Curtis v. Firth

Chаpter-Rule Subject-Title Schools, Correspondence..........................................F.4 Trade Private Applications, Retention of...............C.5 Transcripts Transitional, Certification Submitted with Certificate................................................C.26 Limited G.7 Activity Busing................................................ Transportation, G.8 G.9 G.7 G.2 Transportation, Capital Investment............................................. Routing.............................. Computerized Transportation, Commercial Trip Busing.............................................. Transportation, Field Transportation, Maintenance Standards......................................... G.l Adopted.................................... Transportation, National Standards G.6 Policy Transportation, Transportation, Program....................................................... ......................................................... G.6 G.7 Transportation, Program Costs................................................. G.7 G.4 Safety Busing.................................................. Transportation, Transportation, School Bus Drivers............................................. G.5 Responsibilities............................. Transportation, Transportation, Duties and Student G.3 Operation.............................................. Vehicle Tuition, Out-of-state............................................................B.9

-U- Files..............................Appendix Policy Placement on Teacher Uniform of Life Certificates ........................................................C.4 Use

-V- G.3 Operation ............................................................. Vehicle Vehicles, Driver Education......................................................F.l Program, Approval of Schools...............................F.2 Education Veterans Education, Administrator Certificate.................................C.30 Vocational Vocational Vocational Education, Specialist Certificate......................................C.29 Education Certificates...............................................C.28 Endorsement.......................................................C.28 Vocational

-W- Withheld, of Records...................................B.l Funds—Late Submission Withholding of Service.........................................................A.3 Plaintiff-Counter-defendant, CURTIS,

Carl Appellan t-Cross -Respondent, Defendant-Counterclaimant, FIRTH,

Sandra Responde nt-Cros s-Appellant.

No. 18871. Idaho,

Supreme Court

Boise, April 1992 Term.

March 1993. Schlender, Hailey, appellant.

E. for Lee Boise, Givens, Pursley, Huntley, &Webb Huntley, Robert E. Jr. respondent. argued.

TROUT, Justice.

I. AND PRIOR BACKGROUND PROCEEDINGS appeal This arose a district injury cross ac- personal and a note, promissory tion for collection ongoing liti- the culmination of which was man and woman who gation between a relations a home and intimate had shared period years. Appellant Carl over a of ten (herein- Sandra Firth respondent Curtis and surnames), their after referred home began living together Curtis’ relationship began May of 1978. While one, loving periods happi- very aas prevalent time and ness became less over antagonism and violence. replaced were was characterized couple’s behavior with cycles of which commenced violence then becoming angry; irritated and physical turning and sometimes to verbal abuse; ending him finally becom- Throughout this again. much of loving time, Firth to alco- turned both Curtis drugs entertainment or solace. hol and in coun- Although parties participated prob- seling attempt to their in an resolve lems, relationship continued to deterio- vacationing rate. In while Firth was California, her from his Curtis evicted home. phase litigation,

In the initial law Firth to establish a common sought di- brought marriage, an action proper- of all and the division marital vorce merits, 3) rageous; After a there be a causal con- ty. trial on must wrongful conduct nection between the court determined that no common mar- law distress; 4) the emotional riage par- had established because the been distress must be severe. emotional had ties not held themselves out community as husband Al- (citations and wife. P.2d 118 Idaho at at 97 though the court denied Firth an in omitted). interest personal Curtis’ and real property, Curtis Although physical harm evidence of pay significant

was ordered financial harm, severity bear on the emotional purposes for rehabilitative as well Northwest, & v. Max Rouse Sons Hatfield attorney as Firth’s fees. 840, 606 Davis (Ct. Gage, 106 Idaho subsequent phase litigation, App.1984), physi it is clear that evidenсe of brought personal Firth injury action seek- injury required cal or manifestation is not a ing damages for and intentional element for the claim of intentional inflic infliction of emotional distress. She also A the of emotional distress. review of sought trial, punitive damages. At she pleadings only in this case indicate that presented expert testimony extensive re- infliction of intentional emotional distress garding Syndrome Battered Wife and Post pled jury; or to the submitted accord Traumatic Stress The jury Disorder. re- ingly, argument regard Curtis’ Firth, turned awarding a verdict favor of without merit. $50,000 her in compensatory damages for $225,000 battery, for intentional infliction Statute Limitations distress, $725,000 puni- emotional Curtis asserts much Firth’s damages. tive appealed. claim for intentional infliction of emotional Because of the number of issues assert- distress was barred statute of limi appeal, ed on this Court will address them tations, and trial court’s failure to trial, either as issues related or instruct the on the defense was revers encompassed in post-trial issues mo- ible error. It well established that a Finally, tions. presented by issues a cross- party asserting affirmative defense of appeal brought by Curtis will addressed. statute of has limitations the burden establishing applicability of the statute.

II. E.g., Green, Hawley v. 117 788 Idaho (1990). P.2d 1321 TRIAL ISSUES claim, Regarding Curtis’ the trial court Intentional Infliction of Emotional Dis- remarked its memorandum decision: tress respect With the court’s decision to Curtis contends that claim Firth’s omit statute of limitations instruc- for intentional infliction of emotional dis tion, the court notes at the outset that tress must fail becаuse there was an insuf proposed instruction was not even showing physi ficient accompanying an [appellant]. submitted Prior to injury cal or manifestation. conference, the instruction the court negligent Unlike a claim for infliction ruled that tort of intentional or reck- requires emotional distress which a show- less infliction of emotional distress is manifestation, ing physical injury see basis, continuing in- tort. On that County, Evans v. Twin Falls struction was refused. The court is still (1990), a claim inten- opinion of the that refusal of the instruc- tional infliction of has emotional distress no proper tion and as a result sees no requirement. As we noted in Evans: basis for newa trial. plaintiff

The four elements which a must Unfortunately nothing there is in the tran- show to be able to recover for intentional script proceedings of the or the record 1) infliction of emotional distress are: give any this Court indication of when the reckless; must conduct be intentional or ruling trial court made its on the “continu- 2) tort,” conduct must be extreme and out- if ruling the basis for that any objections ruling completed filing there were before their notice of tort 6-905, applied under I.C. the time. The indication of dis- claim Court continuing analysis. tort While was cussion about the statute of limitations in- acknowledged that the were on- appears in struction the clerk’s handwritten going throughout project, the Court which state: Crist ob- minutes “Mr. purposes held that for tort jection given to not instruc re: statute [sic] notice provision, notice need claims of limitation.” given completed so until the acts were We have that a trial court is held position the state would be in a to investi- duty every under a to instruct the gate damages. and assess the claim In theory litigants reasonable distinguished doing so the facts presents a basis a claim of relief aor Farber, wrongful acts were where defense, theory where such finds nature, of a with those in pleadings in the and the evidence. State v. Lake, Ralphs Spirit City Idaho Eastman, P.2d (1977): 225, 560 Borden, Hodge single Ralphs, act caused the dam- The trial court an compensation age was claimed. responsibility affirmative that the assure damages alleged were continu- While correctly jury is instructed: unknown, ing, and their full extent the requested perhaps While the instructions complained of completed, and act adequately contributory define did occurred, apparently had some negligence perhaps did not show ade- long the notice of claim was filed. before quate application that doctrine Here, complained the act of is bar, at nevertheless since the re- case continuing tort. nature a While made, quest for such it instruction was damages complained of have occurred duty give became the court time, period Ralphs, a over we proper instructions thereon. policy that better focus feel it is Hodge, 91 Idaho at 417 P.2d 86 at of, complained rather than the act (citations omitted). Clearly the trial court damages, determining the 120 responsibility jury, has a instruct requirement of ITCA is day notice if the not pro- even correct instruction is holding Ralphs Thus triggered. posed, long request so as the is made. The “[wjherе there is a coincidence of a question negligent then whether an instruc- and the occurrence of dam- becomes act ‘wrongful ages a act’ has been commit- tion on the statute of limitations should a is not determinative of whether given. have been ted” defined as “negligent act” should be decision, According to memorandum step continuing project, or first in a the trial based its denial of stat- completed project as a whole. ute limitations instruction a “continu- at 102 Idaho 630 P.2d 688. Even theory. previously tort” The Court has in the context of a though this case arose concept, had occasion to discuss this al- claims, the Court acknowl- notice tort admittedly though in different contexts. analyzed be edged that tort should a State, 102 Idaho 630 P.2d Farber according purposes time limitations (1981), 685 involved a tort claim filed simply complete one act whether it negli- against landowners the state for the it damages, or whether con- ensuing gent design, and planning construction of a sists of a series continuous activities. project. The road issue involved whether plaintiffs timely filed their notice of had 298 Lyon, Woodland acknowledged claim. The (1956), continuing tort Court tort in discussed a question this was a than when the right. different context In that case of a water run, although statute of which limitations would defendant obstructed a stream bed plain- interpreting prevented flowing cases statute of limitations onto water years. might permitting property be In for four consecutive instructive. tiffs’ brought ultimately landowners Plaintiffs then suit and project to wait until 177, at a Aсtions appeal received verdict. On C.J.S. Limitations (1987). This definition would seem to held: it with the term as was more line alleged single herein is not tort Farber, than the other two cases used in one, wrong, continuing appel- but a cited above. may, supports lant if the evidence claim, occurring all injuries recover for important to note what It also statutory period, within the even continuing does not constitute a tort. the obstruction occurred more than four separate Wrongful acts are years complaint before the was filed. separate wholly dissimilar are causes of 78 Idaho at 298 P.2d at 381. It is clear begins limitations action and the statute of actually referred to con- Woodland to run from the time of commission of tinuing damages resulting from one tor- wrongful Higgins, each act. Fox act, tious rather than continuing acts. (N.D.1967). impor Thus it is N.W.2d Thus, “con- while Woodland discussed a distinguish separate acts tant to between tort,” tinuing applied was not in the same defamation, assault, or bat sense as Farber. tery, continuing wrongful course of conduct which constitutes intentional inflic Veigel,

Streib v. (1985), troubling concept of emotional distress. addressed this professional in the malpractice context of a States, Page F.2d v. United action: (D.C.Cir.1984), succinctly 821-22 the court If spring gun A sets two theory continuing described the tort: B, elapse police officer, opens before It a tort in- is well-settled “[w]hen door, has B’s cause of action been continuing injury, volves the cause of barred the statute of limitations? Or accrues, period and the limitation is the tort in nature until B is run, begins to at time the the tortious damaged? Clearly the latter result usually single Since no conduct ceases.” case, also, should obtain. the instant chain incident a continuous of tortious we hold that the negligence tortious activity “fairly realistically can or continuing plaintiffs in nature until suf- significant of identified as cause damage. fer harm,” regard proper it seems to at Idaho P.2d at 68. cumulative effect of the conduct as ac- Moreover, tionable. since “one should Woodland, Unlike either Farber acquire right not a be allowed con- Streib refers to a situation where an act or conduct,” tinue the tortious it follows acts occur but peri- no arise for a logically that of limitation od of statutes genesis time. This case was of prior should not run to its cessation. damage” exception plain the “some reading 5-219(4), providing of I.C. allegations by Page involved a veteran that no cause of action will be deemed to have subjected Veterans Administration him accrued until “some damage” has occurred. drugs period years. to harmful over of a The court a of cases in reviewed number Thus the used words “con- recognized continuing which the courts tinuing” separate and “tort” in three tort doctrine where the tortious acts were very different contexts. task Our distinguished ongoing, as from cases where which, instant if any, case to determine injuries continue after tortious acts interpretations of those apply here. “Con- cease. court held: tinuing tort” has been defined as: injury by Page We view the time; one claimed pеriod inflicted a of over it gradual, resulting wrongful a from cumulative involves conduct that is re- peated desisted, day impact allegedly until each cre- tortious separate drug ates A treatment. To it a cause of action. con- us seems unrealis- tinuing regard ‍‌​‌‌​‌‌​‌‌​​‌​​‌​‌‌‌​‌​​​​​​‌​‌‌​​‌​​​​‌​​‌‌​‌​‌‍prescription drugs tort sufficient toll tic to each a statute of separate injury, limitations is occasioned un- as the cause a continual as a acts, lawful separate triggering not continual ill effects act a tortious new violation, original an period. precise- ... limitation Page charges it ly testimony There that was not until sort of continuous conduct accret- was ing physical injury justi- psychological mental 1986 that the more severe continuing a injuries according fies characterization as tort. beginning were Dr. Page Resultingly, Betts, cause Sawyer Walker. Roberta mar- drug stakes on continuous treatment did family riage and counselor who counseled accrue, statutory not and the limitations periodically Firth between both Curtis and play, allegedly into until did come August, May, also testified to a halt in tortious conduct came 1980. Firth’s symptoms at trial that were exces- normally she ex- sive and not what would previously, As we have indicated pect go through a people to see diffi- the definition of intentional infliction of agreed All witnesses that the cult divorce. requires emotional distress that there must tortious acts ceased when Curtis evicted wrong causal be a connection between early As distress, Firth from his home in 1988. this ful conduct and emotional shortly litigation must was сommenced thereaf- the emotional distress be severe. Ev ans, ter, year By clearly at 97. falls the two within very its this will nature tort often involve for this action. statute limitations time, period series acts over rather When there is no substantial evi causing single than one act severe emotion claim, support dence to the trial court recognize al distress. For that reason we may withdraw that issue and not instruct tort, concept continuing as it Realty on it. First Inv. Co. v. & Farber, originally applied should be ex Rubert, P.2d 1149 contexts, apply tended to other limited Blair, Everton including particularly intentional infliction there We believe that note, however, of emotional distress. We no evidence to Curtis’ substantial embracing concept this in the area of of emo claim that the intentional infliction negligent intentional or infliction emo by the tional distress action was barred open does tional distress not throw therefore, we, statute limitations and permit filing these actions at doors in affirm the court's refusal to so adopted have time. courts which struct. generally theory tort have stat ed is only statute of limitations Damages to the Submission of Punitive the abeyance held until tortious acts Jury See, Page, 729 F.2d at 818 and e.g., cease. punitive that dam Curtis asserts (Tex. 790 S.W.2d 819 Twyman Twyman, case, ages warranted and were not App.1990). point At that the statute be submitting erred that the trial court gins point If at after the to run. some punitive damages jury. to It is issue of begin has run the acts statute tortious damages punitive that are well established arise, again, a new cause of action but only should not favored in law and be damages to which have ac only as those compelling in most and unusu awarded since new conduct be crued tortious circumstances, and are to be awarded al gan. cautiously narrow limits. Man and within concept of applying In Inc., Hosp., & ning v. Twin Falls Clinic us note at the tort to the case before we (1992); 122 Soria Idaho 830 objection by outset that there was no Cur- Airlines, Inc., 111 Idaho v. Sierra Pac. testimony tis trial Firth and at to of (1986); Cheney v. Palos concerning ongoing abusive ac- others Corp., 665 P.2d Inv. Verdes early began as tions of Curtis which throughout and their rela- continued whether to submit decision of tionship. is a case where the This not punitive damages jury question of acts, wrongful severe emotional distress of the trial with the sound discretion rests damages occurred at the same time and Manning v. Clinic & court. Twin Falls brought have when the and suit could been Ins. Hosp.; Garnett v. Transamerica Ser- place. actions first took could vices, every legitimate inference that be Airlines, therefrom, In Pac. asks the court Soria Sierra Inc. drawn reviewing decision ex- the trial court’s we was as a of law that there rule matter sufficiency amine evidence upon jury sufficient evidence determine whether the record contains sub- non-moving par- properly find for the could support an stantial evidence award this, reviewing appellate ty. Id. In punitive damages. Manning v. Falls Twin does applies the same standard as Hospital. Cheney: Clinic & As noted initially, ruled on it trial court which

An of punitive damages award will fully spe- without reviews the decision appeal only sustained when it of the trial cial deference views shown that the defendant acted in man- court. Id. ner that was “an extreme deviation from position It Curtis’ his mo conduct, reasonable standards granted tion should have been for several performed act was the defen- was no reasons. His contention there understanding dant with an of or disre- proof physical injury and thus no basis gard likely consequences.” for its damages an for award intentional justification punitive damages must distress, infliction of emotional was ad be that acted an defendant with extreme- opinion. dressed in I of this Part ly mind, harmful state whether that proof was also asserts that there no “malice, oppression, state be termed sufficiently outrageous conduct which gross “malice, negligence”; op- fraud or verdict for intentional inflic wantonness”; pression, simply or “delib- ruling upon In emotional distress. (Citations omitted). erate willful.” motion, the Curtis’ trial court reviewed the 104 Idaho at 669. P.2d at Quick, forth in stated: standards set case, instant we are satisfied that the trial rules, Using the above the Court finds pre- court did not abuse its discretion in that there was substantial evidence senting punitive issue which the could have arrived at it’s jury. opinion, As discussed in this later Accordingly, verdict. Court finds no presented there extensive evidence judgment in this case. basis N.O.V. concerning Curtis’ conduct toward previously during Firth ten We listed the elements together. their We believe that there was substantial evidence cause intentional infliction of presented on a jury could have found Appeals emotional distress. The Curtis’ conduct to be an howеver, extreme deviation “[liability, has noted that from reasonable standards of conduct. results when these reactions are so severe Similarly, could have found from person expect no reasonable could presented the evidence that Curtis acted endure Gage, ed to it.” Davis v. malice, oppression, wantonness, 1282, 1288(Ct.App.1984). gross negligence. Accordingly, hold we subjecting parties At the risk of to that the trial court err in did not submit- private public scrutiny additional of their ting punitive damages the issue of to lives, necessary it is to some of the recount jury- testimony which relates to this issue. Sev- eral witnesses attested to Firth’s conserva-

III. regarding tive attitudes sex and substance POST-TRIAL MOTIONS prior relationship abuse her to with Curtis. Judgment Notwithstanding the Verdict They very further testified that she was oriented, family younger and even took her The standard for trial courts brother and raised him after their moth- ruling a for judgment on motion a notwith kind, portrayed er died. was Quick She as a standing the verdict was set forth in Crane, good-hearted, hard-working woman who motion, do making anything family would or friends. a the mov ing party necessarily quit job all she her admits truth of After and moved with evidence, Curtis, non-moving party’s as well witnesses told of her dock, placed fall a his foot please him. learned would off boat try efforts to She bed, liked, organized he in her back and kicked her out way to cook the she friends, enough her to parties slapped she decorated the buttocks hard his as print, pulled a hand her hair new house he built and worried about leave against Dr. spending money on he threw her the sink. Walker too much household testified, these inci- expenses. objection, without to anally raping to dents as well as Curtis' length also about the Firth testified at Firth. along get she made to with Curtis. efforts efforts, to These incidents were sufficient lead Despite those Curtis was an almost specialist in Walker, known deal- source of He com- Dr. a well constant criticism. women, diagnose to Firth plained in the with battered that his socks were not draw- er, cleaned, suffering as from Post Traumatic Stress his were not his bath- shirts distinguished cleaned, doing, she tags not were Disorder. In so room sink was shirts, marriage relation- dysfunctional his food clipped not off his was between relationship. spent battering poorly prepared ship and that Firth too and an actual money. might support the All of these criticisms We find there was evidence to much day pass every life between actions Curtis trials conclusion that these cohabiting people, beyond acceptable two for which Curtis ar- far trials and went See, gues expect e.g., daily we should tolerance. life and into the area tribulations of Whelan, Conn.Supp. severe, outrageous Whelan v. conduct. extreme and Hakkila, A.2d 251 Hakkila sufficient evidence We believe there was (1991). There N.M. Curtis’ jury which the could conclude that relationship, though, to this than more beyond that which a reason- conduct was might expected part daily exis- expected to tolerate person able should be tence. or endure. testimony of Firth and Dr. Walker allegations seems defense Curtis’ parties relationship between the

reflected enjoyed to that Firth these activities and progressively more de- which became willing participant. It is obvious was a verdict, praved. appetite While Curtis’ sexual testimony jury from beginning of their known to Firth in- him and jury chose to believe relationship, type practices in of sexual Firth. Curtis now chose to believe stead engage changed he over chose guess and to asks us second Even she was sickened testimony. time. This place weight more on his activities, Firth chose to reviewing the nature of trial is not the standard participate drug herself and in an effort judgment ruling on motion for court’s get along please and with Curtis. She tes- upon Based notwithstanding the verdict. during being videotaped sexual tified foregoing, find that there was suffi- we activities, being engage in sexual forced could cient evidence repugnant found and to acts which she and the at a in favor Firth arrive verdict being sexually assaulted. no error in so con- court committed trial cluding. testimony

There was also extensive mental abuse which Curtis inflicted about Trial—Sufficiency of Ev- Motion New She and several witnesses testi- on Firth. idence fied that on numerous occasions The standard for loudly at Firth publicly would scream it is ruling on a motion for new trial where displeased if some occasions she him. On insufficient alleged that the evidence was identify the which dis- she could conduct verdict, jury’s is set forth support the him, liking pleased her Quick v. Crane: frequently she had no idea cooking; but judge that the trial might he It is well established angry made him or when what grant new based on I.R.C.P. using may her. trial profаnities toward She start 59(a)(6)where, weighed he has all physi- after also identified incidents where Curtis evidence, including his determi- so feared she the own cally shook her hard she witnesses, credibility nation of the of the for New Dam- Motion Trial—Excessive he that the is not in concludes verdict ages accord the clear with assessment of alleges that the trial Curtis also

weight Agro- evidence. of the Sheets v. denying his mo court committed error West, Inc., 880, 883, 104 Idaho 664 P.2d a new trial on the basis of exces tion for (Ct.App.1983). damages. deci sive In its memorandum trial sion the court held: trial, the On a motion a new court In case there indication of a this is no has broad discretion. On a motion for preju- by passion verdict influenced or n.o.v., judgment directed verdict or it has dice, disparity in great nor is there the no and must the discretion consider damages the verdict amount set out question law whether is suffi- there found, might the Court have what jury cient evidence to raise a Id. issue. assuming the Court first found for the for a On motion new trial the court conflicting The evidence was defendant. weighs credibility the evidence and the throughout position the trial the the witnesses. parties placed jury. both was before point From Court’s observation Thus, motion for under on a a new trial easily could as have come back rule, this unlike motion for a directed plaintiff. with a verdict for the judgment n.o.v., judge verdict or the trial However, jury’s it cannot that the be said set aside verdict even supported verdict was not substantial there is substantial evidence to decision, evidence. The whether ver- it. dict of fact finding 766-67, 111 Idaho at 727 P.2d at 1194-95. Court, dependent expert upon whose recognized This has consistently Court and whose evidence was believed. Rea- important the trial court’s function rul men or women could differ as to sonable ing on motions for a new trial has which side was entitled to verdict or upheld the ruling trial court’s “unless to the Court’s decision. The Court trial manifestly court has abused wide yield chooses to the combined wisdom it, or, Meissner, discretion vested as in jurors twelve hold Smith, 94 Idaho [Meissner judgment upon jury's based verdict or, (1972)] misconceived the law should stand. suggested in Blaine Byers, [Blaine Consequently, plaintiff’s Motion for a Byers, (1967) ] granted New Trial will not on judge unless the trial applied ‘ques has basis excessive or insuffi- tion of law’ rule to a decision which must ciency evidence. question made as of fact.” Dinneen v. added.) (Emphasis Finch, 620, 625, ruling on a motion trial for new based damages, the trial excessive correctly After enunciating the standard certain findings must make were set Quick, set out in the trial court held that forth in Dinneen: this case Court basis finds no “[I]n insufficiency a new trial on basis of a motion prem- Where for a new previously evidence.” As indicated inadequate damages, ised on or excessive respect judgment to the motion for not- weigh the trial court the evidence must verdict, withstanding the compare jury’s and then award to carefully transcript reviewed he would given what have had there been proceedings opinion jury. great below is of the If the disparity no is so judge that the trial did not appears abuse his discre- to the trial court tion in denying the motion given for a nеw trial award under the influence of of insufficiency the basis passion prejudice, evi- ought the verdict dence. proven not It stand. need not be that 735, passion prejudice Gage,

there was in fact nor Davis v. 106 Idaho (Ct.App.1984): necessary point is it to such in the punitive Cheney, After amount suffi- the of appearance record. of is damages largely ‍‌​‌‌​‌‌​‌‌​​‌​​‌​‌‌‌​‌​​​​​​‌​‌‌​​‌​​​​‌​​‌‌​‌​‌‍up left is to the district A restricted to cient. trial court is not Dodge court’s discretion. Boise v. [Inc. ruling inadequate a verdict or excessive Clark, (1969) 902, 92 Idaho 453 P.2d 551 ] Byers, “as a matter of law.” Blaine v. particular indicated that no mathematical Additionally, rule a ver- supra. the prescribed ratio is and that “the true supported dict not set aside when will for an award of one amount of basis conflicting substantial but evidence damages opposed punitive to another application ruling has no to a trial court appraisal lies in an of amount overall the Blaine, a motion for a trial. new to the case.” circumstances Some the Rosenberg Toetly, supra; go judge’s factors which into decision punitive damages are on whether exces- 625-26, 100 Idaho at 603 P.2d at 580-81. motives, wrongdoer’s the the sive include calculation, degree the extent of judge not We do believe that the trial wrongdoer’s disregard rights the of the findings adequately the neces discussed examine, Any factor he of others. does sary ruling on to make a the excessiveness however, advancing on should focus damages. His mention the dam policy of deterrence. ages “might he found” does not have (citations P.2d at 1287 106 Idаho at give had us indication that he a definite omitted). With this in mind the trial court weighing ques in amount mind when provide findings further should review nothing is in damages. tion of the There punitive damages as to amount of decision which indicates to us written appropriate. court deems in weighed compared what evidence he Damages Motion for New Trial—Punitive against ruling Curtis’ motion a new trial. “Where the reasons are neither obvi punitive damages are includ While stated, appellate ruling ous nor court is left on in the motion for ed this Court’s damages, speculate perception new trial based on excessive about the trial court’s relating is issue exclu there an additional knowledge facts.” the law and punitive damages which sively to the Inc., 104 Agro-West, Sheets at this time. should be resolved (Ct.App.1983); P.2d see Inc., Airlines, also Soria Sierra Pac. punitive contends that the light 721. In Idaho at 726 P.2d at damages awarded in this case were exces proof present no duplicated damages the fact that there was awarded sive intentional infliction emotional dis damages ed of actual sustained Firth as Nat. tress. In Linscott v. Rainier batteries, any testimony a result of nor Life Co., Ins. her dis expenses about related to mental (1980), the rationale the Court discussed tress, jury’s awarding find we verdict punitive damages and noted: behind $50,000 $225,000 for the exemplary damages are a Punitive or the intentional infliction of emotional dis damages. peculiarity the law Un- suspect. may very It tress to be somewhat awards, damages purpose their like other judge very had similar well be that the trial сompensate plaintiff, but motion, ruling figures in mind in but express outrage society at certain not reflect on what he record does such, they actions of the defendant. As reason be have that. For that we based deter punishment, act as and serve to portion lieve this of the motion defendant, posi- and others a similar new trial should be remanded tion, like engaging in conduct in the findings. further court for punishment ratio- future. ques- findings These should address As court said nale disfavored. a recent case: punitive the excessiveness of the regard In this we note well. feel the courts these “[W]e primari- motivated Appeals civil cases should be comments of ly by purpose compensatory damages.” Gage, v. of deterrence and not a Davis purpose punishment. 735, In 740, 1282, other 682 P.2d words, the exemplary assessment of today (Ct.App.1984). Thus that we hold by damages prompted should be proof may even identical there assure, jury’s or to court’s desire to support presented punitive in of both dam- possible imposition the extent via ages compensatory for inten- and a award monetary penalty, of a that similar distress, tional infliction emotional does not in the conduct occur future. jury may damages award for both. still per be left Punishment se should anything Appellant not directed has us criminal law.” support his that the record to contention 857, (citations 100 Idaho at 606 P.2d at 961 “duplici- in this jury’s award case was omitted). puni- Accordingly, an award of tous,” any support we nor have found such damages tive serves the function dual The jury’s the record. verdict expressing society’s deterrence and out- by competent substantial evidence and contrast, rage. compensatory damages In should not overturned. damages compen- are defined as “will injured party injury sate the for the sus- IY. tained, nothing more; as will sim- ply good replace make the loss caused CROSS-APPEAL by wrong injury.” Black’s Law (5th 1983). Dictionary ed. cross-appeal In Firth asserts the in granting summary judg trial court erred decision, As noted in this has been earlier regard ment in of Curtis favor with physical injury required is not a element action on note her. by a cause of action for intentional executed inflic- Instead, tion of emotional surrounding distress. facts issue are not dis courts limited possibility have fraud- pute. In Firth promissory executed a by ulent insisting claims there be note in favor Curtis the amount of proof outrageous intentional conduct $31,726.98plus interest was secured which which leads severe emotional distress. by a second deed trust on a condomini Co., Rasmuson Walker Bank & Trust April, um her. In owned Fort 95, 101, 625 P.2d Mortgage Corporation, Worth which held (1981). Given elements which must be trust, the first deed of a default declared proven sustain a cause of action for and caused a trustee’s sale to be held. distress, intentional infliction of emotional purchased Curtis the condominium at the there may certainly overlap be an in the $24,214.94 sale subsequently re proof necessary for compensatory dam- property. ceived a trustee’s deed for the ages for the tort punitive damages; and for sale, At the time of the condominium e.g., and outrageous extreme conduсt and $45,000. had a fair market value of at least conduct which causes severe emotional dis- May, 1989, Curtis Firth’s declared note “[Tjhere significant, tress. is no if in fact complaint default and amended his any, difference between conduct a de- bring an on the note. The trial court may fendant justify which be seen to an granted summary judgment in favor of punitive damages, award of and conduct issue. on this justify may an award Fritz, emotional distress.” It is Brown well established that a motion for summary judgment is to rendered “be pleadings, forthwith if depositions, do dispositive We not view file, together admissions affida- question punitive of whether a dam vits, if any, genuine show that there no age proper. award is purposes issue as to material fact punitive make a damage appro award moving party judgment is entitled to as a priate are satisfied an award of 56(c); matter of law.” I.R.C.P. purely compensatory McCoy v. damages. The Court Appeals Lyons, “[pjunitive held that dam ages are not to take place Co., future M Irrigation G & Farms Funk 610 514, (1991); debt, only apply sue on would to in-

Idaho 808 P.2d 851 Brown v. Inc., 830, 118 after the effective Mortuary, Matthews Idaho struments executed (1990). Furthermore, relying P.2d 37 on 801 when date of amendments. In determining motion Tanner, ap- a for sum- whether the trial court Frazier I and mary judgment granted, all dis- should parently amend- concluded that the 1989 liberally in puted facts are to be construed action, apply ments to even did not Curtis’ party, non-moving favor of the and all rea- brought action was after sonable inferences which can be made from to Sec- effective date of amendments record made in favor of the shall be tion 45-1503. 120 party resisting McCoy, the motion. ruling, trial Following the court’s 769, at 364. 820 P.2d Appeals in Frazier v. Neilsen & Court of considering appeal an from a mo- When Co., 104, (Ct.App. 118 794 1160 P.2d our summary judgment, tion for standard (Frazier 1990) II), appeared to narrow is as the used of review the same standard the 1989 amendment to I.C. application of passing the trial court in on the motion. I, 45-1503, enunciated in to as Frazier § 725, Paine, v. 119 Idaho McDonald upon initiated or after “proceedings Bowling Meridian Lanes April 118 Idaho at 1989....” Ass’n, Inc., Meridian 105 Idaho v. Athletic added). impor (emphasis P.2d at 1162 It is (1983). Accordingly, on however, note, holding is tant apply appeal required we are these rules II, merely In instrument dicta. Frazier the record us determine before initi proceeding was was executed and judgment entitled to as whether Curtis was 45- prior ated to the amendment of I.C. § making matter of In this determina- a law. Thus, any discussion cases 1503. about tion, are to review and consid- required we filed effective date of the amend after the motions, affidavits, totality er the unnecessary to the ment to was the statute pleadings and exhib- depositions, attached Moreover, holding. quoted the dicta above record. v. its contained in the Anderson Nelson, 54 Idaho contrary to Steward City Pocatello, 112 Idaho 731 P.2d (1934). 437, 32 P.2d 843 Steward, In the Court discussed ruling in The record demonstrates mort application of amendments to the Curtis, favor of the trial relied gage they related to notes statutes Co., Frazier Neilsen & mortgages already effect. I), (1989)(Frazier and Tan that the law noted that is well settled “[i]t Shearmire, ner existing mortgage a is made enters I, (Ct.App.1989). In Frazier the Court part of the contract.” into and becomes interpreted (prior its 1989 I.C. 45-1503 § Further, P.2d at 54 Idaho at 845. amendment) allowing a creditor who operation or ob law which in its denies a trust beneficiary deed secur was con rights accruing under a any structs ing the debt one of three remedies to elect of Idaho’s constitutional tract a violation 1) upon default: foreclosure advertise any impair provision prohibiting laws which sale; 2) as mort ment and foreclosure 444, 32 “obligation of contract.” Id. at 3) debt, gage; bringing an action P.2d at 846. itself, independent any foreclosure. holding Steward, we Based on the Tanner, Appeals fol- the Court of court in the instant agree with the trial I, but indicat- lowed our decision Frazier amendment to I.C. 45-1503 case that the legislature § ed in a footnote that the to Firth’s note. Conse- apply does not changes contemplating statutory which quently, hold that Curtis entitled we They opined, would overrule that decision. first bring however, the action on note without amendments which security by I.C. resorting required to the limit might the circumstances 45-1503(l)(c), as amended.1 beneficiary ignore security could § amended, provides part: perti- nent As I.C. 45-1503 1. jurors. As

Firth also should be returned asserts she verdicts entitled to an offset or credit for the equal experience, judges most by which the fair value of amount market May Judge was well aware that property the real exceeded the amount Cur- opportunity to deliberate would have paid tis at the foreclosure She sale. cites collectively verdicts return involving mortgage several cases Likewise, ver- just. be those believed to argument. foreclosures in of this might very dicts well be substantial inapposite find We those cases be compensation. Accordingly, of amounts unpersuasive in particular case. May, any judge presiding or Judge district granting summary trial order court’s present- of issues as here over a trial such judgment in of favor Curtis’ action on the ed, jury when the func- is well aware that note the upon forego- is affirmed. Based completed, will the mo- is there ensue ing, attorney Firth is not entitled to fees on litigants seeking appro- tions of dissatisfied cross-appeal. her relief, priate prominent most of which will of be the claim an award of dam- excessive

V. ages inadequate Judge damages. or of Did May presided this in as he over have mind CONCLUSION the trial? Of course he did. The decision of the trial vacated as to the motion new the trial on issues definitely majori- IWhere differ from the of damages, excessive and is remanded for ty opinion paragraph: is this findings opin- further consistent with this judge not We do believe that the trial ion. The trial court’s decision affirmed adequately findings the neces- discussed respects. in all other or No costs fees to sary ruling make a on the excessive- party. either damages. the His ness of mention the ‘might damages that he have found’ does

JOHNSON, J., concurs. give any us had not indication that he BISTLINE, Justice, dissenting in small weighing amount in mind when definite part, specially concurring. question damages. the There is May, Judge authoring in his written nothing in his written decision which indi- decision, memorandum had the benefit of weighed cates to us what evidence he presided throughout having length the compared ruling against in Curtis’ trial, the and thereafter on post-judg- the motion a new trial. motions. that regard ment he was as positioned any well judge Op., as is relative 759. section, obligation (2) by "substantially If breached, secured a trust deed is As used in this val- beneficiary’s beneficiary may ueless” means that the interest in not institute a by property covered deed has trust judicial against grantor or his suc- through become valueless eficiary, no fault of the ben- in cessor interest unless: beneficiary’s or that the in interest a) by The trust deed has been foreclosed property practical has little or no value provid- advertisement sale in the manner beneficiary taking to the after into account chapter judicial ed in this and the action is such as the factors nature and extent 45-1512, brought pursuant to section property estate in real which was transferred Code; or trust; against in existence senior liens b) pro- The action is one for foreclosure as property; beneficiary to the cost by mortgages vided law for the foreclosure satisfying making payments or current property; on real liens; expenses senior ing the time and market- c) beneficiary’s property interest in trust; by property covered the deed of substantially covered the trust deed is val- the existence of in liabilities connection with (2) ueless as defined in subsection of this up property for clean sub- hazardous section, beneficiary may in which case the stances, pollutants contaminants; and such bring against grantor an action or his other factors as the court relevant deem obligation in successor interest to enforce the determining practical in ficiary value to bene- by grantor or owned beneficiary's successor interest in the real interest resorting security. property without first covered the trust deed. $725,000 Although divulged punitive in the courtroom sessed the amount of trial, during the court is course a trial damages. pointed As out in the majority very much concerned considerations with opinion, jurors at trial the the box had damage it conceives to amount testimony expert heard extensive relative likely justly properly awarded syndrome to the battered wife and also the jury. opinion This Court’s in Dinneen post-traumatic stress disorder. Quick Finch and then v. Crane2 damages, exemplary basically As to the present alerted the trial bench to the ever indulging is no reason there for not in damage likelihood that actions it could reasoning compensatory same dam- post-trial called to rule on motions ages. During past fifteen and more grant judgment of a new trial or years, ably the trial courts have reached Moreover, consisting n.o.v. conclusions; reasonable has it seldom been simultaneously going minds is twelve ques- necessary appellate for an court to process. being the through the same Such ability of tion the the trial courts and dis- affairs, i.e., jurors actual state of arriv- necessary sifting. trict courts to do the damages amount, returning a verdict, their it would be unusual dis- an foregoing than for Other observa- perceive trict that did not at that time court tions, fully majority opinion I concur in the closely, disparately, how its view as to only following and add its damage awards coincided with views holding. agree I Trout’s with Justice con- jurors. speculation required. No is utilize Corpus clusion to Juris Secun- The well in mind it court will have what “continuing dum definition of a tort” and award, a fair and believes to be sustainable agree applica- emphatically that it is here and, in, is trial court is Clearly the Mr. Curtis ble. conduct of was degree dis- one who determines the a course of conduct which for parity dam- between its own assessment of greater part wrongful, but in was mi- ages compared to that of the jury. part wrongful. totality was nuscule majority opinion suggests, As the here appears diabolically kept it may very judge “It well be that the alternating Firth off-balance between figures very ruling had similar in mind in which was kind and treatment treatment trial], motion but the new [for was scurrilous. may record does not reflect ‍‌​‌‌​‌‌​‌‌​​‌​​‌​‌‌‌​‌​​​​​​‌​‌‌​​‌​​​​‌​​‌‌​‌​‌‍on he what agree I of a also the definition con- reasoning, that.” so it have based Better me, tinuing theory, judge is that tort which Justice Trout seems to the trial States, jurors pre- Page to observe that the had and men- relieved found United damage sented him with amounts that al- 729 F.2d tion also that footnote 36 at ready range figures were within provides glossary of other cases which his mind. tolling recognize a doctrine of continuous This first enunci- treatment. doctrine was The in this case returned a verdict York, Borgia City New 12 ated $275,000 general dаmages. Of N.Y.2d N.Y.S.2d N.E.2d $50,000 compensate was to amount Sandra (1962). Another case in the federal batterings Firth for the her Carl dealt factually system which bears much judicial time, period of Curtis over a considerable - similarity is to Curtis v. Firth Landman v. had which conduct ceased after Curtis (E.D.Va.1973). F.Supp. Royster, had evicted her from residence both in that Language readily case which time; $225,000 for some was as- occupied to the conduct of Curtis includes applicable against Carl Curtis for his conduct sessed “phobic injuries; such terms as traumatic se- consisting of an intentional infliction of neurosis; psychic injuries; deliberate ef- distress. in addi- jury, vere emotional dehumanize; compensatory damages, those as- forts to six arbi- 2. Dinneen v. Finch, Crane, (1979); Quick unjust solitary

trary, illegal treatment calculat- that the effects of confinement dehumanize; psy- aggravated by ed to resultant need of were diet which was expenses times, given during i.e., chiatric care and thereof.” Landman those recurring cycles of bread and water for Court, Judge District The United States days, day. meals a third two reduced Landman, Merhige, observed that: enough, Interestingly he concluded plaintiff Both counsel and defen- [for beyond solitary a two confinement expert psychiatric have adduced dant] period or three week would have definite testimony effort in an to show the ad- people. most adverse effect them, effects, verse or lack of Landman, Having at 1307. solitary F.Supp. have flowed continual testimony also heard the isolated confinement. substance of defendant’s testimony contradictory expert, Tice, placed is neither Dr. surprising: lay person nor even could opinion: record in the written expected fairly deduce that Tice, expert, Defendants’ Dr. was also repetitious pattern of treatment to which eminently qualified. person- He did not subjected Landman would have ad- Landman, ally examine but did conclude psychological verse effects. Neverthe- on the basis of of the maxi- observation less, testimony of that discussion security solitary mum cells that ad- warranted. verse effects caused confinement Abse, expert, psy- Plaintiffs’ Dr. is a depended degree therein on relative experience chiatrist with extensive of isolation from human contact in which prisoners treating Spe- released of war. prisoners admit, held. He were did cifically, he did much work with British however, that conditions as Land- soldiers released after World War II man subjected was to could have deleteri- Japanese from prisoner camps of war ous effects. he did differ While with Dr. and has since studied effects of isolated Abse on the exact definition Traumat- upon prisoners. confinement civilian Neurosis, ic in any way specifi- he did not experience, Based his he was able cally contradict Dr. Abse’s medical find- generalize to typical patterns several ings Accordingly, or conclusions. behavior, reactive patterns he la- Court that Landman was finds fact symptomatic beled as of 'Traumatic Neu- psychic caused to severe suffer underlying roses.’ The cause of said bе- physical injuries by virtue of the consti- havior, stated, he repression was of emo- deprivations tutional to which he was isolation, tions caused fear and frus- subjected. Symptoms tration. associated with this Landman, F.Supp. (emphasis at 1307 type of include anxiety, neurosis destruc- added). tiveness, easy fatigability, diminished Judge Merhige concluded that the ulti- potency, sexual psychosomatic as well as person prison charge operations mate gastric disorders, (including illness chok- Cunningham, was W.H. whose title was ing, backaches). headaches and Director of the Division Corrections: Dr. personally Abse examined Land- fully satisfied, The despite man and thereupon concluded that he contra, Cunningham’s denials to the possessed symptoms. these He ascribed Landman indeed treated under di- to physical Landman’s travails severe authority Cunningham. rect His con- phobic injuries which evidenced legal rights obviously stant assertion of themselves in the form of traumatic neu- Cunningham resulted in what roses. While and other Dr. Abse stated that Land- prison man had administrators considered to undoubtedly symptoms neurotic incarceration, prior image creative of a bad for the institu- incarceration at Virginia tion. The more Penitentiary State exacer- Court is than satisfied bated his from proper illness when fact re- evidence that deliberate efforts habilitation, including psychiatric care, Cunningham under direction of were might have cured it. Dr. Abse added made to de-humanize Landman. observation;

Surveillance—Close observing. state of testimony The of Dr. Abse shown рosition of sub- re- state—In a psychic that Landman’s disorders Subordinate pattern ordination; sulted a continual subservient. from [misJtreatment. Justice, BAKES, Tern., concurring Pro part:

part dissenting respect to the statute of limita- With portion I Court’s concur in that question, tions the court has found that deci- opinion which vacates trial court’s subjected Landman continual new trial on regarding sion the motion for punishment, pattern of unconstitutional damages and re- the issue of excessive damages which arise from motion. findings mands further on that impact cumulative of his isolated con- IV relat- I also concur in the result of Part finement rather individual than from However, I appeal. cannot the cross thereof. continuous nature episodes opin- agree portion with that of the Court’s subjugation after March of this 1965 ion holds that Curtis was not entitled brings Landman the well within settled limi- instruction the statute limitations, to- exception the law tations. injury wit: when is caused cumulative- First, opinion does not even the Court’s ly by continuing wrong, statute of discuss Firth’s claim bat- begins run limitations to a tery, whether Curtis was entitled See Baker v. F. wrongful action ceases. statute limitations instruction on al., 420 F.2d 1191 F. Investment et & $50,000 on the claim. The awarded Cir.1970). (7th analy- By claim. the Court’s own neurosis suffered traumatic sis, triable of fact over there was a issue Landman results not individualized of limitations whether or not statute behavior, instances of tortious but from had run Firth’s several claims of bat- the continued six frustration inci- tery—for example, the 1979 or 1980 arbitrary, unjust treat- illegal of ment____treatment by the dent referred to Court where calculated to dehu- she “physically her so hard allegedly shook Indeed, every illegal manize man. dock.” feared she would fall off the boat simply incident visited Landman ac- 757. Ante Idaho at 850 P.2d at aggravated centuated and his condition opinion acknowledges that for majority existing prior immediately thereto. limitations, “It is purposes statute of Landman, F.Supp. (empha- at 1313-15 distinguish separate important to between original supplied). in sis defamation, assault, may be acts which continuing wrong- battery, and a course OF A GLOSSARY APPLICABLE TERMS intentional ful constitutes conduct which Roget’s New From II The Thesaurus Ante at infliction of emotional distress.” (1984): Thus, stat- 850 P.2d at 754. Curtis’s debase, To to Degradation—Degrade. to Firth’s bat- ute of limitations defense as demote, to humble. separately tery analyzed must be claims degrade, de- cheapen, Debase—To defense from his statute of limitations mean. dis- infliction emotional the intentional University From Webster’s New Riverside shaking oth- physical tress claim. The (1988): Dictionary battery, kicking her types er out deprive Dehumanize—To human bed, so slapping her on the buttocks qualities or attributes. pulling print, hard as a hand to leave control; by supe- to rule Dominate—To throwing against the sink were hair and power; rior control or rule authori- not weeks or separated just batteries ty. months, by years. in some instances but Thus, favorably viewing the evidence most bring person(s) Subjugate—To under Curtis, opinion ac- another; as the toward Court’s the dominion enslave. pa- in sponge was left determining ings knowledges must do we created a discov- Billings entitled to a statute or not he was tient—the whether sepa- Firth’s Billings instruction on statute. The ery exception of limitations claim, there was a triable issue battery analysis, rate tort Court considered a all, part least of fact over whether or at of a so- apparently rejecting it favor by the Firth’s claim for was barred exception,” holding that “discovery called court erred statute of limitations. until the did not accrue the cause of action giving in not such an instruction. discovered, through reasonable patient discovered, pres- diligence have However, should my main concern with foreign object. “continuing ence adopting Court’s action limitations exception tort” to the statute of Court, in case the Following Billings intentional inflic- regard to the tort of with Edwards, Renner of emotional distress. The Court ana- (1970), discovery excep- expanded the dealing lyzes the issue as we were malpractice medical cases tion to include rule, than with a with a common law rather justi- involving misdiagnosis. The Court legislature. enacted the Idaho statute legisla- because fied the extension “[o]ur wording of discussing plain Without define the time of accrual as ture did not statute, employs the Court a “continu- performance being either the time of ju- analysis, creating yet tort” another acquisi- negligent act or the time of the 5-219(4), exception' to I.C. dicial § negligent knowledge of the act.” tion of unfortunately long has had a and troubled 475 P.2d 530. relationship The Court’s Court. legislatively defined time opinion only directly conflicts with the absence of such accrual, legislative expressеd apparently clear intent I.C. felt free to the Court 5-219(4), but it also conflicts with the discovery rule to medical misdi- extend the year Court’s recent reaffirmance of the ten agnosis cases. rule, damage” old “some which was itself a its response to Renner and It was exception engrafted

judicial onto I.C. 5-§ “legislature fact that the reference to the 219(4). Bignall, See Chicoine accrual,” define the time of that the did not 5-219(4) in 1971 legislature amended I.C. § repeatedly This Court has said that when that, except in specifically state cases legislature enacts or a statute amends arising involving “damages out of paramount statutory rule of construc- object in placement any foreign of ... give legislature’s tion is to effect damage body any person,” or of purpose. intent and In the Matter The of: “fraudulently knowingly con has been Diocese, Appeal Tax Roman Catholic of injured party,” all cealed from the “in 425, (1993); 123 Idaho 849 P.2d 98 Sweitzer actions, arising pro whether from other Dean, (1990). 568, v. 118 Idaho 798 P.2d 27 otherwise, malpractice fessional legislative purpose To of the ascertain shall be deemed to have cause action 5-219(4), it is 1971 amendment to I.C. of § occurrence, time accrued as necessary to review two cases which complained of, and the act or omission prompted the 1971 amendment and by extended period limitation shall not be present language. statute’s The first case any continuing professional or reason of Idaho, Billings Mercy v. Sisters of in relationship commercial between 485, (1964), 389 P.2d 224 86 Idaho alleged wrong jured party and the point issue of the in time at addressed the added.) (Emphasis doer....” See Chi which a cause of action accrues when 482, 122 835 P.2d Bignall, coine v. foreign object patient’s has been left in a (1992), analysis of I.C. 1293 for a historical body by surgeon. apparent In dissatis- 5-219(4). Veigel, 109 Idaho Streib v. interpreting faction with the case law § 174, (1985), 5-219, recognized 706 P.2d 63 we pre-1971 which had version of I.C. § 5-219(4) profes held that such a accrued at I.C. “is restricted cause § malpractice, appears govern complained the time of the act of—in Bill- sional but 616 personal “continuing negligence” the- injuries.” majority’s

all actions for 109 Ida- 175, contrary pro- ory directly express to the ho at 706 P.2d 63. 5-219(4). visions of I.C. § reading It is clear from the statute continuing Not does the tort con- legislature preserve intended to cept, adopted today, disregard the lan- 5-219, interpretation pre-Billings of I.C. § 5-219(4), guage of I.C. but it is also § subject only exceptions, to two delineated damage” inconsistent the “some ex- being foreign object those and fraudu ception ten has which this Court for pre exceptions.3 lent concealment 5-219(4). applied construing I.C. Ste- 5-219, interpretation of as it Billings I.C. § Stearns, 249, 678 P.2d phens v. 106 Idaho torts,” might “continuing relate to so-called 174, (1984); Veigel, v. 109 Idaho Streib was contained this Court’s decision (1985); Bignall, P.2d 63 Chicoine v. 79, P.2d Lyon, Woodland v. 78 Idaho (1992). 122 Idaho 835 P.2d 1293 See (1956), applied the statute of Nash, Griggs also v. 116 Idaho continuing limitations to ‍‌​‌‌​‌‌​‌‌​​‌​​‌​‌‌‌​‌​​​​​​‌​‌‌​​‌​​​​‌​​‌‌​‌​‌‍torts. It is also (1989); Green, 117 Hawley v. apparent legislature explicitly that the re 788 P.2d 1321 Bonz v. negligence jected majority’s continuing Sudweeks, 119 Idaho 808 P.2d 876 concept, which the Court considered and damage” excep- the “some Under rejected Billings, supra, by enacting tion, a cause of action does not accrue until 5-219(4) part which states I.C. § damage plaintiff some occurs. But period that “the limitation shall not be ex occurs, damage” the statute when “some any continuing tended conse reason of Nash, (in- supra begins Griggs to run. v. quences damages resulting therefrom or curring attorney fees constitutes “some any continuing professional or commercial triggering running damage,” relationship injured party and between the limitations). just The Court re- statute of alleged wrongdoer....” The Court of cently damage” reaffirmed the “some rule Appeals Benja has so held in v. Pichon Bignall, supra. v. Chicoine min, 852, 854, 108 Idaho (“We that, damage” (Ct.App.1985) believe amend The rationale behind the “some 5-219, damage” oc- legislature ment of our rule was that until “some I.C. § nothing expressly theory continuing plaintiff curred the had to sue for. rejected the Pichon.”) Stearns, negligence Stephens supra. v. Howev- advocated See See exists, er, damage” the tort George Family Messenger, v. once “some W. Watkins exists, (1990) (it and the the cause of action accrues begins to run. legislature assumed that when the enacts statute limitations statute, Nash, applied knowledge supra. We have Griggs or amends a it has full damage” rule even when the existing judicial decisions and case law the “some state); negligence was considered to Local Intern. Ass’n 1494 of 'Alene, Veigel, supra. in nature. As Firefighters City d See Streib Coeur (1978)(where quotes the Court itself Streib ease, 603, at 754. “We specifies things, desig certain ante at 850 P.2d statute others). negligence that the tortious is continu- things nation of such excludes all hold patient keep from Purpose Bill facts to his customer or 3. The Statement of for House No. 93, 5-219(4), amending the bill I.C. confirms knowing may have a claim. In these that he explicit: what the statute made exceptional equity requires, and this bill cases presumes This bill that there should be some Otherwise, filing. permits re- late this bill put point in time when matters be- diligent timely prosecution quires and goes premise the common hind. It on the that policy and re-establish the basic claims would years’ standing law rule hundreds is opposes claims the common law which stale of and except foreign object correct ical cases med- which a date favors definite cut-off after malpractice where the claimant should person he sued need not will be fear have a reasonable time after he knows case, past; things happened in this object that the has been left in should know his practice ago. years over two also, body; except professional for a mal- (1971) Purpose, (emphasis Statement of H.B. 93 any person claim of kind wherein the added). providing deliberately concealed service

617 limitations on plaintiffs ning of the statute of ing in nature until suffer 179, at 68 v. damages 109 Idaho at 706 P.2d from that conduct. Brown damage.” added). Thus, Streib, (1985); (emphasis 357, under Fritz, 699 P.2d 1371 108 Idaho negligence continuing, even if the 122 Idaho also, Bignall, v. Chicoine See occurs, damage” limi Nash, “some the statute of 482, (1992); v. Griggs P.2d 1293 begins tations to run. We have further (1989); 228, Streib continuing damages held that does not toll (1985); 174, Veigel, Ralph’s City the statute of limitations. Steams, 106 Idaho Stephens v. Lake, 225, 227, Spirit P.2d 78 Ida- Lyon, Woodland (1977)(“[T]he applicable statute (1956). plaintiff The ho 298 P.2d 380 begins to run from the occurrence the defendant at certainly have sued could wrongful act albeit the full extent of the for direct- survived a motion that time and unknown.... ”). damages may The Fritz, supra. Brown v. ed verdict. theory today “continuing Court’s tort” testimony A of the trial reveals review contrary damage” rule. to the “some battery sought prove that Firth both her plaintiff’s It is clear from the own evi- inflic- claim and her claim for intentional dence in this case that Firth suffered by presenting of emotional distress damage” early “some 1978. various acts of abuse she endured plaintiff permitted by the trial court to throughout their entire ten- argue jury, argue did year relationship from 1978 to 1988. plaintiff compensated should be testimony from Firth herself and came damages for the from 1978 Walker, expert. Firth’s Dr. from Dr. through battery inci- both for testimony history included a Walker’s dents and for the intentional ten-year relationship beginning the entire Applying infliction of emotional distress. physical battery psychological with the principles damage” of the “some rule six abuse suffered Firth 1978 within case, to the facts of this Firth’s cause of began living months after she with Curtis. separate action for accrued as each Dr. Walker testified: occurred, battery incident such as the shak- first incident that she clas- abusive [T]he ing on the dock incident. boat battering began sified as a incident about Firth’s cаuse of action for intentional six months after. infliction of emotional distress accrued at Actually longer it’s than that. There point during in time her relation with months was a smaller incident about six Curtis when all of the elements of the tort incident occurred after. The first actual of intentional infliction of emotional dis- spring trip in the on a to Mexico. present. tress were in- These elements very And at that time she described a (1) conduct; clude: intentional or reckless psychologically abusive incident. (2) (3) outrageous; which is extreme and Firth and Dr. Walker also testified to vari- causally which is related to the emotional beginning in ous acts of sexual abuse distress; (4) severe emotional distress. majority opinion correctly de- which the County, See Evans v. Twin Falls 118 Ida- assault, rape, sexual anal scribes as ho We have fur- various other acts which caused extreme that, ther stated “Justification for an Dr. emotional distress. Walker testified award of for emotional distress abuse, the acts of between seems to lie not in whether emotional dis- relationship between Curtis and Firth was actually plaintiff, tress was suffered However, loving happy one. over quantum outrageous- but rather in the years relationship progressed, as the ness of the defendant’s conduct.” Brown Fritz, 357, 362, frequent the acts of abuse became more v. 108 Idaho P.2d severe, (1985). in happiness and more and the be- rapes, The anal sexual as- gross indignities prevalent saults and other tween became less and shorter. certainly commenced in 1982 Firth were suffi- testified that the first incident of ciently “outrageous” physical psychological to commence the run- abuse occurred specifically 120-day in notice 1979. She identified various tions. Farber involved physical psychological provision treat- 6-905. The abusive of tort claim of I.C. § trip ment she expressly any received on a to Mexico with in disavowed Farber in the sexu- application Curtis 1980. She testified how either the of the decision to ally in 1982 abusive conduct commenced statute of limitations or claims not based frequent years more and became as the is difficult understand on contract. It progressed. support can how the Farber case decision, on an Court’s based as plaintiff’s testimony

The own was the entirely different statute. basis for Curtis’s claim that the statute of any damages limitations claim for barred misconstrues, my opinion, The Court occurring years prior more than two Lyon, the case of Woodland filing complaint. of Firth’s The trial (1956), to me seems 298 P.2d 380 position throughout the trial was court’s directly point. In the to be Woodland that as a matter of law the tort of inten- case, defendant, upstream an water tional infliction of emotional distress was a creek, on a made an alteration in the user tort,” “continuing long and so there was stream bed on his own land which inter- years some tortious conduct within the two fered with the flow of water to the fields of filing complaint of limita- statute who, result, plaintiff the downstream as a simply apply, Firth tions didn’t could damage crops during the irri- sustained damages occurring recover all for all acts gation through 1953. seasons of 1950 throughout ten-year relationship. the entire damages pasture Plaintiff was awarded The trial court never discussed the damage, crops, and the estimated loss of separately. claims restoring the stream bed to its cost question This case does not involve the original condition. The tort involved was entirely of whether Firth’s claims should be plaintiff’s during the diversion water Rather, the is- barred. this case involves years. damages of the four were each damages sue of whether which were inflict- crops removing and cost of the loss of years prior more than two to commence- ed The Court in stat- obstruction. Woodland ment of the action in 1988 are barred ed, alleges single “The herein not a tort argu- In closing the statute of limitations. one, continuing appel- wrong, but a ment, permitted Firth’s counsel was to ar- supports if may, lant the evidence gue damages during the were suffered claim, injuries occurring recover for all (1978-1988) years of her entire ten relation- period years], statutory within the [four ship there was with Curtis. Given occurred more even the obstruction finding by jury evidence to complaint was than four before the damage” prior existed that “some filed.” 78 Idaho at 298 P.2d at 381 argued, as Firth’s counsel the trial court added). (emphasis The Woodland Court should have instructed that, continuing clearly even with held precluded of limitations the award statute torts, damages can be recovered for any occurring prior of acts occurring during statutory pe- “injuries Lyon, to 1986. Woodland majority opinion’s riod.” The statement Eastman, State case does not invоlve a that Woodland tort, only continuing dam- but ages, analysis an of the hold- majority’s apply failure to the “some inaccurate view, ing my damage” explained. rule is not The Court that case. Wood- State, directly point, not the Far- relies on the case of Farber v. 102 land case (1981), today. applied case as the Court a federal ber C.J.S., However, event, statute, case, I.C. and a statement from in hold- 5-219(4), is the most was not entitled to a controls since it legislature of limitations. recent statement as to instruction on the statute However, in- causes of action such as those dispositive. Farber is not Far- when in this case accrue. ber did not even involve a statute of limita- volved Appeal Tax Roman majority of the In the Irrespective whether Matter: Boise, Idaho holding, as trial Diocese is viewed as the Catholic opinion added). (1993) (emphasis For held, 5-219(4) simply does I.C. § 5-219(4) has torts,” I.C. been “continuing years, or the ten apply to whether last § not of limi- holding mean that the statute majority opinion as construed to the is construed damage” run “some regard “continuing begins tations to with to torts” no by as the occurs. a law construed of action “until those acts are cause arises “[I]f court, changed, legislative that is a the of limitations in is to be completed,” statute Matter: 5-219(4) judicial a function.” In the precludes that result. We not I.C. § Roman Catholic Dio- Appeal a law The Tax dealing are not here common Boise, Furthermore, supra. to- cese the Court’s action rule. in doubt the status day modifies leaves 5-219(4) unambiguous and cleаr- I.C. § rule damage” of the “some accrues at ly that the cause of action states following years for ten Court has now been complained the time of the act or omission interpreting the version of I.C. current of, period shall and that the limitation not 5-219(4).4 § by any continuing reason of be extended relationship. Today’s decision recently re- This Court stated with departure is a from the statute and clear gard statutory interpre- the for standard years interpreting from ten cases tation that: judgment I would reverse the statute. II, Ill, art. art. Under § §§ the trial court. V, 13 of the and art. 2 and §§ judgment the of the Even Constitution, solely province the failing for to in- court should be reversed legislature the make laws and the limitations, struct on the statute and, duty of the court to construe them and the claim both claim court, by law as is to a construed if emotional dis- for intentional infliction of changed, legislative that is a tress, necessary on a retrial would not be [Citing judicial cases.] function. in this case. remand consistently This Court has adhered to statutory equitable proceeding an primary canon of construc- This case was language very beginning. tion that where Curtis com- the stat- unambiguous, filing a expressed proceeding by ute is the clear menced com- legislature plaint mandatory on Febru- given injunction intent of must be 1, 1988, ary invoking equity jurisdiction and there effect is no occasion for con- later, days February struction. of the Four on court. casting In addition to doubt on the owner’s cause of action would not accrue until status 4. rule, damage" “continuing ceased, the "some the Court's trespassing never and if it ceased theory impact could tort” have a serious apparently have no the landowner would cause law, example, areas of the other easements Page if the of action—at least States, case of United by prescription. As we stated in State ex reL majority, supra, relied on is fol- Fox, 140, 146, Haman v. Furthermore, person attempt- lowed. (1979), "Only those who have actual- use, acquire by prescriptive the easement continuous, notorious, ly open, made uninter- “continuous, uninterrupted his use” would con- right, rupted under use a claim of with the tort, stitute and the statute limi- owner, knowledge year peri- the five running until tations would not commence (Em- acquire prescriptive can easement. od” stopped. uninterrupted continuous and use "continuous, added.) phasis If such uninter- five-year person then have to wait out the would occurs, rupted applicable use” statute of However, years period. waiting after five limitations, 5-203, "gives I.C. an five owner run, longer would no statute to use years necessary appropriate to take the le- “continuous, uninterrupted use” and therefore a gal to have of his an unauthorized use trespasser may never easement obtain an stopped. property property If the owner of "continuing prescription under the Court’s tort” eject enjoin trespasser fails the unau- theory. There will no doubt be other areas of use, right after thorized five to do so adversely impacted Fox, which will be law barred." Haman v. will be Statе ex rel. However, "continuing theory tort” Court’s announced to- 594 P.2d at 1099. under majority’s "continuing theory, day. tort” the land- 620

4, 1988, proceedings jury di him to demand a Firth filed a counterclaim for entitle vorce, trial....”). equity proceeding, exception which is an to the rule joined battery equity jurisdiction with it her claims for and that once has obtained dispute intentional infliction of emotional distress. subject of the matter of a it will battery Firth’s tort claims for and inten settle all of the controversies between the tional infliction of emotional distress were parties respect with thereto relates to ei mandatory not counterclaims to Curtis’s compulsory ther counterclaims or claims mandatory injunction proceeding, nor was mandatorily joined. which must Steed mandatory join that Firth her tort claims 247, Young, v. 115 Idaho 766 P.2d 717 equitable proceeding. with her divorce (1988). Overholser, This Court held in 114 Nash v. The district court in this case first tried 461, (1988), Idaho 757 man P.2d 1180 Firth’s claim for on a com- divorce based datory joinder equitable claims tort with marriage using mon law claim without proceedings required. divorce not jury, findings and made fact and conclu- quoted approvingly Nash then required by sions of law as I.R.C.P. 52. opinion from the Wisconsin Stuart v. par- The district court concluded that the Stuart, 455, 140 Wis.2d 410 N.W.2d 632 married, ties were never and therefore de- (Ct.App.1987),holding spouse that if a was Firth’s nied claim for divorce.5 As to required join equitable tort claims with remaining battery Firth’s tort claims for proceedings spouse divorce would and intentional infliction of emotional dis- right jury “waive the to a trial on the tort granted jury tress the trial court Firth a 462, claim.” Idaho at 757 P.2d at 1181. objection trial over that Firth Curtis’s By voluntarily joining legal her tort claims trial, jury and that the trial entitled to a battery and intentional infliction of emo duty findings of court had the to make fact equitable proceeding, tional distress under 52. ‍‌​‌‌​‌‌​‌‌​​‌​​‌​‌‌‌​‌​​​​​​‌​‌‌​​‌​​​​‌​​‌‌​‌​‌‍The trial court denied I.R.C.P. right Firth waived her to a trial. by jury objection Curtis’s to the trial “[Ejquity having jurisdiction obtained battery inflic- submitted the and intentional subject dispute, re matter of the will tort claims to a and entered a

tain it for the settlement of all controver judgment jury’s on the verdict.6 parties respect sies between the with there However, equitable proceed- was an Freer, Boesiger to....” commenced Curtis with his suit for Accord, Co., Inc., mandatory injunction, and was continued Carpenter v. Double R Cattle (1985); proceeding by Firth equitable as an with 701 P.2d 222 Idaho Firth’s tort claims Valley First Bank Bliss her claim for divorce. National Foods, (1992); battery for and intentional infliction of Idaho compulsory 222 emotional distress were not Fogelstrom Murphy, counterclaims, nor she Dover Lumber Co. v. mandated Case, 276, 284, equitable proceeding P. them her join with (“The Overholser, (1918) By up supra. fact that defendant sets divorce. Nash v. equitable equitable claims legal joining defense to an cause of ac those tort right change proceedings, Firth waived her to a tion does not character of the notes, attorney statutory authority opinion for the award of 5. As the Court’s even existed, marriage fees in authority The trial court cited no trial court found that no civil actions. granted, for its action. That should be another therefore no divorce сould be the court on remand pay significant factor for the trial court to consider when Curtis to nevertheless ordered considering question “rehabilitative-purposes," of the excessive- support financial majority attorney which the ness Court has remanded as well as Firth’s fees. While that issue Curtis, this action. appeal by I was not raised or briefed on authority equity no for a court of know of pur- appeal order financial rehabilitative 6. Curtis has not raised as an issue on poses allowing jury at the conclusion of a meretricious rela- trial court’s trial and the failure tionship, certainly statutory findings is no there au- the court to make under I.R.C.P.52. Therefore, thority attorney for the award of fees under the Court has not addressed that is- require specific those circumstances. Our cases sue. intentional proved the torts by jury, and the trial court should The trial emotional distress. infliction of request jury trial. have denied Firth’s for a that the statute directed court should be jury’s was at best adviso- verdict 5-219(4) applies, in I.C. limitations ry. required The trial court was any is not liable the defendant findings I.R.C.P. 52 to make of fact occurring prior to two tortious conduct two tort conclusions law Firth’s years prior to the commencement claims for and intentional infliction liable nor is defendant Nation- of emotional distress. Idaho First damages occurring prior to that Foods, Valley supra; al Bank v. Bliss time. Co., Carpenter supra; v. Double R Cattle Freer, Boesiger supra; Dover Lumber Tern., SWANSTROM, Pro concurs. J. Case, supra. Co. v. being Since this matter is remanded findings

the trial court to make additional

anyway, disposition I the correct believe require the trial

this case should be to findings make the of fact and

court to required by

conclusions of law I.R.C.P.

regarding plaintiff whether or not the

Case Details

Case Name: Curtis v. Firth

Court Name: Idaho Supreme Court

Date Published: Mar 23, 1993

Citation: 850 P.2d 749

Docket Number: 18871

Court Abbreviation: Idaho