               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 39911

IN THE MATTER OF THE ESTATE OF                  )
ALMON D. MANES.                                 )
T. JESSI MILLER,                                )      2013 Unpublished Opinion No. 457
                                                )
       Petitioner-Appellant,                    )      Filed: April 24, 2013
                                                )
v.                                              )      Stephen W. Kenyon, Clerk
                                                )
DANIEL SAMSON,                                  )      THIS IS AN UNPUBLISHED
                                                )      OPINION AND SHALL NOT
       Respondent.                              )      BE CITED AS AUTHORITY
                                                )

       Appeal from the District Court of the Second Judicial District, State of Idaho,
       Idaho County. Hon. Michael J. Griffin, District Judge. Hon. Jeff P. Payne,
       Magistrate.

       Order of the district court, on intermediate appeal from the magistrate division,
       affirming decision granting claim against estate, affirmed.

       Clark & Feeney, Lewiston, for appellant. John C. Mitchell argued.

       Thomas J. Clark, Lewiston, for respondent.
                 ________________________________________________
MELANSON, Judge
       T. Jessi Miller appeals from the district court’s order affirming the magistrate’s decision
granting Daniel Samson’s claim against the estate of Almon D. Manes. For the reasons set forth
below, we affirm.
                                               I.
                                 FACTS AND PROCEDURE
       In February 2009, Manes passed away and his stepdaughter, Miller, was appointed
personal representative of Manes’s estate. The estate was comprised of 160 acres, a residence,
numerous outbuildings, and an extensive amount of personal property that Manes had collected
over the years. Manes’s personal property consisted of antiques and keepsakes intermixed with
large quantities of other items that had little, if any, value. The amount of personal property,




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along with the manner in which it was stored, required extensive time and labor to collect,
catalog, and organize following Manes’s death.
       Shortly before Manes’s death, Miller and Samson (Manes’s neighbor) were visiting
Manes in the hospital. Miller approached Samson and requested that he perform work on the
estate. Samson initially declined this offer but, after numerous requests, agreed to provide
assistance. Miller originally offered to compensate Samson with personal property from the
estate. Samson expressly rejected this proposition and stated he wanted monetary compensation.
Miller subsequently told Samson he would be “well compensated,” and Samson agreed to that
arrangement. 1 No written contract was discussed, contemplated, or agreed upon at this time.
       Samson began work in February 2009, performing tasks at the direction of Miller. These
tasks included sorting through the estate’s extensive personal property, organizing and securing
items to be kept, hauling away items to be disposed of, caring for horses, maintaining fences,
putting up signs, painting, and serving as the onsite contact person and supervisor for the estate’s
affairs. Samson also occasionally provided security-type services, watching over the property at
night to prevent theft. In summary, the work performed by Samson was time-consuming,
labor-intensive, and comprehensive.
       In May 2009, Miller sent Samson a document entitled “Property Management
Agreement.” The agreement indicated it was effective as of May 2, 2009, and purported to
provide compensation to Samson solely in the form of tangible personal property from the estate.
The agreement was only signed by Miller.
       At trial, Samson provided uncontroverted testimony that he expressly rejected this
proposed agreement because of the method of compensation it contemplated. Samson testified
he desired monetary compensation and that he again communicated this to Miller. Miller then
informed Samson she would prepare a new agreement. Miller never created any subsequent
written agreement.
       In early September 2009, Miller terminated Samson from his duties when Samson
refused to dispose of certain items that Miller had requested. At this time, Samson had not
received compensation for his work, nor had Miller reimbursed Samson for expenses he incurred
on behalf of the estate. Samson subsequently sent a bill to Miller via regular and certified mail.

1
        Miller did not testify, nor present any evidence at trial, and the magistrate found Samson
to be credible regarding the arrangement between himself and Miller.

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The bill stated that Samson found $20 per hour to be a reasonable rate and itemized the number
of hours worked per month. The bill also accounted for wear and tear on the tires of Samson’s
personal vehicle and for fuel costs incurred while working on behalf of the estate. The bill
contained an offset for a 4-wheeler Samson agreed to keep as partial compensation. 2 Samson
later testified that these figures were conservative estimates. The bill mailed by regular mail was
never returned; however, the bill mailed by certified mail was returned to Samson as
unclaimed/undelivered.      Miller never provided compensation to Samson, and Samson
subsequently filed a claim against the estate seeking $28,796.47 plus interest. The magistrate
granted Samson’s claim and that decision was affirmed on appeal by the district court. Miller
again appeals.
                                                 II.
                                   STANDARD OF REVIEW
       On review of a decision of the district court, rendered in its appellate capacity, we review
the decision of the district court directly. Losser v. Bradstreet, 145 Idaho 670, 672, 183 P.3d
758, 760 (2008). We examine the magistrate record to determine whether there is substantial
and competent evidence to support the magistrate’s findings of fact and whether the magistrate’s
conclusions of law follow from those findings. Id. If those findings are so supported and the
conclusions follow therefrom and if the district court affirmed the magistrate’s decision, we
affirm the district court’s decision as a matter of procedure. Id.
                                                III.
                                            ANALYSIS
       Miller argues the magistrate erred in determining the parties did not have an express
contract based on performance, by finding an implied-in-fact contract, by granting quantum
meruit relief when this was not argued for by Samson, and by granting damages when no
evidence was presented regarding reasonable value of services.           Samson argues that the
magistrate correctly found no express contract existed because Samson explicitly rejected
Miller’s proposed agreement.       Samson also argues that the magistrate correctly found an
implied-in-fact contract based on the conduct of the parties, acted within the boundaries of its




2
       Samson testified this arrangement was set in place with Manes while he was still alive.

                                                  3
equitable powers by granting quantum meruit relief, and correctly found that evidence was
presented regarding the value of services.
A.       Express Contract Based on Performance
         Miller argues that, when Samson received the proposed agreement in May 2009 and
continued to perform the services on the property, an express contract was formed, despite
Samson’s failure to sign the agreement. Samson argues this issue should be dismissed for lack
of citation to authority.     Samson also argues that the uncontroverted evidence at trial
demonstrated he explicitly rejected this agreement.
         A party waives an issue on appeal if either argument or authority is lacking. Powell v.
Sellers, 130 Idaho 122, 128, 937 P.2d 434, 440 (Ct. App. 1997). In this case, Miller provided
sparse authority in support of her first contention--that the parties formed an express contract
based on partial performance. Miller cites one case in this section of her brief, Vanderford Co.,
Inc. v. Knudson, 144 Idaho 547, 558, 165 P.3d 261, 272 (2007), for the proposition that “equity
does not intervene when an express contract prescribes the right to compensation.”           This
provides no logical support to the underlying argument proffered by Miller. Therefore, Miller
has not shown error by the magistrate.
         However, even if we were to address this issue, Miller’s argument still fails. An express
contract exists where the parties explicitly agree regarding a transaction. Cont’l Forest Prods.,
Inc. v. Chandler Supply Co., 95 Idaho 739, 743, 518 P.2d 1201, 1205 (1974). “Express” is
defined as “clearly and unmistakably communicated.” BLACK’S LAW DICTIONARY 620 (8th ed.
2004).    In this case, the relevant inquiry is whether there was a clear and unmistakable
transaction between Samson and Miller in February 2009 evidencing an express agreement. At
trial, the evidence adduced demonstrated that, shortly before Manes’s death, Miller had
requested Samson help her deal with the property of the estate. While Samson initially turned
down this offer, he eventually acquiesced. Miller first offered to compensate Samson with
personal property from the estate.       However, Samson informed Miller this would not be
acceptable. At this point, Miller informed Samson he would be “well-compensated” and Samson
thereafter agreed to perform the work. No price or rate of compensation was discussed and no
written agreement was contemplated by either of the parties. Given the lack of clarity of the
agreement between the parties, it cannot be said that an express agreement was formed.




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       Miller contends that, because Samson continued to perform duties listed in the proposed
written agreement after he received it, a meeting of the minds occurred and an express contract
was formed. This argument is without merit. The record demonstrates that the agreement
outlined the tasks Samson had already been performing and those which remained that Miller
desired done. Samson testified that he expressly rejected the proposition that he be compensated
through property from the estate and stated he wanted payment in currency. An acceptance of an
offer which varies from the terms of the offer is a rejection of the offer and is a counter
proposition, which must in turn be accepted by the offeror in order to constitute a binding
contract. Brothers v. Arave, 67 Idaho 171, 176, 174 P.2d 202, 205 (1946). Here, when Samson
informed Miller he would not agree to compensation through personal property, he varied the
terms of the offer and proposed to Miller a counter proposition. This constituted a rejection of
the agreement. Further, the record demonstrates that Miller acknowledged Samson’s rejection
of the agreement and informed him that she would create a new one. However, Miller failed to
present a new agreement. Therefore, the magistrate did not err in holding no express agreement
existed.
B.     Implied-in-Fact Contract
       Miller next argues that, because there was never a meeting of the minds regarding
compensation, an implied-in-fact contract cannot exist and therefore the magistrate erred.
Samson argues that Miller misses the key issue--whether there was an objective manifestation of
a mutual intent to contract--and Samson asserts that the parties’ conduct meets this standard.
       The general rule is that where the conduct of the parties allows the dual inferences that
one performed at the other’s request and that the requesting party promised payment, then a court
may find that a contract implied in fact exists. Gray v. Tri-Way Constr. Servs., Inc., 147 Idaho
378, 387, 210 P.3d 63, 72 (2009). An implied-in-fact contract is grounded in the parties’
agreement and tacit understanding that there is a contract. Id.
       In this case, the record demonstrates that Miller approached Samson on numerous
occasions and requested that Samson perform work. While Samson initially declined this offer,
he eventually agreed and began to work on the estate. The record also demonstrates that Samson
expressly rejected the idea of being paid solely through personal property from the estate and
that Miller told Samson he would be “well compensated.” In support of Samson’s testimony
regarding this issue, testimony was also provided by Steve Kalinoski that Samson stated he


                                                 5
needed money to pay bills while discussing doing the work with Miller. Miller allowed Samson
to begin working on the estate knowing Samson desired monetary compensation, rather than
property. By telling Samson he would be “well compensated,” it appears Miller acquiesced in
that arrangement.
       Miller thereafter attempted to modify the arrangement between herself and Samson with
the May 2009 agreement. Support of the finding that Miller did not understand the method of
compensation to be property from the outset is evidenced by Miller’s indication the “effective”
date of the agreement was May 2009--not February when Samson began work. Further, when
Samson expressed his refusal to accept property as compensation, Miller did not dispute the
issue with him. Instead, she informed Samson that she would draft another agreement. While
Miller never presented a subsequent agreement, the parties proceeded under this arrangement up
until September 2009, at which time Miller “terminated” Samson from working on the estate. 3
While the conduct in this case did not give rise to an express contract, it allows for the dual
inference that Samson performed at Miller’s request and that Miller promised Samson payment.
       Miller also contends that, because an implied-in-fact contract requires a meeting of the
minds, the parties’ lack of an express agreement on a method of payment prevented the
formation of such a contract.      However, Miller conflates the requirements for an express
agreement with those necessary for an implied-in-fact contract. Cf. Clayson v. Zebe, 153 Idaho
228, 235, 280 P.3d 731, 738 (2012) (rejecting the argument that in order to find an implied-in-
fact contract, a claimant must prove all the elements of a contract, including a common
understanding of all the terms). The actions of both parties demonstrate a tacit understanding
that there was a contract. Therefore, the magistrate did not err in holding that an implied-in-fact
contract existed between the parties.
       Miller also argues that the magistrate erred by granting quantum meruit relief because
Samson never requested such relief. Samson argues this issue should be dismissed for lack of
citation to authority. A party waives an issue on appeal if either argument or authority is lacking.
Powell, 130 Idaho at 128, 937 P.2d at 440. Miller fails to provide citation to any authority for
this issue and, therefore, Miller has not shown error by the magistrate.


3
        The letter stated, in part, “you are free from any duty or obligation concerning the Manes
estate.” This further sheds light on the intent of the parties to be in a contractual relationship to
one another.

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        However, even if we were to address this issue, Miller’s argument still fails. When a
party successfully demonstrates an implied-in-fact contract, it is necessary to measure damages
and provide a remedy. Idaho law recognizes quantum meruit as the remedy for an implied-in-
fact contract. Gray, 147 Idaho at 387, 210 P.3d at 72 (doctrine of quantum meruit is a remedy
for an implied-in-fact contract); Bischoff v. Quong-Watkins Props., 113 Idaho 826, 829, 748 P.2d
410, 413 (Ct. App. 1987) (quantum meruit is an equitable restitutionary remedy, based on an
implied-in-fact contract, that is used to compensate a person who has performed services at the
request of another). It was not necessary for Samson to expressly state he was seeking this
remedy and, thus, the magistrate did not err in granting such relief.
C.      Reasonable Value of Services
        Miller contends that “at no time during the trial did Samson ever put on any evidence that
$20 an hour was a reasonable rate for the services he provided.” 4 Miller also argues that Samson
never testified he was requesting the compensation the magistrate ultimately granted--$20 per
hour. The record disproves this allegation.
        Exhibit 9-A, admitted into evidence, set forth the rate of compensation Samson sought.
Specifically, it states the following:
                You promised several times to pay my expenses and compensate me for
        my time working on the Almon Manes Estate. As we agreed, I was to have the
        four-wheeler as part of my compensation as well as any other items we could
        agree to. I’ve been really patient about all this, and looking at your letter from
        September 2nd it looks to me like you are trying to renegotiate after all the hard
        hard work I’ve done. That’s not fair. What is fair, I think is $20 per hour. I have
        been everything from a ranch hand, to an estate manager, negotiator, teamster,
        trash hauler, moving company, salesman and even a security guard.

Exhibit 9 also itemized the hours worked each month from Samson’s start of work in February
through August 2009. Samson testified that these figures represented a low estimate of the hours
worked.
        Further, numerous witnesses testified as to the rates they charge for providing services
similar to that which Samson provided. Dewey Bailey testified that he had fed horses in the past
and typically charged $50 per hour if using a tractor and fuel and $25 per hour if working

4
       We note that Miller appears to assume that testimony regarding the reasonable value of
services needs to expressly state those words. Miller is incorrect and no special invocation of
words is necessary when presenting the reasonable value of services rendered.

                                                 7
without the tractor. Ed Groseclose testified he was in the salvage business and has experience in
working for estates, sorting through property. He testified that he estimated the Manes estate
was about a three-month job for him and around three employees. Groseclose testified that $80
per hour would be on the low end for sorting through the materials--an estimate just for him and
one employee with machinery. Groseclose further testified that for a two-man crew without any
machinery, he would charge $10 per hour for the employee and $15 per hour for him to work as
supervisor. Orville Martin testified that he helped clean up the estate using his front-end loader
and was paid around $3,400 to $3,500 for two weeks work (including use of his equipment).
Lynn Blees, a former police officer, testified that he had provided security for a drive-in theater
and charged $25 per hour. William Howell testified he had experience in the moving/hauling
business and was paid around $8 per hour. He also testified that he had done farmhand work
before and also received $8 per hour. Zane Cunningham testified he had worked on another
estate, cataloging items, and was compensated $4,000--15 percent of the estate sale. Thus,
contrary to Miller’s assertion, there was ample evidence presented regarding the reasonable
value of services rendered by Samson. None of this evidence was challenged by Miller at trial,
and the magistrate did not err in finding $20 per hour to be a reasonable rate of compensation for
Samson.
D.     Attorney Fees
       Samson argues that he is entitled to attorney fees under I.C. § 12-121 because Miller’s
appeal is baseless and frivolous. An award of attorney fees may be granted under I.C. § 12-121
and I.A.R. 41 to the prevailing party and such an award is appropriate when the court is left with
the abiding belief that the appeal has been brought or defended frivolously, unreasonably, or
without foundation. Rendon v. Paskett, 126 Idaho 944, 945, 894 P.2d 775, 776 (Ct. App. 1995).
To receive an I.C. § 12–121 award of fees, the entire appeal must have been pursued frivolously,
unreasonably, and without foundation. Carrillo v. Boise Tire Co., Inc., 152 Idaho 741, 756, 274
P.3d 1256, 1271 (2012). Because Miller did not testify or present any witnesses opposing the
testimony adduced by Samson, the evidence at trial was largely uncontroverted. Miller simply
asks this Court to reweigh the evidence from trial. We conclude that the entire appeal has been
pursued frivolously, unreasonably, and without foundation.        Therefore, we award Samson
attorney fees as the prevailing party.




                                                8
                                               IV.
                                        CONCLUSION
       While the parties failed to enter into an express agreement, their conduct rose to the level
sufficient for an implied-in-fact contract. Further, Samson did not need to expressly state he was
seeking quantum meruit relief. Samson also produced sufficient evidence at trial regarding the
reasonable value of the services he provided. Therefore, the district court’s order affirming the
magistrate’s decision granting Samson’s claim against the estate of Manes is affirmed. Costs
and attorney fees are awarded to Samson as the prevailing party.
       Judge LANSING and Judge GRATTON, CONCUR.




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