                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                           FILED
                            FOR THE NINTH CIRCUIT                            NOV 07 2013

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

DONALD KAYSER; MARY KAY                         No. 12-35610
KAYSER,
                                                D.C. No. 1:10-cv-00119-REB
              Plaintiffs - Appellees,

  v.                                            MEMORANDUM*

PAM JANE MCCLARY,

              Defendant - Appellant.


                   Appeal from the United States District Court
                             for the District of Idaho
                   Ronald E. Bush, Magistrate Judge, Presiding

                     Argued and Submitted November 4, 2013
                                Portland, Oregon

Before: ALARCÓN, M. SMITH, and HURWITZ, Circuit Judges.

       Pam McClary appeals the denial of her renewed motion for judgment as a

matter of law after a jury trial. We have jurisdiction pursuant to 28 U.S.C. § 1291

and affirm.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      1. There was sufficient evidence from which the jury could conclude that

the easement was supported by valid consideration. Because the easement was a

written instrument, Idaho law presumes valid consideration, Idaho Code Ann.

§ 29-103 (West 2013), and other evidence of the exchange of consideration was

offered into evidence.

      2. There was substantial evidence to support the jury’s verdict that James

McClary was not incompetent when he executed the easement. “[A]ll proceedings

involving the competency of an individual to execute a valid contract start with the

presumption of competency,” Olsen v. Hawkins, 408 P.2d 462, 464 (Idaho 1965),

and several individuals who interacted with James McClary near the time he

executed the easement testified to his competency.

      3. The admission of James McClary’s will into evidence was not an abuse

of discretion. The will was relevant both as to McClary’s competence and the

possible bias of witnesses who took under its terms. See U-Haul Int’l, Inc. v.

Lumbermens Mut. Cas. Co., 576 F.3d 1040, 1043 (9th Cir. 2009).

      4. The district court did not abuse its discretion in denying Pam McClary’s

motion to amend her answer to include an undue influence defense. Fed. R. Civ. P.

15(b)(2). The district court also reasonably refused to find that the Kaysers had

implicitly consented to the defense.




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      5. There was sufficient evidence to support the award of punitive damages.

Pam McClary testified that she built a fence out of spite, rather than as a means of

asserting her property rights.     Idaho Code Ann. § 6-1604(1) (West 2013);

Fitzgerald v. Walker, 826 P.2d 1301, 1305 (Idaho 1992).

      6. The district court properly concluded that Idaho law permits recovery of

purely economic damages for a claim of tortious interference with contract.

Idaho’s economic loss doctrine has only been applied to bar recovery of purely

economic losses in product liability cases and negligence cases, see Duffin v. Idaho

Crop Improvement Ass’n, 895 P.2d 1195, 1200-01 (Idaho 1995); Salmon Rivers

Sportsman Camps, Inc. v. Cessna Aircraft Co., 544 P.2d 306, 309 (Idaho 1975),

and has not been applied to bar recovery for intentional torts.

      7. The district court did not abuse its discretion in concluding that Pam

McClary defended the suit unreasonably and in awarding attorneys’ fees to the

Kaysers under Idaho Code Ann. § 12-121 (West 2013). See Idaho R. Civ. P.

54(e)(1); Conley v. Whittlesey, 985 P.2d 1127, 1136 (Idaho 1999).

      AFFIRMED.




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