This appeal arises from a products liability action brought by Jesus Hurtado and John Reitsma, d/b/a J & J Calf Ranch (J & J), against Land O'Lakes, Inc. (Land O'Lakes). J & J alleged that the Land O'Lakes milk replacer it used to feed its dairy calves was defective and caused the death of more than one hundred calves. A jury found in favor of J & J and awarded damages. Land O'Lakes appeals, arguing that the district court improperly admitted expert testimony and that J & J failed to prove both liability and damages. Land O'Lakes asks this Court to vacate the judgment of the district court and enter judgment in its favor or, alternatively, to vacate the judgment and order a new trial. J & J cross-appeals from the district court's award of attorney fees, arguing that the court abused its discretion by excluding fees incurred before and during previous litigation in this matter. J & J asks this court to vacate the award of attorney fees and remand with instructions to include attorney fees accrued in the first trial in its calculation of reasonable attorney fees. We affirm.
In 2005, J & J purchased a Land O'Lakes milk replacer product called Purina 20-20 Milk Replacer and began feeding it to its dairy calves. According to Jesus Hurtado, after J & J began feeding with the Land O'Lakes milk replacer, the dairy calf herd experienced an increase in deaths from scours.
J & J sent a sample of the milk replacer, as well as two fecal samples from sick calves, for testing at a nearby laboratory. The milk replacer samples tested positive for non-pathogenic staphylococcus and streptococcus. Brad Brudevold, J & J's nutrition expert, testified that these organisms do not cause scours. One fecal sample tested positive for cryptosporidia, which can cause scours in dairy calves, and the other was clean. Brudevold testified that despite the presence of cryptosporidia in the fecal sample, it was his opinion that the scours were caused by a nutritional problem, not by cryptosporidia.
J & J sued Land O'Lakes in December 2005. The jury entered a verdict for J & J in the amount of $150,000 and Land O'Lakes appealed. After holding that the district court had abused its discretion in admitting certain business records, this Court vacated the judgment against Land O'Lakes and remanded for a new trial. After the second trial, the jury again entered a verdict in favor of J & J on its breach of the implied warranty of merchantability claim and awarded damages of $50,000, to be reduced by 40 percent for J & J's negligence.
J & J requested attorney fees of $80,744. The request included fees for time spent preparing for and conducting the first trial, as well as paralegal and attorney fees incurred during the second trial. The district court excluded most of the requested fees, including fees for the pretrial work and the first trial, and awarded J & J $13,520. Land O'Lakes appeals the jury's verdict, and J & J cross-appeals the district court's order limiting its recovery of attorney fees. Both parties request attorney fees on appeal.
District courts have "broad discretion in determining whether a witness is qualified as an expert." Weeks v. E. Idaho Health Servs., 143 Idaho 834, 837, 153 P.3d 1180, 1183 (2007) (quoting Warren v. Sharp, 139 Idaho 599, 605, 83 P.3d 773, 779 (2003)). Determining whether expert testimony is admissible "is also a matter committed to the
We will not set aside a jury verdict on appeal if it is supported by substantial and competent evidence. Mackay v. Four Rivers Packing Co., 151 Idaho 388, 391, 257 P.3d 755, 758 (2011). "Substantial and competent evidence is relevant evidence that a reasonable mind might accept to support a conclusion." Uhl v. Ballard Med. Prods., Inc., 138 Idaho 653, 657, 67 P.3d 1265, 1269 (2003) (citing Hughen v. Highland Estates, 137 Idaho 349, 351, 48 P.3d 1238, 1240 (2002)). However, substantial evidence does not mean uncontradicted evidence. VFP VC v. Dakota Co., 141 Idaho 326, 335, 109 P.3d 714, 723 (2005) (citing Mann v. Safeway Stores, Inc., 95 Idaho 732, 736, 518 P.2d 1194, 1198 (1974)). "[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...." Garrett Freightlines, Inc. v. Bannock Paving Co., Inc., 112 Idaho 722, 726, 735 P.2d 1033, 1037 (1987).
A district court's "calculation of reasonable attorney fees is reviewed for an abuse of discretion." Lee v. Nickerson, 146 Idaho 5, 10, 189 P.3d 467, 472 (2008) (citation omitted). "The party opposing the award bears the burden of demonstrating that the trial court abused its discretion." Griffith v. Clear Lakes Trout Co., 146 Idaho 613, 622, 200 P.3d 1162, 1171 (citing Lettunich v. Lettunich, 145 Idaho 746, 749, 185 P.3d 258, 261 (2008)).
After the second trial, Land O'Lakes moved for judgment notwithstanding the verdict or, alternatively, for a new trial. The district court denied the motion, but Land O'Lakes does not expressly appeal that denial; rather, it sets forth as the issues on appeal some of the individual errors it previously claimed as grounds for its motion, along with an evidentiary issue. We have held that "[i]t is the duty of the appellant to list the issues on appeal for this Court to review." Andersen v. Prof. Escrow Servs., Inc., 141 Idaho 743, 746, 118 P.3d 75, 78 (2005) (citing Everhart v. Wash. Cnty. Road & Bridge Dep't, 130 Idaho 273, 274, 939 P.2d 849, 850 (1997)). Further, "[t]his Court has consistently followed the rule that it `will not review the actions of a trial court, unless the action has been listed as an issue on appeal, especially where no authorities are cited and no argument is contained in the appellate briefs.'" Andersen, 141 Idaho at 746, 118 P.3d at 78 (quoting Sun Valley Shopping Ctr., Inc. v. Idaho Power Co., 119 Idaho 87, 93, 803 P.2d 993, 999 (1991)). Therefore, Land O'Lakes's appeal is treated as an appeal from a judgment entered on a jury verdict rather than an appeal from the district court's denial of its motion for JNOV or new trial.
We first address Land O'Lakes's contention that Brudevold was not timely disclosed as an expert witness. We have consistently stated that if "issues on appeal are not supported by propositions of law, authority, or argument, they will not be considered.... A party waives an issue cited on appeal if either authority or argument is lacking, not just if both are lacking." Gem State Ins. Co. v. Hutchison, 145 Idaho 10, 16, 175 P.3d 172, 178 (2007) (ellipsis original) (quoting Anson v. Les Bois Race Track, Inc., 130 Idaho 303, 304, 939 P.2d 1382, 1383 (1997)). While Land O'Lakes mentions the issue in its briefing, it makes no argument. We therefore conclude that Land O'Lakes has waived this issue on appeal.
We decline to consider these claims because Land O'Lakes has not demonstrated that a substantial right has been affected. The Idaho Rules of Evidence provide that "[e]rror may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected." I.R.E. 103(a). Similarly, under the Rules of Civil Procedure, "[t]he court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties." I.R.C.P. 61.
Issues on appeal are not considered unless they are properly supported by both authority and argument. Gem State Ins., 145 Idaho at 16, 175 P.3d at 178 (citation omitted). Consequently, because an appellant can only prevail if the claimed error affected a substantial right, the appellant must present some argument that a substantial right was implicated. We have previously applied this rule in the context of reviewing other trial court decisions for an abuse of discretion.
In this case, Land O'Lakes argues that the district court abused its discretion when it permitted Brudevold to testify. However, because it presents no argument that the error affected a substantial right, it has waived the issue.
Land O'Lakes argues that the verdict was not supported by substantial and competent evidence. Land O'Lakes contends that J & J failed to prove liability because it did not exclude other reasonable causes of the scours in its calves and failed to prove damages to a reasonable degree of certainty. We disagree.
When a products liability claim is based on circumstantial evidence, the plaintiff has the burden of proof to show "that the product malfunctioned, and that there are no other reasonably likely causes of the malfunction."
Where the question is the "sufficiency of the evidence, `the record must be reviewed to determine whether there is competent evidence to sustain the verdict; and if the litigant's case is one based on circumstantial evidence, whether such circumstantial evidence and reasonable inferences to be derived from the circumstantial evidence sustain the verdict.'" Phillips v. Erhart, 151 Idaho 100, 103, 254 P.3d 1, 4 (2011) (quoting Henderson v. Cominco Am., Inc., 95 Idaho 690, 696, 518 P.2d 873, 879 (1973)). While the verdict may not be based upon conjecture, "[c]onflicts in the evidence and conflicts in the conclusions to be reached from the evidence remain questions for the trier of facts." Phillips, 151 Idaho at 103, 254 P.3d at 4. Therefore, when a jury verdict is supported by substantial and competent evidence, "both the trial court and this Court are bound by the jury's verdict." Ross v. Coleman Co., Inc., 114 Idaho 817, 821, 761 P.2d 1169, 1173 (1988) (citations omitted). As noted, when this Court reviews a jury verdict on appeal, "the evidence adduced at trial is construed in a light most favorable to the party who prevailed at trial." Garrett Freightlines, 112 Idaho at 726, 735 P.2d at 1037. Thus, if the evidence is such that a reasonable fact finder, considering all relevant evidence in the light most favorable to J & J, could accept it to support the jury's verdict, the verdict must be upheld.
We hold that there is evidence from which a reasonable jury could find that there are no other reasonably likely causes of J & J's damages. First, Hurtado testified that he knew there were several potential causes of scours in calves. He also testified that he had eliminated all of the other possible causes:
Second, J & J's expert, Brad Brudevold, offered an opinion that cryptosporidia were not the cause of the scours:
Third, Brudevold testified that he was feeding his calves the same Land O'Lakes milk replacer that J & J was using and had a similar scours problem that also resolved when he stopped using the Land O'Lakes product:
In addition to this evidence, the jury was instructed on J & J's burden of proof with respect to other reasonably likely causes of J & J's losses:
We have held that we "must presume that the jury followed the jury instructions in arriving at their verdict." Weinstein v. Prudential Prop. & Cas. Ins. Co., 149 Idaho 299, 335, 233 P.3d 1221, 1257 (2010) (citing Boll v. State Farm Mut. Auto. Ins. Co., 140 Idaho 334, 341, 92 P.3d 1081, 1088 (2004)). Therefore, we presume that the jury was aware of and properly considered J & J's burden of proof.
In this case, the jury had evidence of other reasonably likely causes of the scours problem as well as J & J's evidence offered to exclude those other causes. When viewed in the light most favorable to J & J and presuming the jury followed the instructions, the record contains sufficient, though conflicting, evidence from which the jury could have found that J & J met its burden regarding the exclusion of other reasonable causes of its injury. We therefore hold that the jury's finding is supported by substantial and competent evidence.
The "exact amount" of a plaintiff's claimed damages does not have to be proved, but there must be enough proof to show the amount to a reasonable certainty and remove the amount from the realm of speculation. Trilogy Network Sys., Inc. v. Johnson, 144 Idaho 844, 846, 172 P.3d 1119, 1121 (2007). When personal property is totally destroyed, the measure of damages "is the value of the property at the time and place of its destruction." Skaggs Drug Ctrs., Inc. v. City of Idaho Falls, 90 Idaho 1, 10, 407 P.2d 695, 699 (1965) (citation omitted). This rule applies where the destroyed personal property is livestock. See Gill v. Brown, 107 Idaho 1137, 1138, 695 P.2d 1276, 1277 (Ct.App.1985).
In proving damages, "the owner of property is qualified to testify to its value." Empire Lumber Co. v. Thermal-Dynamic Towers, Inc., 132 Idaho 295, 306, 971 P.2d 1119, 1130 (1998). (citing Pocatello Auto Color, Inc. v. Akzo Coatings, Inc., 127 Idaho 41, 43, 896 P.2d 949, 951 (1995)). Further, "[t]he owner's failure or inability to explain the basis for the value given may affect the weight to be given the testimony, but it does not disqualify the owner's opinion." Pocatello Auto Color, Inc. 127 Idaho at 43, 896 P.2d at 951. In that case, the plaintiff's testimony as to the fair market value of her company was the basis for the jury's verdict in her favor. Id. The defendant appealed the verdict, contending that the trial court abused its discretion in admitting plaintiff's testimony because she admitted on cross-examination that she did not actually know the fair market value of the business. Id. We disagreed, holding that it was "for the jury to evaluate whether the weight of [the plaintiff's] testimony was affected by her admissions on cross-examination." Id. Thus, even if an owner fails to explain how an estimate of losses was calculated, or later contradicts that estimate, the jury may nonetheless rely on the evidence.
Here, through Hurtado's testimony, J & J offered evidence that each calf was worth $1000:
Hurtado further testified that J & J lost 130 calves as a result of the scours problem, which was higher than the expected rate:
Other J & J employees working at the calf farm during the time of the scours problem offered different estimates of how many calves died. Luis Lugo, a former J & J employee, testified that 10 to 12 calves died per day for a month, which would be over 300 deaths. Another employee, Claudio Beltran, testified that as many as 450 calves died.
As with liability, the jury was instructed regarding J & J's burden to prove its damages:
The Plaintiffs have the burden of proving each of the following:
Hurtado, as the owner of the calves, was competent to testify regarding the fair market value of the dead calves. Further, as in Pocatello Auto Color, it was for the jury to determine the weight of the conflicting evidence and whether it was sufficient to meet the burden of proof. Viewing the evidence in the light most favorable to J & J and assuming the jury followed the instructions, we hold that there is sufficient, though conflicting, evidence from which the jury could have found that J & J met its burden to prove its damages. Therefore, we affirm the judgment of the district court.
On cross-appeal, J & J argues that the district court abused its discretion by limiting its award of fees to those incurred for work on the second trial, excluding work prior to and during the first trial.
"Abuse of discretion is determined by a three part test which asks whether the district court `(1) correctly perceived the issue as one of discretion; (2) acted within the outer boundaries of its discretion and consistently with the legal standards applicable to the specific choices available to it; and (3) reached its decision by an exercise of reason.'" Lee v. Nickerson, 146 Idaho 5, 10, 189 P.3d 467, 472 (2008) (citation omitted). When calculating attorney fees, the "district court must consider the applicable factors set forth in I.R.C.P. 54(e)(3) and may consider
While the district court does not have to "address all of the I.R.C.P. 54(e)(3) factors in writing, the record must clearly indicate the court considered all of the factors." Lee, 146 Idaho at 11, 189 P.3d at 473.
J & J requested attorney fees for four phases of the litigation: pretrial preparation, the first trial, the first appeal,
In this case, the district court recognized its discretion and applied the proper legal standard. In fact, the court considered each factor of 54(e)(3) on the record and applied its discretion consistently as to each. In its memorandum opinion, the district court further explained the reasons behind each part of its calculation of fees. Therefore, we hold that the district court did not abuse its discretion in its calculation and award of attorney fees.
Both parties request attorney fees pursuant to I.C. § 12-120(3). However, only the prevailing party is entitled to attorney fees on appeal under that section. Where both parties prevail in part on appeal, this Court does not award attorney fees to either party. Keller v. Inland Metals All Weather Conditioning, Inc., 139 Idaho 233, 241, 76 P.3d 977, 985 (2003).
Because we affirm the district court's judgment as to both the issues appealed and the issue cross-appealed, each party has prevailed only in part. Therefore, neither party is entitled to attorney fees or costs on appeal.
We hold that Land O'Lakes has waived the issues regarding expert testimony. We affirm
Chief Justice BURDICK and Justices EISMANN, J. JONES and W. JONES concur.