Camp v. Jiminez

• Citation: 107 Idaho 878,693 P.2d 1080
• Decision Date: 26 December 1984
• Docket Number: No. 15020,15020
• Parties: Olivia L. CAMP, Plaintiff-Respondent, v. Charles A. JIMINEZ, Defendant-Appellant.
• Court: Court of Appeals of Idaho

Page 1080

693 P.2d 1080

107 Idaho 878

Olivia L. CAMP, Plaintiff-Respondent, v. Charles A. JIMINEZ, Defendant-Appellant.

No. 15020.

Court of Appeals of Idaho.

Dec. 26, 1984.

James R. Michaud, Coeur d'Alene, for defendant-appellant.

Lynn J. Farnworth, Farnworth & Norton, Moscow, for plaintiff-respondent.

BURNETT, Judge.

In this case we examine a host of procedural and substantive attacks upon a summary judgment and upon awards of costs, attorney fees and prejudgment interest. The procedural issues focus upon the jurisdiction of a trial court while an appeal is pending, the propriety of entering summary judgment on a verified complaint and the effect of failure to verify a memorandum of costs. The substantive issues pertain to attorney fee awards under I.C. § 12-120(2) or § 12-121 and to the availability of prejudgment interest under I.C. § 28-22-104. This appeal arises from a creditor's suit to collect a debt. The creditor, Olivia Camp, sued on a promissory note executed by the debtor, Charles Jiminez. The district court entered summary judgment for the balance due on the note, together with costs, attorney fees and prejudgment interest. The debtor has appealed. For reasons explained below we affirm the judgment and the awards, as modified.

I

We turn first to the procedural questions. This case presents a convoluted history. The creditor brought this action upon a promissory note reciting an obligation of $50,000, to be paid in five annual installments of $10,000 each "without interest." The note contained no provision for accelerating the entire balance if the debtor defaulted on any installment, nor any provision for attorney fees if suit were filed on the note. This action was filed after a default on the fourth installment but before the fifth installment had become due. The complaint sought recovery of both unpaid installments. The district court entered a summary judgment for an amount equal to the fourth installment, plus prejudgment interest on that amount. The court subsequently awarded costs and attorney fees. The debtor then filed a notice of appeal from the award of costs and attorney fees.

While that appeal was pending, the fifth installment came due without payment. The district court entered a second summary judgment, entitled "Final Judgment and Costs," holding the creditor entitled to recover both unpaid installments, together with prejudgment interest on each installment. The judgment also reiterated the earlier award of costs and attorney fees but made no further award. The Supreme Court later dismissed the pending appeal from the award of costs and attorney fees, stating in the dismissal order that "this appeal is from a partial summary judgment not certified as final ...." The debtor then filed the instant appeal from the "Final Judgment and Costs."

A

The debtor contends that the district court lacked jurisdiction to enter the "Final Judgment and Costs" because the appeal from the earlier award of costs and attorney fees was still pending, having not yet been dismissed by the Supreme Court. We disagree. The "Final Judgment and Costs," insofar as it related to the fourth installment and prejudgment interest on that amount, was unaffected by an appeal taken solely from an award of costs and attorney fees. The debtor has cited no authority, and we find none, holding that an appeal confined to costs and attorney fees stays the underlying judgment or further proceedings on other subject matter in the plaintiff's complaint.

At most, the appeal, if properly taken, could have stayed further proceedings within its narrow subject matter. Arguably, it could have stayed entry of that part of the "Final Judgment and Costs" which reiterated the earlier award of costs and attorney fees. But the appeal was not properly taken. The Supreme Court, in a ruling which now stands as the law of the case, held that the initial summary judgment was not a "final" judgment. Consequently, the award of costs and attorney fees was not an order made after final judgment from which an appeal could be taken under I.A.R. 11(a). This presumably is what the Supreme Court had in mind when it dismissed the appeal. An appeal taken from a nonappealable order does not divest the lower court of continuing jurisdiction in the case. See Marks v. Vehlow, 105 Idaho 560, 567, 671 P.2d 473, 480 (1983). Consequently, we reject the debtor's jurisdictional attack upon any part of the "Final Judgment and Costs."

B

The debtor next contends that even if jurisdiction existed, the "Final Judgment and Costs" was defective because the initial summary judgment, which the "final" judgment adopted without change, was invalid. The debtor attacks the initial summary judgment because the creditor, when moving for the summary judgment, relied only upon her verified complaint, to which an answer had been filed, and did not submit any separate, supporting affidavit. (In contrast, the creditor's subsequent motion for the "final" summary judgment was supported by a separate affidavit; but the affidavit referred only to the fifth installment which had come due after the verified complaint was filed. It did not mention the fourth installment.) The debtor argues that a summary judgment on the fourth installment should not have been issued solely upon a verified complaint.

Rule 56(a) of the Idaho Rules of Civil Procedure provides that "[a] party seeking to recover upon a claim ... may, at any time after the expiration of twenty (20) days from the service of process upon the adverse party ... move with or without supporting affidavits for a summary judgment in his favor ...." (Emphasis added.) It is well settled that a summary judgment may be entered upon the pleadings alone if there appears to be no genuine issue of material fact. See generally 6 J. MOORE, W. TAGGART & J. WICKER, MOORE'S FEDERAL PRACTICE § 56.09 (2d ed. 1983). Moreover, a verified complaint may be presented to the court in support of a motion for summary judgment and it will be accorded the probative force of an affidavit if it meets the requirements of Rule 56(e). See 10A C. WRIGHT, A. MILLER & M. KANE, FEDERAL PRACTICE AND PROCEDURE § 2738, at 500-02 (2d ed. 1983). Rule 56(e), which is identical to its federal counterpart, provides that affidavits "shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein."

Here, the creditor's verified complaint alleged in pertinent part that a promissory note existed, as shown by a copy attached to the complaint; that the debtor had paid the first three installments on the note; that the debtor had not paid the fourth or fifth installment; and that the fourth installment was past due. The body of the complaint did not expressly recite that the allegations were made upon personal knowledge; neither did the verification section contain such a recitation. The verification simply stated under oath that the creditor "has read the Complaint and knows the contents thereof, and that the same are true as she verily believes."

The debtor would have us hold that the lack of an express recitation of personal knowledge in the verified complaint disqualifies the pleading as an affidavit under Rule 56(e). We disagree. If noncompliance of an affidavit with Rule 56(e) is not brought to the lower court's attention by proper objection, it is waived. E.g., Klingman v. National Indemnity Co., 317 F.2d 850 (7th Cir.1963). In our view, a similar rule logically would apply to a verified pleading urged in support of a motion for summary judgment. Thus, if the nonmoving party believes the court should disregard a verified pleading, for lack of conformity within Rule 56(e), a timely objection must be raised. No such objection appears in the record of this case. The initial summary judgment was contested below solely on the ground that the complaint referred to both the fourth and fifth installments on the note, the latter of which was not then past due. The verified complaint's asserted lack of conformity with Rule 56(e) has been waived.

Our research suggests that today's opinion may be the first reported decision explicitly applying the waiver rule to a verified complaint. Consequently, in fairness to the debtor and his attorney, we think it appropriate to note a second reason for upholding the initial summary judgment. The verified complaint substantially complies with Rule 56(e).

We recognize that the generality of pleading allowed under modern rules of procedure often will take verified complaints outside the strictures of Rule 56(e). 5 C. WRIGHT & A. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1335, at 508 (1969). But not every complaint will fail to satisfy the rule. It should be made clear that the policy of Rule 56(e) is to allow the affidavit to contain all evidentiary matter, which, if the affiant were in court and testifying on the witness stand, would be admissible as part of his testimony.

6 (PART 2) J. MOORE & J. WICKER, MOORE'S FEDERAL PRACTICE § 56.22, at 56-1321 to-1322 (1982). In this case, the pertinent allegations in the verified complaint--the existence of the promissory note and the fact that the creditor had, or had not, received certain payments--were not general or conclusory. They were narrow and concrete. They plainly were within the creditor's personal knowledge and her competence to testify as a witness.

In this respect the instant case is distinguishable from others disclosed by our research, where the courts have refused to give probative effect to verified pleadings or affidavits lacking express recitals that they contained matters within the affiants' personal knowledge. For example, in Jameson v. Jameson, 176 F.2d 58 (D.C.Cir.1949), a federal appellate court held that an affidavit as to what the affiant "verily believes" does not satisfy Rule 56(e). However, the factual question in that case was whether a certain document had...