Golay v. Loomis

• Decision Date: 30 July 1990
• Docket Number: No. 18303,18303
• Citation: 118 Idaho 387,797 P.2d 95
• Parties: Byrd GOLAY, dba Golay Masonry, Plaintiff-respondent, v. George A. LOOMIS, Defendant-appellant.
• Court: Idaho Supreme Court

Page 95

797 P.2d 95

118 Idaho 387

Byrd GOLAY, dba Golay Masonry, Plaintiff-respondent, v. George A. LOOMIS, Defendant-appellant.

No. 18303.

Supreme Court of Idaho.

July 30, 1990.

Roark, Donovan, Praggastis, Rivers & Phillips, Hailey, for defendant-appellant. Kathleen E. Rivers argued, Hailey.

Decker & Hollifield, Twin Falls, for plaintiff-respondent. William R. Hollifield, argued, Twin Falls.

BAKES, Chief Justice.

This case is before us on a petition for review from the Court of Appeals. The Court of Appeals reversed a district court appellate decision which had upheld a magistrate's decision granting plaintiff Golay's motion for summary judgment on the ground that the motion had not been opposed by affidavit or other sworn statement as required by I.R.C.P. 56. We affirm the district court's appellate decision and vacate the decision of the Court of Appeals. In so doing, we conclude that the magistrate did not err in granting summary judgment under I.R.C.P. 56, and also did not err in exercising discretion in denying Loomis' motion to set aside summary judgment pursuant to I.R.C.P. 60(b) because of alleged mistake and/or excusable neglect on the part of Loomis.

This is a construction contract case. George Loomis, a building contractor, hired Byrd Golay, a subcontractor, to assist in a residential construction project. A dispute arose over compensation for extra work allegedly performed by Golay. Golay filed a complaint for $2,111.25 in the magistrate's division of the district court. The complaint was signed only by Golay's attorney. After the complaint and summons were served on the defendant, Loomis, acting pro se, sent a letter addressed to the magistrate court entitled "Response to complaint filed by Byrd Golay." The Loomis letter, which was signed but not subscribed and sworn, set forth alleged facts controverting most of Golay's allegations. ¹ Golay then filed a motion for summary judgment supported by an "Affidavit of Amount Due." The affidavit, subscribed and sworn to before a notary public, contained the following statement:

BYRD GOLAY, being first duly sworn upon oath, deposes and states:

I.

That your Affiant is the owner and operator of the business, Golay Masonry, in the above referenced caption [Golay v. Loomis ] and makes this Affidavit on his own personal knowledge and belief.

II.

That the Defendant was to pay an additional sum of $2,111.25 for extra work done on the fireplace, column 12' block, and for heating charges and he has failed to pay the sum which is due and owing.

On the day set for hearing the summary judgment motion Loomis appeared pro se. After hearing argument from Golay's attorney, the magistrate determined that there was nothing in the record in opposition to Golay's motion and supporting affidavit other than the Loomis letter, which he accepted only as "an answer to the allegations, unverified." Loomis requested permission to swear to the contents of the letter or, alternatively, to present oral testimony in opposition to the motion. The magistrate refused this request and granted summary judgment to Golay. Loomis then obtained counsel and moved to have summary judgment set aside pursuant to I.R.C.P. 60(b). The magistrate denied this motion. On appeal to the district court, Loomis' counsel argued that the magistrate erred in granting summary judgment and abused his discretion by denying Loomis' motion to set aside the judgment. The district court affirmed the magistrate and wrote:

On an appeal from a summary judgment ruling, the scope of appellate review is limited to determining whether there exists genuine issues of material fact and whether the prevailing party is entitled to judgment as a matter of law. Gro-Mor, Inc. v. Butts, 109 Idaho 1020, 712 P.2d 721 (Ct.App.1985). A determination of whether a genuine issue of material fact exists is to be based on the pleadings, depositions, and admissions on file, together with the affidavits, if any. Mitchell v. Sequeiros, [Siqueiros ] 99 Idaho 396, 582 P.2d 1074 (1978).

A review of the record shows that the magistrate based his ruling on the following materials. The magistrate had before him respondent's complaint with a supporting affidavit of the amount allegedly due under a construction contract. The only evidence presented by the appellant to contest respondent's claims was an unverified answer. While factually specific, the unverified answer could not be considered by the magistrate. Unsworn statements are entitled to no probative weight in passing on motions for summary judgment. Camp v. Jiminez, 107 Idaho 878, 693 P.2d 1080 (Ct.App.1984). In the absence of affidavits and opposed only by an unverified answer, the summary judgment motion was essentially uncontested. With no evidence cognizable under Rule 56(c) before the court, no facts were presented by appellant to raise a material issue of fact. The magistrate committed no error in determining no issue of material fact was presented. On appeal, this court is presented with the same evidence and reaches the same conclusion as that reached by the magistrate.

The district court also held that the magistrate did not abuse his discretion by not continuing the hearing or accepting sworn testimony from Loomis. The district court wrote:

No abuse of discretion has been shown by appellant for a number of reasons. First of all, the record shows that appellant did not even request a continuance. Secondly, even had a continuance been requested, it would have been improper for the magistrate to grant it under the rules of procedure. Rule 56(f) provides:

When affidavits are unavailable in summary judgment proceedings.--Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or make such other order as is just.

Idaho Rules of Civil Procedure, Rule 56(f). (Emphasis added.)

Rule 56(f) clearly requires a party who is unable to present affidavits which factually justify his opposition to the motion to state by affidavit the reasons he is unable to oppose the motion by use of affidavits. Appellant presented no affidavits in opposition of the motion and presented no affidavit which stated his reasons for not being able to oppose the motion by affidavit. [Citing, Prather v. Industrial Investment Corporation, 91 Idaho 682, 429 P.2d 414 (1967).]

....

[T]he magistrate did not abuse his discretion by not continuing the hearing or refusing to allow appellant to present oral testimony or swear to the truth of the contents of his answer.

The district court also rejected Loomis' argument that the magistrate abused his discretion by refusing to overturn summary judgment pursuant to I.R.C.P. 60(b). The district court wrote:

Where discretionary grounds are invoked for relief from a judgment, the standard of review is abuse of discretion. Knight Ins., Inc. v. Knight, 109 Idaho 56, 704 P.2d 960 (Ct.App.1985). Whether a court has abused its discretion in ruling on a motion to set aside a judgment requires a determination of whether: (1) [t]he trial court made findings of fact which were not clearly erroneous; (2) the court applied the proper criteria under I.R.C.P. 60(b); and (3) the court's legal conclusions followed logically from the application of such criteria to the facts found. Bull v. Leake, 109 Idaho 1044, 712 P.2d 745 (Ct.App.1986).

Applying the above analysis to the present case shows the following. The magistrate in ruling on appellant's motion found that no cognizable evidence was presented by appellant in opposition to respondent's summary judgment motion. The reasons advanced by appellant for not presenting evidence in opposition to the motion were that appellant believed that he was in small claims court and all that was required of him was to send a letter to the court explaining facts in defense of the action and show up on the date set for hearing to argue his claim before the court. Appellant further stated that because the action was in magistrate's court not small claims court as he believed, he was not aware of the requirements that he would need some form of sworn testimony to oppose the summary judgment motion.

At the hearing on the motion to set aside the judgment, appellant argued that the failure to provide cognizable evidence in opposition to the summary judgment motion was the result of mistake and/or excusable neglect. In reaching his decision denying appellant relief under Rule 60(b), the magistrate found that any mistake made by appellant was a mistake of law, not of fact, and that no relief could be provided based on said mistake. The magistrate also found the facts did not present a case of excusable neglect as contemplated by Rule 60(b)(1).

This court finds that the trial court made findings of fact which were not clearly erroneous, applied the proper criteria under Rule 60(b)(1) and that the legal conclusions he reached followed logically from the application of such criteria to the facts found. This court finds that the magistrate did not abuse his discretion in denying appellant relief under Rule 60.

The Court of Appeals reversed the district court's order affirming the magistrate's entry of summary judgment for Golay. The Court of Appeals did not address the I.R.C.P. 60(b) issue but reversed the district court on the grounds that the magistrate abused his discretion (1) because under I.R.C.P. 43(e) he may have allowed Loomis to provide opposing oral testimony at the summary judgment hearing and (2) because "[i]n the peculiar circumstances of this case, we believe it was an abuse of discretion to disallow an in-court verification of Loomis' answer." The Court of Appeals concluded that "verification of the answer [the Loomis letter] would have properly framed the issue of whether...