Tomlinson Black North Idaho v. Geraldine Kirk-Hughes, an individual doing business as Kirk- Hughes

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TOMLINSON BLACK NORTH
IDAHO,
Plaintiff - Appellee,
v.
GERALDINE KIRK-HUGHES, an
individual doing business as Kirk-
Hughes and Associates, doing business
as Kirk-Hughes, LLC, doing business as
Kirk-Hughes Development, LLC,
Defendant - Appellant,
and
KELLY POLATIS, an individual;
DOES 1-10; DELANO D. PETERSON,
Defendants.
No. 08-35900
D.C. No. 2:06-cv-00118-RHW
MEMORANDUM *
Appeal from the United States District Court
for the District of Idaho
Robert H. Whaley, Senior District Judge, Presiding
FILED
NOV 13 2009
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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** The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
Submitted November 5, 2009 **
Portland, Oregon
Before: KOZINSKI, Chief Judge, FISHER and PAEZ, Circuit Judges.
In Idaho, an express agreement bars recovery for unjust enrichment only if it
is enforceable and covers the same subject matter. Vanderford Co., Inc. v.
Knudson, 165 P.3d 261, 272 (Idaho 2007). The jury reasonably could have found
that the agreement between the parties in this case did not apply to the transaction
that was the subject of dispute. Therefore, the district court did not err by refusing
to grant Kirk-Hughes judgment as a matter of law. Nor did the existence of an
express agreement bar an award of damages. “An award for unjust enrichment
may be proper even though an agreement exists.” Bates v. Seldin, 203 P.3d 702,
706 (Idaho 2009).
The district court also did not err by submitting the issue of unjust
enrichment to a jury. A court may, “with the parties’ consent, try any issue by a
jury.” Fed. R. Civ. P. 39(c)(2). Kirk-Hughes consented to trial by jury, and the
district court did not abuse its discretion in rejecting her last-minute change of
heart. Cf. White v. McGinnis, 903 F.2d 699, 703 (9th Cir. 1990) (en banc).

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The award of attorney’s fees to Tomlinson was proper. The sale of property
for the purpose of development was a “commercial transaction,” Idaho Code § 12-
120(3), and the Idaho Court of Appeals has held that fees are appropriate in cases
almost exactly like this one, see Erickson v. Flynn, 64 P.3d 959, 966–67 (Idaho Ct.
App. 2002).
AFFIRMED.

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