                 IN THE SUPREME COURT OF THE STATE OF IDAHO

                                    Docket No. 38472-2011

JOSEPH BOLOGNESE and DOROTHY                         )
BOLOGNESE, husband and wife, SUNSET                  )       Lewiston, September 2012 Term
PECOS LIMITED PARTNERSHIP, a                         )
Nevada Limited Partnership,                          )       2012 Opinion No. 141
                                                     )
       Plaintiffs-Appellants,                        )       Filed: November 19, 2012
                                                     )
v.                                                   )       Stephen W. Kenyon, Clerk
                                                     )
PAUL FORTE and SUZANNE FORTE,                        )
husband and wife,                                    )
                                                     )
       Defendants-Respondents.                       )
                                                     )

       Appeal from the District Court of the First Judicial District of the State of Idaho,
       in and for Kootenai County. The Hon. Steven C. Verby, District Judge.

       The judgment of the district court is affirmed.

        John P. Whelan, Coeur d’Alene, argued for appellants.

        Mark. A. Jackson, Coeur d’Alene, argued for respondents.




EISMANN, Justice.
       This is an appeal out of Kootenai County from a jury verdict in favor of the sellers of real
property in an action by the buyers to recover damages or be granted rescission of the sale
contract on the ground that the sellers made misrepresentations and breached the contract and the
Idaho Property Condition Disclosure Act. The buyers also sought to raise the issue of mutual
mistake. We affirm the judgment of the district court.


                                                I.
                                     Factual Background.
       Pursuant to a written contract dated October 13, 2005, Joseph and Dorothy Bolognese
(Buyers) purchased from Paul and Suzanne Forte (Sellers) for the sum of $675,000 residential
property on the shore of Hayden Lake. The property consisted of about 1.7 acres on the shallow,
marshy end of the lake, and it included a remodeled home that had been originally constructed in
1934, a detached three-car garage, and a small guest cabin. The sale closed on October 28, 2005.
       Buyers lived in Las Vegas, Nevada. In August 2006, one of their adult daughters moved
from Florida to Idaho to live in the house. She intended to live there indefinitely, but moved out
about eleven months later because of various issues including the water pipes to the living
quarters above the garage freezing, the water in the garden hose that provided water to the guest
cabin freezing, the need to put a space heater under the kitchen sink in the house to keep the
water pipes from freezing, the floors in the house being very cold in the winter, the smell of mold
in one bedroom, and the need to keep the creek on the property from overflowing during the
spring runoff so that it would not flood the house.
       About a year after purchasing the property, Buyers hired a contractor to see if the garage
could be enlarged. He discovered that the building permit obtained to construct the garage had
not been finalized, so that it had lapsed. The permit had been issued in 2000 to construct a
garage with storage space above it.      Before the structure was completed, Sellers obtained
permission from the county to build an accessory living unit consisting of a bonus room and a
partial bathroom above the garage instead of the storage space. By letter dated May 30, 2001, an
employee of the county building department notified Sellers that he had met with Sellers’
contractor and inspected the garage structure and that some additional items needed to be
completed and a certificate of occupancy obtained. Sellers were living in Washington, and Mr.
Forte testified that although he signed for the letter, he did not recall receiving it. The required
items were not completed, and the building permit lapsed.
       Buyers’ contractor also contacted the health district and learned that the permit for the
septic system had been issued in 1998 for a two-bedroom home and that the septic system was
not approved for the property as it existed in 2005. Approval of the septic system was based
upon the number of bedrooms on the property. Sellers had hired the man from whom they
purchased the property to construct the 120-square-foot guest house, which included a sleeping
area and a bathroom. According to Mr. Forte, he had told them they did not need a permit for
that size of structure. Sellers had also remodeled the interior of the house, so that it contained
three bedrooms instead of two. The septic system was not approved for the guest house and the




                                                 2
additional bedroom, and there was not adequate space on the property to expand the leach field
so that it could be approved.
           In connection with the sale, Sellers completed and delivered to Buyers a property
disclosure form as required by the Idaho Property Condition Disclosure Act, I.C. §§ 55-2501 to
55-2518.        When completing that form, Sellers answered “No” to the question, “Have any
substantial additions or alterations been made without a building permit?”
           On October 12, 2007, Buyers filed this lawsuit against Sellers seeking damages for
breach of the Disclosure Act, misrepresentation, and breach of contract. 1 They also sought, in
the alternative, to have the real estate contract rescinded. The matter was tried to a jury on
February 22-26, 2010, on the three theories seeking damages. The jury returned a special verdict
finding that Buyers had failed to prove a violation of the Disclosure Act, had failed to prove
misrepresentation, and had failed to prove a breach of contract.
           On the second day of trial, Sellers moved to prevent Buyers from raising the issue of
mutual mistake of fact, which Buyers had apparently discussed in their pretrial brief. 2 The
matter was argued, and the district court ruled that Buyers could not present evidence regarding
mutual mistake because it had not been pled. On February 25, 2010, and again on March 8,
2010, Buyers moved to amend their complaint to conform to the evidence by adding a request
for rescission based upon mutual mistake. On March 8, 2010, Buyers moved to have the real
estate contract rescinded, and on August 30, 2010, they moved for a new trial. The district court
denied those motions, and Buyers timely appealed.


                                                      II.
                   Did the District Court Err in Granting Sellers’ Motion In Limine
                                   Precluding Evidence of Mutual Mistake?
           On the second day of trial, Sellers filed a motion in limine asking that “Plaintiffs not be
able to pursue questions or arguments before the court or jury with respect to ‘mutual mistake’ in
this case . . . .” The stated ground for the motion was that mutual mistake was not pled in
Buyers’ amended complaint. The alleged mutual mistake was apparently that both parties were

1
 Buyers filed an amended complaint that simply added as a plaintiff Sunset Pecos Limited Partnership, which was a
business entity that they owned.
2
    The brief is not in the record on appeal.

                                                       3
unaware of the need for permits with respect to the structures that the Sellers had constructed or
remodeled on the real property. During argument on the motion, Buyers’ counsel contended that
the failure to specifically allege mutual mistake in their amended complaint was simply a
typographical error.
       To resolve this assignment of error, we need not address whether the district court erred
in holding that mutual mistake had not been pled. “The guaranty [in Article 1, § 7, of the Idaho
Constitution] that ‘the right to trial by jury shall remain inviolate’ has no reference to equitable
cases.” Christensen v. Hollingsworth, 6 Idaho 87, 93, 53 P. 211, 212 (1898). A claim of mutual
mistake invokes the equitable jurisdiction of the court, 27A Am. Jur. 2d Equity § 45 (2008),
whether the party alleging mutual mistake is seeking reformation of a document, Palmer v.
Highway Dist. No. 1, Bonner County, 49 Idaho 596, 599, 290 P. 393, 393 (1930), Christensen, 6
Idaho at 91-94, 53 P. at 211-12, or rescission of a contract, O’Connor v. Harger Const., Inc., 145
Idaho 904, 909, 188 P.3d 846, 851 (2008).
       The sole purpose for offering evidence of mutual mistake of fact was to support the
equitable remedy of rescission. As Buyers’ counsel argued in opposition to the motion in limine,
“And if I gather right from [Sellers’] counsel, he wants to prevent us from trying to show that the
contract fails, that there’s grounds for rescission.” Because Buyers would not have been entitled
to a jury trial on the issue of mutual mistake, there was no error in refusing to permit them to
present evidence in support of that issue during the jury trial. Even had the district court
submitted equitable theories to the jury for an advisory verdict, which it did not, the court would
still be required to make independent findings of fact and conclusions of law on the equitable
theories. Bach v. Bagley, 148 Idaho 784, 796, 229 P.3d 1146, 1158 (2010). Because the jury
could not decide any issue of mutual mistake, the district court did not err in refusing to permit
Buyers to submit such evidence to the jury.


                                                III.
              Did the District Court Err in Denying Buyers’ Motion in Limine?
       On the third day of trial, Buyers filed a motion in limine. Although the motion is not in
the record on appeal, from the argument on the motion it appears that Buyers sought to exclude
any evidence that the Sellers mistakenly believed that any required permits had been obtained on
the ground that they did not allege lack of knowledge as an affirmative defense in their answer.


                                                 4
Sellers’ assertion that they did not know of any problems regarding required permits was not an
affirmative defense. “An affirmative defense is ‘[a] defendant’s assertion raising new facts and
arguments that, if true, will defeat the plaintiff’s or prosecution’s claim, even if all allegations in
the complaint are true.’ ” Fuhriman v. State, Dept. of Transp., 143 Idaho 800, 803, 153 P.3d
480, 483 (2007) (quoting Black’s Law Dictionary 186 (2d Pocket ed. 2001)). By offering
evidence of their lack of knowledge, Sellers were not raising new facts to defeat Buyers’ claim
even if the allegations in the amended complaint were true. They were seeking to rebut Buyers’
allegations of misrepresentation or concealment of a material fact in order to show that those
allegations were not true.
       In their amended complaint, Buyers had alleged that Sellers had misrepresented or failed
to disclose material facts and had violated the Disclosure Act. To prove misrepresentation,
including by concealment, Buyers had to prove that Sellers knew that required permits had not
been obtained, Lettunich v. Key Bank Nat’l Ass’n, 141 Idaho 362, 368, 109 P.3d 1104, 1110
(2005); Sowards v. Rathbun, 134 Idaho 702, 707-08, 8 P.3d 1245, 1250-51 (2000), and to prove
a breach of the Disclosure Act, they had to prove that Sellers willfully or negligently violated or
failed to perform a duty prescribed by the Act, I.C. § 55-2517. Sellers denied the allegations,
and they were permitted to offer evidence rebutting those claims. They were not required to
allege, as an affirmative defense, that the allegations in Buyers’ amended complaint were false.
As the district court stated, “There’s a difference between an affirmative defense and denial of
averment in a Complaint.” The district court did not err in denying Buyers’ motion in limine.


                                                 IV.
           Did the District Court Abuse Its Discretion in Denying Buyers’ Motion
               to Amend the Amended Complaint to Conform to the Evidence?
       On the fourth day of trial, Buyers filed a motion under Rule 15(b) of the Idaho Rules of
Civil Procedure to amend their amended complaint to conform to the evidence on the ground that
“the evidence at trial demonstrates that the parties were operating under a mutual mistake of
fact.” In their brief on appeal, Buyers argue: “Plaintiffs filed this motion in an effort to re-open
the issue of rescission based on mutual mistake of fact. Had the trial court granted the motion
during trial, Plaintiffs would have been free to offer evidence and argument on the theory of
rescission by mutual mistake.” (Footnotes omitted.)


                                                  5
       “Although I.R.C.P. 15(b) permits a court to base its decision on a theory fully tried by the
parties, an issue not tried either [by] express or implied consent cannot be the basis for the
decision.” M. K. Transport, Inc. v. Grover, 101 Idaho 345, 349, 612 P.2d 1192, 1196 (1980).
“Implied consent to the trial of an unpleaded issue is not established merely because evidence
relevant to that issue was introduced without objection. At least it must appear that the parties
understood the evidence to be aimed at the unpleaded issue.” Id. (quoting MBI Motor Co., Inc.
v. Lotus/East, Inc., 506 F.2d 709, 711 (6th Cir. 1974)).
       Buyers do not point to anything in the record indicating that mutual mistake was tried
with the express or implied consent of both parties. In fact, Buyers admit that they were
precluded from offering any evidence at the trial that they purchased the real property under a
mistake of fact. In their brief, they state that they filed the motion “so that they could offer their
evidence on the issue of rescission by mutual mistake of fact in rebuttal if the motion were
granted” and “[h]ad the trial court granted the motion during trial, Plaintiffs would have been
free to offer evidence and argument on the theory of rescission by mutual mistake.”                To
establish mutual mistake, “[t]he mistake must be common to both parties.” O’Connor v. Harger
Const., Inc., 145 Idaho 904, 909, 188 P.3d 846, 851 (2008). Buyers have failed to show that the
district court abused its discretion in denying their motion under Rule 15(b).


                                                 V.
        Did the District Court Abuse Its Discretion in Failing to Take Judicial Notice
                           of Ordinances and Administrative Rules?
       After both parties had rested and the jury was excused for the day, the district court
discussed some issues with counsel for both parties. The court then asked, “Anything further?”
Buyers’ counsel responded by stating: “Yes, Judge. I’ve asked the Court to take notice of
several statutes. IDAPA actually, not a statute.”
       Earlier that day, Buyers had filed a written request asking the district court to take
judicial notice of “the applicable portions of the Kootenai County Building Code Ordinance
221A and the 1997 Uniform Building Code” and “the relevant portions of the IDAPA Rules for
Individual and Subsurface Sewage Disposal Systems.” Attached to the motion were: (a) a copy
of Ordinance No. 221A consisting of twelve pages; (b) a copy of three pages of Chapter 1 of the
1997 Uniform Building Code; and (c) a copy of the Individual/Subsurface Sewage Disposal


                                                  6
Rules adopted by the Division of Environmental Quality of the Idaho Department of Health and
Welfare, consisting of twenty-four pages. The court asked Sellers’ counsel if he had reviewed
the request for judicial notice, and he responded that he had just been handed a copy of it.
           Buyers’ counsel stated that he wanted the court “to take notice and just read the
applicable statutes to the jury in the form of an instruction.” When the court asked which
sections of the materials he wanted read, Buyers’ counsel could not identify them because the
motion had been prepared by his paralegal. The court then told Buyers’ counsel to submit a jury
instruction for review to the court’s chambers, but Buyers’ counsel did not do so. 3 The jury
instruction conference was conducted the next morning, but it is not in the record on appeal.
           On appeal, Buyers contend that the district court erred because it “never ruled on
Plaintiffs’ request. Idaho Rules of Evidence Rule 201 would seemingly require that such notice
be taken.” The district court told Buyers’ counsel to submit a jury instruction that included the
portions of the ordinances and administrative rules that they wanted presented to the jury and the
court would look at it, but Buyers’ counsel failed to do so. Thus, the district court was never
presented with the issue of whether it should take judicial notice of relevant portions of the
ordinances and rules and instruct the jury regarding them. The court did not err in failing to do
counsel’s work for him.


                                                          VI.
               Did the District Court Err in Denying Buyers’ Motion for Rescission?




3
    The discussion between the district court and Buyers’ counsel was as follows:

                    THE COURT: Do you want jury instructions with regard to these issues?
                    MR. WHALEN: Frankly, I just—I would ask the Court to take notice and just read the
           applicable statutes to the jury in the form of an instruction. We’ve highlighted—I think we’ve
           highlighted—
                    THE COURT: All right. Which—my copy has no highlighting on it.
                    MR. WHALEN: I’m sorry. Here’s what I did.
                    THE COURT: Which sections would you like to have included as jury instructions?
                    MR. WHALEN: Judge, I’d have to say this is tentative. I had my paralegal do this while
           I was trying the case this morning.
                    THE COURT: Well, here’s what I’m going to suggest then. I’m going to suggest that if
           you wish to have a jury instruction made, submit it, fax it to my office, I’ll look at it.



                                                           7
         On March 8, 2010, Buyers filed a motion for a judgment of rescission. Buyers did not
seek to offer additional evidence regarding their request for rescission. In their motion, they
stated, “In that the Court reserved ruling on the issue of rescission and elected not to use the jury
in an advisory capacity, the time has come for a ruling by the Court on Plaintiffs [sic] request for
rescission.”
         Buyers’ motion was argued on June 11, 2010. The district court took the motion under
advisement and later issued a written opinion denying the motion for rescission. The court held
that after considering the equities, it would not order rescission. The factors listed by the court
were that the condition of the real property had declined since 2005, the main complaints
regarding the septic system could be remedied, and the Sellers had used the sale proceeds to
purchase other real property for their residence. 4 On appeal, Buyers challenge the factors
considered by the court in deciding that it would be inequitable to order rescission.
         Rescission is an equitable remedy within the discretion of the trial court. Climax, LLC v.
Snake River Oncology of Eastern Idaho, PLLC, 149 Idaho 791, 794, 241 P.3d 964, 967 (2010);
O’Connor v. Harger Constr., Inc., 145 Idaho 904, 909, 188 P.3d 846, 851 (2008). We need not
consider whether the district court abused its discretion in deciding that it would be inequitable
to order rescission because Buyers failed to prove any ground for invoking that remedy.
Equitable remedies “apply precisely because there is no adequate remedy at law . . . , and
because sufficient grounds to invoke equity, such as mutual mistake, fraud, or impossibility, are
present.” Holscher v. James, 124 Idaho 443, 447, 860 P.2d 646, 650 (1993). Rescission cannot
be granted if the party seeking that remedy fails to prove a ground for invoking that remedy.
Ervin Constr. Co. v. Van Orden, 125 Idaho 695, 700, 874 P.2d 506, 511 (1993) (“Rescission is
not available, however, where the breach of contract is only incidental and subordinate to the
main purpose of the contract.”); Bethlahmy v. Bechtel, 91 Idaho 55, 68, 415 P.2d 698, 711 (1966)
(“No house is built without defects, and defects susceptible of remedy ordinarily would not
warrant rescission.”).



4
  While this case was pending, Sellers obtained an option for an easement on adjoining property to provide room for
expanding the septic system. In its initial decision, the district court also stated as a factor the decline in real estate
values since the sale of the real property. Buyers filed a motion for reconsideration on the ground that there was no
evidence in the record of that decline. The court ruled that even if that were disregarded, it would still find that
rescission was inequitable.



                                                            8
       In their amended complaint, Buyers alleged three claims against Sellers: (a) that they
violated the Idaho Property Condition Disclosure Act; (b) that they misrepresented or concealed
material facts; and (c) that they breached the real estate contract. Depending upon the facts,
rescission could be an available remedy for each of those claims, although it does not appear
from the record that a timely request for rescission was made within the three-day period that a
buyer has to rescind a contract under the Disclosure Act based upon a specific objection to a
disclosure. White v. Mock, 140 Idaho 882, 887, 104 P.3d 356, 361 (2004); I.C. § 55-2515. The
jury returned a special verdict finding that Buyers had failed to prove their claim of a violation of
the Disclosure Act, had failed to prove their claim of fraud/misrepresentation, and had failed to
prove their claim of a breach of contract. Thus, rescission could not be ordered based upon any
of those claims.
       Buyers assert that rescission should have been ordered based upon mutual mistake of
fact. “Under Idaho law, mutual mistake permits a party to rescind or modify a contract as long
as the mistake is so substantial and fundamental as to defeat the object of that party.” Primary
Health Network, Inc. v. State, Dept. of Admin., 137 Idaho 663, 668, 52 P.3d 307, 312 (2002).
However, in this case, Buyers did not plead mutual mistake.
       The only mention of a mistake in the amended complaint was in paragraph 15 which was
in   the      section   of   the   amended   complaint   entitled   “Second    Cause    of   Action
(Misrepresentation/Fraud).” That paragraph stated, “As a direct and proximate result of the
misrepresentations and nondisclosures, Plaintiffs have sustained damage, in an amount to be
established at trial, based on misrepresentation, concealment, failure of consideration and/or
material mistake of fact.” Although Buyers’ counsel argued to the district court that “material
mistake” was a typographical error and that it should have said “mutual mistake,” the district
court and opposing counsel were entitled to determine the claims pled based upon the actual
wording of the amended complaint, not what Buyers’ counsel later claimed the wording should
have been.
       Rescission was only mentioned in the section of the amended complaint entitled “Fourth
Cause of Action (Rescission).” It stated: “Plaintiffs did not discover the concealments and
misrepresentations by Forte until recently. This complaint shall serve as Plaintiffs’ notice of
rescission.     Plaintiffs are entitled to rescind their contract with Forte and recover the full
consideration paid, together with consequential damages to be established at trial.”           Here,


                                                 9
rescission was requested solely with respect to the allegations of misrepresentation and
concealment, which were alleged as the “Second Cause of Action” quoted above. There was no
request for rescission based upon mutual mistake.
        A fair reading of the amended complaint would not give either the district court or
opposing counsel the impression that the Buyers were alleging mutual mistake. Because mutual
mistake was not pled and Buyers failed to prove the claims that were pled, there was no basis for
granting rescission of the real estate contract. 5


                                                       VII.
            Did the District Court Err in Denying Buyers’ Motion for a New Trial?
        On August 30, 2010, Buyers filed a motion for a new trial. The motion was heard on
November 3, 2010, at which time the district court orally denied the motion on the record, stating
its reasons for doing so. The court entered a written order denying the motion on November 30,
2010. Buyers contend that the court erred in denying their motion for a new trial.
        Before addressing this issue, it is necessary to mention the requirements for adequately
presenting issues on appeal. The argument section of the appellant’s brief “shall contain the
contentions of the appellant with respect to the issues presented on appeal, the reasons therefor,
with citations to the authorities, statutes and parts of the transcript and record relied upon.”
I.A.R. 35(a)(6). “We will not consider assignments of error not supported by argument and
authority in the opening brief.” Hogg v. Wolske, 142 Idaho 549, 559, 130 P.3d 1087, 1097
(2006). “A party waives an issue cited on appeal if either authority or argument is lacking, not
just if both are lacking.” State v. Zichko, 129 Idaho 259, 263, 923 P.2d 966, 970 (1996). In
addition, “because an appellant can only prevail if the claimed error affected a substantial right,
the appellant must present some argument that a substantial right was implicated.” Hurtado v.
Land O’Lakes, Inc., 153 Idaho 13, ___, 278 P.3d 415, 420 (2012). “This Court will not search
the record for error. We do not presume error on appeal; the party alleging error has the burden
of showing it in the record.” Miller v. Callear, 140 Idaho 213, 218, 91 P.3d 1117, 1122 (2004)


5
  Buyers did not seek to amend their amended complaint pursuant to Rule 15(a) of the Idaho Rules of Civil
Procedure in order to add a claim for rescission based upon mutual mistake. Had they done so, then the district
court could have decided whether granting the amendment would prejudice Sellers, cause undue delay, or violate a
pretrial order setting a deadline for amending pleadings. First Fed. Sav. Bank of Twin Falls v. Riedesel Eng’g, Inc.,
No. 38407-2011, 2012 WL 4055357, at *4 & n.3 (Idaho Sept. 14, 2012).

                                                        10
(citations omitted). Finally, “[t]his Court will not consider issues raised for the first time on
appeal.” Clear Springs Foods, Inc. v. Spackman, 150 Idaho 790, 812, 252 P.3d 71, 93 (2011).
       Buyers’ entire argument in support of their contention that the district court erred in
denying their motion for a new trial is as follows:
       F.      The Trial Court Abused its Discretion in Denying the Plaintiffs a New
       Trial
               Plaintiffs filed a motion for a new trial pursuant to IRCP 59(a). The
       specific grounds for that motion are recited in the motion (CR 348). Those
       grounds included irregularity in the proceeding, inadequate damages,
       insufficiency of the evidence to justify the verdict and error at law.
               The jury awarded no damages to Plaintiffs even though the jury found that
       Plaintiff could have mitigated their damages for $35,000.00. The jury also found
       Plaintiffs comparatively at fault for their losses.
               It became apparent that the jury struggled over the issue of mitigation of
       damages. The jury sent a note to the trial court regarding the mitigation issue.
               Plaintiffs had made no election of remedies by the time the jury verdict
       came in—and the trial court required no election.
               Plaintiffs’ motion for judgment of rescission was summarily denied by the
       trial court without any findings supported by the record in the action. This was so
       even though the trial court found a prima facie case.
               Plaintiffs’ expert witness was excluded from testifying in accordance with
       Defendants’ Motion in Limine (TT 8-20). The expert was again offered in
       rebuttal but was excluded by the trial court (TT 823-832).
               The trial court also barred Plaintiffs from developing their theory of
       rescission by mutual mistake of fact.
               Additionally, the deposition testimony and discovery responses of both
       Suzanne Forte and Paul Forte was different than their trial testimony.
               Also, Plaintiffs were barred from discussing rescission during their
       opening argument and barred from discussing mutual mistake during the entire
       trial.
               It is anticipated that a different jury and trial court would reach a different
       decision in the case if a new trial were granted.
               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, 245 P.3d 992 (2010).
               In exercising its discretion to grant or deny a new trial, the trial court may
       set aside a verdict whenever it appears that the verdict is contrary to law or
       evidence or that verdict fails to render substantial justice. Rosenberg v. Toetly, 93
       Idaho 135, 456 P.2d 779 (1969).


                                                 11
Buyers have wholly failed to comply with Idaho Appellate Rule 35(a)(6) with respect to this
assignment of error. There is no citation to the record for many of the alleged facts, and there is
neither argument nor supporting authority as to why any of the alleged facts constitutes a ground
for a new trial or why the district court abused its discretion in failing to grant the motion for a
new trial. Buyers have therefore waived the issue. 6


                                                         VIII.
                 Is Either Party Entitled to an Award of Attorney Fees on Appeal?
         Buyers seek an award of attorney fees on appeal “in accordance with Idaho Code § 12-
120 and the contract between the parties (Trial Exhibit 2).” Because Buyers have not prevailed
on appeal, they are not entitled to an award of attorney fees.
         Sellers request an award of attorney fees on appeal on several grounds, including the
terms of the real estate contract, which states:
         ATTORNEY’S FEES: If either party initiates or defends any arbitration or legal
         action or proceedings which are in any way connected with this Agreement, the
         prevailing party shall be entitled to recover from the non-prevailing party
         reasonable costs and attorney’s fees, including such costs and fees on appeal.

         In an action for misrepresentation in connection with the sale of real property, attorney
fees on appeal may be awarded to the prevailing party pursuant to a real estate contract.
Lindberg v. Roseth, 137 Idaho 222, 233, 46 P.3d 518, 529 (2002). As the prevailing party on
appeal, Sellers are entitled to an award of attorney fees pursuant to the real estate contract.


                                                          IX.
                                                     Conclusion.


6
  In addition, the record on appeal is not adequate to determine whether a new trial should have been granted based
upon insufficiency of the evidence to justify the verdict. The record on appeal does not include either the jury
instructions or a transcript of the jury instruction conference. A party cannot raise on appeal the giving of a jury
instruction that misstates the law unless the party timely objected to the specific instruction on the record, stating the
grounds of the objection. Chapman v. Chapman, 147 Idaho 756, 761-62, 215 P.3d 476, 481-82 (2009); I.R.C.P.
51(a)(1) & (b). A party who fails to properly object to an instruction that misstates the law cannot circumvent Rule
51(b) by arguing insufficiency of the evidence, based upon a correct statement of the law. In such a case, the
sufficiency of the evidence must be determined based upon the jury instructions given, not upon those that should
have been given.

                                                           12
       We affirm the judgment of the district court and the court’s denial of the motion for a
new trial. We award respondents costs on appeal, including reasonable attorney fees.


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




                                              13
