*1 129 community property distribution “just.”

may be The division of the commu- property

nity is within the discretion of the distribution, court, non-equal and a required opinion, might this

while injustice in to avoid “substantial some

used

cases,” assuming practice such a prohibited “offset”

would constitute an Hisquierdo federal law. See v. His- 439

quierdo, U.S. 99 S.Ct.

L.Ed.2d U.S.C.A. See

§ (statute 1408(a)(4) effectively overruling

McCarty apply disability pay). does not

V.J. HUNT dba V.J. Hunt Construction

Company, Plaintiff-Counter-defendant Appellant, MAYR, Betty A.

Lambert and Ken Zander,

neth P. Lonette Defend Respon

ants-Counter-claimants

dents.

No. 14652.

Supreme Court Idaho.

Aug. *2 Hunt,

repairs by the homeowners refused to the balance on their contracts— due $10,- $4,035.75 Mayr on the and contract 534.09 on the Zander contract. Hunt there- brought against the home- after actions owners, which consolidated actions were sought for trial. Hunt to collect the bal- $100,000 contracts, plus due on the in ance special damages result of incurred as a loss business, reputa- income to his loss tion, disruption relationship and with of his subcontractors, all claimed to have been by occasioned the homeowners’ failure complete payment on their contracts.1 then coun- homeowners filed answers and seeking cost damages terclaims for the repairs and loss of value to their homes as as well as for inconvenience and discomfort work, faulty a result of the construction and for embarrassment and humiliation filing impairment due to the credit against by liens the Hunt’s sub- homes suppliers. contractors and material court, The district trial without after a jury, damages awarded Pocatello, George, plaintiff- Ronald S. repairs. Additionally, the for the cost and appellant. counter-defendant $5,000 general the in Mayrs court awarded $5,000 fees; damages attorney’s in Pocatello, Manning, D. James for defend- $7,500 Zanders were awarded respondents. ants-counter-claimants and attorney’s fees. damages and Mayrs The court awarded both the BISTLINE, Justice. placed on the the Zanders value of liens 19, 1978, April plaintiff, On V.J. sup- by material houses subcontractors and defendants, into entered contracts with trust, held in form as pliers “to be such Betty A. and Kenneth Mayr Lambert agree, parties may or ... as subse- (hereafter P. and Lonette Zander “home- Court, by ordered until such quently owners”), to construct for each of houses there was a determination of time as provided The contracts them. validity and amount of the lien claims according houses would be built R., p. pending,” as then by except plans supplied homeowners prorated attorney’s to be well redline alterations which were to among the lien Hunt was al- claimants. upon mutually agreed construction. offsets homeowners’ lowed payment provision supply A for the of and damages due on awards the balances was After for “extras” included. contracts as well the cost of certain houses, they homeowners moved into their “extras.” noticing began problems with the construc- appeal, of the houses. of their dissat- On Because with the of their court erred isfaction construction repairs repairs attempts at homeowners for the cost of homes summary by partial court ment made was uncontest- 1. The district entered homeowners spe- dismissing order Hunt’s claim for Hunt. ed summary judg- cial after motion for

l$i faulty necessitated rough grade and backfill and around reviewing work. After the record we foundation walls.” hold that the trial court’s $450 award to each of B, R., p. Plaintiffs’ Ex. the homeowners for “defects in the instal- dispute There is no the record that styrofoam lation of insulation around excavating, Hunt incurred the back- $500 VII, R., 82) *3 (Finding p. foundation” of Fact grading pursuant fill and to the contract. supported by of the homes is not substan- Thus, any filling cost additional back competent tial and evidence the record. necessary protect footings to must be original prints specified blue that two by borne the homeowners. styrofoam placed inches of insulation be on Hunt contends that the other the foundation walls with no insulation in repairs sup for awarded are not joists the floor or the outside vents. Hunt ported by competent substantial and evi requirements deviated from the blue- dence in the record. Hunt that the prints placed and instead six inches of insu- improp trial court’s award of for lation under the floor and insulated the wiring, er insulation the homeowners’ vents. He testified that he had discussed attics, ceilings and warping the Zanders’ with the homeowners the fact ceiling Mayrs’ entry door were plans inadequate were and if followed erroneous. He contests these not awards great would result in a deal of heat loss ground on contractually that he is not and would supply their insulation responsible or that the contract has been needs. He stated: “I told them I would modified, above, as was the case but that put in fiberglass the six-inch insulation un- the trial court awarded too much for the simply der the floor because it was the however, repairs. apparent, individual It is logical way and the best to do it. And even that the trial court set the awards at inter though it would cost me more to do it that figures costly mediate between the more way, charge that wouldn’t them an extra approaches by submitted the homeowners Tr., II, for it.” Vol. p. 575. Hunt testified expensive approaches and the less offered agreed that the homeowners to and were by findings Hunt. The trial court’s are appreciative of this orig- deviation from the substantial, supported by conflicting, albeit blueprints. Tr., II, inal p. Vol. 575. Nei- evidence will ap not be disturbed on ther of the disputed homeowners Hunt’s State, peal. Rueth v. testimony they agreed depar- to the Smith, P.2d 1333 Javernick v. ture blueprints from the merely but of- Hunt’s testimony fered concerning the relative assignment second of error is that the trial procedures. merits of both The evidence court erred in to the homeowners being parties uncontroverted that amount of the lien claims filed con agreed to this blueprints, alteration of the suppliers, validity tractors and material any support we fail to find for the trial presently being litigated. of which was court’s award of $450 each. homeowners, his contracts with the We also hold that the trial court’s specifically agreed pay that he would award of to the $200 homeowners for de suppliers contractors and out of the con relating footing depth fects sup are not payments tract made the homeowners ported by the provi record. The contract any taking money for himself. relating sion to the footing depth provided comply obligation, Hunt did with this that: paid suppli but rather his contractors and

“Due to necessity moving $90,000 $109,700 several ers pay rocks, large agrees Builder pay leaving all ments he received in bills excavating and backfill grading up unpaid, which failure resulted in liens following agreed to the upon against limits filed the residences. Hunt does digging grad- allowance for liens, Tr., $500.00 not contest the amount of the ing footings II, garage p. house and Vol. nor the fact that the home- He homeowners.3 owners, properly awarded to the and if the subcontractors when no basis argues that there is against them in their obtained actions, court’s determination ac- record for the district would have an lien foreclosure pursued unreason- claim was argues only that that Hunt’s against him. Hunt The trial foundation. ably and without were not entitled to collect that: him the liens until court found damages from off liens was resolved validity prevailing of those are the [homeowners] “[T]he not, did many The trial court degree another action. of their part[ies] to the however, exist, of the liens to award the amount conceded to defects were claimed damages outright notwithstanding but the homeowners as the fact but trust, known of them “to be held or should have plaintiff instead awarded knew defects, nothing about them time as there was a he did ... until such brought suit de- validity and amount of furthermore determination of the alleging mone- pending____” substantial claims in fendants ... the lien *4 and R., tary damages for loss of business p. 95. The trial Judgment, Amended though such reputation the loss of business merely sought to assure that court thus There- were without foundation. hav- claims protected from homeowners would attorneys fees ... the Court awards fore without resort to ing the lien claims claim for the reason contractor’s] in event that the lien litigation [the further the unreasonably without pursued was valid and en- claims later held to be were foundation.” We do not find by foreclosure. forceable R., p. resolution of this 81. error in the trial court’s to resolve problem or in the court’s decision in record support There is substantial possible litigation expeditiously this findings supporting its court’s for the trial action be- necessity of a third without were determination that judicial ing brought to further burden that Hunt’s claim prevailing parties and docket.2 unreasonably and without pursued was foundation; hence, not be set aside. it will is that assignment final of error Hunt’s attorney’s court erred trial argues that additionally Hunt judgment fee to the homeowners. $10,000 in of of a total trial court’s award 1982; April was rendered on excessive, this case being clearly it attorney’s fees is attorney’s trial court’s award of thus the in the amount submitted in excess of the pro- in accordance with the fees was made The affi of costs. homeowners’ affidavit 54(e)(1) provides which of I.R.C.P. part visions of the record davit of costs attorney’s may be awarded to appeal, we are unable this Court on court party parties regard or when the prevailing in this contentions to review Hunt’s brought, pursued case “was presumed finds that the to have award will be frivolously, unreasonably or or defended Rutter properly entered. been foundation ....” n without McLaughlin, Mead, Dawson if this Court de P.2d 595 damages improperly were termines affirmed homeowners, decision is awarded, he, The trial court than the rather part, and remanded for part, reversed party and prevailing been the would have modifying judgment of an order entry fees could not have been attorney’s thus determining party to an action is a "In which if this 2. It must be remembered costs, party the trial brought precipitately, prevailing was done and entitled to such were party complaining consider the in its sound discretion court shall herein. judgment homeowners. the action in rela- or result of respective sought by the to the relief 54(d)(1)(B) guidelines establishes the I.R.C.P. parties,____" must deter- pursuant to which the trial court party”: party “prevailing whether a is mine par- opinion. accordance with this Each after court on found based title, credit, ty attorney’s impairment of of incon- bear their own costs and slander view, my In fees. venience and discomfort. filing against respon- of groundless a lien prima property dents’ facie is a slander of SHEPARD, DONALDSON, C.J., J., impairment respondents’ title and an concur. Additionally, from credit. evidence taken BAKES, J., concurs in result. standpoint respondents would indi- cate inconvenience from uninhabitabili- SHEPARD, Justice, concurring. specially resulting ty of the structures from defects express only my disagreement I write my view, in the construction. all of the approach with the of the dissent. believe sup- more adequately above evidence than damages anguish” the issue for “mental ports award made present is in the case. non-existent by the trial which made court no reference cross-complaint The answer and to “mental anguish.” respondents does not seek McFADDEN, anguish,” Tern., “mental but rather for slander of Justice Pro dissent- title, impairment credit, ing: inconvenience discomfort, embarrassment, and humil- $5,000 gen- The district court awarded findings fact, iation. The conclusions of damages to the Mayrs eral law, of the trial court general damages ap- to the Zanders. The *5 general damages,

find and award with no pellant respondents agree that these anguish.” mention therein of “mental general damages were awarded mental for Likewise, opinion the majority today only resulting anguish from breach of con- general damages, affirms the of award However, appellant struction contract.1 ar- with no mention therein of “mental an- gues award- that the district court erred in guish.” It is the contention of the ing damages anguish stemming for mental appellant damage which por- translates contract, from breach of respondents’ tion of answer and counter- trial respondents argue while that claim anguish.” into the term The “mental correctly. af- majority court acted The accepts dissent translation of terms extent, firms the To I dissent. award. engages thus a battle over non-exis- of The Restatement Contracts states tent straw man. regarding damages general rule for mental action,

In the instant Hunt filed a lien anguish due to breach of contract. In Um- against respondents’ property 712, and institut- 700, phrey 682 Sprinkel, v. 106 Idaho present action, 1247, (1983), ed the adopted which he made P.2d 1259 Idaho has provision claim for profits for lost business the Restatement verbatim: reputation by loss of business reason contract, “In of dam- actions breach of unable his creditors. an On given compensation will be ages summary judg- uncontested motion for suffering, except for mental when ment those claims Hunt were denied and wanton or breach was reckless and judge district concluded that the Hunt harm where bodily caused it was principal claims asserted action wanton or reckless breach of a contract In “were without foundation.” performance render char- such a respondents’ causes action had acter that the defendant reason to the evidence was more than sufficient know when the contract was made that support géneral damages suffering an award the breach would cause mental (1973). Although appellant respondents agree Special damages pled 1. must be with general damage the pensate award particularity. 9(g). was intended to com- I.R.C.P. It should noted anguish, damages for mental for mental respondents counterclaim filed Dobbs, anguish special damages. are See D. satisfy requirements 9(g). did I.R.C.P. Handbook on the Law of Remedies 12.3 § 134 pecuniary reasons other mere than § CORPORATION, loss.” 341 Restatement of Contracts an HARTWELL The (1932). corporation, Plaintiff-Appellant, See also Max Rouse & Sons v. Hatfield 840,

Northwest, 847, 606 P.2d v. 944, (1980). rule articulat- general 951 SMITH, Defendant-Respondent. Edgar F. widely has ed in Restatement been No. 14082. adopted. Hugh W. Mack v. Comstock See 583, Associates, Inc., Cal.App.2d 37 225 Appeals Court of of Idaho. 466, (1964); Broad- Cal.Rptr. 469 Grok v. 19, June 214, Builders, Inc., Mich.App. 120 land 443, v. 444-45 Fiore 327 N.W.2d

Sears, Co., N.J.Super. 144 & Roebuck (N.J.Sup.Ct. D. Law A.2d Inc.,

1976); Taylor Gray, v. & Rogowicz (Tex.Civ.App.1973).

498 S.W.2d Dobbs, D. Handbook on generally

See § Law of 12.4 Remedies rule, majori- line with anguish

ty view for mental is that of a

may recovered after breach not be Hugh Mack v.

construction contract. See Associates, Inc., supra;

W. Comstock Builders, Inc., supra; v. Broadland

Groh Sears, Co., supra;

Fiore Roebuck & Inc.,

Rogowicz Taylor Gray, supra. &

Although have allowed recov- some courts

ery anguish stemming from mental *6 contract, B

breach see & Homes, v. Hogan,

M Inc. So.2d Sereneck, (Ala.1979);

671-73 Hill (Ala.Civ.App.1978), 1131-32

So.2d justification see for Idaho to deviate

can no adopted majority view which we

from the supra. Sprinkel, Accord- Umphrey district court’s

ingly, I reverse the would Further, be- general damages.

award of improperly damages were

cause

awarded, attorney the award of recon- clearly is and must be excessive

sidered.