TOMLINSON BLACK NORTH IDAHO, Plaintiff-Appellee, v. Geraldine KIRK-HUGHES, an individual doing business as Kirk-Hughes and Associates, doing business as Kirk-Hughes, LLC, doing business as Kirk-Hughes Development, LLC, Defendant-Appellant, and Kelly Polatis, an individual; Does 1-10; Delano D. Peterson, Defendants, 361 F. App'x 712

MEMORANDUM In Idaho, an express agreement bars recovery for unjust enrichment only if it is enforceable and covers the same subject matter. Vanderford Co., Inc. v. Knudson, 144 Idaho 547, 165 P.3d 261, 272 (2007). The jury reasonably could have found that the agreement between the parties in this case did not apply to the transaction that was the subject of dispute. Therefore, the district court did not err by refusing to grant Kirk-Hughes judgment as a matter of law.

Nor did the existence of an express agreement bar an award of damages. “An award for unjust enrichment may be proper even though an agreement exists.” Bates v. Seldin, 146 Idaho 772, 203 P.3d 702, 706 (2009). The district court also did not err by submitting the issue of unjust enrichment to a jury. A court may, “with the parties’ consent, try any issue by a jury.” Fed.R.Civ.P. 39(c)(2). Kirk-Hughes consented to trial by jury, and the district court did not abuse its discretion in rejecting her last-minute change of heart. Cf. White v. McGinnis, 903 F.2d 699, 703 (9th Cir.1990) (en banc).

The award of attorney’s fees to Tomlin-son was proper. The sale of property for the purpose of development was a “commercial transaction,” Idaho Code § 12-120(3), and the Idaho Court of Appeals has held that fees are appropriate in cases almost exactly like this one, see Erickson v. Flynn, 138 Idaho 430, 64 P.3d 959, 966-67 (2002). AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.