Kayser v. McClary (875 F. Supp. 2d 1167, 2012)

United States District Court for the District of Idaho 2012-06-22

Judiciary and Judicial Procedure

Citations

Full opinion text

MEMORANDUM DECISION AND ORDER RE: POST TRIAL MOTIONS

RONALD E. BUSH, United States Magistrate Judge.

Currently pending before the Court are the following motions: (1) the Kaysers’ Motion to Amend Judgment (Docket No. 148), (2) the Kaysers’ Motion for an Award of Costs (Docket No. 151, Att. 1), (3) the Kaysers’ Motion for an Award of Attorneys’ Fees (Docket No. 152), and (4) McClary’s Renewed Motion for Judgment as a Matter of Law and Alternative Motion to Alter or Amend the Judgment (Docket No. 153). Having carefully reviewed the record and otherwise being fully advised, the Court enters the following Memorandum Decision and Order:

I. BACKGROUND

Through their Second Amended Complaint, the Kaysers asserted the following substantive claims against McClary: (1) breach of contract, (2) tortious interference with contract, (3) trespass, and (4) quiet title/injunction. See Second Am. Compl. (Docket No. 69). Following a fíve-day jury trial in October 2011, the jury found that McClary’s father, James McClary, was competent at the time he executed the underlying Grant of Easement and that there was valid consideration for that same Grant of Easement. See Special Verdict Form, p. 1 (Docket No. 145). In turn, the jury also found that McClary breached the Grant of Easement, trespassed upon the easement, and tortiously interfered with Plaintiffs contract to sell their property to the Richardsons — all by constructing the at-issue fence. See id. at pp. 2-3.

Although finding that McClary breached the Grant of Easement and trespassed upon the easement by building the fence, the jury concluded that the Kaysers suffered no resulting damage on those claims. See id. However, the jury found that, in tortiously interfering with the Kaysers’ contract to sell their property to the Richardsons, McClary damaged the Kaysers in the amount of $15,000. See id. at pp. 3-4. The jury additionally assessed punitive damages against McClary in the amount of $8,000. See id. at p. 4.

Through their Motion to Amend Judgment, the Kaysers ask that this Court quiet title to the Grant of Easement in their favor by decreeing the validity of the Grant of Easement; ordering McClary to remove the fence; and, permanently enjoining McClary from taking any action in violation of the Grant of Easement. See Mem. in Support of Mot. to Am. J., pp. 2, 5-9 (Docket No. 148, Att. 1). Separately, the Kaysers request that the punitive damages award be increased to an amount equal to their attorneys’ fees. See id. at pp. 2, 9-13. In other motions, the Kaysers also seek to recover their litigation costs and attorneys’ fees. See Mot. for an Award of Costs (Docket No. 151, Att. 1); Mot. for an Award of Attys’ Fees (Docket No. 152).

McClary presents no directed opposition to the Kaysers’ Motion to Amend Judgment, submitting instead a “Renewed Motion for Judgment as a Matter of Law or, alternatively, Motion to Alter or Amend the Judgment” that naturally stands as a de facto opposition on its own. See Renewed Mot. for J. (Docket No. 153). Therein, McClary argues that the so-called Economic Loss Doctrine prohibits any recovery of economic losses under a tortious interference with contract theory and, therefore, the jury’s $15,000 damage award was improper. See Mem. in Supp. of Renewed Mot. to Am. J., pp. 2, 4-10 (Docket No. 153, Att. 1). McClary farther contends that the jury incorrectly found that the Grant of Easement was supported by valid consideration and, as such, argues that judgment should actually be entered in her favor. See id. at pp. 2, 10-15.

Because the Kaysers’ post-trial requests for relief necessarily turn on the adequacy of the jury’s verdict, McClar/s Renewed Motion for Judgment as a Matter of Law/Motion to Alter or Amend the Judgment will be taken up first. If the verdict remains intact, the Court will then consider the Kaysers’ Motion to Amend Judgment and related Motion for an Award of Costs and Motion for an Award of Attorneys’ Fees.

II. DISCUSSION

A. McClary’s Renewed Motion for Judgment as a Matter of Law and Alternative Motion to Alter or Amend the Judgment (Docket No. 153)

Presented orally at the close of the Kaysers’ case-in-chief on October 6, 2011 and, later, through a formal filing, McClary made a Rule 50(a) Motion for Judgment as a Matter of Law. See Mot. for J. as a Matter of Law (Docket No. 138). At that time, McClary made two arguments: (1) the Kaysers’ breach of contract claim (and, presumably, the Kaysers’ other claims that are dependent upon the existence of a contract, i.e., the Grant of Easement) fails as a matter of law due to the absence of any consideration; and (2) the Kaysers’ request for punitive damages should be stricken because there is no basis to support such a claim. See id. The Court denied the motion when it was raised during trial, and the jury returned a verdict in the Kaysers’ favor. McClary now moves to renew her Motion for Judgment as a Matter of Law, pursuant to F.R.C.P. 50(b).

1. Legal Standard for Rule 50(b) Motion

Renewed motions for judgment as a matter of law are made pursuant to Rule 50(b), which states:

If the court does not grant a motion for judgment as a matter of law made under Rule 50(a), the court is considered to have submitted the action to the jury subject to the court’s later deciding the legal questions raised by the motion. No later than 28 days after the entry of judgment — or if the motion addresses a jury issue not decided by a verdict, no later than 28 days after the jury was discharged — the movant may file a renewed motion for judgment as a matter of law and may include an alternative or joint request for a new trial under Rule 59. In ruling on the renewed motion, the court may:

(1) allow judgment on the verdict, if the jury returned a verdict;

(2) order a new trial; or

(3) direct-entry of judgment as a matter of law.

Fed.R.Civ.P. 50(b).

“Pursuant to Rule 50 of the Federal Rules of Civil Procedure, a court may grant a motion for judgment as a matter of law ... against a party on a claim or issue where the party has been ‘fully heard on [that] issue during a jury trial’ and the court finds that a ‘reasonable jury would not have a legally sufficient evidentiary basis’ to find for that party.” Funai Elec. Co., Ltd. v. Daewoo Elecs. Corp., 593 F.Supp.2d 1088, 1092-93 (N.D.Cal.2009) (citing Fed.R.Civ.P. 50(a) & (b)). “Where a party moves for [a motion for judgment-as a matter of law] in a case that has been tried to a jury, the court must determine whether ‘there exists evidence of record upon which a jury might properly have returned a verdict in [the non-movant’s] favor when the correct legal standard is applied.’ ” Id. (citations omitted). “The test is whether the evidence, construed in the light most favorable to the non[-]moving party, permits only one reasonable conclusion, and that conclusion is contrary to that of the jury.” White v. Ford Motor Co., 312 F.3d 998, 1010 (9th Cir.2002); see also E.E.O.C. v. Go Daddy Software, Inc., 581 F.3d 951, 961 (9th Cir.2009) (“We review a jury’s verdict for substantial evidence in ruling on a properly made motion under Rule 50(b) The test applied is whether the evidence permits only one reasonable conclusion, and that conclusion is contrary to the jury’s verdict.”). Therefore, first, the court must determine the correct law; second, the court must review the jury’s factual findings to determine whether they are supported by substantial evidence. See Funai Elec., 593 F.Supp.2d at 1092 (citation omitted). While the jury’s factual findings are given “substantial deference,” the legal standards the jury applies are considered de novo to determine, as a matter of law, whether the correct standards have been used. Id. at 1092-93 (citation omitted).

A Rule 50(b) motion for judgment as a matter of law is not a freestanding motion; rather, it is a renewed Rule 50(a) motion. See Go Daddy, 581 F.3d at 961. That is, under Rule 50(a), a party must make a Rule 50(a) motion for judgment as a matter of law before a case is submitted to a jury and, if the judge denies or defers ruling on the motion, and the jury then returns a verdict against the moving party, the party may renew its motion under Rule 50(b). See id. “Because it is a renewed motion, a proper post-verdict Rule 50(b) motion is limited to the grounds asserted in the pre-deliberation Rule 50(a) motion.” Id. “Thus, a party cannot properly raise arguments in its post-trial motion for judgment as a matter of law under Rule 50(b) that it did not raise in its preverdict Rule 50(a) motion.” Id.; see also Fed.R.Civ.P. 50(b) Adv. Comm. Notes 1991 (“A post[-]trial motion for judgment can be granted only on grounds advanced in the pre-verdict motion.”); Fed.R.Civ.P. 50(b) Adv. Comm. Notes 2006 (“Because the Rule 50(b) motion is only a renewal of the pre[-]verdict motion, it can be granted only on grounds advanced in the pre[-]verdict motion.”).

Still, in ruling on a Rule 50(b) motion based on grounds not previously asserted in a Rule 50(a) motion, “ ‘[courts] are limited to reviewing the jury’s verdict for plain error, and should reverse only if such plain error would result in, a manifest miscarriage of justice.’ ” Go Daddy, 581 F.3d at 961 (quoting Janes v. Wal-Mart Stores, Inc., 279 F.3d 883, 888 (9th Cir.2002)). “ ‘This exception ... permits only extraordinarily deferential review that is limited to whether there was any evidence to support the jury’s verdict.’ ” Go Daddy, 581 F.3d at 961 (quoting Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1109 (9th Cir.2001)).

2. Idaho’s Economic Loss Doctrine and Claims for Claims for Tortious Interference with Contract

McClary contends that Idaho’s Economic Loss Doctrine “prohibits recovery of purely economic losses in tort” and, as such, “the jury should not have been instructed to award damages for Plaintiffs’ [tortious interference with contract] claim.” See Mem. in Supp. of Renewed Mot. to Am. J., pp. 4 & 9 (Docket No. 153, Att. 1). Such a description of the Idaho Economic Loss Doctrine, however, is overly broad.

As a general matter, absent personal injury or property damage, Idaho’s Economic Loss Doctrine prohibits recovery of purely economic losses in product liability cases and negligence cases. However, having said this, Idaho has not extended the Economic Loss Doctrine’s reach to all tort claims, as McClary contends, and specifically has not extended the application of the Doctrine to tortious interference with contract claims. See, e.g., Ramerth v. Hart, 133 Idaho 194, 197, 983 P.2d 848 (Idaho 1999) (“The economic loss rule applies to negligence cases in general; its application is not restricted to products liability cases.”). There is no question that Idaho case law has, at times, contributed to this lack of certainty by loosely suggesting that economic losses are not recoverable “in tort” when addressing, for example, products liability actions and/or negligence claims generally. However, such generic references to a general rule stem from the fact that the issue almost always arises in products liability or more commonly-encountered tort claims. This case does not involve a commonly-encountered tort claim. Hence, such a characterization of the general rale does not necessarily mean that there are no exceptions to that rule. Indeed, McClary concedes that “Idaho courts have not dealt with the Economic Loss Doctrine in the context of tortious interference [with contract claims].” See Reply in Supp. of Mot. to Am. J., p. 5 (Docket No. 157).

In the Court’s research, this precise issue has not been ruled upon by Idaho appellate courts. Nonetheless, other jurisdictions have ruled that the Economic Loss Doctrine does not necessarily, bar the recovery of compensatory tort damages. See Giles v. Gen. Motors Acceptance Corp., 494 F.3d 865, 875-76 (9th Cir.2007) (citing and quoting Grynberg v. Questar Pipeline Co., 70 P.3d 1, 11 (Utah 2003) (“[Tjorts such as fraud and conversion exist to remedy purely economic losses.”) (emphasis added); United Int’l Holdings, Inc. v. Wharf (Holdings) Ltd., 210 F.3d 1207, 1226 (10th Cir.2000) (refusing to apply Economic Loss Doctrine because, under Colorado law, “the economic loss rule applies only to tort claims based on negligence, and only to some negligence claims.”) (emphasis in original); EED Holdings v. Palmer Johnson Acquisition Corp., 387 F.Supp.2d 265, 278-79 (S.D.N.Y.2004) (allowing fraud claim to go forward because New York law permits recovery of economic loss on claims of fraud and fraud in the inducement even “in tandem” with contract claims); Indem. Ins. Co. of North America v. American Aviation, Inc., 891 So.2d 532, 543, n. 3 (Fla.2004) (noting that “[ijntentional tort claims such as fraud, conversion, intentional interference, civil theft, abuse of process, and other torts requiring proof of intent generally remain viable” despite Economic Loss Doctrine); Huron Tool & Eng’g Co. v. Precision Consulting Servs., Inc., 209 Mich.App. 365, 532 N.W.2d 541, 544 (Mich.Ct.App.1995) (noting that torts outside the Economic Loss Doctrine’s scope include defamation, misrepresentation, intentional misrepresentation, tortious interference with prospective economic advantage, intentional interference with contractual relations, and certain fraud in the inducement claims)); see also Santucci Constr. Co. v. Baxter & Woodman, Inc., 151 Ill.App.3d 547, 104 Ill.Dec. 474, 502 N.E.2d 1134, 1139 (Ill.App.Ct. 1987) (holding that claim for intentional interference with contract not barred by Economic Loss Doctrine because “the very interest protected by the torts of intentional interference with contractual relations and prospective advantage is the reasonable expectation of economic advantage, [therefore,] economic losses are the damages recoverable.”).

In examining these decisions, the Court is persuaded by their logic and reasoning, and is further convinced that the Economic Loss Doctrine is not an outright bar to a tortious interference with contract claim for at least two reasons.

First, a claim for tortious interference with contract is intended to protect a party’s economic interest in contractual relations. Accordingly, economic losses must be recoverable and it would not be sensible for the tort to be recognized under Idaho law on one hand, and then effectively eviscerated by application of the Economic Loss Doctrine on the other hand. See, e.g., Restatement (Second) of Torts § 774A (1979) (“One who is liable to another for interference with a contract or prospective contractual relation is liable for damages for the pecuniary loss of the benefits of the contract or the prospective relation [and] consequential losses for which the interference is a legal cause .... ”); Restatement (Second) of Torts § 766 (1979) (“One who intentionally and improperly interferes with the performance of a contract ... between another and a third person by inducing or otherwise causing the third person not to perform the contract, is subject to liability to the other for the pecuniary loss resulting to the other from the failure’ of the third person to perform the contract.”).

Second, the very nature of a tortious interference with contract claim presumes that the parties are not in contractual privity with one another. Therefore, in the ordinary circumstance, the injured party has no recourse under contractual rights, and the tort claim may be all that is available, even though the injured party’s damages are likely entirely or substantially economic damages in nature.

Thus, this Court finds that, if confronted with the instant question, the Idaho Supreme Court would conclude that the Economic Loss Doctrine does not outright bar the Kaysers’ tortious interference with contract claim as McClary argues. Therefore, McClary’s Renewed Motion for Judgment as a Matter of Law and, alternatively, Motion to Amend or Alter the Judgment is denied in this respect.

3. Alleged Lack of Consideration for the Grant of Easement

McClary re-ineorporates the arguments from her previous Rule 50(a) Motion for Judgment as a Matter of Law (Docket No. 138), and argues that there was no consideration for the Grant of Easement. See Mem. in Supp. of Renewed Mot. to Am. J., pp. 10-15 (Docket No. 153, Att. 1) (“In this matter, Plaintiffs failed to provide any evidence of consideration for the easement agreement at issue. In fact, it is undisputed that no consideration was given for the January 11, 2000 easement agreement.”) (emphasis in original). The Court disagrees.

McClary admits that “there is a presumption of consideration when a document is written” but that “the presumption is rebuttable and non conclusive.” See id. at p. 10 (citing I.C. § 29-103). McClary goes on to argue that “[e]very witness probed on the question of consideration freely admitted none was given for the Easement Agreement” and, “[t]hus, the jury had no evidentiary basis to support its finding that the easement was supported by consideration.” See id. at p. 11. However, the parties to the Grant of Easement are no longer alive. Accordingly, there could be no true “admissions” as to what consideration was given, or whether consideration was given at all. Hence, all of the evidence as to such an issue, even in the form of testimony, was necessarily indirect or circumstantial, and the jury was charged with weighing such evidence in the context of the presumption of consideration that the law imposes upon the facts in this case. In other words, drawing all reasonable inferences in the Kaysers’ favor as is required under Rule 50, the fact that no witness at trial was able to either confirm or deny the existence of consideration vis á vis the Grant of Easement is important only to establish just that: that non-parties to the Grant of Easement are understandably unaware of whether consideration existed, even though some witnesses described particular details of what they believed was the consideration for the Easement. Regardless, the fact that certain trial witnesses (who were not parties to the Grant of Easement) may have been unaware of the fact of any consideration is not conclusive on the issue of the existence of consideration, as McClary would contend.

Therefore, it cannot be said as a matter of law that there is no legally sufficient evidentiary basis for the jury to find for the Kaysers on the issue of consideration — particularly given the acknowledged presumption in place. Therefore, McClarys’ Renewed Motion for Judgment as a Matter of Law and, alternatively, Motion to Amend or Alter the Judgment is denied in this respect.

B. The Kaysers’ Motion to Amend Judgment (Docket No. 148)

On October 12, 2011, consistent with the verdict of the jury, this Court entered a Judgment in favor of the Kaysers and against McClary in the amount of $23,000 ($15,000 attributable to McClary’s tortious interference with contract and $8,000 in punitive damages). See J. (Docket No. 147). Within that Judgment, the Court added:

Additionally, if necessary, the Court will consider motions resolving Plaintiffs’ Fourth Cause of Action — Quiet Title/Injunction — consistent with the jury’s Special Verdict. This Judgment may therefore be amended accordingly.

See id. at p. 2. The Kaysers’ Motion to Amend Judgment seeks to finally resolve their quiet title/injunction claim, while also increasing the amount of punitive damages from $8,000 to at least the amount of their attorneys’ fees.

1. Legal Standard for Rule 59(e) Motion

A court has “considerable discretion” in ruling upon a Rule 59(e) motion since specific grounds for a motion to amend or alter a judgment are not listed in the Rule. See McDowell v. Calderon, 197 F.3d 1253, 1255, n. 1 (9th Cir.1999). However, amending a judgment is “an extraordinary remedy which should be used sparingly.” Id.

“In general, there are four basic grounds upon which a Rule 59(e) motion may be granted: (1) if such motion is necessary to correct manifest errors of law or fact upon which the judgment rests; (2) if such motion is necessary to present newly discovered or previously unavailable evidence; (3) if such motion is necessary to prevent manifest injustice; or (4) if the amendment is justified by an intervening change in controlling law.” Allstate Ins. Co. v. Herron, 634 F.3d 1101, 1111 (9th Cir.2011).

2. The Kaysers’ Quiet Title/Injunction Claim

The Kaysers’ Quiet Title/Injunction claim is encapsulated within two paragraphs of the Kaysers’ Second Amended Complaint:

Plaintiffs and their successors-in-interest in Plaintiffs’ Property are entitled to the benefit of the Easement, are entitled to a decree confirming the validity of the Easement and enjoining Defendant from taking any action in violation of the Easement.

Plaintiffs are entitled to an order permanently enjoining Defendant from taking any action in violation of the Easement and ordering Defendant to remove the fence and other improvements constructed on the Easement Property.

See Second Am. Compl., ¶¶ 18 & 19 (Docket No. 69). Accordingly, through their Rule 59(e) motion, the Kaysers request that the Court (1) quiet title to the Grant of Easement in their favor by decreeing the validity of the Grant of Easement, (2) order McClary to remove the fence, and (3) permanently enjoin McClary from taking any action in violation of the Grant of Easement. See Mem. in Supp. of Mot. to Am. J., pp. 2 & 5-9 (Docket No. 148, Att. 1).

There is implicit opposing argument contained in her own Rule 50(b)/ 59(e); however, otherwise, McClary offers no specific opposition to the Kaysers equitable relief efforts. With that in mind, and in keeping with the jury’s Special Verdict relating to the Grant of Easement’s formation, the Court hereby confirms the validity of the Grant of Easement and, accordingly, quiets title as to the Grant of Easement in the Kaysers’ favor. Further, the Court orders McClary to remove the at-issue fence within two weeks of the entry of an Amended Judgment, following this Memorandum Decision and Order. The Kaysers’ Motion to Amend Judgment is therefore granted in this respect.

However, once the fence is removed, any future harm to Plaintiff is speculative. Without actual or imminent injury moving forward (or any suggestion in the record that Plaintiff will disregard the legal effect of the Grant of Easement), the Court will not enter a permanent injunction. See 11A Fed. Prac. & Proc. Civ. § 2942 (2d ed.) (“Because injunctive relief looks to the future, and is designed to deter rather than punish, relief will be denied if the conduct has been discontinued on the ground that the dispute has become moot and does not require the court’s intervention.”). Therefore, the Kaysers’ Motion to Amend Judgment is denied in this respect. Having said this, there is now a judicial determination of the validity of the Grant of Easement, and in the event McClary does violate the Grant of Easement (in any manner), the Kaysers are free to assert new legal claims against McClary accordingly.

With all this in mind, and to maintain consistency with the jury’s findings and the evidence presented at trial, the Judgment will be amended to include the following language:

Plaintiffs are awarded a Judgment of Quiet Title determining and declaring their rights pursuant to the Grant of Easement, recorded as Instrument No. 100003146 in the real property records of Ada County, Idaho, to be perpetual and appurtenant to Plaintiffs’ real property described as Lot D, Block B, Capitol Sites Subdivision, a re-subdivision of Lots 3, 4, 12, 13 and a portion of Lot 5, Block B, Capitol Sites Subdivision records of Ada County, State of Idaho (herein “Lot D”). The Easement rights granted and determined herein shall run with and be appurtenant to Lot D and for the benefit of Plaintiffs and their successors and assigns.

- and -

Plaintiffs are entitled to and this Court hereby orders Defendant to remove the fence constructed along the southern boundary line of Lot B, Block B, Capitol Sites Subdivision, a re-subdivision of Lots 3, 4, 12, 13 and a portion of Lot 5, Block B, Capitol Sites Subdivision records of Ada County, State of Idaho (herein “Lot B”). Defendant is hereby ordered to remove the fence within fourteen (14) days of the entry of this Amended Judgment. If she fails to do so, then Plaintiffs may remove the fence and the incurred expenses shall be added to the Judgment as damages.

3. Increasing Punitive Damages Commensurate with the Kaysers’ Attorneys’ Fees

The Kaysers seek to amend the portion of the Judgment regarding punitive damages to include at least the amount of their attorneys’ fees. See Mem. in Supp. of Mot. to Am. J., p. 9 (Docket No. 148, Att. 1) (citing I.C. § 6-807). This is a novel approach to recovering attorneys’ fees under Idaho law and, in the Court’s view, an inappropriate basis upon which to amend the Judgment.

The primary purpose behind an award of punitive damages is to deter similar conduct from happening in the future. See Vandelin v. Costco Wholesale Corp., 140 Idaho 416, 95 P.3d 34, 49 (2004); see also Jury Inst. No. 33 (Docket No. 142) (“... you may, in addition to any compensatory damages to which you find Plaintiffs are entitled, award to Plaintiffs an amount which will punish Defendant and deter Defendant and others from engaging in similar conduct in the future.”). Recovery of attorneys’ fees, therefore, is not the objective behind a punitive damages award — to be sure, specific Idaho statutes and court rules separately speak to the recovery of attorneys’ fees under particular circumstances.

As pointed out by the Kaysers in their briefing, the Court addressed this issue during jury deliberations. See Mem. in Supp. of Mot. to Am. J., p. 13 (Docket No. 148, Att. 1). When presented with a question from the jury concerning whether it was allowed to award “court costs,” the Court indicated (without objection) that such matters were to be decided by the Court, at the conclusion of the case. Additionally, the jury had no evidence before it about such matters. The Kaysers’ arguments do not compel a different result now.

First, the case law relied upon by the Kaysers (while admittedly subject to the Kaysers’ interpretation, though mostly pre-dating Idaho Code section 6-1604) is not clear-cut. As McClary points out, the majority of these cases largely exist to justify an existing punitive damages award, not to establish a recovery floor for punitive damages. See Opp. to Mot. for Atty’s Fees, p. 11 (Docket No. 154) (“The fact that attorney fees are one measure for determining whether the amount of punitive damages is justified in no way means punitive damages must cover attorney fees, or that the Court must increase punitive damages to cover the fees if the jury award does not suffice.”). That is to say, had the jury’s punitive damages award in this case approached the amount of the Kaysers’ attorneys fees, these cases would seem to apply to help substantiate that award. But, where it is argued that punitive damages awards should begin with attorneys’ fees as a de facto recoverable cost, the Court cannot agree.

Second, by amending a judgment to increase a punitive damages award to at least the amount of attorneys’ fees incurred, the Court would be usurping legislative authority. Currently, Idaho Code outlines the statutory avenues for recovering attorneys’ ■ fees — in fact, the Kaysers have cited to those sections of the Idaho Code in support of their contemporaneous Motion for an Award of Attorneys’ Fees. Overlooking these sections in favor of Idaho Code section 6-807 sidesteps the will of the Idaho Legislature, particularly when no Idaho statute specifically authorizes an attorneys’ fees award as contemplated by the Kaysers’ arguments in these respects.

Therefore, even assuming that Idaho Code section 6-807 represents substantive Idaho law, for the above-referenced reasons, the Court, cannot conclude that the amount of the jury’s $8,000 punitive damages award is .somehow unsupported by the record or the product of legal error so as to justify an amendment to the Judgment. As a result, the Kaysers’ Motion to Amend Judgment is denied in this respect.

C. The Kaysers’ Motion for an Award of Costs (Docket No. 151, Att. 1)

An award of standard costs in a diversity case is governed by Rule 54(d) and the federal court’s local rules. Champion Pro duce, Inc. v. Ruby Robinson Co., 342 F.3d 1016, 1024 (9th Cir.2003). Local Rule 54.1 allows for an award of costs to the prevailing party, provided that a party serve and file “a cost bill in the form prescribed by the Court” within “fourteen ... days after entry of a judgment, under which costs may be claimed.” Dist. Idaho Loc. Civ. R. 54.1(a). The “cost bill must itemize the costs claimed and be supported by a certificate of counsel that the costs are correctly stated, were necessarily incurred, and are allowable by law.” Id. Rule 54(d)(1) “creates a presumption in favor of awarding costs to a prevailing party, but vests in the district court discretion to refuse to award coasts.” Assoc. of Mexican-Amer. Educators v. State of Calif, 231 F.3d 572, 591 (9th Cir.2000). A losing party bears the burden of demonstrating why costs should not be awarded. See Stanley v. Univ. of S. Calif, 178 F.3d 1069, 1079 (9th Cir.1999) (citation omitted).

Local Rule 54.1(b) defines prevailing party as “the one who successfully prosecutes the action or successfully defends against it, prevails on the merits of the main issue, and the one in whose favor the decision or verdict is rendered and judgment entered.” Dist. Idaho Loc. Civ. R. 54.1(b); see also Idaho R. Civ. P. 54(d)(1)(B) (“In determining which party to an action is a prevailing party and entitled to costs, the trial court shall in its sound discretion consider the final judgment or result of the action in relation to the relief sought by the respective parties”) Here, the jury rejected McClary’s affirmative defenses, while finding that she (1) breached the Grant of Easement, (2) trespassed, and (3) tortiously interfered with Plaintiffs contract to sell their property to the Richardsons. Additionally, as to the tortious interference with contract claim, the jury awarded Kaysers $15,000 in damages, along with an additional $8,000 punitive damages award. Finally, in this Memorandum Decision and Order (and stemming directly from the jury’s verdict), this Court has granted the Kaysers’ Motion to Amend Judgment regarding the Kaysers’ quiet title/injunction claim. Under these circumstances, the Kaysers are the prevailing party. The fact that the Kaysers did not fully prevail upon alternate theories of recovery against McClary, coupled with the jury perhaps not awarding the Kaysers as much in damages as they might have preferred, does not change this conclusion.

Local Rule 54.1(c) defines the types of taxable costs available to the prevailing party under Rule 54(d)(1). See Dist. Idaho Loc. Civ. R. 54.1(c)(l-7). Through the Kaysers’ Bill of Costs, supported by Anna E. Eberlin’s Affidavit, the Kaysers seek to recover (1) $180.00 in clerk’s fees and service fees pursuant to Local Rule 54.1(c)(1); (2) $1,589.07 in deposition costs pursuant to Local Rule 54.1(c)(3); (3) $498.96 in witness fees pursuant to Local Rule 54.1(c)(4); and (4) $37.67 in copying costs pursuant to Local Rule 54.1(c)(5). See Bill of Costs (Docket No. 151); see also Eberlin Aff. (Docket No. 151, Att. 3). McClary has not objected to any specific portion of these requested amounts, and the Kaysers’ Bill of Costs complies with the requirements of Local Rule 54.1. Therefore, costs will be taxed against McClary in the amount of $2,305.70 and the Kaysers’ Motion for Award of Costs is granted in this respect.

The Kaysers seek an additional $2,195.10 under Local Rule 54.1(c)(8) for certain “other items” of costs, including $1,100.00 in expert witness fees/costs, $95.10 in miscellaneous online research, and $1,000.00 in mediation expenses. See id.; see also Mem. in Supp. of Mot. For Award of Costs, pp. 4-5 (Docket No. 151, Att. 2); Dist. Idaho Loc. Civ. R. 54.1(c)(8) (“Other items may be taxed with prior Court approval.”). The Kaysers’ secondary request is denied.

First, pursuant to Local Rule 54.1 and 28 U.S.C. § 1821, witnesses “in attendance at any court of the United States, ... or before any person authorized to take his deposition pursuant to any rule or order of a court of the United States” may be paid an attendance fee of $40 per day for each day’s attendance, as well as travel costs, with certain limitations. 28 U.S.C. § 1821; Dist. Idaho Loe. Civ. R. 54.1(c)(4). “Fees for expert witnesses are not taxable in a greater amount than that statutorily allowable for ordinary witnesses.” Dist. Idaho Loe. Civ. R. 54.1(c)(4). The Court has already permitted the recovery of those fees outlined by federal law and Local Rule and, in its discretion, will not expand the scope of related expenses (to include the costs of appraisals and trial testimony fee) now. The Kaysers’ Motion for Award of Costs is therefore denied in this respect.

Second, the Kaysers’ attempts to recover online research fees (exclusive of the automated legal research they request in their Motion for Attorneys’ Fees) and mediation costs are similarly rejected given not only the fact that there is no solid legal basis upon which to reimburse such expenses within this District,- but also because doing so would potentially act as a disincentive to mediating claims generally. The Kaysers’ Motion for Award of Costs is therefore denied in these respects.

In sum, the Kaysers’ $4,500.80 cost request is reduced by $2,195.10. Accordingly, the Kaysers are awarded costs in the amount of $2,305.70.

D. The Kaysers’ Motion for An Award of Attorneys’ Fees (Docket No. 152)

Idaho law governs the award of attorneys’ fees in this matter because federal courts' must follow state law as to attorneys’ fees in diversity actions. See Interform Co. v. Mitchell, 575 F.2d 1270, 1280 (9th Cir.1978) (applying Idaho law). The Kaysers request attorneys’ fees in the amount of $147,149.70 pursuant to Idaho Code section 12-120(3), Idaho Code section 12-121, and Idaho Code section 6-202. McClary objects.

1. Idaho Code Section 12-120(3)

Idaho Code section 12-120(3) provides that the prevailing party “shall be allowed” an award of reasonable attorneys’ fees in any civil action to recover on ... “any commercial transaction.” I.C. § 12-120(3). The statute defines the term “commercial transaction” to mean “all transactions except transactions for personal or household purposes.” Id. Under Idaho Code section 12-120(3), an award of attorneys’ fees is proper if “the commercial transaction is integral to the claim, and constitutes the basis upon which the party is attempting to recover.” Brower v. E.I. DuPont De Nemours and Co., 117 Idaho 780, 792 P.2d 345, 349 (1990).

The Kaysers are the prevailing party. See supra. As the prevailing party, the Kaysers argue that “the gravamen” of this lawsuit is the commercial transaction between their predecessors.-in-interest (the Larsens) and MeClary’s predecessor-in-interest (her father, James McClary). See Mem. in Supp. of Mot. for an Award of Attys’ Fees, p. 14 (Docket No. 152, Att. 1) (“Each of the claims stems from the original commercial transaction between the Larsens and Mr. McClary, wherein the Larsens purchased Lot D and a view easement from Mr. McClary.”). In response, McClary argues that any deal between the Larsens and Mr. McClary for a view easement does not constitute a commercial transaction under Idaho Code section 12-120(3); instead, according to McClary, “[t]he gravamen of this case was a property dispute to determine ownership and easement rights.” See Opp. to Mot. for an Award of Attys’ Fees, p. 14 (Docket No. 154). On this issue, the Court agrees with McClary.

Generally speaking, disputes seeking a determination of property rights are not considered commercial transactions within Idaho Code section 12-120(3). See Baxter v. Craney, 135 Idaho 166, 16 P.3d 263, 271-72 (2000) (“[T]his action is primarily a dispute over property ownership and easement rights and as such does not fall within the meaning of a commercial transaction as defined in Idaho Code section 12-120(3) and as applied by the courts.”) (citing Jerry J. Joseph C.L.U. Ins. Assoc. v. Vaught, 117 Idaho 555, 789 P.2d 1146 (Idaho Ct.App.1990) (denying attorneys’ fees under Idaho Code section 12-120(3) in action where, inter alia, property owner sought judgment to establish access easement and to remove fence hindering use of easement); Chen v. Conway, 121 Idaho 1006, 829 P.2d 1355, 1361 (Idaho Ct.App.1992) (determining that quiet title action involving dispute over existence of prescriptive easement was not a commercial transaction under Idaho Code section 12-120(3)); Durrant v. Christensen, 117 Idaho 70, 785 P.2d 634 (1990) (holding that action in which landowners sought adjudication of water rights and permanent restraining order prohibiting defendant from interfering with diversion and use of water was not based on commercial transaction as defined in Idaho Code section 12-120(3)); Sun Valley Hot Springs Ranch, Inc. v. Kelsey, 131 Idaho 657, 962 P.2d 1041 (1998) (concluding that action to determine ownership of easement rights did not fall within the meaning of commercial transaction under Idaho Code section 12-120(3) and therefore attorneys’ fees were properly denied)).

Here, the Kaysers’ Second Amended Complaint highlights the fact that this action, while possibly remotely connected to a commercial transaction and/or commercial purpose, is really about a property dispute affecting the view from one property over another. See, e.g., Pis.’ Second Am. Compl., ¶¶ 6 & 18 (Docket No. 69) (“When Defendant became aware of Plaintiffs’ agreement to sell Plaintiffs’ Property, Defendant willfully, maliciously and with the intent to interfere with Plaintiffs’ sale of Plaintiffs’ Property, constructed a fence on the Easement Property immediately adjacent to Plaintiffs’ Property, thereby degrading and impairing the view from Plaintiffs’ Property in violation of the express provisions of the Easement Plaintiffs and their successors-in-interest in Plaintiffs’ Property are entitled to the benefit of the Easement, are entitled to a decree confirming the validity of the Easement and enjoining Defendant from taking any action in violation of the Easement.”). Thus, to the extent the Grant of Easement can even be characterized as a commercial transaction, it is incidental to the Kaysers’ penultimate claim — in essence, a property dispute to determine ownership and easement rights. Simply put, Idaho Code section 12-120(3) does not apply to such actions and, therefore, does not apply to award the Kaysers’ their requested attorneys’ fees. Therefore, the Kaysers’ Motion for an Award of Attorneys’ Fees is denied in this respect.

2. Idaho Code Section 12-121

Courts have the authority to award reasonable attorneys’ fees to prevailing parties under Idaho Code section 12-121, which provides in relevant part that “[i]n any civil action, the judge may award reasonable attorney’s fees to the prevailing party or parties, provided that this section does not alter, repeal or amend any statute which otherwise provides for the award of attorney’s fees.” I.C. § 12-121. However, such fees “may be awarded by the court only when it finds, from the facts presented to it, that the case was brought, pursued or defended frivolously, unreasonably or without foundation____” Id. R. Civ. P. 54(e)(1). This has been held to require a finding that “the position of the nonprevailing party is plainly fallacious and, therefore, not fairly debatable.” Assocs., Northwest, Inc. v. Beets, 112 Idaho 603, 733 P.2d 824, 826 (Idaho Ct.App.1987); see also Bonaparte v. Neff, 116 Idaho 60, 773 P.2d 1147, 1151 (Idaho Ct.App.1989). An award of attorneys’ fees under Idaho Code section 12-121 is at the discretion of the Court, “but it must be supported by findings and those findings, in turn, must be supported by the record.” Partout v. Harper, 145 Idaho 688, 183 P.3d 771, 777 (2008) (citing Wait v. Leavell Cattle, Inc., 136 Idaho 792, 41 P.3d 220, 227 (2001)).

Here, the Kaysers argue that (1) McClary’s conduct in violating the Grant of Easement warrants, in and of itself, an attorneys’ fees award under Idaho law, and (2) McClary’s defenses to the Kaysers’ claims lacked evidentiary support, separately justifying an award of attorneys’ fees. See Mem. in Supp. of Mot. for an Award of Attys’ Fees, pp. 5-10 (Docket No. 152, Att. 1). McClary naturally disagrees, arguing in response that she maintained legitimate defenses to the Grant of Easement’s formation, as supported by the evidence presented at trial. See Opp. to Mot. for an Award of Attys’ Fees, pp. 4-9 (Docket No. 154).

The Court disagrees with the Kaysers, to the extent they argue that Skelton v. Haney, 116 Idaho 511, 777 P.2d 733 (1999), compels an award of their attorneys’ fees. See Mem. in Supp. of Mot. for an Award of Attys’ Fees, pp. 5-7 (Docket No. 152, Att. 1). As McClary points out, in Skelton, the defendants presented no defenses to the easement’s validity; in contrast, here, McClary argued that the Grant of Easement failed due to a lack of valid.consideration and, also, Mr. McClary’s alleged incapacity to contract. See Opp. to Mot. for an Award of Attys’ Fees, pp. 4-6 (Docket No. 154) (“Considering the Skelton defendants had no remotely valid defenses to the validity of the easement, it goes without saying that the court was justified in awarding fees based on defendants making it virtually impossible for plaintiffs to get to their homes. That is not the situation the Court is dealing with here.”). The Kaysers’ reading of Skelton is just too expansive. Nonetheless, McClarys’ defenses themselves are lacking in substance.

It is clear from the trial record that the jury did not believe McClary’s claims regarding the alleged invalidity of the easement. However, the fact that she lost the trial battle does not compel, nor necessarily even suggest, a finding that her position in this lawsuit was “brought, pursued or defended frivolously, unreasonably or without foundation,” or that her position was “plainly fallacious and, therefore, not fairly debatable.” See Id. R. Civ. P. 54(e)(1); see also Assocs., Northwest, Inc., 733 P.2d at 826 (Idaho Ct.App.1987); Bonaparte, 773 P.2d at 1151. To answer that question requires a deeper examination of the evidence — the full constellation of facts pertaining to McClary’s conduct and actions contemporaneous to the execution of the easement by her father, and her conduct and actions contemporaneous with and following her learning of the easement after her father had passed away. In the Court’s mind, that deeper examination of the evidence reveals that McClary’s position in this lawsuit was unreasonable and without foundation, and that her actions in setting the stage for the filing of this lawsuit, and in defending against it, were fallacious and unsupportable.

McClary’s claim that her father was incompetent to enter into an easement agreement was based, according to her testimony, upon her belief that her father was not competent to enter into the Grant of Easement. She also believed that the easement itself was not supported by valid consideration. See Opp. to Mot. for an Award of Attys’ Fees, p. 5 (Docket No. 154) (“In the present case and as demonstrated at trial, Pam McClary never believed the Easement to be valid or binding based on her father’s health and mental capacity at the time he executed the Easement, and because he never received any consideration for the Easement.”). Her position, and the related declaration concerning those beliefs, contributed to the denial of the Kaysers’ Motion for Partial Summary Judgment. See 1/15/11 MDO (Docket No. 44).

However, it is the underpinnings of McClary’s positions that are important now — not the fact that she took such positions or held these beliefs at the summary judgment stage. At trial, McClary offered only subjective, vague, and conclusory allegations of her father’s condition, while not presenting any persuasive evidence rebutting the presumption of consideration from anyone privy to the deal between Mr. McClary and Mr. Larsen. As someone with limited contact (necessitated, in part, from the fact she lived in Denver) with her father during this relevant time (as compared to those who were around, and cared for Mr. McClary, on a regular and even daily basis), her defenses to the Kaysers’ claims appeared to be drawn from a sense of pique that her father’s actions had diminished the potential value of the property that she ultimately inherited from her father. Her conduct, and her testimony, suggested rather strongly that she believed her father essentially gave away an easement to the Larsens, and that she tried to avoid giving credence to that agreement so as to collect more money for herself, regardless of the bona tides of the easement and its application to the Kaysers, as the Larsens’ successors-in-interest. McClary’s self-interested consternation over this underlying circumstance and its potential effect upon her own inheritance was borne out by her own conduct leading up to trial.

a. Mr. McClary’s Alleged, Incompetence

To begin, the primary evidence in the trial record that Mr. McClary was a man too incapacitated to grant a written easement is McClary’s own testimony. In some settings, the fact of McClary’s testimony alone on such matters might be enough to resist an argument that the case had been defended unreasonably and without foundation. That is not so in this case.

The Court has considered carefully the evidence pertaining to and the testimony of those persons who were in regular and even daily contact with Mr. McClary during the pertinent time period. That evidence described a man of diminishing capacities as he aged and a man with various health difficulties, but they did not describe a man suffering from great dementia or ongoing mental confusion. Mr. McClary was largely housebound because of physical difficulties, according to the evidence at trial, but nonetheless he was making decisions every day about his daily activities and he followed that routine rigorously. His caregivers kept a daily journal of his activities, some of which was admitted into evidence at trial, and that journal contains only rare references to any difficulties on the part of Mr. McClary in knowing and understanding the world around him. Similarly, the medical record placed into the record has scant reference to any cognitive difficulties of Mr. McClary, even though one might expect to find such references if a physician were dealing with someone who could not understand and could not decide what should be done with his personal affairs.

McClary, on the other hand, lived in Colorado, and would visit with her father by telephone (in short conversations she described as perfunctory) and she would come to Boise on an irregular basis and visit him in his home. Her distance from Boise meant also that her contact with her father was much more limited than the contact of his caregivers and family friends in Boise. Yet, the record indicates no effort on her part to fully investigate (or to reconcile against her own viewpoint) the assessment of persons who were regularly around her father as to what his mental capacities may have been at the time he executed the written easement document.

In contrast, however, there was evidence already known to McClary, or readily available to her, that supported the Kaysers’ position that Mr. McClary had made a voluntary and knowledgeable decision to sign the written easement agreement, even if she believed it was a foolish thing for him to have done. In that regard, the record indicates that the view plane across the contested lot was never directly obstructed during the years it was owned by Mr. McClary, including not just the years that the adjoining property was owned by the Larsens, but also during the years the property was owned by the Kaysers. In that time period, the contested lot was maintained as a broad expanse of grass, with various shrubs and trees around portions of its perimeter, but with no view-obstructing fences or other structures. At any time, if the particulars of the agreement that the Kaysers allege had been made had not been honored and adhered to by Mr. McClary, there could have been a fence erected, or landscaping or structures placed, that would have directly affected the view plane. That never occurred. It is inescapable that McClary was aware of how the lot was maintained, and the fact that the manner in which it was maintained permitted a view from the home owned first by the Larsens, and later by the Kaysers, long before she took the position that the written easement was somehow unenforceable.

McClary’s view of her father’s incapacity to execute the Grant of Easement is made questionable by other facts in the record, as well. For instance, during the period of time when McClary alleges her father was incompetent to enter into the Grant of Easement, and in the years that followed before his death, he was acting as the trustee for McClary’s mother’s trust, of which McClary was an ongoing beneficiary. Yet, McClary did not seek to have her father declared incompetent to serve as trustee for the trust.

b. McClary’s Self-Serving Conduct Upon Learning of the Grant of Easement After Mr. McClary’s Death

McClary testified that she first became aware of the written easement when her fiancé discovered it on the desk in her father’s home office, shortly after he had passed away. See Jt. Tr. Ex. 1009. Her voice was quite indignant at trial, when she said that after reading the easement that it was “very clear to me that my father had been taken advantage of in the worst way when he was ill [and] secondly, the value and use of his property rights had been taken without any compensation for them.” She went on to say that she went to see Mr. Kayser about the easement, and said to him “you have effectively taken away the property rights, how did you get this, this is when my father was in the hospital!”

McClary’s testimony made abundantly clear that she was angered by the fact of the written easement. It also is clear that her reaction to what had happened was not the product of any reasonable investigation, but rather stemmed from her own, subjective, perception that her father had given away something that she believed he should not have done. Consider that she was not present in 1979 when the oral agreement was first reached at the time Mr. McClary sold the adjoining lot to the Larsens, when the record indicates that Mr. McClary promised Paul Larsen that Lot B would be maintained so as not to obstruct the view from the lot that was sold to the Larsens. Neither, she admitted, was she present when the written agreement was executed by her father in January, 2000. But her statements and her actions demonstrated that she was mad about it, didn’t like it, was angry that it reduced the value of the property she was going to inherit, and she didn’t want to accept it, regardless of what the facts surrounding the granting of the easement and its validity might have been.

Although both she and Mr. Kayser describe the other as being rude and intemperate at the time McClary went to see Mr. Kayser after the easement had been discovered, the Court finds Mr. Kayser’s testimony regarding that encounter more credible. From that testimony, and from the entirety of McClary’s testimony, the Court is left with the impression that McClary did not want to dispassionately consider the Kaysers’ point of view, and certainly didn’t want to consider that her father might have willingly, with a competent mind to do so, granted the Easement in a manner that was proper and enforceable.

Following that encounter with the Kaysers, McClary téstified that she “talked to attorneys, realtors, some neighbors.” After that, she says that she never told anyone that she thought the easement was valid. Implicit in her testimony is an assertion, on her part, that she believed the easement was invalid. McClary’s actions, however, strongly belie such a belief. In 2004 after her father’s death, she brought the easement to the attention of the personal representative of her father’s estate. According to McClary, the personal representative and the attorney for the estate were unaware of the existence of the easement. After learning about it, McClary said that the personal representative had a reappraisal done of Mr. McClary’s home, and the real property associated with it (including the lot affected by the easement), so that the value of the home and its connected real property was lessened, thereby lessening the value of the estate for estate -tax purposes. Although McClary could have contested those efforts, she did not do so.

In 2006, after McClary had received title to her father’s home, she talked to Gloria Shirley, a Boise real estate agent. Those conversations, according to MeClary, were to explore the possibility of selling the house. She showed the easement to Ms. Shirley, who “commented upon it,” but MeClary did not say what those comments were. Subsequently, MeClary requested a reduction in the assessed value of Lot B. In her trial testimony, she said that the taxes on Lot B were “too high” because it was assessed as if the lot could be developed for a residence. MeClary took a copy of the easement to the assessor’s office, and represented that Lot B could not be developed because of the easement, and therefore was overvalued. In doing so, she presented the easement as a valid legal instrument which created an encumbrance upon the property which limited the value of the property. As a result, the assessed value of the property was reduced, and her real property taxes were also reduced. There was no credible reason for her to take that action if she truly believed, for legitimate reasons, that the easement was unenforceable.

During this period between the death of her father in 2004 and her contemporaneous inheritance of her father’s home, and the attempt by the Kaysers to sell their home beginning in 2009, MeClary did nothing to seek to invalidate the easement. She was well aware that the Kaysers firmly believed that the easement was valid. At any time during that period, if she believed so strongly that it was invalid, she could have filed a judicial action seeking a declaratory judgment that the easement was invalid. She did not do so.

In 2009, that changed. First, MeClary tried to sell her father’s home, but only with Lot A, not also with Lot B — the lot affected by the easement. The only plausible inference to be drawn from that effort is that she wanted to try to sell the home and Lot A separately from Lot B, in order to try to market Lot B as a building lot. For whatever reason, the home and Lot A did not sell.

In the meantime, MeClary had the financial benefit of the position she took with the taxing authorities (that the easement was valid), and her hand had not been forced to openly take some other position. However, presumably in large part because of the dilemma she faced in trying to sell Lot B as a residential lot with the view easement restrictions, she was working behind the scenes. Sometime in the summer of 2009, she contacted Art Berry, a Boise commercial real estate broker who lived in the same Hillcrest Country Club neighborhood as the McClarys and the Kaysers. MeClary solicited his assistance in trying to sell the lot, or negotiate a deal with the Kaysers to purchase the easement so as to remove the easement’s encumbrance upon Lot B. Mr. Berry’s initial feelers to potential buyers apparently were unproductive. He reported that to MeClary, and had a further discussion with her of possibly trying to purchase the easement from the Kaysers, which obviously would have made it easier to sell Lot B. That led to this e-mail from MeClary to Mr. Berry on August 6, 2009:

Art...... Thanks so much for talking with Gale. I really didn’t think that there are any enthusiastic investors in Idaho who would want to invest in high end property with a world of problems. I really do not want to negotiate because I am in no position to do that with no funds. I really don’t want him to know that I am trying to do this. I believe that you have a copy of his response when I discovered the easement and he made it VERY clear that he would not give up the easement and views it as a huge part of the property’s value. The 3 realtors I spoke to several years ago said that his house and lot were worth maybe $200,000-$250,000 because it is small, on a small lot, the bedrooms are tiny and it’s on Hillcrest. There is no real mountain view as a selling point if you go and look. (Ironically, one of those realtors was Gloria Shirley, who at that point, had nothing nice to say about the Kaysers)

I believe that if you were to approach the Kaysers in my name, he would get on his high horse and give you the same (pardon me) bullshit he gave me about how it was a “fair deal” and he is entitled to “his” property and he’ll be damned if he will give anything up. He has had a long standing reputation as a rapacious, arrogant, nasty bastard (people who worked at MK hated him). I also think that he is like other aging retired executives who look for opportunities to prove that they’ve still got the right stuff. He made it very clear to me that he wanted tp go to court. I didn’t have title to the property at that time. He also has unlimited funds and 4 other houses. He said that going against him “would be the most expensive undertaking of my life.”

I appreciate your offer very much and am thinking about it. Have you been able to find out if anyone else is actually interested in that [Kaysers’] house or have they received any offers? I am trying to let the lot [Lot B] look as bad as possible and, when we get back to Boise, I have another idea or two that might make a sale problematic for them. I don’t know whey they are selling in this market. I feel that I don’t have enough information to make a good decision. If no one is interested in the property, the price will come down on it’s own I assume. I don’t know how “motivated” they are. I still have the problem of no money to pay for it and' know that nobody is getting any loan money.[] I’m sorry to make this so long — I know you have better things to do. Thank you for taking the time to do all you have done. Please let me know if you find anything out. I’ll be in touch soon.

See Pis.’ Tr. Ex. 12.

This e-mail, capturing as it does McClary’s mindset about the easement issues in an unguarded moment, contains a nearly complete unraveling of her purported reasons for challenging the validity of the easement in this lawsuit. First, it demonstrates that she was unwilling to test the easement in a lawsuit. She did, however, want to “repurchase” the easement, but only at a presumably reduced price that she was hoping the Kaysers might agree to after she attempted to “make a sale [of their house] problematic.” Second, her e-mail, with its unvarnished disdain for Mr. Kayser, illustrates that her motivation was not to demonstrate the validity of her position regarding the easement (or even that she believed, for sound reasons, that she was in the right about such matters). Rather, her statements show an intent to make life difficult for someone she disliked, and thereby gain an advantage for her own benefit, by seeking to sabotage the potential sale of the Kaysers’ property.

Initially, McClary’s efforts in that regard were petty: “I am trying to make the lot look as bad as possible,” she wrote to Berry, and she said at trial that she had “no duty ... to mow the lawn for their pleasure.” Later, she tried to maneuver behind the scenes, which led to a contact by Mr. Berry with Mr. Kayser in which Mr. Berry said that “he was tryi