IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 32551
P.O. VENTURES, INC., an Idaho )
corporation, )
) 2007 Opinion No. 69
Plaintiff-Respondent, )
) Boise, February 2007 Term
v. )
) Filed: May 1, 2007
THE LOUCKS FAMILY IRREVOCABLE )
TRUST and GEORGE LOUCKS, ) Stephen W. Kenyon, Clerk
individually, as Trustee of the Loucks Family )
Irrevocable Trust, )
)
Defendants-Appellants. )
)
Appeal from the District Court of the Fourth Judicial District of the State of Idaho, Ada County.
Hon. Kathryn A. Sticklen, District Judge.
The decision of the district court granting summary judgment to respondent is: affirmed.
James R. Gillespie, P.A., Boise, for appellants.
Greener Banducci Shoemaker, P.A., Boise, for respondent. Shawn P. Bailey argued.
______________________________________
TROUT, Justice
The Loucks Family Irrevocable Trust and its sole trustee, George Loucks (Loucks),
appeal from the award granting P.O. Ventures (POV) summary judgment for specific
performance of a land sale contract.
I.
FACTUAL AND PROCEDURAL BACKGROUND
POV is the developer of Arbor Ridge, a residential subdivision in Eagle, Idaho. POV
began developing Arbor Ridge approximately four years ago. POV sought to purchase from
Loucks, acting as the trustee of the Loucks Family Irrevocable Trust, a 14.66 acre tract of land in
order to include this land in the Arbor Ridge subdivision. Allegedly in reliance on an oral
agreement with Loucks that POV would purchase Loucks’s property, POV obtained a new
zoning designation of Arbor Ridge and Loucks’s property to allow residential development of
both. On August 25, 2004, POV drafted a formal agreement reflecting a purchase price of
$800,000 for Loucks’s property. Loucks did not sign this agreement. Soon thereafter, Loucks
received an offer to buy the same property from Rama Group, LLC (Rama), for $820,960, which
Loucks rejected.
On November 6, 2004, Loucks and POV’s representative, Floyd Patterson (Patterson), sat
down at Patterson’s mother’s house to negotiate the sale of Loucks’s land. Loucks’s brother,
John A. Loucks (Tony), was also present. Loucks came to the table with the two-page
addendum (Addendum) that had been attached to Rama’s earnest money agreement proposal,
and the parties used that document as a template for their negotiation. Writing directly on the
Addendum, Loucks and Patterson crossed out Rama’s name and handwrote POV’s name as the
buyer; struck the printed purchase price and substituted the new, higher price of $900,000;
provided for a $100,000 down payment; set a closing date of June 30, 2005, on which date
payment would be due in full, together with interest at a rate of 6.5% on the unpaid balance until
closing; and handwrote in that no prepayment penalty would apply. The parties left unchanged
the typed provision listing the seller as “Loucks Family Irrevocable Trust, George A. Loucks,
Trustee.” Loucks and Patterson signed on the first page of the Addendum and wrote in the date
of November 6, 2004. The handwriting next to Patterson’s signature reads, “Buyer, P.O.
Ventures Inc.” Tony signed the document as a witness. The second page to the Addendum
contained a number of typewritten terms relating to surveying and developing the property, but
the only handwriting on the second page of the document is a stray checkmark of unknown
origin.
On November 16, 2004, POV had an agreement (Purchase Agreement) drafted up by its
attorney. The Purchase Agreement contained basically the same terms as appeared on the first
page of the Addendum, but there was also a provision that all real property taxes and
assessments would be prorated as of the date of closing and that the costs of closing would be
split equally between the parties. Patterson signed the Purchase Agreement and sent it to Loucks
for signature. Loucks refused to sign, claiming that the typed agreement did not represent the
modified Addendum signed by the parties.
POV filed suit for specific performance or, alternatively, damages. While POV’s first
complaint attached the unsigned November 16, 2004, Purchase Agreement, POV subsequently
amended its complaint with leave of court, to enforce the signed November 6, 2004, Addendum.
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POV filed a motion for summary judgment which was granted by the district court. The court
ordered specific performance, concluding that the Addendum included the essential terms
necessary to specifically enforce a contract for the sale of land. The district court concluded that
all the material terms had been agreed to on November 6 and that any changes proposed in the
November 16 Purchase Agreement were minimal and did not affect the fact that the parties had
already agreed to the material terms. Applying Idaho Code section 12- 120(3), the district court
awarded mandatory costs and fees to POV, the prevailing party in a commercial transaction.
POV then filed its memorandum of attorney fees and costs, to which Loucks objected. The
district judge analyzed POV’s various requests, made some deductions, and entered a decision.
Loucks now appeals the award of summary judgment and the award of costs and fees.
II.
STANDARD OF REVIEW
Specific performance is an extraordinary remedy that can provide relief when legal
remedies are inadequate. Fullerton v. Griswold, 142 Idaho 820, 823, 136 P.3d 291, 294 (2006).
The inadequacy of remedies at law is presumed in an action for breach of a real estate purchase
and sale agreement due to the perceived uniqueness of land. Id. The decision to grant specific
performance is a matter within the district court’s discretion. Id. When making its decision the
court must balance the equities between the parties to determine whether specific performance is
appropriate. Id.
On appeal from the grant of a motion for summary judgment, this Court’s standard of
review is the same as the standard used by the district court originally ruling on the motion.
Intermountain Forest Management v. Louisiana Pacific Corp., 136 Idaho 233, 235, 31 P.3d 921,
923 (2001). Summary judgment is appropriate “if the pleadings, depositions, and admissions on
file, together with the affidavits, if any, show that there is no genuine issue of material fact and
that the moving party is entitled to a judgment as a matter of law. I.R.C.P. 56(c).
The burden of proving the absence of material facts is upon the moving party. Thomson
v. City of Lewiston, 137 Idaho 473, 476, 50 P.3d 488, 491 (2002); see also Petricevich v. Salmon
River Canal Co., 92 Idaho 865, 452 P.2d 362 (1969). The adverse party, however, “may not rest
upon the mere allegations or denials of his pleadings, but his response, by affidavits or as
otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue
for trial.” I.R.C.P. 56(e). The moving party is therefore entitled to a judgment when the
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nonmoving party fails to make a showing sufficient to establish the existence of an element
essential to that party’s case on which that party will bear the burden of proof at trial. See
Thomson, 137 Idaho at 476, 50 P.3d at 491, Badell, 115 Idaho at 102, 765 P.2d at 127.
When an action, as here, will be tried before the court without a jury, the trial court as the
trier of fact is entitled to arrive at the most probable inferences based upon the undisputed
evidence properly before it and grant the summary judgment despite the possibility of conflicting
inferences. Intermountain Forest Management, 136 Idaho at 235, 31 P.3d at 923. Resolution of
the possible conflict between the inferences is within the responsibilities of the fact finder.
Cameron v. Neal, 130 Idaho 898, 900, 950 P.2d 1237, 1239 (1997). This Court exercises free
review over the entire record that was before the district judge to determine whether either side
was entitled to judgment as a matter of law and reviews the inferences drawn by the district
judge to determine whether the record reasonably supports those inferences. Intermountain
Forest Management, 136 Idaho at 236, 31 P.3d at 924.
III.
DISCUSSION
A. Award of summary judgment
The district court found that the Addendum evinced a valid, enforceable agreement
covering all the material terms and bearing each party’s signature. We conclude that the district
court was correct and that the parties agreed to the material terms of this land sale agreement.
“Formation of a contract is generally a question of fact for the trier of fact to resolve.”
Inland Title Co. v. Comstock, 116 Idaho 701, 702, 779 P.2d 15, 16 (1989). “Formation of a valid
contract requires that there be a meeting of the minds as evidenced by a manifestation of mutual
intent to contract. This manifestation takes the form of an offer and acceptance.” Id. at 703, 779
P.3d at 17. In addition, under Idaho’s statute of frauds, an agreement for the sale of real property
is invalid unless the agreement “or some note or memorandum thereof, be in writing and
subscribed by the party charged, or by his agent.” I.C. § 9-505(4); see also Hoffman v. SV Co.,
Inc., 102 Idaho 187, 190, 628 P.2d 218, 221 (1981). “In a dispute over contract formation it is
incumbent upon the plaintiff to prove a distinct and common understanding between the parties.”
Inland, 116 Idaho at 703, 779 P.3d at 17.
For a land sale contract to be specifically enforced, the contract must typically contain the
minimum provisions of the parties involved, the subject matter thereof, the price or
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consideration, a description of the property, and all the essential terms of the agreement.
Hoffman v. SV Co., Inc., 102 Idaho 187, 190, 679 P.2d 218, 221 (1981); see also Snyder v.
Miniver, 134 Idaho 585, 587, 6 P.3d 835, 837 (Ct. App. 2000). The Addendum identifies Loucks
and POV as the parties; identifies the land to be sold by address, acreage, tax parcel number, and
a metes and bounds description; sets a purchase price of $900,000; requires $100,000 in earnest
money, together with interest at 6.5%; provides a closing date, with the addition: “Balance due in
Full”; and provides that no prepayment penalty shall apply. The document is signed by
Patterson, Loucks, and Tony, and dated November 6, 2004. The Addendum therefore includes
all of the minimum essential, material terms of a land sale contract.1
Loucks argues that no meeting of the minds occurred based on the difference between the
November 6, 2004, Addendum and the November 16, 2004, Purchase Agreement. Loucks
suggests that while the parties reached an agreement on November 6, 2004, as to certain essential
material terms, other material proposed terms remained in dispute. Loucks argues that the
differences between the Addendum and the Purchase Agreement demonstrate that the Addendum
was not the parties’ final agreement and, as such, is not specifically enforceable. In Luke v.
Conrad, 96 Idaho 221, 526 P.2d 181 (1974), the Court declined to award specific performance
where an earnest money agreement “was incomplete and not a final statement of the terms of
conveyance….” Id. at 222, 526 P.2d at 182. In the present case, the Addendum, on its face, did
not demonstrate any intent to sign a more formal document in the future. Nothing in the
document suggests that the parties were simply using it as a preliminary discussion. Nothing in
the document indicates that there were further terms that needed to be resolved or that the
agreement was not final until a formally typed document was actually signed. The agreement,
on its face, demonstrates a mutual intent to contract.
We are unpersuaded that the new terms appearing in the November 16 Purchase
Agreement demonstrate that material terms remained in dispute at the time the parties signed the
Addendum on November 6. This Court has stated that for a contract to be specifically
enforceable, it “must be complete, definite and certain in all of its material terms, or contain
provisions which are capable in themselves of being reduced to certainty.” Giacobbi Square v.
1
We note that we are not presented with any questions related to the second page of the
Addendum. The essential terms are all contained on the first page, which was signed by the
parties, and form the content of the agreement reached by the parties.
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PEK Corporation, 105 Idaho 346, 348, 670 P.2d 51, 53 (1983) (emphasis omitted). Certainly,
the November 6 Addendum does not refer to proration of property taxes or sharing closing costs,
as does the November 16 Purchase Agreement. There is nothing in the record, together with
reasonable inferences, that demonstrates these terms were critical to the transaction or critical to
these parties in particular, and consequently the terms are not material.
The additional terms in the November 16 Purchase Agreement have no bearing on the
completed agreement that had already been reached. By Loucks own admission, the Purchase
Agreement does not alter the material terms presented in the Addendum of the property
description, purchase price, down payment, closing date, and interest. The Addendum is clear on
the point that Loucks would receive $900,000 for his property without any offsets or reductions,
and that he would receive that sum on the day of closing. Any other terms that POV later sought
to include in the Purchase Agreement are not binding. It is the Addendum, not the Purchase
Agreement, that POV seeks to specifically enforce. The district court properly found that once
POV demonstrated that the Addendum was complete, final, and specifically enforceable, the
burden shifted to Loucks to demonstrate otherwise. The district court did not err in concluding
that Loucks failed to offer evidence to show that no meeting of the minds occurred on November
6, 2004.
B. Award of costs and fees
Loucks challenges the reasonableness of the costs and fees awarded to POV by the
district court. “An award of attorney fees under I.C. § 12-120(3) is reviewed for an abuse of
discretion.” Fox v. Mountain West Elec., Inc., 137 Idaho 703, 712, 52 P.3d 848, 857 (2002).
The Court applies a three-factor test to determine (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 of reason. Id.
Idaho Rule of Civil Procedure 54(e)(3) directs the trial court to consider certain criteria in
setting the amount of fees to be awarded to the prevailing party.2 The trial court correctly
2
Idaho Rule of Civil Procedure 54(e)(3) states:
Amount of Attorney Fees. In the event the court grants attorney fees to a party or parties
in a civil action it shall consider the following factors in determining the amount of such
fees:
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perceived the amount of fees to be awarded as an issue of discretion, and then explicitly
considered each criterion listed under Rule 54(e)(3). In addition to the trial court’s methodical
evaluation of the criteria listed by Rule 54(e)(3), the court reviewed the itemized memoranda and
affidavits of costs and removed from the award costs for attorney time it deemed excessive. The
trial court’s review of fees complies with Rule 54(e)(3) and demonstrates an exercise of reason.
We conclude the trial judge did not abuse her discretion in determining the amount of attorney
fees to be awarded POV.
Loucks also argues the trial court erred in awarding paralegal costs to POV because POV
provided no certification that the person performing paralegal services fell within the guidelines
of Rule 54(e)(1). Rule 54(e)(1) provides that “[i]n any civil action the court may award
reasonable attorney fees, which at the discretion of the court may include paralegal fees, to the
prevailing party….” I.R.C.P. 54(e)(1). In this case, the trial judge applied Rule 54(e)(1)’s
restriction that fees may only be awarded for costs associated with attorney and paralegal work,
distinguishing such costs from those incurred for clerical work. The trial judge evaluated POV’s
initial submission of costs under the Rule and struck those items that were not properly paralegal
work. The trial court’s analysis demonstrates a proper and reasonable exercise of discretion
under Rule 54(e)(1).
Finally, Loucks asserts that Rule 54(d)(1)(C)(9) allows the prevailing party to recover the
reporting and transcribing costs for only one deposition taken in a case, rather than for each
deposition, as the court allowed. “The question of a trial court’s compliance with the rules of
civil procedure relating to the recovery of attorney fees or costs is one of law upon which an
(A) The time and labor required.
(B) The novelty and difficulty of the questions.
(C) The skill requisite to perform the legal service properly and the experience and ability
of the attorney in the particular field of law.
(D) The prevailing charges for like work.
(E) Whether the fee is fixed or contingent.
(F) The time limitations imposed by the client or the circumstances of the case.
(G) The amount involved and the results obtained.
(H) The undesirability of the case.
(I) The nature and length of the professional relationship with the client.
(J) Awards in similar cases.
(K) The reasonable cost of automated legal research (Computer Assisted Legal
Research), if the court finds it was reasonably necessary in preparing a party’s case.
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appellate court exercises free review.” J.R. Simplot Co. v. Chemetics Intern., Inc., 130 Idaho
255, 257, 939 P.2d 574, 576 (1997). Rule 54(d)(1)(C)(9) allows a prevailing party to recover
“[c]harges for reporting and transcribing of a deposition taken in preparation for trial action,
whether or not read into evidence in the trial of an action.” The district court found Loucks’s
challenge frivolous based upon Lovey v. Regence Blueshield of Idaho, 139 Idaho 37, 72 P.3d 877
(2003), which interpreted the rule in question to allow recovery “for reporting and transcribing
depositions and for one copy of the depositions….” Id., 44-45 n. 4, 884-85 n. 4 (emphasis
added). This Court’s decision in Lovey confirms a common sense reading of Rule
54(d)(1)(C)(9), interpreting the reference to “a deposition” to mean any deposition taken in a
particular case. The district court correctly concluded the prevailing party is not limited to
recovery of costs for the taking of a single deposition.
IV.
CONCLUSION
The district court’s decision granting summary judgment to POV and awarding attorney
fees and costs is affirmed in full. As the prevailing party in a commercial transaction, POV is
entitled to attorney fees on appeal under I.C. § 12-120(3), together with its costs.
Chief Justice SCHROEDER and Justices EISMANN, BURDICK and JONES
CONCUR.
(L) Any other factor which the court deems appropriate in the particular case.
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