Esser Elec. v. Lost River Ballistics Tech.

• Citation: 188 P.3d 854,145 Idaho 912
• Decision Date: 15 May 2008
• Docket Number: No. 33232.,33232.
• Parties: ESSER ELECTRIC, Plaintiff-Appellant, v. LOST RIVER BALLISTICS TECHNOLOGIES, INC., Defendant-Respondent.
• Court: United States State Supreme Court of Idaho

188 P.3d 854

145 Idaho 912

ESSER ELECTRIC, Plaintiff-Appellant, v. LOST RIVER BALLISTICS TECHNOLOGIES, INC., Defendant-Respondent.

No. 33232.

Supreme Court of Idaho, Idaho Falls, October 2007 Term.

May 15, 2008.

Rehearing Denied July 11, 2008.

James Annest, Burley, for appellant.

Racine, Olson, Nye, Budge & Bailey Chartered, Pocatello, for respondent. Carol Tippi Volyn argued.

EISMANN, Chief Justice.

I. FACTS AND PROCEDURAL HISTORY

On December 23, 2003, Esser Electric, Inc., (Esser Electric) filed a verified complaint against Lost River Ballistic Technologies, Inc., (Lost River) seeking to recover for labor and materials it provided in performing electrical work in a building located in Arco. Esser Electric was at that time represented by attorney Lary Sisson. The complaint sought to recover for breach of an oral contract and unjust enrichment. In its answer, Lost River admitted that it had entered into both an oral contract and a written contract with Esser Electric and alleged it had paid all sums due in full. It asserted that Esser Electric had failed to perform the work according to the applicable code requirements and had over billed for the work done. In addition to denying that it owed any additional sums, Lost River also counterclaimed for breach of contract, fraud, and breach of the implied covenant of good faith and fair dealing. Esser Electric filed a reply denying the material allegations in the counterclaim.

On July 2, 2004, Lost River filed a motion for summary judgment. It supported the motion with the affidavit of its president and with requests for admissions that were deemed admitted because Esser had not responded to them.¹ The motion was set for hearing on September 22, 2004.

On July 23, 2004, attorney Sisson on behalf of Esser Electric filed a motion to withdraw or amend some of the admissions. He also filed an objection to the motion for summary judgment in which he stated that if the motion to withdraw or amend the admissions is granted, the motion for summary judgment should be denied. He scheduled his motion to be heard on September 22, 2004, the same date as the oral argument on Lost River's motion for summary judgment. Attorney Sisson did not file any affidavits controverting allegations made in the affidavit of Lost River's president, nor did he object to that affidavit.

The district court heard both motions and took them under advisement. On November 2, 2004, the district court issued an opinion granting Lost River's motion for summary judgment in part. It determined, based upon the affidavit of Lost River's president, that Esser Electric was not entitled to recover anything on its complaint and that Lost River had established liability on its counterclaims. The only issue remaining to be tried was the amount of damages, if any, that Lost River was entitled to recover on its counterclaims. Because it had granted Lost River's motion for summary judgment based upon the affidavit of its president, the district court held that Esser Electric's motion to amend or withdraw its admissions was moot.

The damages were tried to a jury on April 5, 2005, and it awarded damages in the sum of $33,123.75. After the trial, Esser Electric filed a motion for a new trial on the grounds that the jury's award of damages appeared to have been given under the influence of passion or prejudice, that the damages were unsupported by the evidence, and that there were errors in law in the district court's evidentiary rulings. It also filed a motion for judgment notwithstanding the verdict. Prior to argument on that motion, Sisson withdrew as counsel for Esser Electric and James Annest appeared on its behalf. Both motions were heard and denied by the district court. The district court also awarded Lost River costs and attorney fees totaling $23,551.37, resulting in a total judgment of $56,675.12. Esser Electric timely filed a notice of appeal.

II. ISSUES ON APPEAL

1. Did the district court err in granting summary judgment to Lost River where Esser Electric's attorney Lary Sisson had failed to respond to the motion?

2. Did the district court err in considering the affidavit of Lost River's president in granting the motion for summary judgment?

3. Did the district court err in failing to consider Esser Electric's verified complaint insofar as it controverted the affidavit of Lost River's president?

4. Did the district court err in giving a jury instruction requested by Esser Electric's counsel?

5. Did the district court err in failing to grant either Esser Electric's motion for a new trial or its motion for a judgment n.o.v. on the ground that Lost River had waived the claimed defects by ratifying the contracts?

6. Is Lost River entitled to an award of attorney fees on appeal pursuant to either Idaho Code § 12-120(3) or § 12-121?

III. ANALYSIS

A. Did the District Court Err in Granting Lost River's Motion for Summary Judgment where Esser Electric's Attorney Lary Sisson Had Failed to Respond to the Motion?

Esser Electric's attorney Lary Sisson did not present any sworn statements in opposition to Lost River's motion for summary judgment. As a result, the district court granted partial summary judgment holding that Esser Electric was not entitled to recover on its complaint and that Lost River was entitled to recover damages on its counterclaims. On appeal, Esser Electric contends that the district court should have refused to grant summary judgment because of the gross misfeasance of its counsel. It points out that defendants in criminal cases have the right to effective assistance of counsel. It argues that we should create a similar right in civil cases where counsel's errors have deprived a party of the right to a fair trial on all or some of the issues in the case.

In 1906 this Court addressed the issue of whether parties against whom a judgment had been entered could obtain equitable relief on the ground that they had been unable to present a full and complete defense due to the negligence and unskillfulness of their counsel. We held that they could not. In so holding, we quoted with approval from 1 Black on Judgments, section 375, as follows: "It is well settled that equity will not relieve against a judgment at law on account of any ignorance, unskillfulness, or mistake of the party's attorney (unless caused by the opposite party) nor for counsel's negligence or inattention. The fault in such cases is attributed to the party himself." Donovan v. Miller, 12 Idaho 600, 606, 88 P. 82, 83 (1906).

Most recently, in Goodman v. Lothrop, 143 Idaho 622, 151 P.3d 818 (2007), a party to the litigation argued that she should be relieved from a mediation agreement because she would not have entered into the agreement but for her attorney's failure to properly advise her on the applicable law. Citing the Donovan v. Miller case, we rejected her argument, stating, "She voluntarily chose her attorney and cannot avoid the consequences of any failure on his part to advise her of the applicable law." 143 Idaho at 627, 151 P.3d at 823.

For over 100 years this Court has held that a party is not entitled to relief from a judgment on the ground that the judgment was entered due to the negligence or unskillfulness of the party's attorney. Esser Electric has not convinced us that we should change that policy. Therefore, it is not entitled to a new trial on the ground that its counsel committed misfeasance in failing to respond adequately to the motion for summary judgment.

B. Did the District Court Err in Considering the Affidavit of Lost River's President in Granting the Motion for Summary Judgment?

Lost River's motion for summary judgment was supported by the affidavit of its president. Esser Electric did not object to that affidavit in the trial court. On appeal, Esser Electric contends that the district court erred in relying upon it because it did not comply with Rule 56(e) of the Idaho Rules of Civil Procedure. That rule states, "Supporting and opposing affidavits shall be made on personal knowledge, 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." "The party offering the evidence must also affirmatively show that the witness is competent to testify about the matters stated in his testimony. Statements that are conclusory or speculative do not satisfy either the requirement of admissibility or competency under Rule 56(e)." Dulaney v. St. Alphonsus Reg'l Med. Ctr., 137 Idaho 160, 164, 45 P.3d 816, 820 (2002) (citations omitted). Esser Electric contends that the district court should not have considered the affidavit of Lost River's president because it contained hearsay and conclusory statements.

A trial court has the discretion to decide whether an affidavit offered in support of or opposition to a motion for summary judgment is admissible under Rule 56(e), even if that issue is not raised by one of the parties. Rhodehouse v. Stutts, 125 Idaho 208, 868 P.2d 1224 (1994). However, we have not required the trial court to rule on the admissibility of the affidavit when there is no objection to it. If there is no timely objection, the trial court can grant summary judgment based upon an affidavit that does not comply with Rule 56(e). State, Dept. of Agric. v. Curry Bean Co. Inc., 139 Idaho 789, 86 P.3d 503 (2004) (conclusory affidavit); Tolmie Farms, Inc. v. J.R. Simplot Co., Inc., 124 Idaho 607, 862 P.2d 299 (1993) (statements containing hearsay and lacking adequate foundation); East Lizard Butte Water Corp. v. Howell, 122 Idaho 679, 837 P.2d 805 (1992) (statements lacked adequate foundation). Because Esser Electric did not object to the affidavit of Lost River's president, the district court did not err in relying upon it when granting Lost River's motion for summary judgment.

C. Did the District Court Err in Failing to Consider Esser Electric's Verified Complaint Insofar as It...