                 IN THE SUPREME COURT OF THE STATE OF IDAHO
                                Docket No. 40212


APRIL BEGUESSE, INC., an Idaho                      )
corporation,                                        )
                                                    )
     Plaintiff-Counterdefendant-                    )   Idaho Falls, May 2014 Term
     Respondent,                                    )
                                                    )   2014 Opinion No. 59
v.                                                  )
                                                    )   Dated: June 18, 2014
KENNETH RAMMELL, an individual,                     )
CHRISTA BEGUESSE, INC., an Idaho                    )   Stephen W. Kenyon, Clerk
corporation, THE ESTATE OF CHRISTA                  )
BEGUESSE RAMMELL, by its qualified                  )
personal representative, KENNETH                    )
RAMMELL,                                            )
                                                    )
    Defendants-Counterclaimant-                     )
    Appellants.                                     )
____________________________________

       Appeal from the District Court of the Seventh Judicial District of the State of
       Idaho, Bonneville County. Hon. Joel E. Tingey, District Judge.

       The judgment of the district court is affirmed. Attorney’s fees and costs on
       appeal are awarded to respondent.

       Racine, Olson, Nye, Budge & Bailey, Pocatello, attorneys for appellants. David
       E. Alexander argued.

       Beard St. Clair Gaffney, Idaho Falls, attorneys for respondent. Jeffrey D.
       Brunson argued.
                                __________________________

W. JONES, Justice


                                    I. NATURE OF THE CASE
       This appeal arises from a fraud, breach of contract, and breach of warranty action brought
by April Beguesse, Inc. (ABI) against Kenneth Rammell (Rammell), the estate of Christa
Beguesse (Christa), and Christa Beguesse, Inc. (CBI) (collectively Defendants) and a breach of
contract counterclaim brought by CBI against ABI. The parties went to trial and the jury returned



                                                1
a verdict in favor of ABI on all claims. Defendants moved for a judgment notwithstanding the
verdict (JNOV) or in the alternative a new trial. The district court granted Defendants’ motion
for JNOV on the finding of fraud by Christa’s estate and dismissed that claim. The district court
also granted Defendants a new trial on the issue of damages unless ABI accepted a remittitur for
damages assessed against CBI only. The district court denied Defendants’ motion on the
remaining claims of breach of contract, breach of warranty, and fraud. ABI accepted the
remittitur. Defendants appeal the district court’s denial of their motion. Defendants also seek a
reversal of the district court’s judgment or in the alternative a new trial on their counterclaim.
They raise one evidentiary error. We affirm the judgment of the district court.
                         II. FACTUAL AND PROCEDURAL BACKGROUND
       In 1996, Christa and her husband Rammell incorporated CBI in Idaho. CBI provided
typesetting services to The Rutter Group (Rutter), a legal publisher. Christa and Rammell each
owned fifty percent of stock in CBI with Christa as the president and Rammell as the secretary
and treasurer. Christa did almost all of the typesetting work and had extensive knowledge and
expertise in the field due to her years of experience. Rammell occasionally did accounting for
CBI, but the parties agree that Rammell had limited involvement in the business.
       In 1999, Rammell and Christa met with an attorney for estate planning purposes.
Rammell and Christa valued CBI at $40,000. The parties agree that the value of the business
reflected Rammell and Christa’s belief that CBI would have little value without Christa because
Christa was the sole typesetter for CBI and she never trained anyone else to do the work.
       In November of 2001, Rammell and Christa approached Christa’s daughter April
Beguesse (April) to purchase CBI after first spending two years working closely with Christa to
learn the business. April agreed. April would work for CBI from 2002 to 2004, and in 2004 April
would take over the business and pay CBI $12,000 a month for eight years, a total of $1,152,000.
In exchange for the monthly payments, April believed that she would get consulting and
assistance from Christa, CBI’s office equipment, ownership of a library of computer files, and
proprietary software developed by Christa. Christa and Rammell told April that she could sell the
business in the future in a similar way that CBI would be sold to her. April believed that CBI
owned the library of computer files, which CBI used to typeset for Rutter’s publications
specifically, and she believed that the library of files was valued at 1 to 1.3 million dollars. At
trial April testified that she relied on Rammell’s statements as to the value of the library of files



                                                 2
and CBI’s ownership of the files. April also believed that the proprietary software had unique
codes created by Christa for efficient typesetting within a computer software program called
PageMaker. April testified at trial that Christa told her that she created the proprietary software
and that Christa made a similar statement during an Idaho Falls Exchange Club presentation.
April testified that she did not know that Rammell had stock in CBI. She stated that she would
not have agreed to purchase CBI if she knew Rammell was an owner or if she knew CBI did not
own the library of files.
        On January 6, 2002, April began working for CBI. On January 7, 2002, April sent a letter
to Rutter’s editor-in-chief Linda Diamond Raznick to introduce herself and announce that she
would be joining CBI. From January 6, 2002, to May of 2004, Christa trained April to typeset
with the PageMaker software. In January of 2004, April transitioned CBI’s typesetting business
to ABI, and ABI began making monthly payments of $12,000 to CBI. On October 6, 2004, ABI
and CBI signed a lease agreement. 1 ABI frequently hired Christa for consulting work.
        In November of 2006, April studied the PageMaker manual for the first time during an
update of the software. She learned that the proprietary software actually was provided by
PageMaker. Christa had not developed any unique codes for typesetting.
        ABI continued to make monthly payments to CBI through November of 2008. On
November 10, 2008, Christa died unexpectedly, and ABI stopped making payments to CBI. In
total, ABI had paid CBI 59 monthly payments of $12,000, totaling $708,000, and $50,000 in
consulting fees to Christa. According to Rammell, ABI owed CBI 37 more payments of $12,000,
totaling $444,000, to fulfill the eight-year agreement. Christa’s 2007 holographic will left her
entire estate to Rammell.
        After Christa’s death in late 2008, April contacted Raznick and learned that Rutter owned
the library of files. Raznick told April that ABI could not sell the library of files upon April’s
retirement. April explained at trial that the ownership of the library was significant because she
“thought the Rutter Group needed us just as much as we needed them. . . . and because of that,
there was no need to even think about going anyplace else.” It became a “big time” concern for
her that Rutter “could take the business away.” Raznick’s testimony corroborated April’s
understanding of the ownership of the library of files. Raznick testified that Rutter paid CBI and

1
  On summary judgment, the district court ruled that the lease agreement was a sham contract for the purpose of
avoiding tax consequences and that neither party intended to agree to a lease. The district court concluded that the
lease was unenforceable and that the alleged contract was an oral agreement for the purchase of a business.


                                                         3
ABI to house the files on their servers, but Rutter owned the files and ABI could not sell the
business without Rutter’s approval. Raznick explained that she could not give assurances to CBI
that Rutter would continue to do business with ABI when CBI sold the business. In March of
2009, April relocated ABI to Nevada.
       On May 8, 2009, ABI filed a suit in Bonneville County against Rammell, Christa’s estate,
and CBI seeking declaratory relief and raising claims of fraud, constructive fraud, breach of
contract, breach of express warranty, breach of implied warranty, unjust enrichment, and quasi-
estoppel. CBI filed a counterclaim against ABI for breach of contract, unjust enrichment,
constructive trust, and violation of the Uniform Trade Secrets Act.
       After the district court resolved some of the parties’ claims on summary judgment, the
parties went to trial. ABI presented three claims: (1) fraud by Rammell, Christa’s estate, and
CBI; (2) breach of contract by CBI; and (3) breach of express warranty by CBI. For the fraud
claim, ABI alleged that Rammell and Christa individually and on behalf of CBI knowingly made
fraudulent material representations to induce ABI into the purchase agreement with CBI. Those
representations were that (1) CBI owned a library of files worth at least one million dollars; (2)
CBI owned proprietary software unique to CBI’s business; and (3) the payments would cease in
the event of Christa’s death within the eight-year payment period. For the breach of contract
claim, ABI alleged that CBI promised to assign or sell to ABI the library of files and proprietary
software in exchange for the payments. For the breach of warranty claim, ABI alleged that CBI
expressly warranted that CBI could transfer ownership of the library of files and proprietary
software to ABI and that these warranties were material terms of the contract. CBI presented a
breach of contract counterclaim against ABI. CBI alleged that ABI breached the purchase
agreement by failing or refusing to continue the monthly $12,000 payments after Christa’s death.
       April offered testimony on the value of the business at trial. She valued the furniture and
office equipment at $3,500 and the PageMaker software at $600. In her opinion, the value of the
business when it became ABI in 2004 was $250,000, excluding the equipment and PageMaker
software. That value included mentoring by Christa, such as “[g]etting up to speed on the
processes, the production work flow . . . [and] things that had changed.” April placed “no value”
on the library of files. She did not believe that she could “ethically” sell the business to a third
party because she did not believe that she had anything to sell without ownership of the files. She
could not “in good faith” guarantee a third party that Rutter would work with them and “sell



                                                 4
anything tangible to somebody.” She also explained that she could not successfully sell the
business like Christa sold it to her because she bought the business with the belief that she could
charge Rutter for return of the files and now she knows that she would have to return the files at
no charge.
       Rammell also testified at trial. He denied making an agreement with April that ABI’s
payments would cease on anyone’s death. He testified that he told April that she could sell the
business in the same way that he and Christa were selling it to her. He explained that he
calculated the $12,000 monthly payments to obtain a little over one million dollars to retire and
provide an income for April. He acknowledged that CBI would not be worth anything if Rutter
took its business elsewhere, but stated that ABI would have to pay CBI even if Rutter left.
Rammell agreed that it was possible that Christa and April could have had separate oral
agreements without his knowledge.
       Rammell denied that he indicated to April that the files were worth at least one million
dollars. He testified that he never represented to April that the files had any value outside of the
business. He stated that the files had no value without Christa. He explained, “If the files would
have been worth a million dollars, I’d have just sold the files for a million dollars, put it in the
bank, and discontinued the business.” He was not aware that April ever raised the issue of
ownership of the library of files with him. He also testified that he “came up with the value of the
business that they were selling to April.” He valued the business by considering only “what [he]
wanted to get out of the business and what April could afford to pay.” To contradict these
statements, ABI had Rammell read his deposition testimony. In his deposition, he testified that
he did not value the business to April and he had “no understanding” of whether CBI owned a
library of files and “no way to evaluate” the files. ABI then had Rammell read his deposition
testimony from the second day of his deposition, after Rammell had met with his attorney,
wherein he testified that he believed CBI owned the library of files and that he communicated to
April that the files were part of the business’s value. Regarding the proprietary software,
Rammell testified that he was “not sure” if he told April that the proprietary software was written
by Christa, but he knew that April knew it was written by Christa. He later testified that he did
not tell April that Christa wrote the software and he never heard Christa tell that to April.
Rammell also testified that he was aware that CBI at one time owned intellectual property or
trade secrets because “all of the things that Christa added to her programs are a trade secret to



                                                 5
her,” but then he read his deposition testimony denying knowledge of any intellectual property or
trade secrets.
        Defendants also called Stephan Douglas Hall, who explained that about five to ten years
ago Christa gave a presentation at the Idaho Falls Exchange Club about her typesetting business.
Although his memory was “vague,” he remembered that Christa said something about
developing software or writing software. He testified that he asked Christa if she developed
proprietary software and she eventually responded that she used an off-the-shelf publishing
software package. Hall knew April was present during the presentation, but he was not sure if
April heard his question or Christa’s response.
        Among other exhibits, the jury was provided a copy of the lease agreement. The jury was
instructed that the agreement was “not an enforceable contract,” but “may be evidence as to the
actual agreement entered into by the Parties.” The jury also was provided an exhibit of the
QuickBooks register of the payments ABI made to CBI and a 2004 cash flow statement prepared
by Rammell for April during the parties’ 2001 meeting to purchase the business.
        On April 13, 2012, the jury returned a verdict in favor of ABI on all claims. The jury
determined that ABI’s fraud claim was not barred by the statute of limitations and that Rammell,
Christa’s estate, and CBI each committed fraud. The jury awarded $354,000.00 in damages. For
the breach of contract and express warranty claims, the jury determined that these claims also
were not barred by the statute of limitations. The jury verdict form divided these claims by the
subjects “proprietary software” and “library of files.” The jury determined that CBI “breach[ed]
its contact and/or warranty” with ABI “as to a library of files” and awarded $190,013.00 in
damages. Next the jury determined that CBI “breach[ed] its contact and/or warranty” with ABI
“as to proprietary software,” but awarded no damages. In total, Rammell, Christa’s estate, and
CBI were jointly and severally liable for $354,000 in damages for fraud, and CBI was liable for
an additional $190,013 in damages for breach of contract and breach of warranty as to the library
of files, a total of $544,013 against CBI. For Defendants’ counterclaim, the jury determined that
ABI did not breach its contract with CBI.
        Defendants moved for JNOV or a new trial in the alternative. The district court
concluded that the evidence was sufficient to support the jury verdict except as to ABI’s fraud
claim against Christa’s estate. As such, the district court dismissed the fraud claim against
Christa’s estate. In addition, the district court granted Defendants’ motion for a new trial on the



                                                  6
issue of damages unless ABI accepted a remittitur to reduce the damages against CBI by
$90,113. The district court stated that ABI paid CBI $708,000 to purchase the business, but April
testified that the business was worth $254,100. Thus, the district court concluded that the total
possible amount of damages incurred by ABI was $453,900, the amount paid by ABI less the
business’ worth. By awarding ABI $544,013 in damages against CBI, the district court
calculated that the jury exceeded the total amount of damages by $90,113. The district court
determined that the excess amount was inexplicable and based on passion and prejudice. ABI
accepted the district court’s remittitur. Defendants appeal to this Court.
                                      III. ISSUES ON APPEAL
1.     Whether the district court erred in denying Defendants’ motion for a directed verdict and
       JNOV on ABI’s fraud claims.
2.     Whether the district court erred in issuing a remittitur and denying in part Defendants’
       motion for a directed verdict and JNOV on ABI’s breach of contract and breach of
       warranty claims.
3.     Whether the district court erred in denying Defendants’ motion for JNOV on ABI’s
       breach of contract and breach of warranty claims due to the statute of limitations.
4.     Whether the district court abused its discretion by admitting April’s testimony regarding
       Christa’s will.
5.     Whether the judgment on Defendants’ counterclaim should be reversed or remanded for a
       new trial.
6.     Whether either Defendants or ABI is entitled to attorney’s fees on appeal.
                                    IV. STANDARD OF REVIEW
       “We review a trial court’s decision whether to admit or exclude evidence under an abuse
of discretion standard.” Harris, Inc. v. Foxhollow Const. & Trucking, Inc., 151 Idaho 761, 770,
264 P.3d 400, 409 (2011). “To determine whether a trial court has abused its discretion, this
Court considers whether the district court: (1) perceived the issue as one of discretion; (2) acted
within the outer boundaries of that discretion consistent with applicable legal standards; and (3)
reached its decision through the exercise of reason.” Hansen v. Roberts, 154 Idaho 469, 472, 299
P.3d 781, 784 (2013).
       “When reviewing a decision to grant or deny a motion for a directed verdict, this Court
applies the same standard the trial court applied when originally ruling on the motion.” Enriquez
v. Idaho Power Co., 152 Idaho 562, 565, 272 P.3d 534, 537 (2012). The Court determines
       whether there was sufficient evidence to justify submitting the claim to the jury,
       viewing as true all adverse evidence and drawing every legitimate inference in


                                                  7
       favor of the party opposing the motion for a directed verdict. This test does not
       require the evidence be uncontradicted, but only that it be of sufficient quantity
       and probative value that reasonable minds could conclude that a verdict in favor
       of the party against whom the motion is made is proper. Where a non-moving
       party produces sufficient evidence from which reasonable minds could find in its
       favor, a motion for directed verdict should be denied.
Id. (internal citations and quotations omitted).
       When reviewing a decision to grant or deny a motion for JNOV, this Court also applies
the same standard as the trial court. Athay v. Rich Cnty., 153 Idaho 815, 825, 291 P.3d 1014,
1024 (2012).
       A jury verdict must be upheld if there is evidence of sufficient quantity and
       probative value that reasonable minds could have reached a similar conclusion to
       that of the jury. In reviewing a grant or denial of a motion for JNOV the court
       may not reweigh evidence, consider witness credibility, or compare its factual
       findings with that of the jury. The court reviews the facts as if the moving party
       had admitted any adverse facts, drawing reasonable inferences in favor of the
       non-moving party.
Id. (quoting Hall v. Farmers Alliance Mut. Ins. Co., 145 Idaho 313, 324, 179 P.3d 276, 287
(2008)).
                                            V. ANALYSIS
A.     The District Court Did Not Err In Denying Defendants’ Motion For A Directed
       Verdict And JNOV On ABI’s Fraud Claims.
       ABI pursued its fraud claim based on three representations: (1) CBI owned a library of
computer files worth at least one million dollars; (2) CBI developed proprietary software; and (3)
ABI could cease its monthly payments to CBI if Christa died before ABI completed the
payments. The nine elements of a fraud claim are: “(1) a statement or a representation of fact; (2)
its falsity; (3) its materiality; (4) the speaker’s knowledge of its falsity; (5) the speaker’s intent
that there be reliance; (6) the hearer’s ignorance of the falsity of the statement; (7) reliance by the
hearer; (8) justifiable reliance; and (9) resultant injury.” Bank of Commerce v. Jefferson Enters.,
LLC, 154 Idaho 824, 833, 303 P.3d 183, 192 (2013) (quoting Chavez v. Barrus, 146 Idaho 212,
223, 192 P.3d 1036, 1047 (2008)). “Fraud is to be determined from all the facts and
circumstances of the case.” Penn Mut. Life Ins. Co. v. Ireton, 57 Idaho 466, 482, 65 P.2d 1032,
1039 (1937).
       1.      There was sufficient evidence for the jury to conclude that Defendants committed
               fraud through their representation to ABI that ABI purchased from CBI a library
               of computer files worth at least one million dollars.


                                                   8
        Defendants argue that any representation by Rammell or CBI as to the value or
ownership of the library of files was an opinion, not a fact. This Court concludes that Rammell’s
and CBI’s representations fall into an exception to the general rule that fraud cannot be based on
an opinion or prediction. Defendants also argue that ABI failed to show any damages from the
fraudulent statements. This Court concludes that ABI presented sufficient evidence of damages
to the jury.
               a.      It was reasonable to conclude from the evidence that Rammell and CBI
                       knowingly made false representations with the intent to induce ABI into
                       purchasing CBI.
        In general, “the representation forming the basis of a claim for fraud must concern past or
existing material facts.” Maroun v. Wyreless Sys., Inc., 141 Idaho 604, 615, 114 P.3d 974, 985
(2005) (quoting Magic Lantern Prods., Inc. v. Dolsot, 126 Idaho 805, 807, 892 P.2d 480, 482
(1995)). “Opinions and predictions cannot form the basis of a fraud claim because they do not
speak to matters of fact.” Country Cove Dev., Inc. v. May, 143 Idaho 595, 601, 150 P.3d 288,
294 (2006). Thus, “a representation consisting of promise or a statement as to a future event will
not serve as basis for fraud, even though it was made under circumstances as to knowledge and
belief which would give rise to an action for fraud had it related to an existing or past fact.”
Sharp v. Idaho Inv. Corp., 95 Idaho 113, 122, 504 P.2d 386, 395 (1972). Similarly, “[o]pinions
or predictions about the anticipated profitability of a business are usually not actionable as
fraud.” Id.
        The Court has recognized two exceptions to the general rule that fraud cannot be based
on an opinion or prediction of future events. Gillespie v. Mountain Park Estates, LLC, 142 Idaho
671, 673–74, 132 P.3d 428, 430–31 (2006). One exception exists “where a false prediction or
opinion is given with the intent to mislead.” Country Cove Dev., 143 Idaho at 601, 150 P.3d at
294. Under this exception, the speaker makes “the promise without any intent to keep it, but to
induce action on the part of the promisee.” Gillespie, 142 Idaho at 674, 132 P.3d at 431. For
example, this exception is triggered “where a speaker gives an opinion when he is aware of facts
incompatible with such opinion . . . made with the intention of deceiving or misleading.”
Country Cove Dev., 143 Idaho at 601, 150 P.3d at 294 (quoting Jordan v. Hunter, 124 Idaho 899,
907, 865 P.2d 990, 998 (Ct. App. 1993)). Similarly, this exception occurs “[w]here actual value
is known and false statements are knowingly made with intention to deceive, and do deceive the
parties to whom they are made . . . . Such statements are not expressions of opinion but are


                                                 9
statements of material facts.” Fox v. Cosgriff, 66 Idaho 371, 380, 159 P.2d 224, 227 (1945). The
second exception exists where “the promise was accompanied by statements of existing fact
which show the promisor’s ability to perform the promise and those statements were false.”
Gillespie, 142 Idaho at 674, 132 P.3d at 431.
       In this case, there was sufficient evidence for the jury to conclude that Rammell’s and
CBI’s representations that CBI owned a library of files worth at least one million dollars were
more than mere opinions or predictions. These representations fall under the first exception for
false opinions with the intent to mislead. The evidence showed that Rammell and Christa valued
the business at $40,000 to their attorney in 1999, and they believed that the business had little
value without Christa. The evidence also showed that Rammell stated in his deposition prior to
consulting with his attorney that he had no understanding of whether CBI owned the files. Yet,
according to April, Rammell and Christa told her that she was purchasing from CBI a library of
files worth at least one million dollars. In addition, the evidence showed that one of Rammell and
Christa’s motives for the sale was to secure a retirement income. Based on this evidence
presented at trial, reasonable minds could conclude that Rammell and Christa, motivated to
secure a retirement income, provided a false opinion of the value and ownership of the library of
files with the intent to induce April to purchase the business.
               b.      It was reasonable to conclude from the evidence that ABI had a resultant
                       injury and incurred damages from Rammell’s and CBI’s fraudulent
                       statements.
        “In order to secure relief on a basis of fraud, the party seeking redress must have been
damaged, injured or harmed as a result of the asserted fraud. A false representation which causes
no loss is not actionable.” Bryant Motors, Inc. v. Am. States Ins. Cos., 118 Idaho 796, 800, 800
P.2d 683, 687 (Ct. App. 1990) (citing Kloppenburg v. Mays, 60 Idaho 19, 88 P.2d 513 (1939)).
The amount of damages “must be proven with reasonable certainty.” Griffith v. Clear Lakes
Trout Co., 143 Idaho 733, 740, 152 P.3d 604, 611 (2007). “‘Reasonable certainty’ does not mean
that damages need to be proven with ‘mathematical exactitude,’ but it does require a plaintiff to
prove that damages are not merely speculative.” Harris, 151 Idaho at 770, 264 P.3d at 409
(quoting Griffith, 143 Idaho at 740, 152 P.3d at 611).
       In fraud claims, Idaho courts have applied the “out-of-pocket” rule in measuring
damages, but have also recognized the existence of a different measure of damages referred to as
the “benefit of the bargain” rule. Watts v. Krebs, 131 Idaho 616, 621, 962 P.2d 387, 392 (1998).


                                                 10
The benefit of the bargain rule measures damages “by the difference between the value of the
thing actually received and the value it would have had if it were as it was fraudulently
represented to be.” Walston v. Monumental Life Ins. Co., 129 Idaho 211, 217, 923 P.2d 456, 462
(1996) (quoting Nelson v. Armstrong, 99 Idaho 422, 427 n.1, 582 P.2d 1100, 1105 n.1 (1978)).
The out-of-pocket rule “limits the recovery of damages to the difference between” the real value
of the thing actually received “and the price paid or contracted for.” Id. at 217, 923 P.2d at 462
(quoting Shrives v. Talbot, 91 Idaho 338, 345, 421 P.2d 133, 140 (1966)).
        The benefit of the bargain and out-of-pocket rules are not exclusive. Id. “The underlying
principle is that the victim of fraud is entitled to compensation for every wrong which is the
natural and proximate result of the fraud. The measure of damages which should be adopted
under the facts of a case is the one which will effect such result.” Weitzel v. Jukich, 73 Idaho
301, 308, 251 P.2d 542, 546 (1952).
        In this case the jury was instructed to “determine the amount of money that will
reasonably and fairly compensate ABI for any damages provided by the evidence to have
resulted from the breach or fraud.” The jury also was instructed against awarding duplicative
damages.
        The Court finds that April’s testimony provided sufficient evidence of ABI’s damages
from Defendants’ fraud. April testified that she could not sell the business because, in her
opinion, it had no value without ownership of the library of files. The evidence showed that ABI
agreed to pay CBI $1,152,000 over eight years, and paid only $708,000 due to Christa’s death.
April stated that the value of CBI when it transitioned to ABI was $250,000 plus $600 for the
PageMaker software and $3,500 for office equipment, which totals to $254,100. Defendants
offered no evidence to refute or challenge the $254,100 value. Taking the difference of the
$254,100 value with the $708,000 payment, April testified that ABI had a claim for “about
$455,000,” an out-of-pocket calculation.
        Defendants showed that ABI recouped the money it paid for CBI and that April was
successfully running the business. Defendants also showed that April believed that she would
sell the files with the business if she ever sold ABI. In other words, she would not sell the files
independently. She acknowledged that CBI told her she could sell the business like it was sold to
her: to a third party to continue business with Rutter with the same files. April agreed that she
had not tried to sell the business.



                                                11
        Defendants focus on ABI’s ability to sell the business in the future as the measure of
damages. They claim that ABI was not injured by any fraudulent statements because no evidence
showed that ABI could not sell the business to a third party in the way that CBI was sold to her.
The flaw in Defendants’ argument is their assumption that a future sale is the only way to
calculate damages. Based on the evidence presented at trial, the jury could have calculated
damages in other ways. The jury reasonably could have concluded that ABI’s injury was not in
its inability to sell the files independent of the business, but in its purchase of a business worth
much less than its represented value. Put another way, the jury reasonably could have determined
that ABI was injured because CBI knowingly overcharged ABI, and, although ABI profited from
the business, ABI still overpaid based on CBI’s misrepresentations. In sum, the evidence showed
that ABI believed it was purchasing a business with property worth at least one million dollars,
but learned later that the business was worth only $254,100 without any ownership rights to the
represented property.
        The resolution of this damages issue, like many other issues in this case, depended on
which witnesses the jury found credible. Based on the evidence, it was reasonable for the jury to
conclude April’s testimony of the business’ value was credible, especially considering that
Defendants offered no contrary evidence. The Court concludes that there was sufficient evidence
for the jury to calculate an award of damages based on ABI’s purchase of a business with a
misrepresented value.
        Based on the above reasons, the Court holds that the district court did not err in denying
Defendants’ motion for a directed verdict and JNOV on the fraud claims because reasonable
minds could conclude from the evidence presented at trial that ABI was defrauded by Rammell
and CBI regarding their purported ownership of a library of files worth at least one million
dollars. This Court declines to review whether the evidence also was sufficient for the jury to
find fraud based on the proprietary software because there was sufficient evidence of fraud based
solely on the library of files.
B.      The District Court Did Not Err In Issuing A Remittitur And Denying In Part
        Defendants’ Motion For A Directed Verdict And JNOV On ABI’s Breach of
        Contract and Breach Of Warranty Claims.
        For the breach of warranty claims, the jury was instructed that ABI had the burden to
prove: (1) CBI made a warranty as part of the sale of the business; (2) CBI breached the




                                                12
warranty; (3) ABI incurred damage due to the breach; and (4) the amount of damages. The jury
instruction explained “express warranty” as:
       An express warranty is a warranty created by words or actions of the seller.
       Express warranties may be created by affirmation of fact or promises made by the
       seller to the buyer relating to the goods that become the basis of the bargain; (2) a
       description of the goods that becomes part of the bargain; (3) a sample or model
       made part of the basis of the bargain. . . . An affirmation merely of the value of
       the goods or a statement purporting to be merely the seller’s opinion or
       commendation of the goods does not create a warranty.
This explanation of express warranty mirrors I.C. § 28-2-313. “Whether a statement by the seller
was an express warranty is a question of fact.” Keller v. Inland Metals All Weather Conditioning,
Inc., 139 Idaho 233, 237, 76 P.3d 977, 981 (2003).
       The two warranties at issue at trial pertained to CBI’s ability to transfer to ABI (1)
ownership of the library of files and (2) the proprietary software. The jury found that both
express warranties were breached by CBI.
       Regarding the library of files, there was sufficient evidence for the jury reasonably to
conclude that CBI warranted more than a mere affirmation of the value of the files. The evidence
showed that CBI informed ABI that ABI would have ownership of files worth at least one
million dollars by purchasing the business. Reasonable minds could conclude that this warranty
was more than the mere value of the business because ownership of the library of files
represented to ABI that it had some security in its business relationship with Rutter. The
evidence showed that ABI believed it could charge Rutter for return of the files if Rutter ceased
doing business with ABI. The promise of ownership also suggested to ABI that it could sell the
files to a third party with the business and, as such, those files had an additional value separate
from the other business assets. Based on the evidence presented at trial, reasonable minds could
conclude that CBI made an express warranty to ABI regarding the library of files and this
warranty was a basis of the purchase agreement.
       Regarding the proprietary software, there also was sufficient evidence for the jury
reasonably to conclude that CBI warranted that ABI would own unique software developed by
CBI exclusively for servicing Rutter’s publications. April testified that Christa informed her that
she created proprietary software to work with Rutter. The evidence showed that ABI believed it
would be purchasing this software to run the business efficiently and successfully without
spending additional time and resources to recreate the software for Rutter. The evidence also



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showed that ABI knew it took CBI many years to develop the macros and commands specific to
Rutter’s typesetting needs. Like the ownership of the library of files, the ownership of the
propriety software gave ABI security in its business relationship with Rutter. Therefore, the jury
reasonably could have concluded that obtaining ownership of the proprietary software was an
express warranty that formed a basis of the purchase agreement.
       Further, the evidence was sufficient for the conclusion that CBI breached both of these
express warranties. Defendants focus on ABI’s ability to sell the files to a third party, but
Defendants ignore April’s testimony that she believed she could charge Rutter for return of the
files, which indicated that the files had value outside of a sale of the business. Additionally,
reasonable minds could conclude that the evidence showed that ABI believed that Rutter would
want to approve the purchaser, but ABI still had the authority to sell the files with the caveat that
Rutter may not continue to do business with that purchaser. As to the proprietary software, the
evidence showed that CBI breached its warranty because CBI did not develop any unique
propriety software. Based on the evidence presented, reasonable minds could determine that CBI
breached the express warranties.
       1.      The district court corrected any error in the jury’s calculation of damages by
               issuing a remittitur.
       In this case, the jury determined that ABI incurred $190,013 in damages due to CBI’s
“breach of contract and/or warranty as to the library of files, not otherwise awarded [for fraud],”
in addition to the $354,000 damages amount for fraud. The jury awarded no additional damages
for CBI’s breach of contract and breach of warranty due to the proprietary software.
       The district court reduced the damages award for breach of contract and breach of
warranty as to the library of files by $90,113 because the district court determined that that sum
was in excess of the total amount of damages shown by ABI at trial. ABI accepted the remittitur.
As such, CBI was liable for $99,900 in damages for breach of contract and breach of warranty
and jointly and severally liable for $354,000 for fraud. The damages against CBI totaled to
$453,900, which was the difference between the $708,000 sum paid by ABI and the $254,100
value of the business.
       “A new trial is warranted where the jury’s determination of damages appears to have
resulted from passion or prejudice.” Kuhn v. Coldwell Banker Landmark, Inc., 150 Idaho 240,
248, 245 P.3d 992, 1000 (2010) (citing Quick v. Crane, 111 Idaho 759, 769–70, 727 P.2d 1187,
1197–98 (1986); Idaho Rule of Civil Procedure (I.R.C.P.) 59(a)(5)).


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       In determining whether damages are excessive or inadequate, the district court
       must weigh the evidence and compare the jury award with the award that it would
       have imposed. “If the disparity is so great that it appears to the trial court that the
       award was given under the influence of passion or prejudice, the verdict ought not
       stand.”
Kuhn, 150 Idaho at 248, 245 P.3d at 1000 (quoting Quick, 111 Idaho at 768, 727 P.2d at 1196).
An alternative to granting a new trial based on excessive damages is a remittitur. Quick, 111
Idaho at 770, 727 P.2d at 1198. Remittiturs are limited to correcting errors in damages. Id.
Remittiturs are improper “if the verdict was the result of passion or prejudice to such an extent
that such passion or prejudice may have infected the jury’s decision on liability as well as
damages.” Id. “Hence, the amount by which the trial judge offers to reduce the damage award is
a discretionary decision that is inexorably linked to the exercise of discretion in ruling on a new
trial motion under I.R.C.P. 59(a)(5).” Id.
       The Court first highlights that it was reasonable for the jury to conclude, based on the
evidence, that ABI incurred damages from the breach of contract and express warranty claims.
Reasonable minds could determine that ABI agreed to purchase the business for $1,152,000
because CBI warranted that ABI would receive a library of files worth at least one million
dollars and unique proprietary software developed by Christa over many years. The evidence
then showed that ABI learned that CBI did not create any software after ABI paid $420,000 and
ABI learned that CBI did not own the library of files after ABI paid $708,000. April’s testimony,
which was not contradicted by Defendants, provided that the actual value of the business at the
time of the transition to ABI was $254,100. The jury also was provided with ABI’s
documentation of payments to CBI, Rammell’s projected business cash flow, and testimony
regarding the profits and expenses of ABI. Due to the conflicting testimony and credibility
determinations, there were multiple means by which the jury could have calculated and divided
damages in a reasonable manner based on sufficient evidence.
       Although there was sufficient evidence on the issue of damages for the breach of contract
and breach of warranty claims, the district court concluded that the jury awarded excessive
damages based on passion and prejudice. As such, the district court issued a remittitur for the
breach of contract and breach of warranty claims as to the library of files. This decision was
reasonable based on the evidence presented at trial, and it corrected any error in the jury verdict.
The Court recognizes that the jury could have been influenced by passion and prejudice due to
the evidence presented at trial. However, the jury’s passion and prejudice does not invalidate the


                                                 15
jury’s verdict. There was sufficient evidence of Defendants’ liability for breach of contract and
breach of warranty to avoid any infection from the jury’s passion and prejudice as to damages.
Many issues in this case turned on the credibility determinations made by the jury. Reasonable
minds could conclude based on the evidence that Defendants were liable for the breach of
contract and breach of warranty claims without any influence of passion or prejudice. The Court
concludes that any error in the jury’s award of damages for breach of contract and breach of
warranty as to the library of files was properly resolved by the district court’s remittitur.
          In conclusion, the Court holds that the district court properly ruled on Defendants’
motion for a directed verdict and JNOV regarding the breach of contract and breach of warranty
claims.
C.        The District Court Did Not Err In Denying Defendants’ Motion For JNOV On
          ABI’s Breach Of Contract And Breach Of Warranty Claims Due To The Statute Of
          Limitations.
          ABI filed its suit on May 8, 2009, and the jury concluded that ABI’s breach of contract
and breach of warranty claims were not barred by the applicable statute of limitations. Based on
the evidence presented at trial, the Court finds that reasonable minds could have reached a
similar conclusion to that of the jury.
          For the claims based on the library of files, the jury was instructed that ABI had four
years to bring the claims and that the claims began “to run from the time ABI knew of the Rutter
Group’s claim of ownership interest in the library of files.” The evidence reasonably supports a
conclusion that April interpreted the caveat that Rutter had to approve the sale of the business to
a third party to mean that Rutter had to approve the purchaser, and not necessarily that CBI or
ABI did not have ownership of the files. Additionally, the jury could have concluded that
“ownership” included not only ABI’s ability to sell the files, but also ABI’s ability to charge
Rutter for return of the files if Rutter ceased to do business with ABI. According to April, she did
not learn until late 2008 that ABI had no ownership of the files and could not charge Rutter to
return the files. Therefore, there was sufficient evidence for the jury to conclude that ABI had
knowledge of Rutter’s ownership in late 2008 and filed its suit within the four year statute of
limitations.
          For the claims based on the proprietary software, the jury was instructed that the claims
began “to run from the time the Parties entered into the contract,” but “estoppel may apply to bar
the application of the statute of limitations to this claim.” The district court further instructed the


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jury on the estoppel elements. The evidence showed that April waited to read the manual until
November of 2006, but also that April relied on an information technology employee and Christa
as a consultant. The evidence also showed that the macros and commands in PageMaker took
years to develop. Additionally, April testified that Christa told her that she created the
proprietary software. April’s belief that Christa created the software was further supported by
Christa’s statements at the Idaho Falls Exchange Club, which were corroborated by Hall. This
evidence supports a conclusion that it would be reasonable for April to believe Christa developed
the proprietary software and to wait to read the manual until necessary. Moreover, the
reasonableness of ABI’s actions was a determination for the jury. Based on the evidence
presented, it was reasonable for the jury to conclude that estoppel barred the application of the
statute of limitations and that ABI acted with due diligence in asserting its claim.
D.     The District Court Did Not Abuse Its Discretion By Admitting April’s Testimony
       Regarding Christa’s Will.
       ABI inquired into April’s inheritance during April’s testimony regarding her meeting
with Rammell and Christa about the purchase of CBI. Defendants objected to this line of
questioning pursuant to Idaho Rule of Evidence (I.R.E.) 601. The district court took up
Defendants’ objection outside the presence of the jury. The district court recognized an overlap
between ABI’s claim against Christa’s estate for fraud and ABI’s claims against CBI for fraud,
breach of contract, and breach of warranty. The district court determined that the rules of
evidence permitted April’s testimony about Christa’s will as it related to ABI’s claims against
CBI, but not as it related to ABI’s fraud claim against Christa. Upon the jury’s return to the
courtroom, the district court gave a limiting instruction before April continued her testimony and
advised the jury that CBI “is a different entity” than Christa’s estate. The district court instructed
the jury that April’s testimony of Christa’s will was not admissible evidence for purposes of
supporting a claim against Christa’s estate. April then testified about statements Christa made to
her about April’s inheritance, her ownership of the business, and payment cessation upon
Christa’s death. The district court also provided a jury instruction regarding this testimony for
deliberations:
       In this case, certain evidence was admitted for a limited purpose. Specifically, the
       testimony of April Beguesse as to statements made by Christa Beguesse may not
       be considered as evidence in supporting a claim against the Estate of Christa
       Beguesse. Such evidence however may be used for any other purpose.



                                                 17
Defendants challenge the district court’s admission of April’s testimony. They argue that April’s
testimony was inadmissible under I.R.E. 601 and irrelevant. Each issue will be addressed in turn.
        1.       I.R.E. 601(b) does not prohibit April’s testimony regarding Christa’s will because
                 ABI pursued claims against parties other than Christa’s estate.
        I.R.E. 601(b) “bars (1) certain persons from testifying (2) in specified actions (3) as to
certain communications.” Montgomery v. Montgomery, 147 Idaho 1, 8, 205 P.3d 650, 657 (2009)
(quoting In re Estate of Keeven, 110 Idaho 452, 460, 716 P.2d 1224, 1232 (1986)). The rule
“prohibit[s] a party making a claim against an estate from testifying as to any unwritten
communication with the deceased.” Lunders v. Estate of Snyder, 131 Idaho 689, 698–99, 963
P.2d 372, 381–82 (1998). “I.R.E. 601(b) is virtually identical to I.C. § 9-202(3), 2 the so-called
‘Deadman’s Statute.’” Montgomery, 147 Idaho at 7–8, 205 P.3d at 656–57. “Given the virtual
identity of the rule and statute,” the Court applies the same analysis to the evidentiary rule and
the statute. Id. at 8, 205 P.3d at 657. “Application of a dead man’s statute is reviewed for abuse
of discretion.” Lunders, 131 Idaho at 699, 963 P.2d at 382.
        The Court has “not interpreted this provision so broadly as to bar testimony concerning a
state of affairs or matters of fact occurring before a decedent[’]s death.” Montgomery, 147 Idaho
at 8, 205 P.3d at 657. Additionally, I.R.E. 601(b) “does not apply where . . . the action is not
against the executor or administrator of an estate and the claim does not represent a demand
against the estate.” Rowan v. Riley, 139 Idaho 49, 54, 72 P.3d 889, 894 (2003). Nor does it apply
“when the testimony is being offered to defend against a counterclaim.” Lunders, 131 Idaho at
699, 963 P.2d at 382. Thus, the district court did not abuse its discretion by allowing April’s
testimony because I.R.E. 601(b) allows a party to testify to unwritten communication with the
deceased if the party’s claim is not against the estate. For example, in Argyle v. Slemaker the
plaintiff sought to testify regarding certain communications with the deceased in a property
dispute. 99 Idaho 544, 545–46, 547, 585 P.2d 954, 955–56, 957 (1978). The plaintiff brought a
claim against the decedent’s estate and also the decedent’s grantee, a third party corporation. Id.
at 545–46, 585 P.2d at 955–56. “An additional reason” the Court held that the plaintiff’s
testimony was not barred was because the deadman’s statute “prohibits testimony introduced
against the estate of a deceased person,” but “does not prohibit the admissibility of this evidence
as against . . . a corporation.” Id. at 547–48, 585 P.2d at 957–58. Similarly, April’s testimony

2
  “I.C. § 9-202(3) has a comma after the phrase ‘estate of a deceased person,’ whereas that comma is omitted in
I.R.E. 601(b).” Montgomery, 147 Idaho at 8 n.1, 205 P.3d at 657 n.1.


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was prohibited as to her fraud claim against Christa’s estate, but her testimony was not
prohibited as to her claims against CBI. The district court recognized this distinction with the
limiting instruction. Therefore, this Court concludes that the district court perceived the
admissibility of April’s testimony as one of discretion, acted within the boundaries of that
discretion consistent with I.R.E. 601, and reached its decision to admit the evidence through an
exercise of reason. There was no error in admission of this testimony.
       2.      April’s testimony regarding Christa’s will was relevant to ABI’s claims against
               CBI.
       “The question of relevancy is not a discretionary matter as there is no issue of credibility
or finding of fact for the trial court to resolve prior to deciding to admit or reject the evidence.”
Lubcke v. Boise City/Ada Cnty. Hous. Auth., Corp., 124 Idaho 450, 466, 860 P.2d 653, 669
(1993). As such, the Court reviews a trial court’s relevancy decision de novo. Id. “‘Relevant
Evidence’ means evidence having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than it would be
without the evidence.” I.R.E. 401. “All relevant evidence is admissible . . . . Evidence which is
not relevant is not admissible.” I.R.E. 402.
       Defendants argue that April’s testimony regarding Christa’s will was irrelevant because
(1) fraud cannot be premised on the promise to make a will and (2) the district court granted
Defendants a directed verdict on the fraud claim based on CBI’s representation that payments
would cease upon Christa’s death if within the eight-year purchase agreement. First, ABI’s fraud
claim against CBI was not premised on the promise to make a will, but rather on the
representation by CBI that ABI could cease payments to CBI if Christa died within eight years of
the business purchase. As discussed above, fraud may be premised on a promise if the speaker
makes the promise with no intention to keep it, but to induce the promisee. See Gillespie v.
Mountain Park Estates, LLC, 142 Idaho 671, 673–74, 132 P.3d 428, 430–31 (2006). In this case,
the jury could have considered April’s testimony of Christa’s will as evidence to support ABI’s
claim that CBI promised ABI it could cease payments if Christa died within eight years to induce
ABI to purchase the business, even though CBI had no intention of allowing ABI to cease
payments. In addition, April’s testimony was relevant to the jury’s determination of terms of the
oral contract between ABI and CBI. Second, the district court did not grant Defendants a
directed verdict as to a fraud claim based on a representation regarding a promise of payment
cessation upon Christa’s death. In fact, the district court stated that it was not granting a directed


                                                 19
verdict on that claim. Rather, the district court granted Defendants a directed verdict as to ABI’s
fraud claim that CBI’s assets would be bequeathed to April upon Christa’s death. Thus, the
district court barred ABI from presenting evidence of Christa’s will to prove a fraudulent
representation of the existence of a will, but allowed ABI to present that same evidence to
support a claim that CBI fraudulently represented the conditions for ABI to cease payment.
April’s testimony regarding Christa’s will was admissible and relevant to ABI’s breach of
contract and fraud claims against CBI.
E.        The Court Declines To Review The Jury Verdict On Defendants’ Counterclaim.
          Defendants assert that the Court should reverse the jury’s verdict on CBI’s counterclaim
against ABI or award Defendants a new trial on this claim, but Defendants did not specifically
move for JNOV or a new trial on the counterclaim. Without the issue adequately raised in
Defendants’ motion below, the Court declines to address this issue for the first time on appeal.
Garner v. Bartschi, 139 Idaho 430, 436, 80 P.3d 1031, 1037 (2003).
F.        The Court Awards ABI Attorney’s Fees On Appeal.
          Both parties seek attorney’s fees on appeal pursuant to I.C. § 12-120(3), which “provides
for attorney fees to the prevailing party in a civil action to recover on ‘any commercial
transaction.’” De Groot v. Standley Trenching, Inc., No. 39406, 2014 WL 1266104, at *10
(Idaho March 28, 2014) (quoting I.C. § 12-120(3)). The parties agree that this case arises from a
commercial transaction—the purchase agreement between ABI and CBI for an ongoing business.
As the prevailing party, the Court awards ABI attorney’s fees pursuant to I.C. § 12-120(3).
                                         VI. CONCLUSION
          The Court affirms the judgment of the district court. Attorney’s fees and costs on appeal
to ABI.


          Chief Justice BURDICK, Justices EISMANN, J. JONES and HORTON CONCUR.




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