               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                      Docket No. 40886

BARRY McHUGH, KOOTENAI COUNTY )
PROSECUTING ATTORNEY,              )                  2014 Opinion No. 28
                                   )
     Plaintiff-Respondent,         )                  Filed: April 16, 2014
                                   )
v.                                 )                  Stephen W. Kenyon, Clerk
                                   )
JEFFREY A. REID AND SANDRA M.      )
SNYDER-REID,                       )
                                   )
     Parties Aggrieved-Appellants, )
                                   )
and                                )
                                   )
ONE BLUE 2007 TOYOTA FJ CRUISER, )
VIN NO. JTEBU11F470014172, AND ONE )
THOUSAND, SEVEN HUNDRED            )
DOLLARS AND ZERO CENTS ($1,700.00) )
OF LAWFUL US CURRENCY,             )
                                   )
     Defendants.                   )
                                   )

       Appeal from the District Court of the First Judicial District, State of Idaho,
       Kootenai County. Hon. Benjamin R. Simpson, District Judge.

       Judgment of civil forfeiture, vacated and remanded.

       Nicolas V. Vieth, Coeur d’Alene, for appellants.

       Barry McHugh, Kootenai County Prosecuting Attorney; Jamila D. Holmes,
       Deputy Prosecuting Attorney, Coeur d’Alene, for respondent. Jamila D. Holmes
       argued.
                 ________________________________________________
MELANSON, Judge
       Jeffrey A. Reid and Sandra M. Snyder-Reid appeal from the judgment of civil forfeiture
of the Reids’ 2007 Toyota FJ Cruiser. Specifically, they assert that the district court erred in
partially granting Kootenai County Prosecuting Attorney Barry McHugh’s motion for summary
judgment with regard to the vehicle. For the reasons set forth below, we vacate and remand.



                                               1
                                                 I.
                                  FACTS AND PROCEDURE
       Jeffrey Reid was stopped while driving his 2007 Toyota FJ Cruiser after an officer
observed him speeding. The officer had been on the lookout for the vehicle after receiving a
report that the individual driving the vehicle had allegedly dumped marijuana plants on the side
of the road. During a consensual search of the vehicle, loose green plant material identified as
marijuana was found. Reid was arrested and the vehicle was impounded. Near the same time, a
detective went to the Reids’ home and received consent to search the home from Reid’s wife,
Sandra Snyder-Reid.      The search revealed marijuana, paraphernalia, $1,700 in cash, and
equipment for growing marijuana.
       Reid pled guilty to delivery of a controlled substance, I.C. § 37-2732(a)(1)(A), and
Snyder-Reid pled guilty to manufacturing a controlled substance, I.C. § 37-2732(a)(1)(B). As
part of a plea agreement, additional charges of trafficking in marijuana were dismissed. The
district court withheld judgment and placed the Reids on supervised probation for three years.
       While the criminal cases were pending, McHugh filed a complaint in rem seeking
forfeiture of the vehicle, money, and hydroponic growing equipment found in the Reids’ home.
The Reids filed unverified answers, followed by a motion to dismiss the complaint
approximately two months later in which they claimed that McHugh had failed to set the matter
for a hearing. The district court held a hearing and denied the motion to dismiss, finding that I.C.
§ 37-2744 did not require McHugh to set the matter for a hearing within a specified timeframe.
       McHugh subsequently filed a motion for summary judgment, which the district court
granted as to the vehicle and denied as to the money. The Reids filed a motion to reconsider the
denial of their motion to dismiss, which the district court denied. McHugh was granted attorney
fees and costs associated with the Reids’ motion to reconsider.
       The parties then filed a stipulated dismissal of the action with prejudice in which they
agreed to each bear their own attorney fees and costs. Both an order of dismissal with prejudice
and a judgment of civil forfeiture were signed by the district court. The judgment noted that it
was pursuant to the stipulation of the parties; however, no stipulation to the judgment was ever
filed. The judgment ordered that McHugh receive $1,000 and all right, title, and interest to the
vehicle; in return, the Reids received $700. The district court also noted in the judgment that the
stipulation settled with prejudice all existing material claims related to the seizure and forfeiture


                                                 2
of the vehicle and currency. 1      The Reids appeal, challenging the district court’s grant of
summary judgment as to the vehicle. 2 McHugh requests an award of attorney fees and costs on
appeal.
                                                 II.
                                    STANDARD OF REVIEW
          When reviewing an order for summary judgment, this Court applies the same standard of
review that was used by the trial court in ruling on the motion for summary judgment. Vreeken
v. Lockwood Eng’g, B.V., 148 Idaho 89, 101, 218 P.3d 1150, 1162 (2009). Summary judgment
under I.R.C.P. 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 an action will be tried before the court without a jury,
the trial court as the trier of fact is not constrained to draw inferences in favor of the nonmoving
party, but rather is entitled to reach the most probable inferences based upon the undisputed
evidence properly before it and grant the summary judgment despite the possibility of conflicting
inferences. Flying Elk Inv., LLC v. Cornwall, 149 Idaho 9, 13, 232 P.3d 330, 334 (2010);
Riverside Dev. Co. v. Ritchie, 103 Idaho 515, 519, 650 P.2d 657, 661 (1982). Drawing probable
inferences under such circumstances is permissible because the court, as the trier of fact, would
be responsible for resolving conflicting inferences at trial. Losee v. Idaho Co., 148 Idaho 219,
222, 220 P.3d 575, 578 (2009); Riverside Dev. Co., 103 Idaho at 519, 650 P.2d at 661. However,
conflicting evidentiary facts must still be viewed in favor of the nonmoving party. Losee, 148
Idaho at 222, 220 P.3d at 578.
          The party moving for summary judgment initially carries the burden of establishing that
there is no genuine issue of material fact and that he or she is entitled to judgment as a matter of
law. Eliopulos v. Knox, 123 Idaho 400, 404, 848 P.2d 984, 988 (Ct. App. 1992). The burden


1
       The judgment of forfeiture and the simultaneously entered order of dismissal are
fundamentally inconsistent dispositions of the same case, but neither party asks us to address this
on appeal. The parties seem to view these as a judgment for forfeiture of the vehicle, with a
dismissal of the remaining claims, but that is not what the documents say.
2
          The Reids do not challenge the judgment’s disposition of the $1,700.

                                                  3
may be met by establishing the absence of evidence on an element that the nonmoving party will
be required to prove at trial. Dunnick v. Elder, 126 Idaho 308, 311, 882 P.2d 475, 478 (Ct. App.
1994). Such an absence of evidence may be established either by an affirmative showing with
the moving party’s own evidence or by a review of all the nonmoving party’s evidence and the
contention that such proof of an element is lacking. Heath v. Honker’s Mini-Mart, Inc., 134
Idaho 711, 712, 8 P.3d 1254, 1255 (Ct. App. 2000). Once such an absence of evidence has been
established, the burden then shifts to the nonmoving party to show, via further depositions,
discovery responses, or affidavits, that there is indeed a genuine issue for trial or to offer a valid
justification for the failure to do so under I.R.C.P. 56(f). Sanders v. Kuna Joint Sch. Dist., 125
Idaho 872, 874, 876 P.2d 154, 156 (Ct. App. 1994). The nonmoving party cannot rest upon mere
speculation and must submit more than just conclusory assertions that an issue of material fact
exists to withstand summary judgment. Cantwell v. City of Boise, 146 Idaho 127, 133, 191 P.3d
205, 211 (2008). A mere scintilla of evidence or only slight doubt as to the facts is not sufficient
to create a genuine issue of material fact. Finholt v. Cresto, 143 Idaho 894, 897, 155 P.3d 695,
698 (2007). Summary judgment is appropriate where the nonmoving party bearing the burden of
proof fails to make a showing sufficient to establish the existence of an element essential to the
party’s case. Cantwell, 146 Idaho at 133, 191 P.3d at 211.
                                                 III.
                                            ANALYSIS
A.     Waiver of Right to Appeal
       Initially, we address McHugh’s contention that the Reids are precluded from bringing the
instant appeal because they agreed to a stipulated judgment that resolved all issues in the case
with prejudice and failed to explicitly reserve their right to appeal. As a result, the errors they
allege are waived. The Reids respond that they did not appeal from the judgment of forfeiture
and, instead, appeal from the district court’s grant of partial summary judgment in favor of
McHugh as to the vehicle. However, the notice of appeal filed with the district court states that
they appealed to this Court “from the Judgment of Forfeiture entered into” by stipulation of the
parties in the case. The notice of appeal avers that the judgment is appealable pursuant to I.A.R.
11(a)(1), which allows for appeals from final judgments; the judgment of forfeiture is the only
final judgment in this case, as the district court declined to enter an I.R.C.P. 54(b) certification of




                                                  4
final judgment from the grant of partial summary judgment. Thus, the Reids’ appeal is from the
judgment of civil forfeiture.
       Generally, a consent judgment is not subject to appellate review. Pac. Nat. Bank of
Wash. v. Mount, 97 Idaho 887, 556 P.2d 70 (1976); Kershaw v. Pierce Cattle Co., 87 Idaho 323,
329, 393 P.2d 31, 34 (1964). An exception to this general rule is made in those cases where it
appears there is a lack of actual consent to the judgment; lack of jurisdiction over the subject
matter; where the judgment was obtained by fraud, collusion, or mistake; or where the judgment
adversely affects the public interest. Pac. Nat. Bank, 97 Idaho at 888, 556 P.2d at 71. The Idaho
Supreme Court has also recognized an exception for consent judgments explicitly entered into to
expedite an appeal. See Harvey v. Bunker Hill & Sullivan Mining & Concentrating Co., 2 Idaho
732, 734, 24 P. 30, 31 (1890) (stating that a party may appeal from a “pro forma judgment” to
which it consented to expedite an appeal if it appears from the record that the party reserved all
rights to an appeal and both sides understood that the party did not intend to abandon its right to
appeal the consent judgment). Where none of the listed exceptions apply, a decree that appears
by the record to have been rendered by consent is always affirmed without considering the merits
of the cause. Swift & Co. v. United States, 276 U.S. 311, 324 (1928); Nashville, Chattanooga &
St. Louis Ry. Co. v. United States, 113 U.S. 261, 266 (1885); Pac. Nat. Bank, 97 Idaho at 888,
556 P.2d at 71.
       McHugh asserts that the Reids waived their right to appeal the errors they allege because
they failed to preserve that right in the stipulated judgment of forfeiture entered with their
consent. However, McHugh is unable to produce a stipulation to the judgment of forfeiture. All
the record contains is the stipulation for dismissal with prejudice, the order for dismissal with
prejudice, and the judgment of forfeiture that was prepared by McHugh and states that it is
pursuant to a stipulation for judgment of forfeiture. The only document that bears the signature
of all the parties is the stipulation for dismissal with prejudice, which does not suffice to show
consent to the judgment of forfeiture.        Indeed, at oral argument, counsel for McHugh
acknowledged that there was no stipulation to the judgment of forfeiture signed by all the parties
in the record but that counsel for the Reids saw the judgment of forfeiture prior to it being




                                                5
submitted to the district court. 3 The procedural circumstances of this case are unusual. The
district court granted summary judgment in favor of McHugh as to the vehicle but did not enter a
final judgment because McHugh’s claim to the currency remained at issue. Thus, the Reids
could not then appeal from the district court’s decision granting forfeiture of the vehicle. The
parties then stipulated to a dismissal of the case with prejudice and, for some reason not clear
from the record, a judgment of forfeiture was entered. Generally, unless it is clear from the
record that the parties assented, there is no stipulation. See 73 AM. JUR. 2d Stipulations § 2
(2012); 83 C.J.S. Stipulations § 14 (2010). Assent is generally shown either by making the
stipulation in open court or reducing it to writing with the signatures of all parties involved. 73
AM. JUR. 2d Stipulations § 2; 83 C.J.S. Stipulations § 14. Without such a record of assent, under
the unusual circumstances of this case, we cannot confidently say that the Reids failed to
preserve their right to appeal from that document. 4 Accordingly, we consider the merits of the
Reids’ appeal.
B.        Excessive Fines Clause
          The Reids assert that the forfeiture of their vehicle is grossly disproportionate to the
gravity of the offenses they committed, making it a violation of the Excessive Fines Clause of




3
          Reid’s counsel admitted at oral argument that he saw the judgment of forfeiture prior to
filing.
4
       Additionally, we note that the transcript from the summary judgment hearing suggests the
Reids’ intent--albeit equivocal--to appeal the partial grant of summary judgment. At the end of
the hearing, counsel for Snyder-Reid stated:

                  Your Honor, one other thing. And I haven’t discussed this with my
          client[s] yet regarding a potential appeal. I guess I just ask for a little direction
          from the Court whether or not the Court wants us to brief that issue and make a
          request to stay the forfeiture or the sale of the vehicle pending the appeal. I
          haven’t discussed it with my clients yet, but I would like a little bit of time, maybe
          a few days, in order to determine whether or not they want to bring this up or
          whether or not they want to let it go.

(Emphasis added.)


                                                    6
the Eighth Amendment. 5 As a result, they argue, the district court erred in granting partial
summary judgment in favor of McHugh as to the vehicle. 6
       Idaho Code Section 37-2744(a)(4) provides, in pertinent part:
               (a)     The following are subject to forfeiture:
               ....
               (4)     All conveyances, including aircraft, vehicles, or vessels, which are
       used, or intended for use, to transport, or in any manner to facilitate the
       transportation, delivery, receipt, possession or concealment, for the purpose of
       distribution or receipt of [controlled substances].
Forfeitures under Section 37-2744 are limited by the Excessive Fines Clause of the Eighth
Amendment. Nez Perce Cnty. Pros. Atty. v. Reese, 142 Idaho 893, 898-99, 136 P.3d 364, 369-70
(Ct. App. 2006). The touchstone of the constitutional inquiry under the Excessive Fines Clause
is the principle of proportionality--the amount of the forfeiture must bear some relationship to the
gravity of the offense it is designed to punish. United States v. Bajakajian, 524 U.S. 321, 334
(1998); Reese, 142 Idaho at 899, 136 P.3d at 370. If the amount of a forfeiture is grossly
disproportionate to the gravity of the defendant’s offense, it is unconstitutional. Bajakajian, 524
U.S. at 337; Reese, 142 Idaho at 899, 136 P.3d at 370. The burden of demonstrating a violation
of the Eighth Amendment is on the party asserting the constitutional violation. Reese, 142 Idaho
at 899, 136 P.3d at 370.
       In Reese, this Court set out the factors to be considered by a district court when
determining whether a forfeiture is grossly disproportionate under the Excessive Fines Clause.
We stated:
               In considering the gravity of the offense, factors for courts’ consideration
       include the nature and extent of the crime, whether the violation was related to
       other criminal activities, the other penalties that may be imposed for the violation,
       and the extent of harm caused. Judgments about appropriate punishment for an
       offense belong in the first instance to the legislature. Thus, among the most
       important factors when determining the gravity of the offense are other penalties
       authorized by the legislature. Additionally, the culpability of the offender should

5
      “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted.” U.S. CONST. amend. VIII.
6
        The Reids argue the issue of constitutionality directly as opposed to in terms of whether
there was a genuine issue of material fact; however, they frame their argument as a challenge to
the district court’s grant of partial summary judgment. Accordingly, we analyze this issue in
terms of whether the district court erred in granting summary judgment based on the Reids’
Excessive Fines Clause claim.

                                                 7
       be examined specifically instead of examining the gravity of the crime in the
       abstract. Courts may take into account the extent of both the defendant’s and the
       property’s roles in the offense, the nature and scope of the illegal operation at
       issue, the personal benefit reaped by the defendant, and the value of the
       contraband involved in the offense.
               To determine the proportionality of the forfeiture, relevant factors include,
       but are not limited to, the fair market value of the property, the intangible or
       subjective value of the property, and the hardship to the defendant. Courts have
       considered the property’s character . . . when evaluating the subjective value of
       the property or the harshness of the forfeiture. Courts may also take into account
       any other sanctions imposed upon the defendant by the sovereign seeking
       forfeiture. Additionally, the effect of forfeiture on the defendant’s family or
       financial circumstances is relevant.
Reese, 142 Idaho at 899-900, 136 P.3d at 370-71 (citations omitted).
       Here, the Reids neither cited to nor argued the Reese factors in the summary judgment
proceedings below, aside from an incidental showing of potential hardship through an affidavit
of Snyder-Reid attached to a different motion. Indeed, the Reids never offered the fair market
value of the vehicle or the subjective value of the vehicle. 7 They also failed to offer any
argument or evidence regarding the gravity of the offense.          Conversely, McHugh offered
arguments regarding the severity of the offense, the other penalties authorized by the legislature,
and the Reids’ failure to carry their burden of proof. Thus, the Reids did not present evidence
raising a genuine issue of material fact as to proportionality under the Excessive Fines Clause.
Summary judgment on this issue was appropriate.
C.      Grant of Partial Summary Judgment
       The Reids further argue that the district court erred in granting partial summary judgment
as to the vehicle because there is a genuine issue of material fact as to whether the vehicle was
used for the purpose of distribution or receipt of marijuana. In order for a vehicle to be forfeited
pursuant to I.C. § 37-2744(a)(4), the plaintiff must prove by a preponderance of the evidence that
the vehicle was used, or intended for use, to transport, or in any manner to facilitate the


7
        The Reids attempt to introduce evidence of the vehicle’s value for the first time on appeal
by citing to the Kelley Blue Book website. Generally, issues not raised below may not be
considered for the first time on appeal. Sanchez v. Arave, 120 Idaho 321, 322, 815 P.2d 1061,
1062 (1991). Similarly, evidence not a part of the record before the trial court will not be
considered on appeal. Nelson v. Nelson, 144 Idaho 710, 714, 170 P.3d 375, 379 (2007); Eldridge
v. Payette-Boise Water Users’ Ass’n, 50 Idaho 347, 348, 296 P. 1022, 1022 (1931).
Accordingly, the Reids’ attempt to introduce evidence not found below through their briefing on
appeal is improper and will be disregarded. See Nelson, 144 Idaho at 714, 170 P.3d at 379.

                                                 8
transportation, delivery, receipt, possession or concealment, for the purposes of distribution or
receipt of a controlled substance. I.C. § 37-2744(a)(4); Richardson v. One 1972 GMC Pickup,
121 Idaho 599, 601, 826 P.2d 1311, 1313 (1992). The phrase “for the purpose of distribution or
receipt” modifies all the antecedent terms. Ada Cnty. Pros. Atty. v. 2007 Legendary Motorcycle,
154 Idaho 351, 355, 298 P.3d 245, 249 (2013). Thus, transporting a controlled substance is not
alone sufficient for forfeiture under I.C. § 37-2744(a)(4); the plaintiff must show by a
preponderance of the evidence that the transportation was “for the purpose of distribution or
receipt” of a listed controlled substance. 2007 Legendary Motorcycle, 154 Idaho at 355, 298
P.3d at 249; One 1972 GMC Pickup, 121 Idaho at 601, 826 P.2d at 1313.
       The purpose of summary judgment proceedings is to eliminate the necessity of trial
where facts are not in dispute and where existent and undisputed facts lead to a conclusion of law
which is certain. Berg v. Fairman, 107 Idaho 441, 444, 690 P.2d 896, 899 (1984). In a motion
for summary judgment brought by a plaintiff, summary judgment is not proper if the plaintiff is
unable to carry its initial burden of establishing the essential elements of its claim. See Dunnick,
126 Idaho at 311, 882 P.2d at 478; Eliopulos, 123 Idaho at 404, 848 P.2d at 988. Indeed, the
plaintiff seeking summary judgment must make a prima facie showing of the essential elements
of its claim by affidavit, depositions, or discovery responses before it can be entitled to summary
judgment as a matter of law. Cf. Sanders, 125 Idaho at 874, 876 P.2d at 156.
       Here, McHugh presented the affidavits of the officer who stopped Reid and of the
detective who led the search of the Reids’ home. The affidavit of the stopping officer indicates
that, during the consensual search of the vehicle, some marijuana fell from the vehicle when
Reid opened the rear door, the officer found some marijuana in cardboard boxes in the vehicle,
and the officer smelled a strong odor of marijuana coming from the vehicle. The detective’s
affidavit indicates that Snyder-Reid admitted that she and Reid had been growing marijuana in
their home. However, she stated that the marijuana was being grown for her personal medical
use. McHugh also submitted several documents from the Reids’ criminal cases, including the
amended informations to which the Reids pled, the pretrial settlement offers, and the withheld
judgments.
       Reading these documents and affidavits in the light most favorable to the nonmoving
party, we conclude that McHugh fails to establish the required nexus between the vehicle and its
use for the purpose of distribution or receipt of marijuana. All that the evidence has established


                                                 9
thus far is that the vehicle was used to transport marijuana. The evidence provided in support of
the motion for summary judgment fails to establish that the Reids were involved in any form of
drug distribution, much less that their vehicle was used to facilitate such an enterprise. McHugh
argues that the Reids’ guilty pleas to manufacturing and delivery of a controlled substance
necessarily establish this point. McHugh is correct that a guilty plea is a judicial admission of all
facts charged in an indictment or information. State v. Coffin, 104 Idaho 543, 546, 661 P.2d 328,
331 (1983). However, neither of the informations to which the Reids pled guilty mentioned the
vehicle or indicated that the vehicle had been used for the purpose of distribution or receipt of
marijuana. McHugh also argues that the term “distribute” as defined in the Uniform Controlled
Substances Act includes delivery. See I.C. § 37-2701(g), (k). Even assuming (without deciding)
that McHugh’s assertion is correct, he nonetheless still fails to provide any evidence linking the
vehicle to distribution or receipt of marijuana. Although the Reids did not provide facts to
dispute whether the vehicle had been used for the purpose of distribution or receipt of
marijuana, 8 they did not need to do so to avoid summary judgment because McHugh failed to
carry his initial burden of establishing that element of the forfeiture claim. Thus, there remains a
genuine question of material fact as to whether the vehicle was used for the purpose of
distribution or receipt of a controlled substance. As a result, McHugh was not entitled to
summary judgment as a matter of law, and the district court erred in granting partial summary
judgment in his favor as to the vehicle.
D.        Attorney Fees
          McHugh argues that he is entitled to attorney fees on appeal under I.C. § 12-117 because
the Reids acted without a reasonable basis in law or fact. However, I.C. § 12-117 authorizes
attorney fees only to the prevailing party on appeal. City of Osburn v. Randel, 152 Idaho 906,
910, 277 P.3d 353, 357 (2012); Daw v. School Dist. 91 Bd. of Trustees, 136 Idaho 806, 808, 41
P.3d 234, 236 (2001). Because McHugh is not the prevailing party on appeal, he is not entitled
to attorney fees under Section 12-117. Accordingly, McHugh’s request for attorney fees is
denied.



8
       The only evidence supporting the Reids’ position in the record is the affidavit of Snyder-
Reid attached to their motion to release the vehicle due to hardship. This brief affidavit only
outlined the hardship the Reids faced as a result of not having the vehicle.


                                                 10
                                                III.
                                         CONCLUSION
       The Reids did not waive their right to appeal. The district court did not err in granting
summary judgment as to Reids’ Excessive Fines Clause claim. McHugh failed to establish that
the vehicle was used for the purpose of distribution or receipt of a controlled substance,
precluding summary judgment as a matter of law. McHugh is not the prevailing party on appeal
and is not entitled to an award of attorney fees. Accordingly, we vacate the judgment of
forfeiture as to the vehicle and remand for further proceedings consistent with this opinion.
Pursuant to I.A.R. 40, the Reids are entitled to costs on appeal.
       Chief Judge GUTIERREZ and Judge LANSING, CONCUR.




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