Yellowpine Water User's Ass'n v. Imel

• Decision Date: 23 September 1983
• Docket Number: No. 14313,14313
• Citation: 105 Idaho 349,670 P.2d 54
• Parties: YELLOWPINE WATER USER'S ASSOCIATION, an Idaho Corporation, Plaintiff-Respondent, v. Dave IMEL and Lynnea Imel, husband and wife, Defendants-Appellants.
• Court: Idaho Supreme Court

Page 54

670 P.2d 54

105 Idaho 349

YELLOWPINE WATER USER'S ASSOCIATION, an Idaho Corporation, Plaintiff-Respondent, v. Dave IMEL and Lynnea Imel, husband and wife, Defendants-Appellants.

No. 14313.

Supreme Court of Idaho.

Sept. 23, 1983.

Jean R. Uranga, Boise, for defendants-appellants.

Allen R. Derr, Boise, for plaintiff-respondent.

ON DENIAL OF PETITION FOR REHEARING

SHEPARD, Justice.

This is an appeal from a judgment for alleged unpaid assessments for water use, together with costs and attorney fees, and which denied defendants-appellants' counterclaim under the Idaho Consumer Protection Act. We affirm in part and reverse in part.

At one time much of the land in Yellow Pine, Idaho was owned by Fay and Iva Kissinger, who built a water delivery system and then subdivided the land and sold individual lots. Under the terms of the Kissingers' federal water permit, they could not sell water but rather they charged lot owners for maintenance of the water delivery system. The water system was incorporated and was regulated by the Idaho Public Utilities Commission, which set water rates as $5 per month during the summer, $1 per month during the winter months, and a connection charge. The Imels purchased lots in Yellow Pine, obtained a water connection, and paid a $36 annual water charge in 1974, 1975 and 1976.

In 1975, the corporation applied for a rate increase to the P.U.C., which increase was refused until the corporation filed proper tariffs, notified its customers that they need not pay in advance, that they need not pay for water service not received, and that they had the right to temporarily discontinue service upon the payment of a disconnect fee. The Water System never complied with that order and the Kissingers were threatened by the P.U.C. with fines and jail terms for non-compliance. In 1976, the corporation purportedly donated the water system to the town of Yellow Pine and it became the Yellow Pine Water User's Association, a non-profit corporation, primarily for the purpose of being released from P.U.C. jurisdiction. That transfer of assets of the Water System was approved by the P.U.C.

In late June 1977, customers of the Water System were informed of the transfer and that they would be paying higher rates for water service, which higher rates would be effective as of January 1, 1976, i.e., retroactive one and one-half years prior to the notice. Among other matters in the notice was an untrue statement indicating that the retroactive rate increase had been authorized by the P.U.C. Together with the notice, the Imels received a bill for $204, i.e., for 1976, an additional $24 charge on three lots, and an additional $60 charge on a lot to which water was not furnished; for 1977, $60 for the three lots and an additional $60 for the lot to which water was not furnished. After checking with the P.U.C., Imel believed he was being overcharged. In July 1977, customers were notifed that if their bills were not paid by September 1, 1977, their water would be disconnected. Following a dispute between Imel and Kissinger at a Yellow Pine town meeting during August 1977, Imel's water line was disconnected. Thereafter, and prior to the institution of this action, Imel tendered $26 as payment for his water service through July. That tender was refused and a payment of $272.23 was demanded by Yellow Pine.

Yellow Pine filed the instant action demanding $384, which amount was allegedly due for water service during 1976, 1977 and 1978, to which Imels responded with a general denial and a counterclaim for deprivation of use of their property and $10,000 in punitive damages for violation of the Idaho Consumer Protection Act, I.C. § 48-608(1). At the beginning of trial, Yellow Pine reduced its demand to $234.

Following trial before the magistrate court, Imels were found liable for $26 in fees for 1977, a disconnect charge of $30, costs in the amount of $318, and attorney fees in the amount of $700. The magistrate found against Imels on their counterclaim on the basis that they had not shown a loss as a result of any deceptive practice. On appeal to the district court, the decision of the magistrate was affirmed. However, the cause was remanded for an explanation of the magistrate's award of attorney fees and the magistrate then concluded that attorney fees were awardable under I.C. § 12-120(2), relating to the purchase and sale of goods, wares or merchandise.

On this appeal, there is no assertion that the award of $26 to Yellow Pine was erroneous and therefore we deem that part of the appeal abandoned and affirm that portion of the judgment. See Lomas & Nettleton Co. v. Tiger Enterprises, Inc., 99 Idaho 539, 585 P.2d 949 (1978); Chugg v. Chugg, 94 Idaho 45, 480 P.2d 891 (1971); Harmon v. Noland, 90 Idaho 494, 413 P.2d 897 (1966).

Appellants Imel assert error in the rejection of their counterclaim and urge that they have suffered compensible damage under State ex rel. Kidwell v. Master Distributors, 101 Idaho 447, 615 P.2d 116 (1980). In Master Distributors, the State sought to enjoin the continuance of practices which had a tendency or capacity to deceive and also sought restitution for those consumers who had purchased the goods. We held such enjoining permissible and held there existed discretionary authority to award restitutionary relief on behalf of those who have paid money as a result of the unfair or deceptive...