorrect statement of law. See Hoffer, 160 Idaho at 875, 380 P.3d at 688.
F. The district court did not abuse its discretion in entering an award of attorney fees
based on the trebled award of damages contained in the contingency fee agreement
between Hawes and his counsel.
1. Standard of Review.
“An award of attorney fees and costs is within the discretion of the trial court
and subject to an abuse of discretion standard of review.” Smith v. Mitton, 140 Idaho
893, 901, 104 P.3d 367, 375 (2004). “The party disputing the award has the burden
of showing an abuse of discretion.” Id.
Ballard, 160 Idaho at 716, 378 P.3d at 506.
2. Discussion.
The district court entered judgment in the amount of $1,639,726.80. This reflected a
trebling of the jury’s award of damages based on Idaho Code section 45-615(2) and an award of
prejudgment interest. At the time, the district court left attorney fees and costs to be assessed later.
Hawes then filed his memorandum of attorney fees and costs. Hawes requested his costs
as of right under I.R.C.P. 54(d)(1)(C). Hawes also requested attorney fees in the amount of
$573,904.38, citing Idaho Code section 45-615 and an attorney fee agreement with his counsel
providing for a contingent fee of 35% of the gross recovery.11 Hawes argued that he was entitled
11
The attorney fee provision in the agreement between Hawes and his counsel states, in relevant part,
Client agrees to pay as attorneys’ fees a contingency fee of the gross amount of all sums received
from any source relating to this claim and any other financial savings which inures to the benefit of
client. This amount will be paid whether the recovery is made pursuant to settlement, trial or
otherwise. The contingency fee will be taken from the gross recovery and the percentage will depend
on when a settlement is reached or payment is received, whichever is first. If settlement is reached
or payment received within 35 days of this agreement being signed, then the contingency fee will
be 15% of the gross recovery. If between 36 days and 150 days, the fee will be 24% of the gross
recovery. If between 151 days and 240 days, the fee will be 30% of the gross recovery. If between
241 days and 365 days, the fee will be 33 1/3% of the gross recovery. If after 365 days, the fee will
be 35% of the gross recovery.
23
to this full amount of his contingent fee agreement with his attorneys, analyzing the eleven factors
for an attorney fee award set out in Idaho Rule of Civil Procedure 54(e)(3). He accompanied his
memorandum with several affidavits from area attorneys.
In response, WPT moved to disallow costs and attorney fees. WPT specifically argued that
an award of attorney fees above and beyond the already-trebled award of damages would result in
a windfall to Hawes and harshly punish WPT. In the alternative, WPT argued that if attorney fees
were awarded, the amount Hawes had requested was not reasonable. Hawes countered, detailing
the many ways WPT had attempted to avoid paying him his severance package, and arguing the
reasonableness of the requested attorney fees under I.R.C.P. 54(e)(3).
When the district court entered its order on fees and costs, it analyzed the I.R.C.P. 54(e)(3)
factors, concluding that a full award of Hawes’ requested attorney fees was appropriate. The
district court then entered its judgment for attorney fees and costs.
On appeal, WPT argues that an award of attorney fees based on the trebled damages is
harsh and punitive. WPT cites to Gomez v. MasTec North America, Inc., 2006 WL 8446077 (D.
Idaho Dec. 13, 2006), a case from the District of Idaho in which the U.S. magistrate judge declined
to award attorney fees under the statute, citing Rodwell v. Serendipity, Inc., 99 Idaho 894, 895, 591
P.2d 141, 142 (1979). WPT further emphasizes the discretionary nature of attorney fees under
Idaho Code section 45-615(2), citing Maroun v. Wyreless Systems, Inc., 141 Idaho 604, 611, 114
P.3d 974, 981 (2005).
Hawes argues that, despite recognizing the discretionary nature of attorney fees under
Idaho Code section 45-615(2), WPT failed to analyze how the award of attorney fees was an abuse
of the district court’s discretion. In response, WPT argues that the thrust of its challenge to the
award of attorney fees is that the district court failed to consider and apply relevant case law, and
only provided four pages of cursory analysis of the Rule 54(e)(3) factors.
When awarding attorney fees, a court is required to consider all of the factors listed in
Idaho Rule of Civil Procedure 54(e)(3), but is not required to make specific findings as to each
one. Smith, 140 Idaho at 902, 104 P.3d at 376 (“When considering the factors, courts need not
demonstrate how they employed any of those factors in reaching an award amount.”). This Court
has recognized an award of contingent fees—rather than hourly—as an appropriate exercise of
discretion. See Parsons v. Mut. of Enumclaw Ins. Co., 143 Idaho 743, 748, 152 P.3d 614, 619
(2007) (“A contingent fee agreement that was reasonable when entered into does not become
24
unreasonable simply because in the end the attorney recovers more than he or she would have
under an hourly fee contract.”).
Idaho Code section 45-615(2) governs the award of damages and attorney fees in a
statutory wage claim. The statute reads: “Any judgment rendered by a court of competent
jurisdiction for the plaintiff in a suit filed pursuant to this section may include all costs and
attorney’s fees reasonably incurred in connection with the proceedings . . . [in addition to] damages
in the amount of three (3) times the unpaid wages due and owing.” See I.C. § 45-615(2) (italics
added). The statute makes it clear that a successful plaintiff may recover both trebled damages and
attorney fees.12
WPT’s appeal raises an issue of first impression, as this Court has not yet examined a
district court’s award of attorney fees based on a contingent fee agreement where the underlying
award of damages has been trebled. WPT asserts that this Court has already weighed in on an
award of attorney fees based on trebled damages, citing Rodwell v. Serendipity, Inc., 99 Idaho 894,
895, 591 P.2d 141, 142 (1979). Rodwell was a wage claim case in which this Court was asked to
award attorney fees on appeal where an award of damages had already been trebled. Id. This Court
declined to do so.
WPT relies on this case—and cases later relying on Rodwell13—for the proposition that an
award of attorney fees based on a trebled award of damages would constitute an unreasonable
windfall to Hawes and would be punitive to WPT. However, Rodwell is not binding precedent for
two reasons. First, this Court in Rodwell was asked to award attorney fees under Idaho Code
section 12-121. Since Rodwell, Idaho Code section 12-121 has been rejected as a basis for an award
of attorney fees for wage claims. See Polk, 135 Idaho at 315, 17 P.3d at 259. Second, this Court
was determining attorney fees on appeal, rather than analyzing an award of attorney fees below.
Id. Rodwell is, therefore, an example of this Court’s approach to an attorney fee request on appeal,
12
A plaintiff must specifically request attorney fees under this statute in order to recover attorney fees in a statutory
wage claim. See Polk v. Larrabee, 135 Idaho 303, 315, 17 P.3d 247, 259 (2000) (rejecting Idaho Code section 12-
120(3) as a basis for recovery of attorney fees in statutory wage claims); Schoonover v. Bonner Cnty., 113 Idaho 916,
923, 750 P.2d 95, 102 (1988) (rejecting I.C. section 12-121 as a basis for recovery of attorney fees in statutory wage
claims); but see Nettleton v. Canyon Outdoor Media, LLC, 163 Idaho 70, 75, 408 P.3d 68, 73 (2017) (noting that
breach of employment contract actions—as opposed to statutory wage claim actions—are considered commercial
transactions under Idaho Code section 12-120(3) such that attorney fees can be awarded).
13
In particular, WPT cites a U.S. District Court case for the District of Idaho, Gomez v. MasTec N. Am., Inc., 2006
WL 8446077 (D. Idaho Dec. 13, 2006), which the U.S. magistrate judge cited Rodwell in declining to award attorney
fees after trebling an award of damages in a wage claim case. There, the magistrate judge recognized his discretion in
declining to award attorney fees. See Gomez, 2006 WL 8446077, at *5.
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rather than part of the legal analysis applicable to a lower court’s determination of the
appropriateness of attorney fees.
More to the point, however, Idaho’s wage claim act can be punitive in nature to the extent
that it was designed to deter bad behavior on the part of an employer. As written, the statutes
authorizing wage claim suits provide an incentive to employers to deal fairly with their employees,
given the uneven bargaining positions between the two. As we explained in Lawless v. Davis, 98
Idaho 175, 177, 560 P.2d 497, 499 (1977), the earliest incarnation of a wage claim suit only
allowed an “employee to collect without working, the amount of his daily wage for each day that
his employer allow[ed] to pass without settling the outstanding wage claim. The section allow[ed]
a maximum recovery of thirty days [now fifteen days] additional wages.”14 However, “if the
outstanding wages were of a substantial amount the threat of the employee filing suit to extract an
additional thirty days wages from the employer often would not be sufficient to induce the
employer to settle his account amicably.” Id. The 1967 amendments to the wage claim statutes
provided an alternative remedy for employees who were owed significantly more than the amount
of thirty days’ wages. See id.; see also 1967 Idaho Sess. Laws, ch. 436, § 6. In other words, the
remedy of trebled damages is designed to deter the very scenario the jury found to have occurred,
circumstances under which the district court commented: “There were no reasonable offers of
settlement in this case. The plaintiff was offered a scrap and threatened with attacks on his honesty
and integrity. If he did not accept the nuisance value offer, there was no real alternative but to go
to trial.”
We conclude that under this Court’s abuse of discretion standard, the district court’s award
of attorney fees did not constitute an abuse of discretion. First, the district court explicitly
recognized its discretion in making the decision, acknowledging that there might be instances
where trebling attorney fees would not be appropriate. Second, the district court’s decision is
within the boundaries of its discretion, given this Court’s treatment of contingent fee agreements.
See Parsons, 143 Idaho at 748, 152 P.3d at 719. Third, the district court’s decision is consistent
with the legal standards applicable to an award of attorney fees, as shown by the district court’s
analysis of the I.R.C.P. 54(e)(3) factors. Finally, the district court’s analysis reflects an exercise of
14
This alternative remedy is now codified at Idaho Code section 45-607; in 1999, the amount of wages under this
section was decreased from thirty days’ wages to fifteen days’ wages. See I.C. § 45-607; see also 1999 Idaho Sess.
Laws, ch. 51, § 8.
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reasoning. The district court considered the affidavits and attachments presented by Hawes and his
counsel, and then spent four pages analyzing the I.R.C.P. 54(e)(3) factors and explaining its
decision. This analysis concluded in the district court’s decision that it was appropriate in this case
to award Hawes the attorney fees requested. The district court did not abuse its discretion in
awarding Hawes his contractually agreed-upon attorney fees. Consequently, we affirm the district
court’s decision to award Hawes his requested attorney fees.
G. Costs, but not attorney fees, are awarded on appeal.
Hawes has requested attorney fees on appeal, citing Idaho Code section 45-615(2) and
Idaho Code section 12-121. Hawes contends that the thrust of WPT’s appeal asks this Court to
second-guess the jury verdict. WPT counters asserting that its appeal raised good faith arguments
about novel legal issues, in particular the appropriateness of a contingency fee award based on
trebled damages, and the sufficiency of a jury verdict where a significant portion of evidence about
an oral agreement was arguably hearsay.
“Any party seeking attorney fees on appeal must assert such a claim as an issue presented
on appeal in the first appellate brief filed by such party[.]” I.A.R. 41(a). “[A]s a general rule,
attorney fees are not awarded on appeal except pursuant to ‘a statute or contractual provision
authorizing an award of attorney fees on appeal.’ ” Int’l Real Estate Sols., Inc. v. Arave, 157 Idaho
816, 822, 340 P.3d 465, 471 (2014) (quoting Ticor Title Co. v. Stanion, 144 Idaho 119, 127, 157
P.3d 613, 621 (2007)). In addition, we have previously held the exclusive statutory basis for
awarding a plaintiff attorney fees in a wage claim case is Idaho Code section 45-615. See Polk,
135 Idaho at 315, 17 P.3d at 259.
Because the judgment of the district court is affirmed, Hawes is the prevailing party.
However, we decline to award additional attorney fees on appeal. First, Idaho Code section 12-
121 is not a basis for granting such an award here. See Schoonover, 113 Idaho at 923, 750 P.2d at
102. We also decline to award attorney fees on appeal under Idaho Code section 45-615(2) because
given the district court’s resolution of this case, Hawes will receive all that he has contracted for
with his attorneys. It was conceded by Hawes’ counsel during oral argument that the attorney fee
agreement created a maximum recovery of 35% even if the case were to be resolved on appeal. As
a result of the agreement, Hawes has incurred no additional attorney fees on appeal. We applaud
Hawes’ counsel for his candor on this question. However, given that the gravamen of this decision
is to uphold an award to Hawes of all his contractually agreed-upon attorney fees, an award of
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attorney fees on appeal would result in a revision of Hawes’ contract with his lawyers. We decline
to award more attorney fees than the contract allows. Consequently, Hawes’ request for an award
of additional attorney fees on appeal is denied.
Costs are awarded to Hawes as of right under Idaho Appellate Rule 40.
III. CONCLUSION
For the foregoing reasons, this Court affirms the judgment of the district court. First, the
district court did not err in denying WPT’s motion for a directed verdict. Second, substantial and
competent evidence supports the jury’s special verdict. Third, the district court did not abuse its
discretion in allowing Hawes to testify regarding Blixseth’s statements under I.R.E. 801(d)(2)(D).
Fourth, this Court affirms the district court’s decision to deny a new trial because WPT failed to
properly preserve an objection regarding the jury instruction. Fifth, the district court did not abuse
its discretion in awarding attorney fees based on Idaho Code section 45-615(2) and Hawes’
contract with his attorneys, as a percentage of the trebled damages. Finally, this Court declines to
award attorney fees on appeal, but awards Hawes his costs on appeal.
Chief Justice BURDICK, Justices BEVAN, MOELLER and HORTON, J. Pro Tem,
CONCUR.
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