O'DELL v. Basabe

Joy O’Dell, L. O’DELL and Sandra Glenn wife,

individually husband and and as

Plaintiffs-Appellants-Cross Respon

dents, Commission,

The Idaho Human

Plaintiff-Intervenor-Appellant-Cross

Respondent, BASABE, individually

John Co.,

agency capacity, and J.R. Corporation,

Nevada Defendants-Re Appellants.

spondents-Cross 17421.

No. Idaho,

Supreme Court

Boise, February Term.

April 1991.

Rehearing April Denied Mauk, Boise,

Skinner ap- Fawcet & fоr pellants Mauk, (ar- O’Dell. William L. gued). Jones, Gen., Atty. Goddard,

Jim Leslie L. (argued), Deputy Atty. Gen., Boise, ap- for pellant Idaho Human Com’n. Owens, d’Alene, Howard & Coeur for Lawyers amicus curiae Idaho Trial Ass’n. Howard, Jr., (argued). Kenneth B. Boise, Boyd, Elam Burke & respon- for Dominick, dent (argued). Basabe. K. Bobbi Hawley Boise, Hawley, Troxell Ennis & respondent Simplot. Steven W. Beren- ter, (argued).

1990 OPINION NO. FILED DE- 28, 1990, CEMBER IS HEREBY WITH- DRAWN AND THIS OPINION IS SUB- STITUTED THEREFOR.

McDEYITT, Justice. The J.R. Company (“Simplot”) hired May, Glenn O’Dell in 1980. Soon hired, after he was O’Dellwent to work the Land and Livestock Division of the company. He eventually became Divi- sion’s Director of Administration for Hu- Resources, man Prevention, Loss Control Planning. and O’Dell’s duties included monitoring practices formulating and and enforcing policies to eliminate unlawful dis- employment. crimination in O’Dell worked directly President, under the Division John reported president Basabe. He and corporate officers and served on several corporate committees. April assistant, O’Dell’s Wilda

Seibel, told being O’Dell that she was sexu- ally President, harassed the Division John Basabe. O’Dell advised Seibel of her legal options and applicable company policies prohibited that sexual harassment provided and investigation internal charges. brought harassment He also Sei- complaint bel’s to the attention of the cor- President, porate corporate Human Re- Director, corporate sources and the Gener- al managers Counsel. These senior in- structed O’Dell to inform them of fur- developments. ther improve. The situation did not In June against Seibel filed suit John Bas- actions; (c) Simplot. disciplinary prohibited a O’Dellwas served with abe and testify on her behalf. subpoena both sexual harassment and retaliation against participated bringing those who year A little more than one later John charges. O’Dell filed a sexual harassment his office fired called O’Dell to Basabe grievance. formal co-workers, in front of three whom him present. had invited to be Basabe Basabe month, seeking response a For the next if at trial that there had been later testified letters grievance, to his O’Dell wrote enough probably room he would have invit- corporate Receiving lit- memos to officers. staff to watch him fire ed the entire office unemploy- response, tle or no he filed for O’Dell. on a ment October Just benefits that later, Simplot’s Basabe told O’Dell the official days While few Counsel General being job fired was his reason he was that telling compa- wrote to him that O’Dell abolished, being he also said: was ny him an indefinite “ad- placing was on leave,” Glenn, going you, looking you I’m to tell that he would receive ministrative eye, got right personal pay, in the that I’ve his would be re- and that benefits in the National general friend that’s a final “pending sumed review and resolution Guard, up keeps and if this bullshit all grievance.” The letter indicated go- has company this been completed by the review would be blonde, going then I’m ing with that 31, 1984. October got all facts I’ve to this to take full the next pay O’Dell received sev- general.1 months, no though en even he had duties. claimed this statement shows O’Dell time, he During officers He why real reason he was fired. negotiated attempt in an to resolve their alleges that blonde referred was nego- dispute. protracted After a series Seibel, Na- and that reference to the and offers that O’Dellfound unsat- tiations general tional Guard constituted threat Simplot finally offered O’Dell isfactory, position as a lieutenant colonel O’Dell’s reinstatement” to for- “unconditional Defen- Army States Reserve. the United or, alternatively, position mer reinstate- claimed that Basabe’s comment was dants “newly position as ment created” reason incidental to the real that O’Dell at the Management of Risk Food Director job was fired —that O’Dell’s abolished job had The Food sim- Division. Division budget constraints. due except it position ilar to his former benefits fired, After he was O’Dell consulted eligibility for did the same discre- not offer Resources, Human corporate Director of tionary bonuses. hearing tape re- Upon Gary Wallis. accepted On March O’Dell O’Dell, firing Wallis cording of Basabe to his former unconditional reinstatement commented, problem you biggest “The necessary arrangements were job. The you’re decide of Maui have is to what side to return work made and O’Dell was However, had buy.” Wallis going March, March near end of 1985. On going fire was known Basabe claim a preserve his of in order actually Bas- and advised O’Dell Wallis had violation, a filed com- rights civil O’Dell how to the termination. abe on conduct Rights plaint the Idaho Human Com- sup- position believed that his O’Dell discharge Sep- upon his mission based Company’s numerous ported by 1984. tember of policies, employee handbooks and personnel complaint after O’Dellfiled Somеtime which, among other of conduct rules Commission, Rights Human with the Idaho (a) employee no things: declared agreed originally cause;” Simplot “just canceled discharged without would another, ex- date and set grievances reinstatement (b) procedures established Thus, quote. worst, O’Dell, entire incident. suspecting corded the took a hidden 1. tape tape office re- recorder into Basabe's and attorney ac- distress. O’Dell’s that it needed additional time to tional plaining second date was arrangements. quiesced This in the court’s dismissal make by Simplot, a third date canceled and infliction emotional distress also intentional of 19, 1985, April a Finally, claim, on few understanding was set. that the evi- with the report was to back to days before O’Dell presented on this issue was dence that was work, Simplot rescinded its offer to rein- admissible on the sur- equally relevant and job unilaterally his old and state O’Dell to discharge, viving wrongful of breach issues report him to to the Food Division directed damages. public policy, punitive job. Following presentation of their case Taking position that he was construc- chief, again defendants moved for tively discharged, rejected Simplot’s O’Dell granted directed verdict. The trial court applied unemployment directive and only the motion as to O’Dell’s breach to the benefits. He took his case Industrial time, public policy claim. At this the court Commission, ultimately denied his prior it also reversed its decision which claim. in- claim for intentional dismissed O’Dell’s so, doing fliction of emotional distress. wife, 30, 1985, O’Dell and his

On October preju- ruled that was not the court O’Dell Sandra, complaint filed a ten count ruling, diced the earlier because all of request jury for a trial in the district court. to intentional inflic- (1) the evidence went retaliatory included: dis- The ten counts (2) contract; tion of emotional distress had been intro- employment charge; breach of (3) (4) conspiracy duced on other claims. public policy; breach of rights civil in violation of violate O’Dell’s remaining causes of action five Act; (5) Rights Human the Idaho breach presented jury for determination good dealing; a covenant of faith and fair (1) emotional were: intentional infliction of (6) (7) privacy; invasion of intentional inflic- distress; (2) consortium; (3) loss viola- distress; (8) defamation; tion emotional Act; (4) Rights tion of the Idaho Human (9) repudiation of contraсt for reinstate- contract; (5) employment breach of ment; (10) loss of consortium. breach of contract for reinstatement. On 4, 1986, On March the Idaho Human 3, 1987, June returned its verdict. Rights Commission filed a motion to inter- It found in favor of on all five O’Dell plaintiff illegal as a vene the issue of counts. It awarded summarized retaliation in the Human violation as follows: granted. Act. The motion was wages and benefits from the Lost day, That same the trial court issued a discharge time of to the time of trial Opinion Memorandum and Order which (back pay) $35,000.00 — granted the defendants’ motion for sum- wages and benefits to be in- 2. Lost mary judgment on the claims of con- civil (front pay) $375,- curred in the future — spiracy good breach of covenant 000.00 dealing. scope faith and fair The of the damages 3. for emotional dis- General 1987, April, case was further reduced in $5,000.00 tress — granted when the trial court O’Dell’s mo- damages 4. General for loss of consor- voluntarily tion to dismiss three individ- $2,500.00 tium— ually named defendants. damages under the Human 5. Punitive jury finally May trial commenced on $2,000.00 Rights Act— 12, 1987. The defendants were John Bas- damages 6. Punitive for breaches of abe, agency capacity, in the J.R. and $1,000,000.00 contract— Simplot Company. After finished O’Dell Judgment upon jury’s spe- entered was chief, presenting his case in moved 8, cial on June 1987. verdict for a directed The trial court de- verdict. 1988, 5, court is- except February for nied the motion on all counts On defamation, in Opinion and Order O’Dell’s claims of invasion of sued a Memorandum motion for a privacy, granted infliction of emo- defendants’ and intentional which 804 and, alternative, in n.o.v. a After

judgment entry of the trial court’s Memoran- Order, Opinion aspects plaintiff dum original on various and filed a new trial “motion for reconsideration and clarifica- monetary judgment. The net effect of this disposition” and request complete tion for opinion damage to vacate all of was plaintiff in urged which the trial court to $1,000.00 except punitive for in awards fully ruling. more state the basis for its In single damages for a violation of the Idaho motion, response to this the trial court $5,000.00 Act and puni- in Human again by addressed the issues determined damages tive for breach contract. In jury special in verdict form and order, opinion and response to this O’Dell Opinion issued a Memorandum and second for filed a motion reconsideration and clari- Order. request complete as as a a fication well for 4, 1988, disposition May of the case. On Opinion each of its Memorandum Orders, analyzed respon- the trial court issued Second Memoran- its the trial court considering in sibilities in a motion for Opinion upheld dum and Order which it new 5, trial under Rules of Civil February decision of Idaho Procedure and clarified its 59(a)(1), (a)(7), (a)(5), (a)(6), and as set out appealed from the Feb- 1988. O’Dell both Richards, v. 4, this Court Robertson 5, May opinions ruary 1988 and 1988 (1987); Quick 628, 115 Idaho 769 P.2d 505 orders. Crane, 759, v. 111 Idaho (1986); Finch, 100 Idaho Dinneen v. I. (1979); Byers, P.2d Blaine v. (1967); 429 P.2d Mann NEW TRIAL Stores, Inc., Safeway (1974), P.2d 1194 and undertook reas- filed a Defendant Basabe motion for new light sessment of the evidence those alternative, trial, or in the for remittitur of Opinion cases to enter its Memorandum invoking provisions judgment, of Idaho and Orders. “specifical- Procedure Rule of Civil 59(a)(5); 59(a)(6); 59(a)(7).” ly subsections 59(a)(1), Under the trial court I.R.C.P. Simplot Company filed a Defendant J.R. any must there has been consider whether judgment notwithstanding the motion for irregularity proceedings, in the or or- alternative, verdict, or in the motion der of the court or abuse discretion trial, alternative, or in the motion for party of deprived which has either a fair to Idaho pursuant remittitur Rules of Civil justi- trial such a new trial would be Simplot specifically Procedure 50 and fied. 50(b) Rule its motion for cited support 59(a)(5) applicable when Rule n.o.v., 59(a)(1), (a)(5), and Rules judgment inadequate excessive or as are so (a)(7) (a)(6), as the basis a new trial. appear partiality by result of to be the Quick case The trial court in this had the unen- jury. As stated this Court wrestling chore of with numerous viable v. Crane: there conflict- legal issues that his deter- judge discovers [I]f ing guidance appellate from Idaho substantially mination is so decisions, determining the Rule as well that he different from that per- might might or Procedure difference as re- only explain can parties in tain to each issue raised behavior, sulting or from some unfair post motions. their “passion preju- what the law calls dice,” jury one part on the of the receiving and oral After extensive briefs then he parties, or some the should of motions, the trial court argument on these grant a trial. new Opinion and Or- entered its Memorandum 769, Quick Crane, 727 111 Idaho at P.2d v. in issues in order disposing der the original). (emphasis 1197 in at they by determined the had been 609, Idaho Galey, 112 733 (appended In Sanchez v. special verdict form jury on the (1986), applied the rule 1234 this Court 1). P.2d Appendix hereto as

805 important Quick is tо analyzing juncture in an of At this it order of v. Crane the of Rules carefully application in the a trial delineate or alternative new remittitur 59(a)(6). 59(a)(5) An examination of by pursuant trial to I.R. and court entered or Procedure 59(a)(5). Although spoke of the Federal Rules Civil the Court C.P. interpretation of 59(a)(5) jurisdictions’ those other imposed under both Rule standards 59(a) (a)(6), helpful, originat not as Rule trial for rules is it reversed the court and form 4439 of ed in Idaho in the of section failing specifically finding enter a 1887, and continued jury to the Revised Statutes “appeared the amount of the verdict adopted it a passion 10-602 until was as given the influence of or as I.C. be under § language changes. minor only rule with prejudice.” deal logical analysis prior of our cases court, In its to the trial directions 59(a) ing with leads us to conclu Rule Court stated: Sanchez 59(a)(5) applies motions sion Rule remand to the trial court so that We additur, remittitur, or a new trial on findings may of fact as to whether enter upon damages based excessive the issue of fact, was, by he in shocked inadequate damages. Galey, v. or Sanchez award, such or found award unconsciona- (1987); Quick 609, P.2d 112 Idaho 733 1234 appearance so to have that it ble 770, Crane, 111 Idaho at 727 P.2d at v. given passion under the influence of (1986); Finch, v. 100 1198 Dinneen Idaho prejudice. or 620, 59(a)(6) 603 P.2d 575 Rule Sanchez, 616, Idaho 733 at 112 at P.2d questioned applies when the verdict is upon insufficiency or based evidence 59(a)(6) motions, analyzed are Rule contrary law. Hake v. De verdict under the test stated this Court 1058, (1990); Lane, 117 P.2d 1230 Idaho 793 665, Blaine v. 91 Idaho 429 P.2d 397 Byers, Richards, 628, Idaho 769 v. 115 Robertson (1967), as noted the trial court: Quick Crane, (1987); P.2d 505 v. Idaho compe- is any The rule that where there (1986).2 at 727 P.2d at 1194 evidence, though conflicting, tent to sus- Finally, Rule of Civil Procedure Idaho verdict, tain the verdict will not be 59(a)(7) grant permits the of a new trial application set has no a trial aside of law trial. where error has occurred at in passing court a motion for a new urge Plaintiff amicus curiae both trial. Rather discretion with which require court this Court trial to state judge entrusted a sound greater specificity the reasons discretion, legal or judicial the trial granting a new trial under these various grant a it is may new when than were listed standards supported by, not satisfied the verdict is issue, plaintiff On court’s two orders. this to, evidence, contrary isor or is con- amicus curiae advocate a stricter stan- vinced the verdict is not accord with by our prior dard than that mandated weight the clear cases. justice the ends of would subserved it, vacating or not when the verdict is judg trial and Motions for justice. accord with either law been issues that ments n.o.v. have 670-71, significant has with over a Byers, Blaine v. 91 Idaho at Court dealt omitted). (citations years,3 doing, and in so has P.2d at number 59(a)(6). component verdict Rule under 2. Hake v. DeLane and Robertson v. Richards apply used the term "verdict” to of a the ver- This Court has discuss the new trial where “damage" "liability” issues issues. both to dict is in accord with the clear Inherently, every evidence. verdict consists of Services, component components. estab- v. Transamerica Insurance two The first 3. Garnett (1990); (or liability non-liability) Idaho 800 P.2d 656 Smallwood on the claim. lishes Dick, (1988); component The second establishes the relief Airlines, Inc., reading parties. v. Sierra Pac. be afforded the A careful Soria (1986); Uniroyal Vannoy v. Tire ana- P.2d 706 these establishes this Court was 726 cases (1985); Co., Cheney liability . lyzing 111 f 2d 648 for a trial as to the motion new P 806 evolutionary level, change

effected the doc- if and we are avoid result orient- requirements imposed upon umentation tri- appellate discretion, ed review of such al faced post-trial courts with these mo- logical we must step, now take next cases, In the earlier trial judges tions. previous towards much of our case only needed to state a bare conclusion. led, require law on the issue has requirement That was broadened over the trial its particular court state reasons Quick years Crane, until in v. this Court granting denying for or motions for new requirement established the that the trial trial and/or alternative or ad- remittiturs court its granting state reasons for or de- diturs. nying new trials: necessity, Of grants when trial court appellate pri “An court should not focus motions, one of these it should state its marily upon the outcome of the discre particularity reasons unless it is ob- tionary below, pro decision from vious the record itself. judge cess which the trial reached his Quick Crane, 772-73, v. 111 Idaho at 727 appellate decision. In order for 1200-01, quoting P.2d at v. Agro- Sheets to perform proper court this function West, Inc., 880, 888, 104 Idaho 664 P.2d ly, must be the reasons informed of 787, (Ct.App.1983) (emphasis origi 795 the court’s decision. Unless those for nal) (addressing pursuant motions made reasons are obvious the record from 59(a)(5) Idaho Rules Civil Procedure they be itself, must stated the trial 59(a)(6)). judge. ...” As Soria v. Sierra Pa

the trial ing obvious from P.2d new trial cific ^[******] Airlines, 706 granting judge (1986); ... unless those reasons are Inc., must or we record denying 111 Idaho disclose therefore hold that itself. motions for a 594, reason 726 with sufficient the motions Civil Procedure Thus, rulings 50(b),are case the issues on the as to pursuant whether the trial court stated particularity 59(a)(1),(a)(5), the trial court’s various motions presented Idaho the reasons for to this Court (a)(6), rulings Rules (a)(7), new on n.o.v., judgment preserve we are to the exercise of trial and whether [I]f judicial sound discretion at trial those rulings court bases for were obvious from 897, Corp., although granting v. Verdes Palos Inv. 104 Idaho 665 order trial was new Inc., (1983); Agro-West, P.2d v. discretion); Riggs 661 Sheets 104 as an reversed abuse v. 880, (Ct.App.1983); 664 Smith, 43, Idaho P.2d 787 Luther v. (1932); Egbert Idaho P.2d 52 11 358 Howland, 373, (1980); 101 Idaho 613 P.2d 666 Co., 39, v. Falls Canal 52 Idaho 11 P.2d Twin 360 667, Sandpoint, 100 Tibbs v. Idaho 603 P.2d McCue, 462, (1932); Marker v. 50 Idaho 297 P. (1979); Finch, 620, 1001 Dinneen v. 100 Idaho Matthies, 277, (1931); 401 Stone v. 49 Idaho 287 (1979); Ryals 603 P.2d 575 Co., v. Dev. Broadbent Co., (1930); P. Tidd v. Northern 951 P.R. 46 392, (1977), 98 Idaho P.2d 982 overruled 565 652, (1928); 270 v. Idaho ‍‌​‌‌​‌​​​‌​​‌​​​‌‌​​​‌‌​‌​​​‌​​‌​​​​​​​​‌‌‌​​‌‌​‍P. 138 Turner First 186, grounds, Seppi Betty, on other v. Idaho 99 Bank, 597, (1926); Nat. 42 Idaho 14 248 P. (1978); Tompkins, 579 P.2d 683 v. 93 Deshazer 547, (1926); Isley, Boomer v. 42 Idaho 246 P. 966 267, (1969), overruled, Idaho 460 P.2d 402 Mann Wallace, 702, Idaho P. Baillie v. 22 127 908 Inc., 732, Stores, Safeway v. 95 Idaho 518 P.2d Clark, (1912); Penninger Lateral Co. v. 20 Idaho 135, (1974); Rosenberg Toetly, 1194 v. 93 Idaho 166, (1911); Say Hodgin, 764 v. 20 117 P. Idaho (1969); 456 P.2d 779 Archer v. Shields Lumber 64, (1911); Ridley, 17 116 P. 410 v. Idaho Wolfe Co., 861, (1967); P.2d 91 Idaho 434 79 Blaine v. 173, (1909); McConaghy, 104 P. 1014 Buckle v. 665, (1967); Byers, Idaho 429 P.2d 91 397 Men 733, 738, 100, (1906) ("It 12 88 P. 101 Idaho Co., MacGregor Triangle v. 83 Idaho denhall say sufficient that there is a substantial con- 145, (1961); Lyon, v. P.2d 860 Woodland 358 78 that, evidence flict and rule is where the 79, Distler, (1956); v. Idaho 298 P.2d 380 Walker presents conflict substantial 38, (1956); 78 Idaho v. Sanchotena court, saw and the witnesses and who heard Co., 541, (1953); 1021 Tower 74 Idaho 264 P.2d said saw all that was done and in the and heard Bowman, 463, v. 70 Idaho 220 P.2d Checketts trial, case, granted a his order will not has Smith, (1950), overruled, 682 Meissner v. 94 Ida (Citations omitted.); appeal.”) disturbed 563, Hollar, (1972); ho 494 P.2d 64 567 Poston 752, Campbell, 84 P. Jones v. 11 Idaho 510 (1942); 132 142 re Randall's Idaho P.2d (1906); Morgan, Estate, (1939) 56 P. (recogniz Brossard v. Idaho P.2d 93 1 Gilbert, (1899); ing Jacksha v. the rule that a new on conflict ing discretionary P. with the itself; foregoing findings adequate The were record whether the given particularity sufficient acting discretion reasons abused its court by both its denial of the for new trial. the court for the motions judgment n.o.v. as the issue motion for to making of ade- the determination the grant the liability of and its of motions for reasons, quacy of the trial court’s stated question damage new to the trial as Opinion the Memorandum we review award. day of the court entered the 29th of Order ruled, a matter 3. The trial court as order) (second April opinion and the law, pay” remedy not a of that “front was the court dealt with the order which under its retali plaintiff available pursuant raised the motions to issues discharge atory statutory claim or breach 50(b) (a)(5), (a)(6), (a)(7), 59(a)(1), Rules payment claim and therefore of contract of of the Idaho Rules Civil Procedure. damage based on I.R. set aside the award portion opinion of This our will address 59(a)(6) contrary being to the law. C.P. as only sufficiency of trial procedural the the adequate. The explanation That trial rulings. The court’s substan- court’s trial hold if determi court went on to that that legal sep- tive conclusions will be addressed appeal nation overturned the court was on arately. alternatively granted a new trial based on 1. The trial court denied defendants’ weight the that clear the evi fact the of question liability to for motions as the of rejection the plaintiffs dence showed that contract, specifically employment breach of “opportunity of for reinstatement” caused holding finding that the of a breach of to damage and that the evidence as the contrary the contract was “not evidence spec “too likelihood of those against weight nor the the of evidence.” These support ulative” to the verdict. adequate explanation statements are also The court had earlier set forth in detail for the of the court’s reasons of for review analysis the criteria damages. motion for new trial as to Dinneen, Quick, and Rob- established ertson, previously as discussed. It stated 4. The trial court denied defendants’ support that there was evidence the judgment motions for n.o.v. and trial jury’s finding liability, liability of and that the as to for unlawful con Basabe’s jury’s clear Rights verdict was the duct under the Idaho Human Act. weight of the evidence. The stated reasons specified The court the denying the for motion on that issue are denying the motion. That considered adequate. explanation clearly sufficient under the standards this Court. The denied defendants’ judg motions for 5. Defendants’ judgment motions for issue of n.o.v. the question ment n.o.v. were denied on liability plain the defendants liability plaintiff Company’s for benefits, wages, compen tiff and other conduct under the Idaho Human unlawful sation on the basis that there was evidence Rights explained Act. The court that support jury. verdict of clear Basabe was the evidence wаs on, however, to de trial court went Simplot at time agent of acts fendants’ motion new trial as complained of in this count. That state damages awarded, for the reason that reasoning adequately ment elucidates weight “clear of the evidence indicates that denying the motions. of the court in agents Simplot’s, including corporate trial court denied defen president, attempted to relocate 6. The O’Dell judgment as to the compara in a dants’ motions for n.o.v. position within the business benefits, com wages, and other to that which he held. The clear amount ble plaintiff pensation lost result of the evidence indicates that acts the defendants under by O’Dell were the result of his unlawful suffered Act, holding Idaho Human rejection opportunity.” of this there support was sufficient evidence to 10. The granted trial court motions did, however, The grant verdict. court for new trial on the issue of intentional defendants’ motion for new trial on the infliction of severe emotional distress un issue, damage pursuant 59(a)(6), to I.R.C.P. 59(a)(1), der irregularities I.R.C.P. due to being contrary as to the of evi- occurring during the trial. The court’s ex dence. The court reasoned that the evi- planation was that it should not have sub dence showed that O’Dell’sactions made it mitted this issue to the after it had “unworkable for him to return to the Land been withdrawn from the case at the close Division,” and Livestock and that O’Dell plaintiff’s evidence and the defendants rejected “comparable position.” a The ex- had opportunity respond. had no This planation of the reasons for the court’s explanation is sufficient. adequate.

action is 11. The granted trial court motion damages new trial for the awarded 7. Defendants’ motion for new trial plaintiff as a result of the intentional inflic damages on the issue of for future loss of claim, tion of emotional distress with the wages for violations of the Idaho Human explanation required that to do so was Rights granted. Act Anticipating pos order to be consistent with the action taken issue, appellate sible reversal on this paragraph above, explanation again plaintiff trial court stated that the adequate reason for the action by taken damage by rejecting caused his own the trial court. further, job, alternate that the award speculative was based on evidence. These 12. The trial court denied the mo explain reasons as stated suffice to judgment tion for question n.o.v. on the rationale for the motion for new liability for breach of contract to reinstate trial. plaintiff. However, granted the court explanation new trial on that issue. The 8. The trial court denied defen of the trial court was that O’Dell’sresent dants’ judgment motions for n.o.v. and new ment toward past Basabe Basabe’s trial on the issue of whether Basabe “will conduct was the reason O’Dell could not be fully” Rights violated the Idaho Human position reinstated in his former Act. The court found sufficient evidence company. Therefore, it was O’Dell’s con verdict, support and that the clear duct that being resulted his not reinstat weight of the evidence inwas accord with ed, company’s. not the These statements explanation the verdict. That is satisfac sufficiently explain the actions taken tory. court. 9. The trial court denied the motion (A) granted The trial court judgment n.o.v. and trial as question new trial on the of the amount of “willful” Simplot nature of the acts of the benefits, wages, compensation and other Company, explaining that the willful acts lost as a result of the breach of the con princi Basabe were attributable to the reinstate, again tract for the reasons pal. That is explanation sufficient for the damages by plaintiff sustained denial of the motion as to one of those were the result of his own “conduct” which grant “willful violations.” The trial court already previous had been defined in hold ed a new trial on the issue of the second ings by this trial court. Those reasons are by Simplot. “willful violation” The trial adequate explanation for the action taken obliged court determined that it was to do by the court. so, granted as it had a new trial on the question (B) granted of whether breached the The trial court defen agreement plaintiff, regarding reinstatement with the dants’ motions future which was the second violation” of on the basis that it was an error of “willful law alleged the Idaho Human of future dam Act have submitted issue against Simplot. adequate ages jury, previously This is ex noted. The also planation for the action taken the court. on to trial in the went a new 59(a)(6) of Civil Proce ruling was overturned Rules primary event the stated reasons that dure. appeal, for were attributable to plaintiff’s Quick requirement of fu- conduct and that the evidence own Crane, that trial court must “state its damage speculative. These ture was too granting for a motion particular reasons” reasons, conjunction in with the earlier is an ade new trial is met when there for analysis dealing question future the of reviewing explanation to the quate allow damages, the explain were sufficient to upon the court understand basis which reasons for the trial court’s action. court must the action was taken. The trial (A) The is 14. loss of consortium the factual basis for its decision state both inten dependent upon sue was the issue of particular the rule of the Idaho Rules distress, tional infliction of emotional which acting. under it is of Civil Procedure which erroneously the had earlier held was court require court the trial should jury. The reasons stated submitted particularity seeking re party same adequate explana by the trial court are trial, pursuant a for new lief to motion for tions its actions. n.o.v., judgment or alternative additur or (B) reasoning paragraph The same judges remittitur. Trial should not be re 14(A) the of damage on issue of loss above guess applicable quired attempt at the applied by court. consortium was the governing charge each of rule error Again, by the the reasons stated trial court moving It is party. claimed the incum conjunction with the issues contained upon legal to set the bent counsel out basis 14(A) adequate are paragraph explanation motion, each set forth the basis in the for for the court’s action. rests, the motion record (A) The court de 15. denied specify applicable the Rule of Civil Proce for judgment motion n.o.v. and fendant’s dure. liability Simplot’s new trial on the issue of that, This has stated the Court “[i]n damages ini punitive flowing for from the that a motion for trial fails to event contract, noting tial breach of the evidence grounds particu- allege the with sufficient ter of Basabe’s conduct in O’Dell’s initial ordinarily deny larity, the trial court should career, mination threats military to his affirm the motion and this Court will the explanation adequate

which reasons are Howland, denial.” v. Luther ruling. the trial court’s 373, 375, P.2d (B) The trial court denied defen Dick, 16. In v. 114 Ida Smallwood judgment dants’ on the motions n.o.v. (1988), ho Court damages pu amount the awarded under that trial court had discretion to held jury, damage nitive verdict of the but did grant a new trial on less than all issues {i.e. findings the analysis not enter into and the be reversеd only) which would required under v. Dinneen Finch examining only appellate if the court Quick Crane, aside the amount set following three record concluded con damage simply award. The court factors were established: evi cluded that “the clear (1) by the jury awarded $5,000 only was dence indicates (2) liability inadequate, the issue were adequate This ex justified.” was not close, (3) circumstances other was setting planation aside the award when probably the verdict was indicated that finding deter the trial court the same prejudice, sympathy, the result of mined that “there was evidence on which other rea- compromise, or that for some larger a circum base award.” Under these son, liability actually issue not was stances, explanation of the trial court jury. determined the rationale for adequate illuminate Smallwood, 761 P.2d at setting damage at punitive award aside 59(a)(5) or jury pursuant to Rule parties urge appeal motions, Upon hearing post-trial None of the any granted evidence that the verdict of the there court defendants’ as fol- motions prejudice, sympathy, was the result of lows: verdict, compromise or was nor do we employment On both the breach of con- discern such evidence. This essential retaliatory discharge tract and claims the contested, being element Smallwood not jury’s finding court concluded that the need not consider the other factors. we evidence, liability supported by v. Transamerica Insurance Garnett $375,000 award for lost future Services, 118 Idaho 800 P.2d 656 wages was not. those On issues the (1990), we reiterated the rule for grounds cited two for the of a new judgment motion for n.o.v. or directed ver- First, trial. it found that the was award dict, stating: against evidence, the clear of the as granted Neither motion should be if mitigate damages O’Dell had failed to justify there is substantial evidence to position because he declined the alternative submitting jury Second, the case to the or to by Simplot. which he was offered support the verdict once it has been re- the court determined that as a matter law, turned. wages future lost are unavailable un- der both causes of action. Garnett, 118 Idaho at 800 P.2d at 667 (citations omitted). employment As to the breach of contract claim, of the here us

Our review leads opinion the court was of the to the conclusion that reasonable minds damages inherently specula- such are too could have reached more than one conclu- employment tive where contract is for adduced, sion from the evidence after ev- an indefinite term. The also court found ery legitimate given law, inference was to the wages that as a matter of future lost nonmoving party proper- and the trial court not authorized statute for violations ly judgment denied the motions for n.o.v. Rights the Idaho Human Act. conclusion, except specifically In as not- granted court also The trial punitive damages ed above on the issues of defendants on the claim for breach of con- damages and for violations of the Idaho reinstate, holding jury’s tract that the Act, Rights Human we determine that the liability and determination of assessment adequately trial court set forth the basis damages were both the clear rulings on the motions for defendants’ evidence, ground weight of the on the trial. for new by failing caused the breach to ac- O’Dell cept employment alternative offered BAKES, C.J., and BISTLINE addition, Simplot. the court held that BOYLE, JJ., concur. pay speculative too as a matter of front law to be allowed as an element of dam- II. ages, and that in the evidence event supporting of future award FUTURE LOST WAGES. speculative support the verdict. was too wages The issue of lost was considered jury in the context of three theories: PAY IDAHO HU- A. FRONT UNDER contract, employment breach of the breach MAN ACT. RIGHTS of the contract to reinstate to his O’Dell impression, first we retaliatory discharge In a case of position, former Act, permissible pay that front is a element Rights Human I.C. hold under the Idaho Rights damages under the Idaho Human found liabili- of 67-5901-67-5912. § determination, we re theories, making Act. In ty O’Dell on all three awarded $375,000 language of the statute wages damages, including fer first lost 67-5908(3), listing in Idaho Code compensate wages, for future lost other- itself. § $35,000 remedies available for violations pay,” wise known as “front to the Act, Rights provides that: Idaho Human compensate past wages. lost

811 state allows our finds discrim- flected I.C. 67-5901 that unlawful § [I]f occurred, guidance judgment shall has courts to look to federal law ination remedy or appropriate provisions. reme- specify of the state interpretation may in- therefor. Such remedies McDonald, dies 644 Hoppe v. clude, limited to: are not (1982); Keating, v. P.2d 355 Bowles

[*] ^{[*] [*] [*] [*] [*]} P.2d 458 (c) An for actual includ- order case law Front allowed federal pay is benefits, wages provided ing lost employment equal provisions under the pay liability shall not ac- that such back VII), (Title of 1964 the Civil Act (2) years a date than two crue from more through This 2000e-17. U.S.C. 2000e §§ filing complaint____ to the prior federal result has reached most been phrase Respondents claim that the “such fact the federal despite circuits pay,” which refers back lost back statute, statute, the Idaho does like statute, wages recoverable under the limits expressly pay.” to “front U.S.C. refer wages” pay exclu- the term “lost to back Board 2000e-5(g); v. § Walsdorf legislature if in- sively, and that had (5th Cir.1988); Comrs., F.2d 1047 pay include it would have tended to front Express 777 F.2d Corp., Shore Federal expressly mentioned as an available been (6th Cir.1985); 1155 Briseno v. Central remedy. Area, 739 Community College Technical pay pay are Both back and front subsets Cir.1984); (8th F.2d 344 v. San Fadhl term, global wages.” The the “lost Cir.1984); Francisco, (9th F.2d 1163 741 wages” not differentiate words “lost do Stockade, Inc., 624 Fitzgerald v. Sirloin wages after between lost before or trial. Cir.1980); (10th F.2d 945 Hill Western by This is illustrated the fact lost Co., (4th Cir.), de Elec. 596 F.2d 99 cert. wages are to be awarded as an element of 271, nied, 929, 444 100 62 U.S. S.Ct. damages,” commonly are un- “actual (1979). L.Ed.2d 186 by as those losses derstood actual caused Em Likewise, Age Discrimination in the words, at In other the conduct issue. (ADEA), expressly ployment does not Act purpose wages the lost element of dam- pay, wages, pay, refer to back or lost front ages plaintiff restore to all of is to 29 front is allowed. pay but nevertheless as a benefits lost result of violation of ¶. 626(b); U.S.C. E.E.O.C. Prudential § Rights There the Idaho Human Act. is no Asso., F.2d 1166 Federal Sav. Loan 763 & distinction drawn in the statute between 946, (10th Cir.), denied, 474 106 cert. U.S. damages actual suffered before case 312, (1985); 289 S.Ct. 88 L.Ed.2d arising reaches a courtroom from those Maxfield (3d Cir.1985), Int’l, 766 F.2d 788 v. Sinclair after trial. S.Ct, 1057, 796, denied, cert. 474 U.S. 106 pay” “such are included The words back (1986); 88 L.Ed.2d 773 Davis v. Combus only as a limitation of the amount back Inc., (6th 742 F.2d 916 Engineering, tion may compensat- pay that be awarded when Cir.1984); Dep’t v. Federated Cancellier ing plaintiff wages. for lost It does not (9th Stores, Cir.), 1312 cert. de 672 F.2d wages entire limit the award of lost back 131, nied, 103 S.Ct. U.S. pay alone. (1982). L.Ed.2d 113 guided interpretation We are in our Respondents have cited certain United by The statute federal law. first the Idaho Court cases which hold States District Rights Human Act section of Idaho pay Title VII front is not available under purpose “provide declares that However, as discussed ADEA. poli- the execution within the state above, primarily our based determination in the federal Civil cies embodied language Idaho statute Age Discrimina- Act of ... and the 1967____” guided by case law. We acknowl- federal Employment I.C. tion in Act edge circuits arrived at that several have previously This has de- 67-5901. Court § holding, jurisdic- even different these legislative intent re- termined that preclude tions do independent pay deter- the award of front should be discontin- mination this Court. ued. Our conclusion on the pay issue of front BISTLINE, BOYLE, JOHNSON and by policy is bolstered considerations. If JJ., concur. damages were measured the interval B. PAY FRONT AS AN ELEMENT OF wrongful between the conduct and the date CONTRACT DAMAGES. trial, plaintiff’s attorneys would have We review the trial court’s de great procure incentive to delays termination wages that future lost are too order to increase the compensa amount of speculative permit as a matter of law to be addition, damages. ble to cut off the ted as an element of damages. contract damages measure of as of the date of trial The fact that damages contract are not preclude would compensation people full capable proof preclude of exact does not injured by discriminatory practices. availability their aas matter of law. The alternative, compensation allow full rule is damages that the measure of is such losses, injured plaintiffs for actual is con will compensate for the loss suffered as sistent with the terms of the statute and the result of a breach contract. Beal v. policy persons inju “to make whole for Corp., Mars Larsen Ranch ries suffered on account of unlawful em (1978); Hazel, 586 P.2d 1378 Nelson v. ployment discrimination.” Albemarle Pa (1967). When con per 405, 418, Moody, Co. v. 422 U.S. sidering damages an award of for lost fu 2362, 2372, S.Ct. 45 L.Ed.2d 280 benefits, question ture is whether the Although future are their na plaintiff proven has relating uncertain, “any ture somewhat ambiguity certainty. to future losses with reasonable what claimant would have received Co., Clark v. International Harvester 99 but for discrimination should be resolved 326, (1978). Idaho discriminating employer.” Ra Where a claim is asserted for the Michigan Dep’t

simas v. Mental benefits, recovery of future ‍‌​‌‌​‌​​​‌​​‌​​​‌‌​​​‌‌​‌​​​‌​​‌​​​​​​​​‌‌‌​​‌‌​‍the burden of Health, (6th Cir.1983), 714 F.2d 614 cert. proof upon plaintiff prove to with denied, 950, 2151, 466 U.S. 104 S.Ct. 80 certainty reаsonable the amount of the loss (1984). L.Ed.2d 537 caused the conduct of the defendant. employment In the context of an contract clarify scope pay To of front as term, plaintiff might for an indefinite a damages, an element of we first note that employment resort to evidence such as his wages pay future lost or front is an alter tory employ to show likelihood of future reinstatement, native to v. Sinclair Maxfield ment. 'l, 796, may Int 766 F.2d at and be granted only where reinstatement is made Any damages prospective claim of by hostility par unreasonable between the uncertainty, loss contains some element of ties, Corp., v. Nissan Motor 511 recovery. fact not fatal to Hoffman (D.N.H.1981), F.Supp. 352 lack of vacan jury may just make a and reason “[T]he cy position Wangsness in the v. Watertown damage able estimate of the based on rele Dist., (D.S.D.1982). F.Supp. data, 541 332 School according vant and render its verdict wages The amount of future lost or front ‘[Jjuries prob ly____ are allowed to act on pay to be awarded is matter to deter [upon] a be as as direct able and inferential well ” positive proof.’ mined the trier of fact Bigelow review v. RKO Ra 251, 265, Pictures, Inc., the evidence in the record. Relevant con 327 66 dio U.S. 574, 580, (1946), plaintiff’s salary quoting siderations include the his S.Ct. 90 L.Ed. 652 raises, tory, pay Story scheduled or mandated Parchment v. Paterson Parch Co. Co., 555, 564, finding Paper a 282 51 S.Ct. based on the evidence the ment U.S. 248, 250-51, (1931). L.Ed. “The record of the time which it will take the 75 544 elementary conceptions justice and plaintiff comparable employment to find most wrongdoer salary, public policy require that with a commensurate at which time that a (1967), proposition uncertainty the risk P.2d shall bear is within grant new trial wrong Bigelow, has created.” motion his own trial court. sound discretion 66 S.Ct. at 580. at U.S. Thus, the district we hold that step process is to The next in the that a in its determination erred court abused whether the trial determine employment for an an contract breach as to a new trial discretion its precludes recovery of term indefinite rein liability for the breach of contract wages as a matter of law. We future lost the trial To determine whether state. the district court’s determination reverse discretion, ascer we must court abused wages speculative too that future lost are judge given “due has tain whether permitted of law to as a matter be and circum fаcts consideration damages. contract element of case, correctly applied stances Quick Crane, thereto.” the law C.J., BISTLINE, BAKES, 727 P.2d JJ., BOYLE, concur. JOHNSON earlier, lost have stated future As we speculative are not too wages as III. recovery. deny Using proper so as to OF TO BREACH CONTRACT wages lost an inte- guidelines, future are REINSTATE. ex-employee’s damages for gral part of an discharge. for the retaliatory It was error granted The district court new trial as to liabili- trial court on the future lost a new trial issue of future upon its determination that ty based damages on wages as the claim for breach as an ele- wages lost were available The trial court of contract reinstate. damages. ment of contract future too reasoned that were predicted cer speculative be court’s Next we review the trial tainty and also that caused O’Dell pre that O’Dell’s conduct determination rejecting the contract the al breach of to his being him from reinstated vented position at the Division. ternate Food Land Divi position at the and Livestock analysis to made review proving the existence sion. The burden ing Valley decision is set this out Sun and the its breach is of a contract fact of Center, Co., Shopping Inc. Power v. Idaho Albert, 67 upon plaintiff. the v. Johnson 87, (1990). 803 P.2d In de 119 Idaho 993 44, (1946). P.2d 403 those Idaho 170 Once termining was an whether not there established, has facts are defendant by the trial abuse of discretion committed pleading proving affirmative of burden court, questions we must ask are: legally performance which excuse defenses (1) correctly per- the trial whether court Pace 111 Idaho Hymas, of the contract. v. discretion; (2) the issue as ceived one of 581, (1986); v. P.2d 693 Harman 726 the trial court acted within Co., whether 91 Idaho Mut. Ins. Northwestern Life of outer boundaries its discretion 719, (1967); Paurley P.2d 849 v. Har 429 consistently legal ap- 336, (1956). standards ris, 77 plicable specific choices available verdict, jury’s this de According to (3) it; and trial court to whether the proven. dif not The trial court fense was by evidence, its decision exercise of reached interpretation in its fered 598, v. 115 Idaho Hedger, found, reason. State by of the evi clear 1331, 600, P.2d dence, alleged feelings were that O’Dell’s con adequate justification for a breach of Idaho at 803 P.2d at 1000. determination, Simplot. tract Opinion Memorandum and Order In its abused its discretion. the trial court February the trial issued not disclose requirement correctly A record does the first review fulfilled made the which would have any issue as discretion evidence perceived the one of so unworkable performance contract quoting Byers, Blaine justify to Seibel, its breach. There was some disloyal and that he had been to testimony in the record that O’Dell did not Basabe and company. being After admire Basabe and others with whom he fired, he testified that he was “stone- However, had worked. that fact does not Wallis, by Gary walled” reviewing who was support the assertion that O’Dell’s own grievance, his get and felt that he could not Simplot’s alleged conduct was the cause of any information from company about inability to reinstate him to the Land and developments in his case. Livestock Division. types These naturally incidents cre- feelings concerning O’Dell’s some of the feelings ated some ill part. on O’Dell’s Yet Simplot employees in the Land and Live- O’Delltestified that he had weathered such stock Division were the result of various earlier, years situation several when during incidents his tenure there. After there prior was a conflict between Basabe’s Wilda Seibel utilized O’Dell’s assistance in company conduct and policy. He testified pursuing grievance Basabe, pursued that grievance procedures he in an relationships O’Dell testified that in the attempt get job to his back because he changed. office repeatedly He felt he was job company. liked his and liked the asked in one-on-oneinterviews with Basabe give deposition When called testi- protect company’s interests before mony Seibel, pursued by the case Wilda point those of Seibel. At one Basabe in- feelings O’Dell recounted the he retained private formed him that he had hired a Seibel, as a result of investigator investigate leading these incidents to his However, reported Beebe, fact O’Dell termination. during to Steve Sim- plot’s corporate counsel. O’Dell also re- own case O’Dell related those state- Parks, ported to incidents, Beebe that Ron specific Division ments to and stated that Purchasing Manager, attempting they were not broad and irrevocable atti- photograph secure a of Seibel. Despite tudes. defense counsel’s efforts on cross-examination to characterize those O’Dell testified that until that time his responses as evidence of a vitriolic hatred relationship good, with Basabe had been part against on O’Dell’s most the man- abruptly, approximately two Division, agers of the Land Livestock discharge, months before his Basabe’s atti- repeatedly qualified O’Dell those state- changed. tude toward him It was about ments, testifying they were made this time that he was informed Beebe incidents, specific relation to and that those had Basabe become aware of the fact relationships would heal with time. reporting up that O’Dell was follow infor- corpo- mation on the Seibel incident to the record does contain rate office. Beebe warned O’Dell that part of conduct on O’Dell’s which suffices likely there was strain in the relations justify Simplot’s breach contract. Basabe, between himself and and O’Dell feelings O’Dell’s the result of were the testified that atmosphere the in the office Division, conduct of others the within changed proposals for the worse. Various not due to fault of his own. submitted for Basabe’s review were rou- ruling We hold that the court’s did tinely disapproved. secretary Basabe’s tes- amount to a manifest of abuse discretion. keeping tified to records of O’Dell’sincom- appellate Although may court not be in ing phone meetings relating calls and to position “weigh” reviewing to evidence the matter military Seibel and his career on Quick decisions, Crane, a trial court’s initiative, her reporting own the results 111 Idaho at 727 P.2d at if According transcript to Basabe. to a of all, appellate anything review is to mean at tape the recorded conversation made when ca,- fired, power must to this Court have the review longstanding O’Dell was O’Dell’s record, done, the as we have and evaluate reer the National Guard was threatened sup- the trial decisions are by Following Tom whether court’s Basabe. his termination case, per- ported by he the record. In this the trial corporate heard accusations from support sonnel that he was intimate court’s decision did not have the of with Wilda basis, 59(a)(6). We note that the and therefore we hold that I.R.C.P. further a factual this trial without the benefit of of trial on issue was a court was grant the new this holding wages lost Court’s future Accordingly, abuse discretion. manifest of permitted front for the breach of pay is grant of a new trial to we reverse the the of employment contract and for breach liability on issue defendants of for it held loss contract to reinstate when such of the contract to reinstate. breach speculative in wages of too future this on Because we reach conclusion grant trial nature. We affirm the court’s analysis, Valley element second of Sun of a new of future loss of trial on issue inquiry is no for further into the there need wages employment of contract for breach Thus, element. we will not delve into third contract to reinstate. and breach of of the trial court reached the issue whether reason. its decision an exercise of $35,- Next, we review the award of (past for loss lost past economic BOYLE, BISTLINE, JOHNSON wages). portion This verdict JJ., concur. judge. was left undisturbed the trial hold there sufficient We was IV. therefore, award, support we affirm DAMAGES. jury’s wages. past award lost Next, we the decision of the trial review Next, we review the trial court’s granting question trial court a new on the grant damages. punitive of remittitur of damages of in the form future of lost alternative, In remittitur or in the wages employment breach of con- trial, a new trial court stated: tract, reinstatement, breach of contract for punitive damages, and violations of the Ida- a punitive 15b. In the court’s view ho Human Act. must deter- We $5,000 damage justi- of would be award mine whether “the trial court acted within Nevertheless, fied. the court will not of its the outer boundaries discretion and grant judgment the motions for notwith- consistently legal appli- with the standards standing the verdict and substitute specific cable to choices available to it.” $5,000 $1,000,000 by the for the awarded 598, 600, Hedger, 115 State v. jury, there evidence which since was P.2d However, larger in the to base a award. view, evi- court’s clear Having already determined $5,000 only dence indicates that proper wages pay future lost or front is a Therefore, justified. grant- a new damages, element O’Dell’s we turn our punitive ed to determine the amount court’s of a grant attention the trial new flowing from initial breach trial on the suffered issue employment contract. O’Dell. The trial court that the found de wages termination future lost was too reasoning is This an insufficient basis speculative support Al the verdict. grant support or the of a either remittitur finding though we find that this new trial. We remand to error, affirm of a court was we reasoning for further clarificatiоn of its damages. trial on the issue of and new trial. granting remittitur $375,000 granting remittitur or in the alternative found the The court trial, the trial court did make wages future loss of under the breach of by necessary analysis required I.R.C.P. and employment contract the breach remand, 59(a)(5). must contrary to reinstate claims to be On contract specificity reasoning its in con- and too state with weight to the clear of the evidence have the standards we speculative in to be for the formance with nature the basis Quick v. forth in Dinneen Finch by This set v. verdict rendered. determination findings, specific bound- Without these trial court is within the outer Crane. by are unable determine whether permitted we aries of discretion 816 (1st its discretion Cir.1982);

trial court abused on the issue F.2d 865 De Redman v. damages. punitive Educ., partment (Alaska 519 P.2d 760 1974); Inc., Stanspec Jelco, Corp. v. 464 jury (3) $1,000 awarded three (10th Cir.1972); F.2d 1184 Billetter v. Po punitive damage pursuant awards sell, 858, (1949); Cal.App.2d 94 211 P.2d 621 Act, Rights Idaho Human one award Shaw, Co-operative Farmers’ Ass’n v. 171 against against Basabe and two awards (1935). Okla. Although P.2d 887 Simplot. The trial court held that Simplot’s final offer of the Food Division against supported by award Basabe was position explicitly contingent was not on a (1) against the evidence and that one award O’Dell, by by accepting release of claims Simplot was warranted as there suffi position the alternative O’Dellwould in fact Basabe, cient that Mr. acting relinquishing right of reinstatement Simplot Company, willfully behalf of the position to his former he which claimed retaliatory violated the Act in discharge his pursuant to the violation of the Idaho Hu O’Dell, granted a new trial as to Rights by Simplot. man Act by whether there was a second violation Simplot’s. We find the trial court did not Further, although plaintiff claim abuse its discretion and that it reached this ing employment breach of an contract is by decision exercise reason. Accord required mitigate damages, Anderson v. ingly, we affirm the trial court’s determina (1980), Gailey, 100 Idaho 606 P.2d 90 $1,000 tion punitive damage that the two mitigation require party does not to a awards were warranted and the of a prof contract to enter into a new contract possible new trial as to a second violation breaching fered as an alternative by Simplot. party finding where there is a that bad BAKES, C.J., BOYLE, original faith JJ., surrounds the breach of the concur. contract. Peck Iron Metal v. & Co. United JOHNSON, J., concurs and dissents. States, (1979); 603 F.2d Ct.Cl. BISTLINE, J., dissents. Fоod Handlers Local v. Valmac In dustries, (8th Inc., Cir.1975). 528 F.2d 217 Y. faith, finding there Where is no of bad issue becomes the reasonableness of the FAILURE TO MITIGATE AS non-breaching party’s mitigate efforts to GROUNDS FOR NEW losses caused the breach. Davis v. TRIAL. Idaho, N.A., First Interstate Bank granted Simplot’s The trial court motion (1988); Casey 765 P.2d 680 employment for new trial on the breach of Dist., Nampa Irrig. & Meridian contract, retaliatory discharge claims 299, damages only. as to the issue of The court jury’s reasoned that the award was case, having In this considered the the clear of the evidence because reasonableness, issues of bad faith and mitigate O’Dell had failed to surrounding found that the conduct by refusing accept position as Risk employment contract in the breach of the Manager of the Food Division offered by Simplot provi volved a violation Simplot original as an alternative to its Act, Idaho Human sions unconditionally offer to reinstate O’Dell imposed punitive damages against Simplot position. his former for willful violations of that Act. Under these circumstances a bad faith breach was plaintiff asserting wrongful A dis established, and was not bound to O’Dell charge required mitigate damages is not mitigate damages by accepting employ by accepting position an alternative position than the ment from other requires relinquish employee claims legal right of rein pursued to which he arising employer’s from the Tera breach. Inc., dyne, Teledyne Inc. 676 statement. v. Indus.

817 jury’s verdict of liabil- holding today explicitly holding intend our be do not We eliminating requirement issue was not ity as on that construed em- claiming a breach of In order to reach employee for an of the evidence. mitigate their dam- conclusion, implicitly contract to ployment the trial court this employment by trying to obtain else- ages finding was accepted jury’s that O’Dell circum- hold that under these where. We considering himself construc- justified in stances, accept required was not O’Dell Simplot rescinded tively discharged after by position in the Food Division offered reinstatement its offer of unconditional rejection Simplot’s Simplot. O’Dell’s an position Division as offered the Food in the Food Division cannot offer to work alternative. mitigate. used to establish his failure jury’s acceptance trial court’s The jury instructed that was Simplot conclusion that was liable find for O’Dell on the breach of order to employment breach of the contract based claim, employment contract it would have discharge on constructive is not consistent constructively he dis to find that was its conclusion that O’Dell’srefusal of correctly charged. The trial court instruct Simplot position the alternative offered resigns employee who is not ed that an mitigate constituted a failure to his dam- wrongful termi entitled to recover for Therefore, grant of a ages. we reverse the employment proof absent of cir nation of new trial on the issue of based establishing constructive dis cumstances employment a claim of contract. breach (9th charge. Alfaro, 785 F.2d 835 Ford v. required We hold that O’Dell was Cir.1986); Smith, 744 F.2d Satterwhite position in the Food accept the alternate Cir.1984); Dist., (9th Knee v. School by Simplot. Division offered (Ct.App.), P.2d 727 rev. 106 Idaho (1984); Young v. denied Southwestern BOYLE, JJ., concur. JOHNSON and (5th Assoc., 509 F.2d 140 Sav. & Loan BISTLINE, J., specially concurs and Cir.1975). concurs. finding In on the was liable (a employment contract claim for breach of YI. OTHER ISSUES. finding explicitly affirmed assigns to the district O’Dell error trial court in its order a new trial requested give plaintiffs’ refusal to court’s damages), jury neces- on the issue of through 51 and 53 instructions numbers sarily found that the circumstances sur- through proposed These instructions rounding offer for the withdrawal of the wrongful discharge in dealt with breach unconditional reinstatement to O’Dell’sfor- exception public policy, which is an position mer of the Food and the offer employment at doctrine. MacNeil v. will position Division constituted constructive 588, 701 Hosp., Mem. Minidoka “harassment, discharge, intimi- defined as judge The trial marked P.2d 208 dation, coercion, aggravating con- or other through and 55 numbers 49 instructions intol- working duct that renders conditions “covered;” as instructions numbers person erable” and that “a reasonable marked “refused.” The through 54 were relationship under sim- would terminate the number 23 instruct- trial court’s instruction number ilar circumstances.” Instruction policy is jury public that breach of ed the finding by 24. The issue is whether employment exception to the at will weight of jury contrary the clear numbers 37 and 38 doctrine. Instructions the evidence. defined what constituted breach further trial, defendant its motion for new Thus, policy. the trial court cor- public in- Simplot argued the evidence was issue; to this rectly instructed the finding support jury’s sufficient to error. there is no employment liability for the breach of the assigns the distriсt contract, error to constructive O’Dell which was based on summary judgment fa- court’s discharge. responded The trial court of the defendants on claim for punitive damages. vor O’Dell’s new trial as to We re- good of the covenant of faith mand the breach and remittitur and the alternative grant dealing. summary punitive fair At the time of the of a new trial on the issue of damages employ- judgment, recognized this claim was not based on the breach of wrongful discharge ment contract and the breach of the con- eases. Our specific findings tract to decision in reinstate for more Intermountain Gas Metcalf Co., (1989), consistent with Dinneen 116 Idaho 778 P.2d v. Finch Quick recognized this cause of v. Crane. action. Sorensen Tek, Inc., 118 Idaho P.2d v. Comm wages We hold that future is an lost (1990), applied ruling retro- Metcalf element of for causes action of actively pending to all cases at the time contract, employment based breach of August was decided on Metcalf reinstate, breach of contract and for 20, 1988, appeal May O’Dell filed his on Rights violation of the Idaho Human Act. pending therefore this of the issue was grant We reverse the of a new trial on the ruling, consequently, date of the Metcalf liability issues on the claims for breach grant summary judgment we vacate the contract, employment of the breach of con in favor of the defendants and remand for reinstatement, tract and for violation proceedings consistent with Metcalf Rights of the Idaho Human Act. We fur Sorensen. O’Dell, particular ther hold that under the controversy, circumstances of this was not assigns O’Dell error to the deni accept any obligation Simplot’s under complaint al of his motion to amend his employment in offer of the Food Division. by adding conform to the evidence a tort change general This does not re our rule claim intentional con for interference with quiring mitigation damages. re We tract This made Basabe. motion was at grant on verse of new trial the issue during in close trial damages on the claims of breach of judge struction conference. de employment retaliatory contract and dis A nied the motion. motion to amend a charge. grant We affirm the of a new trial pleading is within the discretion of the as to the claims of a second violation Mitchell, court. Obray v. by Simplot Idaho Human Act (1977); 15(b). I.R.C.P. wages for future lost on the motion, ruling judge on the the trial stated employment contract claims of breach of opinion, Basabe had not been to reinstate. and breach of contract We respond given properly sufficient notice to $35,000 past eco affirm the award of to the claim and that the trial court was summary judg vacate the nomic loss. We given inadequate time to determine the of the defendants on the ment favor reasoning merit of the claim. This is a good issue of breach of covenant of faith uphold sufficient basis to the decision dealing, proceed and fair and remand judge. the trial no of dis There is abuse ings consistent with v. Intermoun cretion. Metcalf Tek, v. Comm tain Gas Co. Sorensen assignments We have reviewed all other affirm the trial court’s denial of Inc.. We parties them of error raised all and find complaint motion to amend his O’Dell’s to be without merit. to the evidence. conform BISTLINE, appellant O’Dell. BAKES, C.J., Costs BOYLE, JJ., concur. JOHNSON and BOYLE, Justice, concurring and concurring specially: CONCLUSION summarize, majority opinion, and feel I concur in the previously for the reasons To re- stated, necessary briefly comment on the court ade- we hold that 59(a)(5) and spective functions of I.R.C.P. quately for the stated reasons 59(a)(6) considering motions for new when a new trial on the various issues raised exception of the trial. the defendants with the finding in manifestly abused its discretion lengthy treatise could be

Although a against the clear jury’s that the verdict was topic, the volumes of on this written majority con- weight The opinion of the evidence. majority in the could be cited cases portions of the trial cludes that certain analyzed, it is clear discussed and further holding amount to a manifest 59(a)(5) court’s did application has limited that Rule correctly majority of discretion. The for new trial is abuse where a motion those cases is recognizes the issue for this Court or solely of excessive sought on basis dis- trial court has abused its appearing to have whether the inadequate damages essentially However, majority influence cretion. given or awarded under been interpretation of the facts renders its own passion prejudice. or credibility, rather and of the witnesses’ 59(a)(6) view, is not However, my Rule in deferring than to the trial court’s evalua- application. scope or so limited in either tion. variety of cir- Rather, in a wide applies it consistently held that the insuffi- Our cases have the evidence was cumstances where verdict, discretion in determin or that trial court has broad justify the cient to deny trial component ing grant whether to a new against the law. The verdict is verdict, great entitled to defer depending legal and its decision is parts advanced, Ryals in v. Broadbent involve several elements ence. As we stated theory Co., P.2d Development 98 Idaho the trial courts from consid- and to restrict (1977), judge possessed inadequate damages un- 982 “The trial ering excessive or acting extremely in as a 59(a)(6) considering broad discretion der Rule while whether sup- juror’ ‘thirteenth who is entitled to override of the verdict are portions the other justice has the verdict if he conceives that ported by is inconsistent with the evidence P.2d done.” 98 Idaho at and could result in situations been our case law Galey, at 984. In v. a motion for new trial did not fit Sanchez where (1986), provided trial my opinion, we within either subsection. In (6) following guidance when encompassing provi- courts with the subsection is an all pursuant 59(a) ruling on a motion for new trial sion of Rule and allows the trial 59(a)(6), Rules of Proce necessary degree latitude to Rule Idaho Civil courts that considering fre- dure. complex when issues

quently raised in motions for new trial. weigh is to the evidence trial court [T]he jury’s sup- to determine if the verdict is

BAKES, Justice, concurring. Chief portable by and when it the evidence not, grant it should a new trial thinks I in Boyle’s analysis concur Justice 59(a)(6). pursuant to I.R.C.P. 59(a)(5) interplay between I.R.C.P. 59(a)(6). my In of that application view the 112 Idaho at 733 P.2d at 1240. analysis affirming the trial should result Quick 759, 766, Crane, 111 v. court’s for new trial of the motion (1986), weigh- stated that in P.2d 1187 we case, my special in this described ing judge the trial should all the evidence concurring dissenting opinion. determination of the credi- make “his own bility of the witnesses.” BAKES, Justice, ‍‌​‌‌​‌​​​‌​​‌​​​‌‌​​​‌‌​‌​​​‌​​‌​​​​​​​​‌‌‌​​‌‌​‍concurring and Chief court, Here, weighing the after dissenting: making his own evaluation of evidence and 11(A),III, I and V concur all but Parts credibility, concluded that the witnesses’ I dis- opinion, from which Court’s against the clear jury’s verdict was sent. Having made that weight of the evidence. evaluation, the trial court followed the di-

A. Galey rective of our decision Sanchez trial should a new it over- that “it The Court errs in Part III when [the court] 59(a)(6)” it pursuant to I.R.C.P. when portions order trial turns of the trial court’s jury’s verdict determines granting a new trial. The issue for of the evidence. appeal the trial court Court on is whether exactly correctly perceived here did what our er the San- trial court discretion; (2) issue as Galey decision directed that one of chez v. whether The trial court be af- court acted within the outer should do. should bound aries of consistently its discretion and firmed. legal applicable specif to the standards In to the function of the trial contrast it; (3) ic choices and available whether trial, ruling in on motions for new court by the trial its decision court reached much appeal our more circum task on spelled exercise of reason. As we out in Quick Crane, in As we stated v. scribed. focus Valley, Sun our task on the 759, (1986), “Ap 111 Idaho process in reaching the trial court used its pellate necessarily review is more limited. decision, duplicate not to the trial court’s evidence, review the we are While we must up function to see if we come with the ‘weigh’ position trial in a as the Otherwise, are engaging same result. we 770, at can.” 111 Idaho 727 P.2d at court Quick in in what the Court v. de Crane The rationale behind the rule is 1198. appellate scribed as “result-oriented review Quick Crane, plain. explained in As we v. 773, of such 111 Idaho at discretion.” 727 sitting judge is at heart of “The trial P.2d at 1201. position process, ap our on the trial we trial, ruling In for new on the motion pellate duplicate.” level cannot 111 Idaho trial court followed the directives of this Thus, 767, at P.2d at 1195. con 727 we “weigh[ed] and Court evidence to deter- Quick that, v. Crane “The trial cluded supportable if jury’s mine verdict is position weigh court is in a far better evidence____,” he and because did not demeanor, credibility, and testimony of wit so, granted trial think he a new as this nesses, persuasiveness all the and the of v. 112 Galey, Court directed Sanchez 111 Idaho at P.2d at evidence.” 727 609, 615, P.2d The trial that court based determination foregoing cases leave con- The no doubt upon his of the evidence evaluation which power cerning of the distribution between himto demonstrated that O’Dell harbored appellate trial and courts con- courts when animosity personnel such toward the of the sidering new trial motions and orders. The Land & Division that “Mr. Livestock required to re- independently trial court is made it for O’Dell’s actions unworkable weigh judge and the evidence and view him to Division____” to the Land & return Livestock witnesses; credibility may we The not. trial Based court’s court, position its in the virtue of еvidence, he own conclud- evaluation process, heart of the trial is in the best that, hostility, ed he as a result O’Dell’s position judge the of the evidence damage by making “caused future his own and the demeanor and credibili- to evaluate return to the Land & Livestock Division we, ty witnesses; our re- by virtue of unworkable,” therefore the and trial court prior not. Thus our position, mote are granted liability the issue of new trial on consistently held that cases have wages. of future for loss great is accorded deference court decision opinion grant affirms the While Court’s mani- overturned absent a will not be regard of a new trial with v. of discretion. Sanchez Ga- fest abuse wages, it reverses loss of future Crane, Quick ley, supra. supra; on the court’s of a new trial issue Furthermore, prior our cases have out- liability wages. for loss of future How- appellate courts analysis ever, that re- lined the there O’Dell determining hostility whether the trial feelings must make tained toward the discretion in management has abused its of the Land & Livestock Divi- integrity a motion for new trial. Sun about denying sion had doubts Center, with whom he had Shopping Inc. v. Idaho Basabe and others Valley Co., opinion nevertheless P.2d 993 worked. The Court’s Power that, qualified denied), repeatedly (1990) concludes “O’Dell (petition rehearing we statements, testifying they that were (1) those wheth- analysis set that as follows: out t say there wasn incidents, majority to that specific For the in relation to made made the relationships heal “would have would evidence that those By justify P.2d at 1100. Ante at as to time.” so unworkable contract accepting opinion unqualifiedly O’Dell’s court’s breach,” thus reverse the trial out, and “that things necessity, would work majority, contrary finding, the time,” relationships heal with would majority those weigh the evidence. had to making its determination this Court is own he would testimony that accepts O’Dell’s testimony, credibility of O’Dell’s di- Livestock and gone to Land & have back contrary credibility determina- rectly he, O’Dell, he could overcome felt By doing, made the trial court. so tion animosity and “weather” feelings of dis- has abandoned the abuse of this Court testimo- focusing on O’Dell’s By situation. analysis said cretion which Court does, comparing and ny, majority as the case that we Valley Shopping Center Sun reinstating for not that with the reasons supplanted It has the trial apply. should Division, Land & Livestock O’Dellto the its credibility determination with court’s weighing the majority is is obvious that the doing errs. In so the Court own. supplanting its evaluation and evidence that of the trial court. parts of the the evidence for pertinent An examination of opinion points clearly out how the majority majority The states: substituting on the credi- its view Court However, during the trial of his own case that of bility weight of the evidence for and to related those statements he [O’Dell] that, majority court. The states the trial incidents, they that specific and statefd] “A of the record does not disclose review and irrevocable attitudes. were not broad made the any evidence which would have counsel’s efforts on Despite defense contract unworkable performance of the so to characterize those cross examination 814, at 810 justify as to its breach.” Ante ha- evidence of a vitriolic responses as However, at 1100. there was abun- P.2d against most of the part tred O’Dell’s support to the trial court’s dant evidence Land & Livestock Divi- managers of the trial, finding, in that it sion, repeatedly qualified those O’Dell conduct made continued was O’Dell’s which statements, testifying they that were Land employment with the & Livestock incidents, specific made in relation example, in his Division unworkable. For relationships heal those would that case, deposition taken in the Seibel O’Dell time. highly critical of toward and bitter 814, P.2d at 1100. This ex- Ante at 810 management personnel he nec- with whom majority is ac- cerpt demonstrates that essarily had a close association would have opinion relying on O’Dell’s cepting and had he returned to the Land & Livestock relationships would heal with those “that addition, testimony In O’Dell’s Division. court, However, inde- the trial after time.” Gary animosity an toward demonstrated reviewing weighing all the pendently Wallace, company’s corporate human credibility of the witness- and the Moreover, officer. there was resources protes- es, give credence to O’Dell’s did not that, rein- being after offered fact even feelings hostility toward that his tations statement, filed a claim with O’Dell management of the Land & Livestock Commission, Human he could be overcome Division was a factor in their decision testified situation. The credi- could “weather” The the offer of reinstatement. withdraw the trial court’s bility determination was merely add to filing of that claim would have re- call, this Court’s. As we not highly volatile otherwise be a what would peatedly emphasized: resumed his activities situation had O’Dell position to see judge in a The trial [is] These & Livestock Division. the Land speak. He could and hear the witnesses reasons, primary are, among other the witness their demeanor on court, observe factors that motivated stand, consequently a better evidence, grant a new evaluating [is] credibility judge their position to trial. 822

weigh testimony breaching their than is this fered as an alternative Court____ party finding where there is a that bad original faith surrounds the breach of the 135, Toetly, 93 Idaho 138- Rosenberg v. 816, contract.” at 810 P.2d at 1102. Ante 139, 779, (1969). Accord, 456 P.2d 782-783 points Several deserve mention with re- Co., MacGregor Triangle Mendenhall v. spect exception to this faith” “bad (1961); 83 Idaho 358 P.2d 860 Blaine requirement mitigate damages. (1967); Byers, v. 91 Idaho Finch, v. 603 P.2d Dinneen First, majority the cases cited do Crane, (1979); Quick supra. position. majority support The cites attempt cases, claiming to discredit majority, they The two federal stand evaluation, looks proposition: the trial court’s at for the faith” Food Han “bad Indus., testimony, evaluates that testimo- O’Dell’s ler’s Local v. Valmac (8th Cir.1975), ny, weighs testimony and determines F.2d 217 and Peck Iron & States, feelings were real- on its own that O’Dell’s Metal v. United 603 F.2d Co. (1979). However, ly not that hostile and that the situation a close Ct.Cl. majority reading general could have been workable. of those cases reveals no supplanted regarding exception its evaluation of O’Dell’s rule a bad faith has testimony mitigate, majority represents. the trial court. as the for that of case, plaintiff the found that the each III, majority the At the outset of Part mitigate damages under had not failed to acknowledges appellate “may that courts specific facts and circumstances of the the evidence,” qualifies weigh the but then case, In the defendants had case. each stating, appel- “If acknowledgment by the chicanery, de sharp practice, exhibited all, anything mean at this late review is to ception, and in one case the conduct was power to Court must have the review the holding as faith.” But the described “bad record and evaluate whether plaintiff those cases is that the did not of supported court’s decisions are to ex- general mitigate, fail to not that there is a 814, 810 tent the record.” Ante at recognized exception faith to the ly bаd majority’s at 1100. The avowed con- P.2d Significantly, duty mitigate. to neither “meaningfulness” appel- cerns about the place takes in the context federal case even is, actuality, either a man- late review wrongful employment in the termination with the ifestation of its dissatisfaction persuasive. setting and are thus even less ap- present power between distribution courts, or a pellate courts vis-a-vis trial Following citation to the federal the the result of the that, dissatisfaction with cases, majority the states “Where If court’s decision to a new trial. faith, finding the issue there is no of bad going engage in the appellate courts are to reasonableness of the non- becomes the type evidentiary comparisons and wit- mitigate losses breaching party’s efforts to credibility majority as the ness evaluations at by the breach.” Ante caused court’s func- today, does then it is the trial 1102. This statement is followed P.2d at evaluating motion that cases, tion a new trial Casey citation to two Idaho a meaningless. Dist., will have become Irrigation Nampa Meridian & (1963), P.2d 409 and Davis B. Idaho, N.A., Bank v. First Interstate P.2d 680 Those majority opinion, In the Part V of its cases, however, majority im do not as the ratio- part of the trial court’s reverses there is no bad plies, hold that “where on the issue nale in the new trial faith, issue is one of reasonableness.” mitigate damages. duty to of O’Dell’s general doctrine do discuss the “although plaintiff Those cases reasons that a majority nothing mitigation, say about bad employ- of claiming of a contract of breach Thus, Idaho case has no mitigate damages, ... faith whatsoever. required to ment recognized a bad faith adopted or even require party a to a mitigation does not mitigate. exception duty to the to prof- into a new contract contract to enter view, as he viewed and “Having state: the evidence goes on to The court it, support jury’s ver- weighed the issues of bad faith and rea- did not considered sonableness, jury found that the con- issue. mitigation dict on the surrounding employ- breach the fact duct to make an after For this Court Sim- contract involved violation duty ment precludes faith” rule that “bad “imposed punitive plot ...” find- mitigate, appellate then make an Simplot for violations ...” willful faith” existed because ing of fact that “bad Act, Eights and concludes of the Human damages against jury imposed punitive that, these circumstances a bad “Under Simplot, all known standards violates established____” Ante breach was a “bad appellate If there is such review. faith added). (emphasis at 810 P.2d at 1102 mitigate, exception duty faith” effect, has made its own Court failing trial in then there was error at the defen- finding appeal of fact on jury on that issue which would instruct the guilty faith” and there- dant was of “bad require judgment to be reversed obligated plaintiff was not to miti- fore the to a remanded for a new trial the cause damages. gate his jury properly instructed on this new found exception duty-to-mitigate the fact there is no Aside from bad faith authority support Richards, such a faith” supra. “bad I rule. Robertson v. rule, exception duty-to-mitigate commits serious error believe this Court above, procedural noted there are several adopts faith rule after when it such bad First, if problems holding. such a fact, appellate and then makes its own law, jury should have been that is guilty of finding of fact that exception, instructed on such a bad faith court, appellate are an “bad faith.” We should defined and the instruction have court. I not a or a trial believe give what is “bad faith.” The failure to majority has lost track of that distinction. grounds such an instruction would itself be V, majority re- Additionally, Part the reversing for a new trial. Robertson v. jury’s finding the of “constructive fers to Richards, 628, P.2d 505 Idaho discharge” and states that “the issue (failure (1989) of the trial court to instruct finding by jury contrary the whether this jury proximate the on the definition of weight the clear of the evidence.” Ante required setting cause the aside of the However, the at 810 P.2d at 1103. trial). jury’s verdict and a new jury’s the issue before us is whether Secondly, if there is such a faith bad weight findings against are the clear exception plaintiff to the rule that the must evidence; the that was the issue before mitigate damages, for the his it would be court, the decision that it trial and he made court, trial, ruling trial on a motion for new appeal, our task is limited to was. On finding jury’s to make such a of a review determining whether the trial court abused faith, appeal. on bad not this Court on when, weighing after the evi- its discretion Quick Again, repeating what said in v. we witnesses, credibility the dence and Crane, repeating: supra, it bears because jury’s was found that the verdict position The trial court is in far a better the clear of the evidence. two demeanor, weigh credibility and the dramatically are different: the standards testimony per- and the witnesses process; judge is at the heart Appellate suasiveness the evidence. the demeanor of the wit- he has observed necessarily limited. review is more credibility; he judged nesses and their the we While we must review evidence evidence, not; may we weigh must the position ‘weigh’ in a it as a are not given great supposed to be holdings are trial court can. Quick Crane, supra. I be- deference. 111 Idaho at 727 P.2d at has not trial court’s evaluation lieve the graphic For a given that deference. “weighed” case the been The trial court previous action of this Court’s comparison and concluded that a new ruling because, deferring to a trial court’s in in granted in this case should be motion, new trial see Reynolds, Black v. pay” only “such back intended to limit (1985). 707 P.2d 388 recoverable, the pay amount of back legislature would not have used the word Finally, if the trial court committed written, “such.” As the word “such” re- legal ruling error in on the motions for new preceding phrase, fers to the wages “lost trial, appropriate action for this Court only and benefits.” The interpretation of point to take would tobe out the correct phrase, pay,” “such back which makes law and remand those issues to the trial grammatical wages sense is that lost are findings upon court to make new based pay, limited to back which under the stat- law, proper as the Court does on the issue ute is in turn years prior limited to two punitive damages. Carroll, Heitz v. filing complaint. The primary Rights thrust of the Human C. isAct to obtain reinstatement for those II(A), In majority Part holds that who have employment had their terminated pay permissible front is a element of dam Act, in violation of the and to their recover ages Rights under the Idaho Human Act. wages during period lost it takes the determination, In making that majority Rights Human Commission to obtain their (1) primarily upon relies language However, expand reinstatement. statute, (2) upon “guidance” found in scope Rights of the Human Act into the federal case interpreting law the Civil damages, issue of future such as diminu- Age and, Discrimination Acts earning capacity, tion future would (3) policy argument pay that front ef thrust the Commission into difficult dam- goal fectuates the fully compensating age evidentiary issues which in the injured plaintiffs. past have been province the exclusive of a argument, In terms of the policy I would properly instructed based evi- readily matter, agree general that as a full dence determined to be admissible compensation of those victimized dis- judge. law-trained The rules of law which However, crimination goal. is a desired developed surrounding have the area of general policy always considerations must proving loss or diminution of yield statutory language in the face of wage earning future capacity, and the contrary. my opinion, the Idaho dealing duty rules with the of the terminat- Rights Human Act does not its terms employee mitigate ed damages quite are recovery pay, allow for of front and for (made complex complicated by more good reasons described below. exception mitiga- Court’s “bad faith” to the 67-5908(3), provision I.C. is the crucial § today’s opinion), tion rule established in at issue. That in pertinent section states amply good poli- and demonstrate that it is part: damages “An order for actual includ- cy question damages to leave the of future ing wages benefits, provided lost jury, a court and and not to the Human pay liability such back shall not accrue Commission, Rights whose members are (2) from a years prior date more than two necessarily trained in the law and who (Em- filing complaint____” to the of the necessarily would not reflect the same com- added.) phasis majority explains The that munity jury peers values as a of the phrase pay,” “such back is included litigants. legislature reasonably The could only as a “limitation of the amount of back concluded, I have and believe a clear read- pay maybe compensat- awarded when ing suggests they of the statute did ...,” ing plaintiff wages for lost but does conclude, that the Human ‍‌​‌‌​‌​​​‌​​‌​​​‌‌​​​‌‌​‌​​​‌​​‌​​​​​​​​‌‌‌​​‌‌​‍Commis- wages “not limit the entire award of lost primarily upon sion focus reinstate- should pay back alone.” Ante at 810 P.2d at wages, and ment and collection of back complicated leave the difficult and factual conclusion, reaching majority legal questions loss of future earn- eclipsed ings earning capacity, together has the word “such” from the stat- If, claims, majority phrase mitigation requirements, ute. as the concomitant ex- IIB, clusively jury system. Pay to the courts and the An Element Part Front as mandated, legislature In I.C. 67-5908 the Damages: § Contract reason, good that the Commission focus holding pay I concur in the that front is a recovery on reinstatement of lost permissible damages. element of contract wages they years which limited to two back I concur in the conclusion to reverse the That, believe, pay. I is what the statute district determination that future court’s says. good public policy. It is But even if speculative wages lost are too to ever be not, legis- it were that is a decision for the of contract dam- established as an element lature, not for this Court. ages. respect to the federal cases invoked With majority “guidance,” impor- it is

by the language that the relevant tant to note III, Part Breach Contract to Rein- respects the Idaho statute differs crucial state: federal statutes which our to the act reversing I concur in the district court’s following excerpt The is based. from Title determination that O’Dell’s conduct own 2000e-5(g), VII of USC is the forerunner made reinstatement unworkable and thus language the Idaho statute at Simplot Company excused the J.R. from federal issue. The statute states: “The performance of the contract for reinstate- may ... order such ac- affirmative ment. may appropriate, may tion as include, to, is not limited reinstatement The district court’s conclusion that hiring employees, with or without jury’s finding liability and the amount of pay pay back ... Back liability shall not the clear years accrue from a date more than two evidence, which the district court based prior (Em- filing charge of a ...” reasoning on its that O’Dell’sconduct made added.) statute, phasis The federal unworkable, reinstatement amounts to a statute, striking contrast to the Idaho does manifest abuse of discretion. I concur phrase, pay.” not use the “such The back analysis by which Justice McDevitt ar- federal distinguishable statute is thus from at rives that conclusion. statute, the Idaho are federal those interpret cases that allowing Title VII as pay.

front TV, Damages: Part Finding discretion, judged by no abuse of I dissent from this Court’s conclusion the standard of our earlier cases of San properly granted that the district court Quick Crane, Galey, supra, chez v. v. su new trial as to the amount of pra; supra; Black Reynolds, v. Din jury. spoken, awarded has Finch, neen supra, I would affirm the supported by and their determinations are order of the trial court on the new trial presented at trial. It is not at all motions. said, understood it can be all in how the breath, although finding same “that this of BISTLINE, Justice, concurring part in (‘that the trial court the determination of dissenting part: and in wages speculative future lost too was to IIA, Part Hu- Pay Front Under Idaho verdict’) error, support the was affirm we Rights man Act: the of trial on the a new issue of holding pay I concur in the that front is a damages.” permissible damages under the element by the trial court is Where held analy- in Human Act. I concur the Court to have committed error in the “too reached, sis which that conclusion is and assessment, speculative” it stands to rea- holding in that the specifically concur the the is son that trial court not substantiated damages amount of to be awarded is a setting in fact, aside the award and the trier of in this determination for damages. jury. awarding case the a new trial on 826 V, grounds reasoning as court on and not Mitigate Failure to Grounds district

Part New legally Trial: sustainable. Simplot’s holding in that Conclusion: I concur the in work Food Division cannot offer to the I concur in the stated conclusions to O’Dell’sfailure to miti- be used establish McDevitt, remanding other than in Justice paragraph, than for the final I gate. Other find- specific for reconsideration and more analysis with the made fully concur damages, and ings jury’s on the award McDevitt. Justice Because court’s damages. In that particular exemplary in theory underlying con- discussion McDevitt’s regard note is taken of Justice inconsistent, is its tract breach determina- the stated ba- analysis that district court’s conducted tion that a trial should be to reducing punitive sis for damages is not determine contract sound. its that award was bare bones conclusion that disagree I with the conclusion we weight clear indicates “the the evidence damage award affirm the contract must is only justified.” that was Such $5000 predicate incorrectly that the trial court “there with inconsistent the statement mitigate a defense. analyzed failure to larger a evidence on which to base was my Concurring specially, I voice own Although in wholly I am accord award.” present- jury, that the on the evidence view such is Justice McDevitt’s view that ed, exposed corporate vindictiveness was discounting by adequate not an basis for reprehensible egregious conduct to a and $995,000 jury judgment collective degree the likes which has heretofore being properly arrived after which was at experienced. suggestion The not been instructed,4 agree putting I cannot position O’Dell should take another formulating judge to task of district company shamefully had so same which how thoughts just why and further in performing treated him for his actions clear that the the conclusion was reached very function for which he em- have allowed evidence would i.e., monitoring prac- ployed, duties corporate defen- jury to find enforcing poli- formulating and tices pal- only have dant should been assessed discrimination cies to eliminate unlawful $5,000 try type for the of unconscionable harassment, wholly is unten- and/or sexual displayed in thoroughly conduct which point being absurd. No able of the facts McDevitt’s statement Justice reasoning person expected, by rea- could be circumstances, set out and likewise persons, up the entitlement give sonable of O’Dell. submitted on behalf the briefs pertinent position which he and claims more judge of Idaho’s The district is one faithfully performed had well and no —with To capable judges. experienced perform- whatever at his criticism levelled case for his reconsideration remand this ance, that he was far implicitly other than acquainted he all intimate that is not at his duties when carrying too faithful out v. holdings of this Soria with the Court by a reported it was the sexual harassment Airlines, 726 Sierra was in- corporate president division Pacific (1986); P.2d 603 P.2d 706 Idaho compa- proffered volved—to take other Quick Crane, 111 Idaho (1987); would be ny position the duration of which Finch, (1986); Dinneen v. P.2d 1187 corporation. entirely at whim of 620, 603 Such P.2d facts its those duty saw under justified. or insinuation is instructions, jury did innuendo and the the court’s language by the district very used The doing of was undone the duty, the which (IDJI) Jury ‘“Punitive Instruction 921-1: Idaho found in the record 4. The instructions are not claimant, sixty-sev- appeal. damages’ were awarded to a It is that there mean found given, they were read to compensate instructions and that claim- en what the and above will over case, they jury. presume that In such we the a personal injury property actual ant for legislature enacted were of error. The 1987 free policies punish- damage, public the of to serve 6-1601(9) statutory provide a I.C. § into law outrageous ing conduct and a defendant punitive damages. definition That definition deterring future like conduct.” promulgating accepted by Court in was this Co., (“the Tower clear of the evidence Sanchotena v. judge only justified,”) (1953), in cited that was P.2d 1021 and cases $5000 indicates that the trial therein, that, of itself demonstrates engaged in the weighing had itself granting a If the court in the order so, Having the conclusion process. done grounds expressly states rightly reached the district court— granted, court on upon which it is egregious misconduct wrongly or —that appeal upon appeal will determine corporation supported a the defendant particular the issue of whether damage It fur- punitive $5000. award justify grant- ground stated would court’s erroneous belief ther illustrates the ing of the motion. $5,000 fine on the imposing Company Mr. would serve the Basabe may that in the instant We conclude purposes punish- well-recognized twin clearly grant- in case the trial court erred Obviously, may as ment and deterrence. grounds ing a new trial basis many important readily noted from majority opinion, in The stated its order. rulings is district court which this Court however, the decision of the states that reconsideration, remanding the district sup- affirmed on the trial court must be many claims court did not see O’Dell justice posed ground that substantial has merit, notwithstanding the having much authority statutory done. No not been jurors. verdict therefor. If we are to believe that exists however, in jury, The saw merit cases, jury of facts in civil is the trier their plaintiff’s case and it is to collective The majority opinion is erroneous. in in judgment we should defer the first right is majority opinion states that no And, had extend stance. the district court plaintiff in this action since he denied the proper jury, deference to the we in turn ed suggest I will have another trial. readily would defer to the district court. years litiga- in after seven and one-half Here the district court better would have plaintiff little in tion the will see value paid writings Shep heed to the of Justice enough that conclusion. If he retains in Tompkins, ard Deshazer v. system jus- stamina and faith our (1969): tice, litigate may he will continue lastly The trial court tells us that Perhaps more than ultimately prevail. contrary to the law and the verdict else, demonstrates the anything this case produced at trial. The earlier simple great contained in that truth Court, decision of this the action of the statement, justice de- ‘justice delayed is ruling trial court in on the motion for nied.’ n.o.v., judgment itself mi the record Deshazer, 273-74, Idaho at 460 P.2d at litate conclusion court’s McQuade opin- joined the 408-09. Justice contrary that the verdict is law. Accepting that Shepard. ion of Justice majority opinion disposes of the trial view, appropriate seem well stated it would court’s conclusion that the verdict is con delay justice, not further that this Court trary produced to the evidence at trial. respond obligation rather that it but There then no conclusion that the Judge today to a decision which proceed granting error in trial court committed reach, did not and which is Schroeder opinion, majority new trial. The how compensatory likely he will reach. Unlike ever, states that such is not an abuse of weighing subject are to a must sustain the discretion and we judge during the process where a trial order a new trial court subjectively the trial is able to course of may set aside a trial since a trial court does, just as the arrive at an amount if

jury verdict it fails to render substan weighing process regard no such there is majority opinion justice. tial This the Moreover, damages. assessing punitive spite in Na holds of the admonition jury. The left to a Distributors, such matters are better Inc. v. tional Produce oppres- is Grube, (1956); jury learns of the conduct which P.2d 284 necessity preventing similar opprobrious, and reduces dence and of or otherwise sive wrong. it believes will it to a dollar amount which purposes of deterrence and serve the twin — at-, U.S. Haslip, Mutual v. Pacific very In a recent decision punishment. at 1037. S.Ct. up- Supreme Court of the United States given Assuming instruction that the Court, held, Supreme as had the Alabama damages in awarding punitive jury on million dollars in

jury award of almost a ap- in accord with the today’s case was damages. Mutual punitive Life Pacific instructions, it pattern jury proved Idaho — U.S.-, 111 S.Ct. Haslip, Ins. v.Co. read: would have jury in- 113 L.Ed.2d punitives in Mutual struction Pacific Damages Damages-Punitive Element of reads: corpora- you If find that the defendant Now, perpe- fraud was you if find that in- proximately caused tion’s acts which compensatory in trated then addition an extreme plaintiff were discretion, may your in damages you of from reasonable standards deviation discretion, say you I I use the word when per- these acts were conduct and that fraud, you to even find don’t have malice, by the defendant with formed to, you may, the law wouldn’t have but wantonness, you may, in oppression, or an amount of mon- says you may award damages to any compensatory addition damages. ey punitive known as entitled, plaintiff you which find money is awarded tо This amount amount which will plaintiff award to compensate it is not to plaintiff but deter the de- punish the defendant and any injury. It is to plaintiff for engaging in and others from fendant means to punish the defendant. Punitive in future. similar conduct exemplary dam- punish or it is also called permitted to hear evi- You have been example. means to make an ages, which wealth pertaining to defendant’s dence feel, So, you if are you if feel or not This evidence condition. and financial from the evidence reasonably satisfied only your consideration was admitted you plaintiff plaintiff, that the whatever question of exem- to the with reference about, perpe- a fraud talking has had are light in all damages plary punitive or result and as a direct trated them you if determine of the other evidence com- injured and in addition to they were in made an award would be that such may your dis- pensatory damages you this case. punitive damages. cretion award Now, awarding punitive purpose unjust manifestly 921-1.5 It would be IDJI money to allow exemplary judge district and ask return this to the to the plaintiffs, did, it does recovery to the differently than he him to decide to the by way punishment plaintiff, knowing the directions did full well purpose case, and for the added defendant out in the Soria this Court laid which deterring the public by protecting the Quick, The court be- and in Dinneen. doing such from function, and others defendant and because fulfilled its low has puni- Imposition future. wrong entertained as view it of whatever discretionary entirely case, tive ruled that the has merits of O’Dell’s you don’t have jury, that means outrageous with the con- corporation’s defendant you jury feels that $5,000, it unless this in the to award should cost it but duct years years should do so. which have been views equate does not by this Court in entertained damages, you punitive Should award punishing this defen- purpose amount, take into with you must fixing the engaging in similar from dant and others the de- character and consideration the in the future. conduct by the evi- wrong as shown gree of the Mutual unanimous Court very favorably an almost compares instruction 5. This Pacific Haslip. Blackman for set out Justice instructions comparison, in By the case Sierra always This Court has not abstained Soria, Airlines in Pacific reviewed reaching from its own collective decision as $750,000 jury’s punitive award of in dam- propriety punitive damage of a ages upheld by was the district сourt and we, Clearly award. as as the well case, in turn this Court. In in that court, capable determining are of whether this, jury’s award was based on a cor- jury’s proper assessment was award poration’s in “playing conduct it fast and egregious for such conduct as we see be- plans people, loose” with the lives and judge, in fore us this case. The trial hav- phrase which I from one my borrow so, ing once undertaken to do would cer- mentors, Idaho Judge McNaughton, North tainly placed position in an awkward if graced years who this bench in the 1930- try again. directed In these circum- prac- and thereafter returned to his credibility stances there are no issues of tice in Coeur d’Alene. On the first Soria Plainly obviously, witnesses. we can appeal, approving imposition puni- spare and should the district court and damages opinion tive our stated that: conclusion, come thereby to our own punitive ‘An damages award of will be put the case to a final rest. Justice de- appeal only sustained on when it is layed justice say is denied. We should shown that the defendant acted in a man- today agree that this Court does not ner that “an was extreme deviation from should, accordingly the result and in this conduct, reasonable standards of situation, unique do this Court has done as/ that performed by the act was the defen- past in the a conclusion as to the —reach understanding dant with an of or dis- validity jury’s Only assessment. ’ regard likely consequences.” for its Id. timidity way doing stands in the If so. (Citation omitted.) justification ‘The judge, referred to another district punitive damages must be that the defen- judge would be no better able to come to a extremely dant acted with an harmful conclusion are than we. We can also take mind, state of whether that state be inflammatory language note that no “malice, fraud, termed oppression, used in final jury. summations to the ’ gross Id., negligence.” quoting from fact, plaintiff’s counsel’s statement was Produce, Inc., Quality Morrison v. very low-key: 448, 450, (1986). 444 P.2d you If believe ... J.R. Com- Soria, 594, 610-11, 111 Idaho 726 P.2d pany responsible is for the conduct of (1986). 712-13 agent John Basabe as the contrac- One of the opinions best-reasoned writ- occurred, tual breaches the J.R. Sim- ten punitive this Court relative to dam- plot Company responsible for the ma- ages Clark, Dodge Boise nipulative conduct of all of its other The Court was unani- agents and that that conduct was ex- mous, McQuаde writing, joined by Justice treme, outrageous, beyond acceptable McFadden, Donaldson, Shepard, Justices standards, you may punitive award dam- Spear. jury’s assessed, verdict ages, simply simple for the breach of $12,- compensatory damages, addition to the contract but for the excessive nature 500, for wilful or wanton misconduct found may punitive of the conduct. You award which, gross outrageous, to be accord- by punishing which will the De- ing to the court’s instructions would “serve fendants, serve to deter the Defendants punish cross-defendant, Boise engaging and others from in similar con- Inc., Dodge, and to deter others from the duct. commission of like offenses.” The offense very These aren’t awarded glacier in that case was like a snowball to a often, Ladies and In fact Gentlemen. comparing it to the conduct which we my 12 years practice; one case in today. turning review It consisted of back attorneys I I can mileage on the odometer of a car know count car, fingers was in truth a used which was three those who have ever re- represented punitive damage as a demonstrator. ceived kind of

830 (DAMAGES). part I from part dissent designed for the most IV They are

awards. motion for new I it holds that a exceptions. And I because outrageous of believe 59(a)(6) may predi- be under I.R.C.P. I outrageous situation. this is an that dam- grounds of excessive cated on the only way only way, the the believe part IV as to the I.R.C.P. ages. I concur Company will cor- Simplot that the J.R. 59(a)(5) from the state- porton and dissent ethics, will do different- corporate rect its 59(a)(6). my In concerning I.R.C.P. ments has to than it Glenn ly to others different view, prior deci- carefully, read our when O’Dell, problem of John confront the will ground the of hold that a new trial on sions A Basabe, money. them is if it costs only damages may be considered excessive they of this courtroom verdict out 59(a)(5). under I.R.C.P. day’s pay off in a and can take home income of all the equal the income would 1881, legislature the Idaho Ter- In going is not people in this courtroom procedure. ritory a code of civil enacted Terr, Company or others Simplot deter the J.R. Idaho, p. 1. Laws of 1881 Gen. thing. may doing the same who think of provided procedure a for 411 of this code § unfortunately there are other em- And at 88. granting new trials. Id. Subsec- engage in similar who ployers out there provided: 6 of 411 tions 5 and § them from It wouldn’t deter practices. or other 411. The former verdict Sec. future. doing again in the and a new trial may be vacated decision I appropriate amount? an party What’s granted, application on the should be you. The amount following can’t tell aggrieved, any for of the punish the De- something causes, affecting would materially substan- party: an amount which rights It should be tial of such fendant. deter, those are sufficient to

would be In you with. a concepts that deal damages, appearing 5. Excessive just the Land company take given under the influence have been —let’s and Live- The Land Livestock Division. prejudice; passion or over gross sales of Division had stock Insufficiency of the evidence you If took dollars in 1987. 200 million decision, or or other justify the verdict gross percent of their of one one half law; against the that it is sales, percent would be one half of one quarter of you If took a million dollars. 4439 of the revised became The statute § dol- half a million percent it would be Territory in 1887 and the Idaho statutes of money much will send lars. How through suc- original in its form remained de- company and message punish until the Idaho laws codification of cessive in the again it from this conduct ter 1975, except repealed it was future? in 1931. of a new subsection addition case, appropriate in this I it’s believe 6888; C.S., C.L., 4439; R.S., R.C., & § § outrageousness of of the because Laws, 12, 1, p. 15 ch. Idaho Sess. § If, requesting standing here case. 7-602; 8); I.C. I.C.A. (adding subsection § you I or offend offend these Laws, ch. 10-602; 1975 Idaho Sess. § you some justice, or have your sense of (repealing the March effective § on this that we have overreached sense section). entire in a can’t communicate case because we 1, 1958, this Court Effective November feel, then arrive you dialogue about what Pro- Rules of Civil the Idaho promulgated your own conclusions.6 at motions for new subject On cedure. JOHNSON, Justice, concurring and may trial, said: “A new rules the new dissenting. parties any granted to all of the issues part all or of the opinion of the parts I in all concur of this by the statutes provided TRIAL) reasons (NEW Court, I except part begin- Company, found employee predi- figures appear have been 6. Counsel’s transcript. Wallis, reporter’s ning page Gary at testimony E. of Mr. on the cated 59(a) (1958). (1986) Quick Crane, I.R.C.P. In I.C. and in state.” (5) (6) 759, contained Soria, 10-602 subsections § originally leg- enacted the territorial defendant had moved for a trial on the in 1881. islature grounds awarded plaintiffs were excessive. The trial court 1, 1975, 59(a) January Effective I.R.C.P. reviewing denied the motion. In incorporate was amended to the reasons decision, court’s the Court said: “In decid substantially for a new trial in the ing premised upon a motion for a new trial 10-602, form contained in I.C. as it then allegation of either excessive or inade existed, changes. with a few In the new weigh quate damages, the trial court must rule, (5) (6) version of the subsections if the evidence and determine the verdict stated: pas under the influence was awarded may granted A new trial to all or 608, prejudice.” sion or 111 Idaho at any parties part of the and on all or (emphasis original). P.2d at 720 in in the issues an action for following reasons: Quick, In the considered the trial Court court’s denial of a motion for new trial damages inadequate 5. Excessive or 59(a)(5) brought under I.R.C.P. on the damages, appearing given to have been grounds damages by that the awarded the passion under the influence of preju- or jury were excessive and said: dice. ruling upon In a motion for a new trial Insufficiency of the evidence to premised upon inadequate or excessive decision, justify the verdict or other or damages, the rule the trial court must against that it is the law. Finch, follow is set forth in Dinneen v. 59(a)(5) (6) (1975). por- I.R.C.P. These 620, (1979): 100 Idaho 603 P.2d 575 tions of the rule have existed in this form “Where a motion for a new trial is 59(a)(5) (6) (1990). since 1975. I.R.C.P. premised inadequate on or excessive 1979, In this Court considered in a case damages, weigh the trial court must which the trial court had denied a motion compare the evidence and then brought new trial under I.R.C.P. jury’s to what he award would have 59(a)(5) grounds on the that the verdict was given jury. had there been no If the ¶. inadequate. Finch, Dinneen 100 Idaho disparity great appears is so that it to 620, (1979). Dinneen, 603 P.2d 575 In giv- the trial court that the award was Court said: en passion under the influence of or Where a motion for a new trial is prejudice, ought the verdict not stand. premised inadequate or excessive proven It need not be that there inwas damages, the weigh trial court must passion prejudice fact or nor is it nec- evidence compare jury’s and then essary point to such in the record. award to what trial would [the court] appearance The of such is sufficient.” given jury. have had there no If been (еmpha- Idaho at 727 P.2d at 1196 disparity great so appears that it original). sis in to the trial court that the award was given passion under the influence of or Later Court considered a prejudice, ought the verdict not stand. granted case in which the trial court had a proven It need not be there was portion remittitur of a passion prejudice fact nor is neces- jury, awarded or in the alternative a sary point to such in the record. The 59(a)(5) new trial under I.R.C.P. on the appearance of such is sufficient. grounds that excessive had been 626-27, Id. at (emphasis 603 P.2d at 581-82 jury. Galey, awarded Sanchez v. in original). (San (1986) 733 P.2d 1234 I). summarizing holdings

In In the Court reiterated this formu chez Quick Airlines, I, lation in Soria v. Dinneen and Sierra Sanchez Pacific Inc., 594, 608, 111 said: Court sum, Quick 59(a)(5). suggest analysis of the In Dinneen and der I.R.C.P. Quick 59(a)(6) a was in following scope of conduct for of I.R.C.P. course judge pursuant jury’s neg- a motion for apportionment court relation to trial (6): 59(a)(5) addition, ligence. pointed under out: new trial I.R.C.P. Court merely weigh The trial court again that the emphasized It should be jury. those of the calculations a set aside rule that verdict will not be Rather, weigh the substantia] the trial court is to supported con- when it jury’s to determine if the ver- flicting application evidence has no supportable by the evidence and dict is ruling a motion not, grant a new it thinks it should when previous trial. As in the sec- noted If, 59(a)(6). pursuant I.R.C.P. tion, this substantial evidence standard is supported by technically, the verdict is applicable to a determination trial court’s substantial, competent and it for n.o.v. judgment on a motion excessive, the then still finds verdict (citations at at 1198 727 P.2d jury the opinion rule whether in its must omitted) (emphasis original). in influ- appears to have acted under the Therefore, the in Sanchez I statement or In ascer- passion prejudice. ence indicating supported the that was verdict taining appears the to have jury whether “substantial, by competent evidence” has acted, judge disparity the looks to the so nothing to do with the consideration such the awards to whether between 59(a)(6). damages under I.R.C.P. excessive disparity “shocks the conscience.” Rather, it refers to standard for consid- the 615, 733 P.2d at 1240. Id. at ering judgment n.o.v. a motion as may be read While this statement Quick, summary, Dinneen, In San new trial on indicating that a motion for authority for provide I do not the chez damages may grounds of the excessive trial of a for nеw un consideration motion 59(a)(6), ex- to this brought under I.R.C.P. 59(a)(6) grounds of ex I.R.C.P. on the der is motion for the statement dicta. The tent damages. cessive in I was under I.R.C.P. new trial Sanchez acknowledge my complicity fostering I 59(a)(5) under only. There no motion was trial on the that a motion for new the idea Also, 59(a)(6) in the I.R.C.P. Sanchez. may damages be con- grounds of excessive errone- quoted above statement Sanchez 59(a)(6). In under I.R.C.P. Sanchez sidered Quick. ously summarized Dinneen 1064, 772 P.2d 702 Galey, 115 Idaho Dinneen, the the considered In Court II), (,Sanchez portion (1989) I authored the for new trial court’s denial a motion opinion affirmed the trial the that holding 59(a)(5). In I.R.C.P. only under requiring remittitur or order court’s granted trial court have that the should Although it is clear a new trial. granting trial, the Court said: affirmed trial court’s order was that the verdict, only over allowing $540 The ... 59(a)(5), the quote I did dicta I.R.C.P. under expenses the uncontradicted medical I to the review that refers from Sanchez no lost apparently with property lost verdict under I.R. of a “ all, so as to “shock” wages at small jury’s if the 59(a)(6) ‘to determine C.P. ” In our view our collective “conscience.” evidence.’ supportable the verdict concluded trial court should have I 708. concluded 772 P.2d at Id. at suggested a a small such award byII opinion in Sanchez portion this rendered appearing have been verdict stating: preju- passion the influence of under found that the trial court remand On there was Accordingly, hold dice. we did not shock of the verdict the amount trial. granting in not a new error him, he find it unconsciona- did but P.2d at 100 Idaho at also found The trial court ble. that the the verdict indicated amount of Quick, considered Court influence of acting under grounds of a new trial on granting on these prejudice. Based passion or only un- damages jury awarded excessive findings, additional the trial court re-in- accord assessment [the court’s] weight of the clear of the evidence. stituted the remittitur. The trial court’s findings precedent fulfilled the condition P.2d Idaho at at 1194. by this Court in I established Sanchez standard, if Under this the trial court re-instituting the remittitur. That concludes that awarded precedent condition is the law of this the verdict are either excessive or inade unwilling case. I am to tinker with the quate in accord with the trial court’s as exercise of the trial court’s discretion in weight sessment of the clear of the evi so, making findings. these doTo dence, the trial court is authorized to case, only violates the law of this hand, a new trial. On the other if the trial changes also law this state con- court concludes that the awarded cerning of motions for new by the verdict are not either excessive or 59(a)(6) trials under succinctly I.R.C.P. inadequate in accord with the trial court’s stated I. Sanchez assessment of the clear evi Id. It is now clear to me that the dence, reference purpose weighing what is the paragraph in the last sentence of comparing jury’s evidence and award to 59(a)(6) given should what the trial court I.R.C.P. have to I.R.C.P. would have had 59(a)(5). Otherwise, jury, there no dicta, been as directed under I.R. the reference is 59(a)(5)? If C.P. the clear because there was no motion under I.R. supports the amount of 59(a)(6) in

C.P. Sanchez I or II. jury, why awarded should the trial view, In my it is time for this Court to grant allowed to a new trial? make clear that motions for trial new on noted, As one appli- commentator has grounds inadequate of excessive or 59(a)(6) cation of the I.R.C.P. standard to damages are to only be considered under grounds motions for new trial on the 59(a)(5) I.R.C.P. and not under I.R.C.P. inadequate damages excessive or “renders 59(a)(6). holdings There are no clear 59(a)(5), appearance passion I.R.C.P. this Court since promulgation of I.R. prejudice grounds or a new 59(a)(5) (6) C.P. that contradict this trial, Blewett, surplusage.” mere “Ruling formulation. on the New Trial Motion: What Standard If we are to allow motions for new trial Judge?” the Idaho Trial grounds on the inadequate or excessive 249, 252, L.Rev. n. 17 damages to be considered under I.R.C.P. subject To allow this to fester further 59(a)(6), then purpose there will be no only will be a disservice to not our trial making a motion for new trial under I.R. judges, clarify bar. We need to 59(a)(5). Quick, C.P. stated Court now whether motions for trial new on the scope of a trial court’s discretion under grounds of inadequate excessive or dam- 59(a)(6): I.R.C.P. ages may be considered under I.R.C.P. 59(a)(6) Idaho Rule of Civil Procedure 59(a)(6). so, If we should also declare the permits the trial court to a new 59(a)(5). demise of I.R.C.P. I do not under- part trial on all or of the issues in an stand how we can allow motions for new “[insufficiency action reason of the grounds trial on the of excessive or inade- justify the evidence to verdict quate damages to be considered under both decision, other or that it is rules. It law.” is well established that the trial judge may grant trial based 59(a)(6) where, Rule

I.R.C.P. after [the evidence, weighed has all the court]

including determi- own [the court’s] ‍‌​‌‌​‌​​​‌​​‌​​​‌‌​​​‌‌​‌​​​‌​​‌​​​​​​​​‌‌‌​​‌‌​‍witnesses, credibility

nation of the

he concludes that the verdict is not

Case Details

Case Name: O'DELL v. Basabe

Court Name: Idaho Supreme Court

Date Published: Apr 17, 1991

Citation: 810 P.2d 1082

Docket Number: 17421

Court Abbreviation: Idaho