               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 38618

ALBERT RAY MOORE,                               )     2011 Unpublished Opinion No. 685
                                                )
       Plaintiff-Appellant,                     )     Filed: November 3, 2011
                                                )
v.                                              )     Stephen W. Kenyon, Clerk
                                                )
THOMAS MURPHY,                                  )     THIS IS AN UNPUBLISHED
                                                )     OPINION AND SHALL NOT
       Defendant-Respondent.                    )     BE CITED AS AUTHORITY
                                                )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
       County. Hon. Ronald J. Wilper, District Judge.

       Order granting motion for summary judgment, affirmed in part and remanded in
       part.

       Albert R. Moore, Orofino, pro se appellant.

       Andrew Parnes, Ketchum, for respondent.
                ________________________________________________
GRATTON, Chief Judge
       Albert Ray Moore appeals the district court’s order granting summary judgment to
Thomas Murphy.
                                               I.
                    FACTUAL AND PROCEDURAL BACKGROUND
       Moore was arrested at the Kit Kat Club in Meridian by the Ada County Sheriff’s
Department. Subsequently, Moore contacted Murphy to investigate whether the Meridian City
Police Department had jurisdiction at the location of the Kit Kat Club, namely, the intersection
of Black Cat Road and Franklin Boulevard. Murphy subsequently reported that the Ada County
Sheriff’s Department had jurisdiction over the area. Moore filed suit for breach of contract.
Murphy answered and filed a motion for summary judgment. The district court granted the
motion for summary judgment. Moore appeals.




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                                                  II.
                                             ANALYSIS
        We first note that summary judgment under Idaho Rule of Civil Procedure 56(c) is
proper only when there is no genuine issue of material fact and the moving party is entitled to
judgment as a matter of law. On appeal, we exercise free review in determining whether a
genuine issue of material fact exists and whether the moving party is entitled to judgment as a
matter of law. Edwards v. Conchemco, Inc., 111 Idaho 851, 852, 727 P.2d 1279, 1280 (Ct. App.
1986). When assessing a motion for summary judgment, all controverted facts are to be liberally
construed in favor of the nonmoving party. Furthermore, the trial court must draw all reasonable
inferences in favor of the party resisting the motion. G & M Farms v. Funk Irrigation Co., 119
Idaho 514, 517, 808 P.2d 851, 854 (1991); Sanders v. Kuna Joint School Dist., 125 Idaho 872,
874, 876 P.2d 154, 156 (Ct. App. 1994). When, however, the district court sits as the trier of
fact, instead of a jury, summary judgment may be appropriate despite the possibility of
conflicting inferences, because the court alone is responsible for resolving such conflicting
inferences. Cameron v. Neal, 130 Idaho 898, 900, 950 P.2d 1237, 1239 (1997). As the trier of
fact, the district court is free to arrive at the most probable inferences based upon the evidence
before it. Id.
        The United States Supreme Court, in interpreting Federal Rule of Civil Procedure 56(c),
which is identical in all relevant aspects to I.R.C.P. 56(c), stated:
                In our view, the plain language of Rule 56(c) mandates the entry of
        summary judgment, after adequate time for discovery and upon motion, against a
        party who fails to make a showing sufficient to establish the existence of an
        element essential to that party’s case, and on which that party will bear the burden
        of proof at trial. In such a situation, there can be “no genuine issue as to any
        material fact,” since a complete failure of proof concerning an essential element
        of the nonmoving party’s case necessarily renders all other facts immaterial. The
        moving party is “entitled to judgment as a matter of law” because the nonmoving
        party has failed to make a sufficient showing on an essential element of her case
        with respect to which she has the burden of proof.

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986) (citations omitted). The language and
reasoning of Celotex has been adopted in Idaho. Dunnick v. Elder, 126 Idaho 308, 312, 882 P.2d
475, 479 (Ct. App. 1994).
        Moore spends considerable time in his briefing to this Court arguing claims of fraud.
Moore did not plead fraud in the complaint and, thus, we will not entertain claims of fraud. In

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addition, the district court found that nothing in the record supports any claim for consequential
damages, loss of profits, punitive damages, or any other monetary claim beyond the amount
which Moore paid to Murphy. Moore did not address this determination by the district court in
his appellant’s brief except to conclude that “the court should find in favor of the plaintiff for
amounts in original complaint.”       A party waives an issue on appeal if either authority or
argument is lacking. Powell v. Sellers, 130 Idaho 122, 128, 937 P.2d 434, 440 (Ct. App. 1997).
Thus, the only damages potentially recoverable in the action would be the amount paid by Moore
to Murphy.
       The district court determined that, although the parties’ agreement was not reduced to
writing, a contract existed. In making this determination, the district court referenced letters sent
by Moore to Murphy as well as Murphy’s acknowledgement that the parties intended to contract.
In regard to the scope of the work that Murphy was to perform under the contract, the district
court, quoting from the complaint, stated that the agreement reached was that Murphy would
investigate whether the “Meridian Police Department had jurisdiction [of the intersection of]
Black Cat Rd. and Franklin Blvd.” The district court determined that, while a contract existed,
no breach occurred. The district court stated: “The record shows that Moore asked Murphy to
discover whether the Meridian Police properly had jurisdiction of the area in question. That
Murphy may have investigated the issue in a manner different from how Moore would have
investigated the issue is beside the point.”
       In his brief to this Court, Moore states that “Defendant was hired to investigate Meridian
City Police Dept.[;] was Blackcat Rd. & Franklin Blvd. intersection in their jurisdiction.”
Murphy reported to Moore that the intersection was in the jurisdiction of the Ada County
Sheriff’s Department.     Murphy determined the jurisdiction question by contacting the Ada
County Sheriff’s Department instead of the Meridian City Police Department. Thus, the district
court determined that Murphy fulfilled the terms of the agreement, even though Moore
complains that Murphy should have made the determination by contacting the Meridian City
Police Department directly.
       It is apparent from Moore’s arguments that what he sought from Murphy was information
as to under what authority could the Meridian City Police Department have been present at the
Kit Kat Club. However, Moore’s communications with Murphy referred specifically to whether
the Meridian City Police Department had “jurisdiction” in the area. Therefore, as noted by the


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district court, to the extent a meeting of the minds occurred as to this term of the agreement, it
was that Murphy would investigate jurisdiction. Murphy determined that police jurisdiction in
the area rested with the Ada County Sheriff’s Department.             While Murphy could have
determined the jurisdiction of the Meridian City Police Department by direct contact, as Moore
later did, that term of the agreement was fulfilled and summary judgment was properly granted
by the district court.
        However, Moore also claimed in his complaint that another term of the contract was that
Murphy would determine whether the Meridian City Police Department was on site at the time
of his arrest. Moore also asserted this claim in response to Murphy’s motion for summary
judgment.    Murphy responded: “The issue of whether or not the Meridian Police Department
were at the scene of Moore’s arrest or whether or not the Meridian Police Department had
jurisdiction to be at the scene is immaterial to whether or not Murphy is entitled to summary
judgment.” Moore argues in his brief to this Court that the contract included investigation
regarding “were they [Meridian City Police Department] on or at Black Cat Rd. & Franklin
Blvd. 4-28-07.” The district court did not address whether Murphy agreed to investigate whether
the Meridian City Police were on site or, if so, whether such term of the contract was breached.
Therefore, we must remand this matter to the district court to address this claim.
                                                III.
                                         CONCLUSION
        Moore does not contest the district court’s grant of summary judgment dismissing all
claims for consequential damages, lost profits, or any other damages above the amount paid by
Moore to Murphy under the contract. We, therefore, affirm the district court’s grant of summary
judgment to defendant dismissing any and all damage claims above the amount paid by Moore to
Murphy under the contract. We further affirm the district court’s grant of summary judgment as
to the claim that Murphy breached the contract by failing to investigate whether the Meridian
City Police Department had jurisdiction at the intersection of Black Cat Road and Franklin
Boulevard. We remand to the district court to determine whether Murphy agreed to investigate
whether the Meridian City Police Department was on site or, if so, whether such term of the
contract was breached.
        Judge LANSING and Judge MELANSON CONCUR.




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