Suitts v. First Sec. Bank of Idaho, N.A.

• Decision Date: 27 September 1985
• Docket Number: No. 14707,14707
• Citation: 110 Idaho 15,713 P.2d 1374
• Parties: Richard O. SUITTS and Kathryn W. Suitts, husband and wife, Plaintiffs- Appellants, v. FIRST SECURITY BANK OF IDAHO, N.A., W.E. McMurtrey and Pauline M. McMurtrey, husband and wife, Defendants-Respondents.
• Court: Idaho Supreme Court

Page 1374

713 P.2d 1374

110 Idaho 15

Richard O. SUITTS and Kathryn W. Suitts, husband and wife, Plaintiffs- Appellants, v. FIRST SECURITY BANK OF IDAHO, N.A., W.E. McMurtrey and Pauline M. McMurtrey, husband and wife, Defendants-Respondents.

No. 14707.

Supreme Court of Idaho.

Sept. 27, 1985.

As Modified on Denial of Rehearing Dec. 20, 1985.

James A. Bevis of Manweiler, Bevis & Cameron, Boise, for plaintiffs-appellants.

Perce Hall and Jay Friedly argued, of Hall & Friedly, Mountain Home, for defendant-respondent First Sec. Bank of Idaho, N.A.

Loren C. Ipsen of Moffatt, Thomas, Barrett & Blanton, Chartered, Boise, for defendants-respondents McMurtreys.

BISTLINE, Justice.

The present case finds its way to this Court through a long and circuitous route. Historical data as to the parties and much of the facts herein are found in Suitts v. First Security Bank of Idaho, N.A., 100 Idaho 555, 602 P.2d 53 (1979) (Suitts I ), and need not be repeated here.

In Suitts I, in reversing a summary judgment granted in favor of defendants McMurtreys, the Court stated the following:

We conclude that the trial court erroneously granted summary judgment to the McMurtreys on the ground that the operation of the escrow was stayed pursuant to I.C. §§ 13-208 and 13-211 during the pendency of the appeal. The McMurtreys, absent a statutory stay, could have protected themselves against transfer of the property in question to a bona fide purchaser during the pendency of the appeal by filing a lis pendens. Suitts I, supra, at 559, 602 P.2d at 57.

As to the defendant Bank, in reversing summary judgment, the Court stated the following:

We are persuaded that the bringing of an interpleader or similar affirmative action by the escrow holder was necessary to invoke the protection of the exculpatory clause in question. The scant record before us at this stage indicates there were not sufficient affirmative steps taken by the bank as escrow holder to actuate the clause. Summary judgment therefore should not have been granted. Suitts I, supra, at 561, 602 P.2d at 59.

Following remand to the district court, Judge Walters framed the issues to be litigated as follows:

[Suitts v. First Security Bank, supra] reversed the trial court's prior award of summary judgment to the defendants on the issue of liability. The case is now pending for trial upon the issue of the nature and amount of damages allegedly In that Memorandum Decision also granted was the defendants' motion for partial summary judgment as to the Suitts' claim for loss of profits and emotional distress, and denied was the Suitts' motion to amend their complaint to include a new cause of action sounding in tort and to allege punitive damages. The Suitts prior to trial dismissed their attorney and continued pro se.

                [110 Idaho 17] suffered by the plaintiffs as a result of the failure of the defendants McMurtreys to file a lis pendens to protect their interest in the subject property, and the failure of the Bank to file an interpleader action or take some other similar affirmative course of action for its own protection, while the matter was in litigation on appeal.  See Suitts v. First Security Bank, supra.   Memorandum Decision, Judge Walters, September 4, 1980, pp. 1-2
                

Trial of the remaining issues was remanded to the magistrate's division. The reason for this is set forth in Part IV below. The primary issue to be tried was limited to a determination of damages incurred by the Suitts in litigation due to the allegedly wrongful act of respondents in placing the appellants in litigation with others, and causing them to incur expenses for the protection of their interests. See Memorandum Decision, p. 3. The jury returned a verdict against the Suitts, finding in favor of both defendants First Security Bank and McMurtreys. In addition, Judge Sellman awarded First Security Bank costs and attorney's fees in the sum of $5,982.43. This appeal followed.

The Suitts have alleged error on appeal with regard to the following issues: (1) the jury instructions given by Judge Sellman; (2) the summary judgment granted by Judge Walters on the issues of lost profits and emotional harm; (3) Judge Walters' denial of leave to the Suitts to file a supplemental complaint; and (4) Judge Sellman's award of costs and attorney's fees to First Security Bank. We consider these issues in turn.

I.

The Suitts first allege that the partial summary judgment entered by Judge Walters on October 9, 1980, was improper and should be reversed. It is, of course, axiomatic that the appellant is entitled to have the summary judgment reversed if there exists any genuine issue of material fact as to a question upon which the summary judgment was initially awarded. I.R.C.P. 56(c). We consider, then, in turn the issues upon which the district court awarded summary judgment.

A.

Suitts first complains of the district court's award of summary judgment on the question of lost profits. It is well-established that "[d]amages for loss of earnings or profits must be shown with reasonable certainty and that compensatory awards based upon speculation or conjecture will not be allowed." Rindlislaker v. Wilson, 95 Idaho 752, 761, 519 P.2d 421, 430 (1974). In its finding that an award of summary judgment was proper on this issue, the district court stated the following:

Counsel have also briefed and argued the issue of whether the plaintiff can recover damages for 'lost profits' due to the unavailability of the property being purchased, for resale. It would appear appropriate at this time for the Court to dispose of that issue also, pursuant to Rule 56(d) I.R.C.P.

In response to a searching and exhaustive inquiry by the defendant's counsel, the plaintiff Richard O. Suitts was able to testify in his deposition that he did not lose any sales or prospective sales of the subject property from which he could have made a profit during the 14 month delay in releasing the documents from escrow. Neither the contract between the buyer and the seller, nor the affidavits, answers to interrogatories, or answers to pleadings in this matter establish that either the plaintiff or the defendants contemplated at the time the contract was entered into, that the plaintiff expected to realize any profits or This is especially so where the alleged loss of profits occur out of collateral or subordinate agreements arising or entered into subsequent to the primary contract in question. 22 Am.Jur.2d Damages, Sec. 61-62, pg. 93-97. It further appears that because the plaintiff did not in fact have any firm contracts to resell the property to gain the alleged lost profits about which he now complains (even if such resales had been contemplated by the parties) the absence of such contracts would allow any compensatory award therefor to be made solely upon speculation and conjecture, which is improper. Rindlisbaker v. Wilson, 95 Idaho 752, 519 P.2d 421 (1974); Patino v. Grigg and Anderson Farms, 97 Idaho 251, 542 P.2d 1170 (1975).

[110 Idaho 18] income as a result of the consummation or satisfaction of the contract. Absent such a contemplation, loss of profits are not recoverable. Traylor v. Henkles [Henkels] and McCoy, Inc., 99 Idaho 560, 585 P.2d 970 (1978); Clark v. International Harvester Co., 99 Idaho 326, 581 P.2d 784 (1978). 22 Am.Jur.2d Damages, Sec. 174, pg. 246-248.

The deposition of the plaintiff leaves no genuine issue of material fact in dispute regarding his right to recover damages assessable as lost profits and summary judgment will therefore be granted on that issue. Memorandum Decision, R., pp. 243-44.

Based upon our review of Mr. Suitts' deposition, ¹ we agree with the district court that the requisite reasonable certainty was not shown and that any conceivable jury verdict would have been based solely upon impermissible conjecture. Accordingly, we affirm the district court's award of summary judgment on the issue of lost profits.

B.

Suitts next alleges error in the district court's award of summary judgment against his claim for damages for mental suffering, anxiety, anguish, or emotional distress. His claim for emotional distress was asserted as part of the general damages flowing from the alleged breach of contract rather than in connection with the independent torts of negligent or intentional infliction of emotional distress.

This issue is controlled by our recent decision in Brown v. Fritz, 108 Idaho 357, 699 P.2d 1371 (1985), wherein this Court held that "when damages are sought for breach of a contractual relationship, there can be no recovery for emotional distress suffered by a plaintiff. If the conduct of a defendant has been sufficiently outrageous, we view the proper remedy to be in the realm of punitive damages." Id., at 363, 699 P.2d at 1377. Accordingly, we affirm the district court.

II.A.

We next focus our examination on the instructions submitted to the jury by Judge Sellman. In the present case, Mr. Suitts, acting pro se, objected only to Instruction No. 14--and then only on the basis that it was difficult for the jury to understand. Instruction No. 14 provided as follows:

If it was reasonably foreseeable to the defendants at the time that the Suitts/McMurtrey contract was made that failure to timely deliver the documents from escrow would involve the plaintiffs in litigation with purchasers such as Porter and Clydean Criner, then the plaintiffs are entitled to recover the attorney's fees and costs they incurred in the Criner/Suitts lawsuit. However, if it was not reasonably foreseeable to the defendants at the time the Suitts/McMurtrey contract was made that failure to timely deliver the documents from escrow would involve the plaintiffs in litigation with purchasers such as Mr. and Mrs. Criner, then the plaintiffs are not entitled to recover damages.

The gravamen of appellants' objection to the foregoing instruction was that, as stated Judge Sellman, however, overruled appellants' objection, pointing out...