concurring specially:
To my knowledge, this is the first case in which this Court has had the occasion to define what “damage” is for purposes of determining when the statute of limitations in I.C. § 5-219(4) begins to run. In Streib v. Veigel, 109 Idaho 174, 706 P.2d 63 (1985), this Court held that even though I.C. § 5-219(4) provides that “the cause of action shall be deemed to have accrued as of the time of the occurrence, act or omission complained of, and the limitation period shall not be extended by reason of any continuing consequences or damages resulting therefrom .the statute of limitations did not begin to run until some damage occurred, i.e., not until the time of the Internal Revenue Service’s assessment of penalties and interest. See also Blake v. Cruz, 108 Idaho 253, 698 P.2d 315 (1984); Stephens v. Stearns, 106 Idaho 249, 678 P.2d 41 (1984). The date of damage now being the rule for the commencement of the running of the statute of limitations in Idaho, this is the first occasion we have had to determine what constitutes “damage” for purposes of commencing the running of the statute of limitations under Streib v. Veigel. I concur in the majority opinion’s conclusion that the incurring of $1,500 of attorney fees expense was “damage” in order to commence the running of the statute of limitations in I.C. § 5-219(4), as interpreted in the foregoing cases.
The sole grounds for asserting error in the award of attorney fees under 12-120(3) in this case was the claim that the application of that section to the facts of this case constitutes a retroactive application of the 1986 amendment to I.C. § 12-120. I concur in the majority opinion that the application of the 1986 amendment in this case is not a retroactive application of the statute in violation of I.C. § 73-101.