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IN THE SUPREME COURT OF THE STATE OF IDAHO Docket No. 35974 STUART MACKAY, Plaintiff-Respondent, v. FOUR RIVERS PACKING CO., Defendant-Appellant. ) ) ) ) ) ) ) ) )

Boise, April 2011 Term 2011 Opinion No. 86 Filed: July 28, 2011 Stephen Kenyon, Clerk

Appeal from the District Court of the Third Judicial District of the State of Idaho, Washington County. Hon. Stephen W. Drescher, District Judge. The judgment entered upon the jury's verdict is affirmed. Birch Law Office, Chtd., Payette, for appellant. Bruce H. Birch argued. Johnson & Monteleone, L.L.P., Boise, for respondent. D. Samuel Johnson argued. _______________________________________________ HORTON, Justice. This is an appeal from a judgment entered upon a jury verdict in favor of Stuart Mackay (Mackay) against Four Rivers Packing Co. (Four Rivers), finding that Four Rivers breached a contract for long-term employment. Four Rivers' appeal challenges the sufficiency of the

evidence to support the jury verdict, the adequacy of the trial court's jury instructions regarding contract formation, and the trial court's failure to instruct the jury regarding the statute of frauds. We affirm. I. FACTUAL AND PROCEDURAL BACKGROUND Four Rivers operates an onion packing plant near Weiser, Idaho that began business in 1999. In August of that year, Four Rivers' general manager, Randy Smith (Smith), suggested that Four Rivers hire Mackay as the company's field man. Mackay had been in the onion business for decades and knew many onion farmers near Weiser. Four Rivers authorized Smith to offer Mackay the position, but required Smith to personally pay Mackay's wages during

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Mackay's first year. As field man, Mackay was responsible for purchasing enough onions to keep Four Rivers' packing shed stocked through mid-March, at a price Smith would set. The parties dispute facts regarding the contract at the center of this appeal. Mackay alleges that in March of 2000, Smith orally offered him a long-term employment contract. Mackay alleges he discussed the offer with his wife and accepted the offer the following day. According to Mackay, the parties intended the employment contract to continue until Mackay chose to retire. Mackay claims he informed Smith he might not retire for as long as ten years. Smith denies ever having any conversation with Mackay about a long-term employment contract. During the 1999-2000 season, Smith and Mackay both procured onions for Four Rivers' shed. Mackay was able to purchase onions at prices specified by Smith, and the shed remained stocked until April, with Four Rivers packing a total 800,000 bags of onions that year. Meanwhile, Four Rivers experienced financial and managerial hardship. As the result of a dispute between the owners, on June 2, 2000, an injunction stopped all Four Rivers' business. Mackay and other employees were laid off. Mackay alleges that, during the time that the injunction remained in effect, Four Rivers asked him to maintain contact with farmers in order to reassure them that Four Rivers would return to normal business and perform on its existing contracts. Mackay claims he agreed to do so because he wanted to protect his interest in longterm employment. Four Rivers denies it made any such request. The injunction was lifted in mid-August 2000. Four Rivers rehired Mackay and relieved Smith of responsibility for paying Mackay's wages. In subsequent seasons, Mackay experienced difficulty purchasing onions at the prices specified by Smith. During the 2000-2001 packing season, Four Rivers gave Mackay a contact list for over two hundred onion farmers and instructed him to build more business relationships. Smith contends Mackay failed to do so, and merely maintained his earlier relationships with farmers in the Weiser area. That season, Four Rivers packed approximately 400,000 bags of onions. Witnesses for both Mackay and Four Rivers acknowledged that the injunction in 2000 adversely affected the number of contracts Four Rivers obtained in advance of the 2000-2001 season. In October of 2001, Four Rivers drafted a written employment contract at Mackay's request. The proposed contract contained an at-will provision that permitted Four Rivers to 2

terminate Mackay's employment upon fourteen days' notice. Although Mackay made several handwritten notations on the contract, neither party signed the document. Smith testified that Mackay's performance remained unsatisfactory during the 2001-2002 season. Smith testified that he met with Mackay twice to explain that if Mackay did not obtain enough onions to meet Four Rivers' needs, everyone at Four Rivers would lose their jobs. Memoranda subsequently were entered in Mackay's employment file to document that Mackay was informed that his performance was unsatisfactory and that he would lose his job if he did not obtain more onions. After the meetings, Mackay's travel log reflected a decrease in his travel, which Four Rivers contends indicates he failed to meet these expectations. However, Mackay testified that in response to Smith's urgings, he increased his efforts and even worked thirty-six days straight. In 2003, Four Rivers once again struggled to keep the onion sheds stocked. As a consequence, Four Rivers closed its shed in mid-February, one month earlier than planned. On March 7, 2003, Four Rivers laid Mackay off, and Mackay obtained unemployment benefits. Smith testified that in June 2003, Mackay rejected Four Rivers' offer of employment as an outside foreman. Mackay denied Four Rivers made any such offer. Mackay filed suit in August of 2004, alleging breach of contract. The district court initially granted Four Rivers' motion for summary judgment, holding that because the employment agreement could not be performed by its terms within one year, it violated the statute of frauds. Mackay appealed, and in Mackay v. Four Rivers Packing Co., 145 Idaho 408, 179 P.3d 1064 (2008) (Mackay I), we vacated the grant of summary judgment, holding that there was a genuine issue of material fact as to the duration of the alleged agreement. This Court also held, taking "as true Mackay's allegation that the contract was to last `until retirement,'" the contract would fall outside the statute of frauds because "Mackay could have retired within one year under the terms of the alleged contract . . . ." Id. at 412, 179 P.3d at 1068. At trial following remand, Four Rivers contended that the parties had not entered into an employment contract for any specified term. Four Rivers objected to a jury instruction given by the court because it suggested that the parties had reached an agreement as to at least some terms of an employment contract. Four Rivers also objected to the district court's failure to provide the jury with an instruction on the statute of frauds. The district court overruled Four Rivers' objections. 3

The jury returned a verdict in favor of Mackay. In its answers to the questions presented in the special verdict form, the jury found that the parties had entered "into a long term employment contract of up to ten years, or such time as the Plaintiff retired." Four Rivers timely appealed, challenging the jury instructions and the sufficiency of the evidence. II. STANDARD OF REVIEW "The propriety of jury instructions is a question of law over which this Court exercises free review, and the standard of review of whether a jury instruction should or should not have been given is whether there is evidence at trial to support the instruction, and whether the instruction is a correct statement of the law." Clark v. Klein, 137 Idaho 154, 156, 45 P.3d 810, 812 (2002) (internal citations omitted). This Court reviews jury instructions as a whole to determine whether the instructions fairly and adequately present the issues and state the law. Silver Creek Computers, Inc. v. Petra, Inc., 136 Idaho 879, 882, 42 P.3d 672, 675 (2002). Even where an instruction is erroneous, the error is not reversible unless the jury instructions taken as a whole mislead or prejudice a party. Id. Likewise, a special verdict form does not constitute reversible error unless it incorrectly instructed the jury as to the law or its form was confusing. VFP VC v. Dakota Co., 141 Idaho 326, 332, 109 P.3d 714, 720 (2005) (citing Le'Gall v. Lewis Cnty., 129 Idaho 182, 185, 923 P.2d 427, 430 (1996)). "On appeal from a judgment entered on a jury verdict, this Court will not set aside the verdict if it is supported by substantial and competent evidence." Stoddard v. Nelson, 99 Idaho 293, 296, 581 P.2d 339, 342 (1978). The evidence supporting the jury's verdict may be

contradicted, but the verdict will be upheld if it is "of such sufficient quantity and probative value that reasonable minds could conclude that the verdict of the jury was proper." Mann v. Safeway Stores, Inc., 95 Idaho 732, 736, 518 P.2d 1194, 1198 (1974). This Court will not second guess the jury's determinations as to the weight of the evidence and witness credibility. McKim v. Horner, 143 Idaho 568, 572, 149 P.3d 843, 847 (2006). III. ANALYSIS We first consider Four Rivers' claims that the district court erred by instructing the jury in a manner that infringed on the fact-finding role of the jury and by failing to instruct the jury as to the statute of frauds. We then consider whether substantial, competent evidence supported the jury's verdict. A. The district court properly instructed the jury. 4

1. The jury instructions accurately stated Idaho employment contract law. Four Rivers contends that whether the parties entered into an employment contract is a disputed fact and that one of the instructions submitted to the jury infringed upon the jury's role as fact-finder because it instructed the jury that the parties agreed to some terms of an employment contract. The challenged instruction states: In this case, the Defendant alleges that all parties did not agree to all essential terms of a contract. This requirement is sometimes referred to as the "meeting of the minds," and means that all parties to a contract must have understood and accepted all of the essential terms of the contract. There is no contract unless all of the essential terms have been communicated to all parties, understood by all parties, and accepted by all parties. (emphasis added). According to Four Rivers, the instruction's statement that the "parties did not agree to all essential terms" implies that the parties did agree to some terms. 1 This Court reviews jury instructions as a whole to determine whether a jury has been adequately instructed as to the issues presented and the law. Silver Creek Computers, Inc., 136 Idaho at 882, 42 P.3d at 675. In addition to the above-quoted jury instruction, the jury was instructed as to the elements of an enforceable contract, the presumption that an employment relationship is at will unless duration or justifications for discharge are specified, and Mackay's burden of proving both the existence of a contract and that Four Rivers breached the contract. Standing alone, the challenged jury instruction made it clear to the jury that there was no contract "unless all of the essential terms" of such contract were communicated, understood, and accepted by both Four Rivers and Mackay. The instruction plainly conditions the existence of an enforceable contract on the parties' communication and acceptance of all essential terms of a contract. We are unable to agree with Four Rivers' strained construction that this instruction advised the jury that the parties agreed to some, but not all terms of a contract, thereby infringing upon the jury's role as fact-finder. In any event, the other jury instructions emphasized to the jury that the relationship between Four Rivers and Mackay was one of at-will employment, absent mutual communication and acceptance of some other term. As the jury was accurately instructed as to the law and, in order to reach its verdict, was required to find that the parties
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Four Rivers' argument ignores an obvious point. It is undisputed that Four Rivers employed Mackay. Thus, some form of employment contract necessarily existed between the parties. The dispute at trial actually centered on the question whether the terms of that contract included a mutual agreement as to the duration of Mackay's employment.

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agreed to all terms of the contract, we hold that the challenged jury instruction did not mislead the jury or infringe upon the jury's role as fact-finder. 2. The district court properly denied Four Rivers' request for a jury instruction on the statute of frauds. Four Rivers argues that the district court improperly refused to instruct the jury regarding the statute of frauds because the evidence supported such an instruction. Four Rivers' argument is predicated on the contention that Mackay testified that the contract was to be for a ten-year period. Mackay first responds that Four Rivers failed to properly object to the failure to give such an instruction, as required by I.R.C.P. 51(b), and is therefore precluded from asserting error. We disagree. Counsel to Four Rivers stated during the jury instruction conference that: If the jury were to conclude that there were a ten-year agreement, I believe it would be essential for them at that time also to have instructions on the statute of frauds, . . . [I request] that they be instructed that if they should find that there is a ten-year agreement, that it is invalid by virtue of the statute of frauds. A plainer request for an instruction on the statute of frauds is difficult to imagine. We find that Four Rivers preserved this issue for review by this Court. Mackay next contends that the district court properly refused Four Rivers' requested instruction because this Court ruled in Mackay I that the parties' contract was outside the statute of frauds as a matter of law. Mackay I considered an appeal from the district court's grant of summary judgment dismissing Mackay's contract claim for failure to comply with the statute of frauds. Mackay I, 145 Idaho at 410, 179 P.3d at 1066. Given the procedural posture of the appeal, this Court was required on review to construe all disputed facts and reasonable inferences in favor of Mackay, the nonmoving party, and determine whether Four Rivers was entitled to judgment as a matter of law. Id. Mackay misconstrues this Court's holding in Mackay I, as we explicitly recognized that the duration of the alleged contract was an unresolved question of fact and therefore the district court erred by granting summary judgment. Id. at 412, 179 P.3d at 1068 (emphasis added). Thus, we turn to the substance of Four Rivers' claim of error, i.e., whether the district court improperly denied Four Rivers' request for an instruction relating to the statute of frauds. We hold that it did not. If a party's "theory is supported by any reasonable view of the evidence," the party is entitled to a jury instruction on that theory. Vanderford Co. v. Knudson,

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144 Idaho 547, 555, 165 P.3d 261, 269 (2007) (citing Doty v. Bishara, 123 Idaho 329, 334, 848 P.2d 387, 392 (1992)). Our review of the testimony presented at trial reveals that there was no evidentiary support for a statute of frauds jury instruction. Witnesses for Four Rivers repeatedly and

consistently testified that there was no agreement as to the duration of Mackay's employment. Thus, Four Rivers relies solely upon Mackay's testimony in support of its contention that his claim of promised long-term employment is invalid under the statute of frauds. Four Rivers urges this Court to interpret Mackay's testimony as an offer of employment for ten years, which would necessitate an instruction as to the statute of frauds. Resolution of this issue has required careful consideration of the evidence presented at trial as to the duration of the employment offer to determine whether Mackay's employment was to be for a ten-year period, as contended by Four Rivers, or whether it was to continue until he chose to retire, as Mackay contends on appeal. This is so because if the evidence could

reasonably be viewed as Four Rivers contends, then the district court was required to instruct the jury as to the statute of frauds. Burton v. Atomic Workers Fed. Credit Union, 119 Idaho 17, 1920, 803 P.2d 518, 520-21 (1990) (failure to give statute of frauds jury instruction on claimed contract of employment to age 65, which could not by its terms have been performed within one year, held to be reversible error). However, if the only reasonable view of Mackay's testimony is that the term of his employment was until he chose to retire, the contract would fall outside the statute of frauds. Mackay I, 145 Idaho at 412, 179 P.3d at 1068. The evidence on this subject primarily consisted of Mackay's testimony, including his explanation of a diary entry he made at the time (admitted as the second page of Exhibit G), and Mackay's wife's testimony. At trial, Mackay repeatedly characterized the offer as one of long-term employment, lasting until he decided to retire. He also repeatedly testified that he informed Smith that his retirement could be as long as ten years from the time of the agreement. He initially testified as to the duration of his employment in response to questions from his attorney: Q. And, Mr. Mackay, tell us who made the offer to you and how it was made. A. Randy Smith, the general manager -- the office building at Four Rivers, there is a sales office it's called, which is a large room. My office was kind of around the corner out of the way.

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Randy was in talking to Dennis Palmer, the salesman. He came into my office, we B.S.'d a little bit. Randy said, I would like to offer you a long-term employment agreement. I told Randy at the time I enjoyed the onion business, I enjoyed working for Four Rivers, but I might not retire for four -- for ten years. That didn't seem to be a problem. I told him I wanted to go home and talk to my wife before I accepted it. I did this. The next morning I came back, we sat down and shook hands about it, talked a little bit how we were going to procure onions, the long-range development of Four Rivers, and away we went. Q. And, Mr. Mackay, it sounds like after the offer was made to you by Mr. Smith, you didn't accept it right away, you went home and talked to your wife and then came -A. Yes, I did. Q. -- back the next day? A. We been married a long time. Q. Okay. And when you came back the next day, tell us where you met Mr. Smith and how

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