                           NOT FOR PUBLICATION

                   UNITED STATES COURT OF APPEALS                             FILED
                          FOR THE NINTH CIRCUIT                               NOV 13 2009

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

TOMLINSON BLACK NORTH                            No. 08-35900
IDAHO,
                                                 D.C. No. 2:06-cv-00118-RHW
             Plaintiff - Appellee,

  v.                                             MEMORANDUM *

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.


                  Appeal from the United States District Court
                            for the District of Idaho
                Robert H. Whaley, Senior District Judge, Presiding




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                                                                                page 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).



          **
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
                                                                             page 3
      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.
