Franklin Building Supply v. Aaron Hymas

IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 41041
FRANKLIN BUILDING SUPPLY )
COMPANY, INC., )
) Burley, November 2014 Term
Plaintiff-Respondent, )
) 2014 Opinion No. 123
v. )
) Filed: November 28, 2014
AARON MICHAEL HYMAS, )
) Stephen W. Kenyon, Clerk
Defendant-Appellant. )
_______________________________________ )
Appeal from the District Court of the Fourth Judicial District of the State of
Idaho, Ada County. Hon. Richard D. Greenwood, District Judge.
The judgment is affirmed.
Robinson & Tribe, Rupert, for appellant. Brent T. Robinson argued.
Eberle, Berlin, Kading, Turnbow & McKlveen, Chtd., Boise, for respondent.
Samuel A. Diddle argued.
_____________________
J. JONES, Justice
Franklin Building Supply Co., Inc. (“FBS”) filed suit against Aaron Michael Hymas to
recover money owed on an open account for construction supplies, equipment, and labor
supplied to Crestwood Construction, Inc. FBS claims that Hymas guarantied any unpaid balance
on Crestwood’s account. The district court granted FBS’s motion for summary judgment. Shortly
thereafter, the district court permitted FBS to correct an error in an affidavit submitted in support
of summary judgment regarding the amount of interest owed on the outstanding balance. Hymas
twice moved the court to reconsider its order granting summary judgment and the district court
denied both motions. He timely appealed.
I.
FACTUAL AND PROCEDURAL HISTORY
In October of 2011, FBS filed a complaint against Hymas for breach of contract and
moved for summary judgment just over a year later. It supported its motion with an affidavit
1
from Richard C. Pietrucci, FBS’s corporate credit manager. According to Pietrucci, Hymas
applied for credit at FBS on behalf of Crestwood Construction, Inc., (“Crestwood”) in his
capacity as an officer of Crestwood. Because FBS required a personal guaranty before it would
extend credit to corporations, Hymas signed a continuing personal guaranty of Crestwood’s open
account. FBS’s suit was an attempt to collect the balance of Crestwood’s open account—
including interest—from Hymas under the terms of the guaranty agreement.
Pietrucci’s affidavit included three attachments. First, it attached the credit application
dated June 22, 2004. The application, signed by Hymas and Justin Walker in their capacities as
officers of Crestwood, provides in part that “the undersigned guarantors personally, jointly,
severally and unconditionally guarantee payment to Franklin Building Supply for any and all
indebtedness of purchaser now or hereafter owing, including all costs, fees and expenses of
collection,” that “[p]ast due invoices accrue finance charges at the rate of 1.5% per month (18%
per annum),” and that three individuals—Chris Georgeson, Crestwood’s lead superintendent,
Justin Walker, and Hymas—are the only individuals empowered to authorize purchases on the
account. The second attachment was a separate, continuing guaranty of Crestwood’s open
account, signed by Hymas and Justin Walker on June 29, 2004. The third attachment was a
customer transaction report for charges and credits to Crestwood’s account. The report shows a
balance of $671,667.50 for charges almost entirely in the first half of 2007. The report attributes
the invoices to Crestwood, but does not indicate who authorized or received the orders.
Hymas made three arguments in opposition to summary judgment. First, he argued that
because the invoices were dated from July 2007 or earlier, FBS was barred from suing to collect
the debt by the four-year statute of limitations in Idaho Code section 5-217, governing actions on
oral contracts. Second, he argued that Pietrucci’s affidavit and the attached customer transaction
report do not show that the charges were authorized by one of the three individuals empowered
to authorize charges on Crestwood’s account and, absent such a showing, summary judgment
would be inappropriate. Third, Hymas requested that he be permitted to take the deposition of
Pietrucci and complained that FBS had not responded to his discovery requests. In particular,
Hymas complained that it would be impossible to determine whether the charges were properly
authorized without the actual invoices associated with those charges, as opposed to the summary
of invoices provided with the Pietrucci affidavit. Hymas did not oppose summary judgment with
any admissible evidence.
2
The district court granted FBS’s motion for summary judgment. It held that any failures
with respect to discovery prior to the summary judgment hearing should have been addressed via
a motion under I.R.C.P. 56(f), properly supported by an affidavit, to continue the hearing
pending further discovery. Hymas did not make such a motion. Second, the court held that the
case was not barred by the four-year statute of limitations because the relevant contract is the
written guaranty and the five-year statute of limitations in Idaho Code section 5-216 applies to
written contracts. Finally, the court held that FBS provided evidence sufficient to support its
claim for breach of contract, shifting the burden to Hymas to present admissible evidence
establishing the existence of a material question of fact, and Hymas did not meet that burden.
Roughly a week later, FBS filed a “Motion to Correct Calculation of Amount Claimed
Owed Plaintiff.” Pietrucci’s affidavit in support of summary judgment stated that “[a]s of
October 31, 2012, the reasonable value of the labor and materials supplied to Crestwood . . . is
$671,667.05, inclusive of interest, plus attorneys’ fees and costs.” According to FBS, that
sentence should have included the date “January 27, 2011,” rather than “October 31, 2012.” Or,
alternatively, the sentence should have included the word “exclusive” rather than “inclusive.”
The amount FBS claimed was actually owed as of January 17, 2013, with interest, was
$934,332.44. The district court granted FBS’s motion to correct the amount owed, finding that
the mistaken calculation was simply “a clerical error” and “should have been the higher
number.”
Hymas responded with a motion asking the court to reconsider its ruling on summary
judgment. He argued that, though FBS’s invoices include the name of at least one of the three
individuals empowered to authorize purchases for Crestwood, those invoices are not signed.
Because they are not signed, Hymas argued that there was insufficient evidence that the orders in
question were properly authorized under the credit agreement or that the goods and services were
in fact supplied to Crestwood. The motion states that Crestwood “had many issues with framers
and other subcontractors calling plaintiff, Franklin Building Supply, and ordering products for
Crestwood’s job sites.” Hymas also argued that “the only showing of an interest rate is in the
credit application and it is so small that it cannot be read and it almost requires a magnifying
glass to do so.” Presumably because of the size of the font in the credit agreement, Hymas
claimed that the statutory interest rate of 12%—set out in Idaho Code section 28-22-104(1)(6),
governing contracts that do not explicitly address interest—should apply to any balance owed by
3
Crestwood. The motion was supported by an affidavit from Hymas stating that Crestwood had
issues with subcontractors making orders from FBS that had not been authorized by any of the
three individuals empowered to do so.
In his reply memorandum in support of reconsideration, Hymas asserted an additional
argument for the first time. Hymas claimed that Crestwood Construction, Inc., was dissolved in
2005 and, in the same year, Crestwood, Inc.—d/b/a Crestwood Construction, Inc.—was formed.
According to Hymas, the entity that was ordering materials during 2007 was not the entity for
which Hymas guarantied its open account with FBS. In support of this new argument, Hymas
attached articles of dissolution and incorporation to his reply memorandum. He also attached
several “sample” invoices from FBS to support his claim that the invoices were not signed.
The district court refused to consider Hymas’ argument regarding the corporate status of
Crestwood because that argument was raised for the first time in his reply memorandum and
refused to consider the materials attached to Hymas’ reply memorandum because those materials
were not attached to an affidavit and properly submitted under oath. It denied Hymas’ motion for
reconsideration, holding again that FBS presented evidence sufficient to support its breach of
contract claim and that Hymas failed to present evidence to establish the existence of a material
dispute of fact. According to the court, Hymas’ affidavit in support of reconsideration asserted
“the mere possibility” that some of the purchases for which FBS is attempting to collect were
made by unauthorized purchasers. Because such claims are “conclusory and speculative,” the
court held that they failed to satisfy Hymas’ burden. The court also rejected Hymas’ claim that
the provision in the credit agreement governing interest was ineffective due to the small font
size, noting that Hymas failed to support that claim with any argument or authority. The court
entered judgment for FBS on April 8, 2013, in the amount of $961,162.07.
Hymas subsequently filed an additional motion for reconsideration on April 19, 2013.1
An affidavit from Hymas—including as attachments the articles of dissolution and incorporation
and sample invoices from FBS that had been attached to Hymas’ reply memorandum in support
of his first motion for reconsideration—was filed by Hymas and received by the court on April
30, 2013. 2 The motion asked the court to set aside the order granting summary judgment. The
1
As a result of a filing error on the part of the district court, the motion was not properly entered into the record until
May 17, 2013.
2
Hymas filed an affidavit earlier, on April 26th, but failed to attach the articles of dissolution and incorporation.
4
sole argument offered in support of the motion was that Crestwood Construction, Inc., was
dissolved in 2005. Because he guarantied payment of an open account in the name of Crestwood
Construction, Inc., and that entity dissolved prior to the purchases at issue in this action, Hymas
argued that there is a material question of fact regarding his obligation under the guaranty
agreement.
The district court denied Hymas’ second motion to reconsider on the ground that the
motion, as a “motion to reconsider a motion to reconsider,” was procedurally improper. In
addition, the court emphasized that Hymas had multiple opportunities to present his argument
regarding the dissolution of Crestwood Construction, Inc., but failed to take advantage of those
opportunities.
Hymas timely appealed, challenging the summary judgment order in favor of FBS, the
court’s decision to permit FBS to correct its error regarding the amount of interest owed, and the
denial of his motions for reconsideration.
II.
ISSUES ON APPEAL
1. Whether the district court erred when it granted Franklin Building Supply’s
motion for summary judgment.
2. Whether the district court erred when it permitted Franklin Building Supply to
correct its calculation of the interest owed by Hymas.
3. Whether the district court erred when it denied Hymas’ first motion for
reconsideration.
4. Whether the district court erred when it denied Hymas’ second motion for
reconsideration.
5. Whether either party is entitled to attorney fees on appeal.
III.
ANALYSIS
A. Standard of Review
This Court reviews an order granting summary judgment under the same standard
employed by the district court. Fragnella v. Petrovich, 153 Idaho 266, 271, 281 P.3d 103, 108
(2012). Summary judgment is appropriate “if the pleadings, depositions, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of law.” I.R.C.P. 56(c). “Once the
moving party establishes the absence of a genuine issue of material fact, the burden shifts to the
5
nonmoving party to show the existence of a genuine issue of material fact.” Chandler v. Hayden,
147 Idaho 765, 769, 215 P.3d 485, 489 (2009). The nonmoving party must meet this burden by
coming “forward with evidence by way of affidavit or otherwise that contradicts the evidence
submitted by the moving party, and that establishes the existence of a material issue of disputed
fact.” Id. “[A] mere scintilla of evidence or only a slight doubt as to the facts is insufficient to
withstand summary judgment.” Corbridge v. Clark Equip. Co., 112 Idaho 85, 87, 730 P.2d 1005,
1007 (1986). The district court evaluates a motion to reconsider an order granting summary
judgment by employing the summary judgment standard, and this Court uses that same standard
to review the district court’s order with respect to such a motion. Fragnella, 153 Idaho at 276,
281 P.3d at 113.
B. The district court did not err when it granted FBS’s motion for summary
judgment.
“The elements for a claim for breach of contract are: (a) the existence of the contract, (b)
the breach of the contract, (c) the breach caused damages, and (d) the amount of those damages.”
Mosell Equities, LLC v. Berryhill & Co., 154 Idaho 269, 278, 297 P.3d 232, 241 (2013). The
district court held that FBS provided evidence sufficient to establish each of these elements.
Having established a prima facie breach of contract claim, the burden shifted to Hymas to
present admissible evidence demonstrating the existence of a material question of fact and
Hymas failed to meet that burden when he failed to present any admissible evidence on summary
judgment.
On appeal, Hymas makes two arguments for the claim that the district court erred in
granting summary judgment. 3 First, Hymas argues that FBS failed to make a prima facie case
because its evidence submitted in support of summary judgment is consistent with the possibility
that unauthorized purchases were made on Crestwood’s account or that products and services
billed on the account were not supplied to Crestwood. Hymas notes that the credit application
signed by Hymas provides that only three individuals were empowered to authorize purchases on
Crestwood’s account. Because the customer transaction report submitted in support of summary
judgment attributes all of the orders to Crestwood Construction—without detailing who, in
particular, made the orders—Hymas claims that Pietrucci’s affidavit does not establish the
3
Though Hymas asserted a statute of limitations defense at the summary judgment stage, he has abandoned that
argument on appeal. In his opening brief, Hymas concedes that “the transaction in question was, in fact, not barred
by the Statute of Limitations.”
6
amount owed under the guaranty contract for purposes of summary judgment. 4 Without signed
invoices as evidence that the purchases were properly authorized and delivered, Hymas claims
that there was insufficient evidence to support summary judgment.
Hymas is mistaken. The district court properly held that while an invoice by invoice
investigation of the charges to Crestwood’s account “would be one way of proving the debt, . . .
it’s not the only way.” The summary judgment record consisted entirely of Pietrucci’s affidavit,
its attachments, and the pleadings. Because only authorized parties were empowered to charge
on the account, the existence of the charges on the account summary is evidence that the charges
were properly authorized. That evidence is unquestionably defeasible. Hymas could have—but
did not—present evidence that the account summary was inaccurate or that it included
unauthorized charges. Instead, as the district court noted, he merely “complain[ed] that . . . [the
account statement was] [un]reliable,” but did not “show why.” The summary judgment record
supports the district court’s conclusion that the amount reflected in the account summary is the
amount Hymas owed under the terms of the guaranty agreement. With no evidence in the record
to create a material question of fact regarding the amount owed under the guaranty contract, the
district court properly granted summary judgment in favor of FBS.
Next, Hymas argues that the district court should have permitted him an opportunity to
depose Pietrucci prior to granting FBS’s motion for summary judgment. Hymas requested an
opportunity to depose Pietrucci in his opposition to FBS’s motion. I.R.C.P. 56(f) permits a party
to move for a continuance to secure affidavits, take depositions, or conduct additional discovery
“[s]hould it appear from the affidavits of a party opposing the motion that the party cannot for
reasons stated present by affidavit facts essential to justify the party’s opposition . . . .” The rule
clearly contemplates that such a motion must be supported with an affidavit stating the reasons
why the continuance is necessary. See Golay v. Loomis, 118 Idaho 387, 391, 797 P.2d 95, 99
(1990) (holding that a district court did not err when it failed to grant a continuance to a party
who presented “neither a motion for a continuance nor an affidavit necessary to support such a
motion”). Though Hymas cited Rule 56(f) in his opposition to summary judgment, he did not file
4
Notably, Hymas did not move to exclude Pietrucci’s affidavit for lack of foundation under I.R.C.P. 56(e). Though
Hymas mentioned Rule 56(e), his only objection to the affidavit was to its sufficiency as evidence regarding the
amount owed on Crestwood’s open account. Hymas conceded at oral argument before this Court that he did not
object to the foundation of the affidavit. Thus, the question of whether FBS laid a proper foundation for admission
of the affidavit and its attachments is not before the Court.
7
a motion under Rule 56(f) and did not support such a motion with an affidavit. Because Hymas
“did not ask the district court for a continuance under Rule 56(f) of the Idaho Rules of Civil
Procedure, . . . it is therefore too late to assert that he needed more time to respond to the
Defendant's motion for summary judgment.” Stapleton v. Jack Cushman Drilling & Pump Co.
Inc., 153 Idaho 735, 742, 291 P.3d 418, 425 (2012).
C. The district court did not err when it granted FBS’s motion to correct its claim
regarding the interest owed under the guaranty agreement.
Pietrucci’s affidavit stated that as of October 1, 2012, the amount owed on Crestwood’s
open account was “$671,667.05, inclusive of interest, plus attorneys’ fees and costs.” Roughly a
week after the district court granted summary judgment in its favor, FBS moved the court to
correct the calculation of the amount owed under the guaranty agreement because the affidavit
contained a clerical error and should have included the date “January 27, 2011,” rather than
“October 1, 2012.” Alternatively, FBS claims that the affidavit should have included the word
“exclusive” rather than “inclusive.” In either event, the effect of the change is to award FBS
interest that accrued after the complaint was filed, interest to which FBS claims it is entitled
under the terms of the credit agreement and that it requested in its complaint. FBS supported its
motion with another affidavit calculating the additional interest and stating that the amount owed
as of January 17, 2013, inclusive of interest, was $934,332.44. After hearing arguments
concerning the motion, the district court permitted FBS to correct the affidavit because the
amount claimed in the initial affidavit represented “a clerical oversight.”
Though Hymas claims that the district court’s decision was in error, he does not say
where the error lies. Hymas simply claims that “it was improper” for the court to permit FBS to
correct the amount it claimed after granting summary judgment based on Pietrucci’s affidavit,
but does not expand on his view that the court acted improperly. “This court will not consider
assignments of error if the party fails to include either argument or citation of authority in the
brief.” Schofield v. Idaho Falls Latter Day Saints Hosp., 90 Idaho 186, 192, 409 P.2d 107, 108
(1965).
D. The district court did not err in denying Hymas’ first motion for
reconsideration.
Hymas’ first motion for reconsideration involved several arguments, supported by an
affidavit from Hymas. His principal argument repeats the claim made in opposition to summary
judgment that, because FBS could not show that charges to Crestwood’s open account were
8
properly authorized or that products and services were supplied to Crestwood, FBS did not
establish the amount owed under the terms of the guaranty agreement for purposes of summary
judgment. This time, Hymas referenced FBS’s invoices, claiming that it is impossible to
determine whether the purchases were properly authorized on Crestwood’s account or delivered
to Crestwood construction projects because the invoices were not signed. In addition, Hymas
attempted to establish the existence of a material question of fact regarding the amount Hymas
might owe under the guaranty agreement by claiming, for the first time, that Crestwood had
difficulties with unauthorized purchases on its open account. Hymas included an affidavit in
which he claimed that “Crestwood Construction, Inc., . . . had many issues with framers and
other subcontractors calling . . . [FBS] and ordering products for Crestwood’s job sites,” though
they were not authorized to do so. Next, Hymas argued that the contractual provision governing
interest on past due amounts was written in font that was too small and the provision was
therefore ineffective. Finally, in his reply memorandum in support of his motion, Hymas argued
for the first time that Crestwood Construction, Inc., dissolved prior to the purchases at issue in
this case.
The district court properly rejected each of these arguments. In granting summary
judgment for FBS, the court held that FBS provided evidence sufficient for summary judgment
with respect to the amount owed under the guaranty agreement. FBS did so, according to the
court, by virtue of Pietrucci’s testimony and the attached customer transaction report. The fact
that the invoices are not signed does not provide evidence that the account summary is
inaccurate, that any purchases were unauthorized, or that products and services were not supplied
to Crestwood. Because the district court properly determined that FBS made an adequate
showing at the summary judgment stage without introducing the invoices into the record, that
same record, now including the unsigned invoices, also supports the district court’s conclusion
that the charges were properly authorized and the products and services were delivered to
Crestwood. Whether the invoices were signed or unsigned, the district court properly concluded
based upon the account summary, coupled with the fact that only certain parties were authorized
to make purchases on the account, that the purchases were authorized and the products and
services were delivered to Crestwood.
The district court likewise properly rejected Hymas’ attempt to establish the existence of
a material question of fact regarding the amount he might owe under the guaranty agreement by
9
claiming that Crestwood previously had difficulties with unauthorized purchases. Hymas’ bare
assertion that unauthorized purchases were previously made on Crestwood’s account is not
sufficient to establish the existence of a material question of fact. The district court found that
Hymas’ affidavit was conclusory and speculative, and relied on the mere possibility that
Crestwood’s balance included unauthorized purchases. Though in possession of FBS’s invoices
and customer transaction report, Hymas did not point to any particular invoice as reflecting an
unauthorized purchase, provide evidence that anyone at Crestwood ever complained to FBS of
unauthorized purchases, provide evidence that anyone at Crestwood ever returned supplies
purchased from FBS because a purchase was not properly authorized, or provide evidence that
anyone at Crestwood ever complained to FBS that products and services had not been properly
delivered to Crestwood. “A mere scintilla of evidence or only slight doubt as to the facts is not
sufficient to create a genuine issue of material fact.” Cantwell v. City of Boise, 146 Idaho 127,
133, 191 P.3d 205, 211 (2008).
With respect to the interest allegedly owed under the credit agreement, Hymas argued
that “the only showing of an interest rate is in the credit application and it is so small that it
cannot be read and it almost requires a magnifying glass to do so.” Because of the small font
size, claims Hymas, if FBS is entitled to recover some principal amount, it is entitled to recover
interest only at the 12% per annum rate provided by Idaho Code section 28-22-104(1)(6),
governing contracts that do not expressly address interest. In rejecting this argument, the district
court noted that, regardless of the font size, Hymas does not claim in his affidavit that he was
unaware of the language governing interest at the time he signed the credit agreement. Hymas
also cited no authority for the proposition that the font size would render the provision governing
interest ineffective. On appeal, Hymas appears to have abandoned this argument. Though he
claims that interest should be added to any principal amount he owes “only at the contract rate of
12% and not 18%,” his briefing to this Court does not discuss the size of the font in the credit
agreement or the manner in which the font size might affect the enforceability of the provision.
Where an issue “is only mentioned in passing and not supported by any cogent argument or
authority, it cannot be considered by this Court.” Bach v. Bagley, 148 Idaho 784, 790, 229 P.3d
1146, 1152 (2010).
Finally, in his reply memorandum in support of his motion for reconsideration, Hymas
argued for the first time that Crestwood Construction, Inc., dissolved in February of 2005,
10
roughly eight months after the credit agreement was signed. About the same time, Crestwood,
Inc.—d/b/a Crestwood Construction, Inc.—was formed. 5 So, Hymas argued, FBS is attempting
to recoup payment for supplies and services provided in 2007 to Crestwood, Inc., and not to
Crestwood Construction, Inc., the entity whose open account Hymas guarantied. Hymas
supported this argument with articles of dissolution and incorporation attached to his reply
memorandum. The district court properly rejected this argument for two reasons. First, Hymas
raised the argument for the first time in his reply memorandum in support of his motion for
reconsideration. Second, the documents were not properly part of the evidentiary record on
summary judgment because they were attached to the reply memorandum, not submitted with
Hymas’ motion and attached to a sworn affidavit.
This Court will not consider arguments that were raised for the first time in an appellant’s
reply brief. Suitts v. Nix, 141 Idaho 706, 708, 117 P.3d 120, 122 (2005). That rule is justified, in
part, by a concern that the respondent should have an opportunity in briefing to address
arguments raised by the appellant. Id. Similar concerns suggest that a district court has the
discretion to disregard arguments raised for the first time in a reply memorandum. Where a
movant raises an argument for the first time in a reply memorandum, the party opposing the
motion has no opportunity to address the argument in writing. In addition, I.R.C.P. 7(b)(1)
requires that a motion should “state with particularity the grounds” on which the court should
grant the motion. Where wholly new arguments in support of a motion are offered in a reply
memorandum, the motion itself does not state with particularity the grounds for granting the
motion. In such a case, the district court may exercise its discretion to disregard the arguments. 6
5
Documents attached to the reply memorandum indicate that articles for dissolution for Crestwood Construction,
Inc., were filed with the Secretary of State on February 11, 2005. The document indicates the dissolution was
effective on 12-31-04. Also on February 11, articles of incorporation for Crestwood, Inc., were filed with the
Secretary of State. On April 6, 2005, a certificate of assumed business name was filed with the Secretary of State for
Crestwood, Inc., indicating the company was using the assumed business name of Crestwood Construction, Inc.
There is no explanation in the record as to what brought about these changes. To dissolve a corporation and to then
have a successor corporation assume the dissolved corporation’s name as an assumed business name presents
somewhat troublesome implications, such as that the moves were accomplished to affect the validity of personal
guaranties of the dissolved corporation’s obligations. Whatever the motivation may have been, it is of no import to
the outcome of this appeal.
6
It would be hard to fault the district court for exercising its discretion to decline to consider an argument first
raised in the reply brief in support of a motion for reconsideration. Even in such a situation, however, the affected
party still has the ability to file an additional timely motion for reconsideration under I.R.C.P. 11(a)(2)(B) in order to
bring to the court’s attention new evidence, arguments and authorities.
11
In addition, the argument is unsupported by any evidence in the summary judgment
record. Because Hymas moved the district court to reconsider its order granting summary
judgment in favor of FBS, the summary judgment standard applied to the district court’s
evaluation of that motion. Fragnella, 153 Idaho at 276, 281 P.3d at 113. That standard requires
the trial court to look to the summary judgment record—“the pleadings, depositions, and
admissions on file, together with the affidavits, if any”—to determine whether there is a genuine
issue as to any material fact. I.R.C.P. 56(c). “[I]tems offered in support of or opposition to a
motion for summary judgment must be attached to the party’s affidavit verifying the items’
authenticity.” Puckett v. Oakfabco, Inc., 132 Idaho 816, 820, 979 P.2d 1174, 1178 (1999).
Because Hymas did not attach the articles of dissolution and incorporation to a sworn affidavit,
they were not part of the summary judgment record and the district court properly rejected an
argument unsupported by evidence in the record.
E. The district court did not err when it denied Hymas’ second motion for
reconsideration.
The district court entered judgment against Hymas on April 8, 2013. Hymas filed a
second motion for reconsideration under I.R.C.P. 11(a)(2)(B) on April 19. The motion focuses
exclusively on Hymas’ argument regarding the distinction between Crestwood Construction,
Inc., and Crestwood, Inc. On April 30, Hymas filed an affidavit in support of his motion that
included as attachments the articles of dissolution and incorporation.
The district court denied Hymas’ motion as procedurally improper. I.R.C.P. 11(a)(2)(B)
permits a party to move the court to reconsider an interlocutory order—no matter when the
interlocutory order was issued—up to fourteen days after the entry of final judgment. The Rule
also permits a party to move the court to reconsider an order made after the entry of final
judgment, but only if the motion is made within fourteen days from the time the order was
issued. In holding that Hymas’ motion was procedurally improper, the district court was
apparently concerned that if a party could make a motion for reconsideration of the denial of a
motion for reconsideration, a party could move the court to reconsider an order denying a motion
to reconsider, where the latter motion was made after the entry of final judgment, so long as the
party did so within fourteen days of the order. In that event, a party could keep a case perpetually
alive in the district court by filing an endless series of motions to reconsider orders denying
motions to reconsider.
12
The district court’s reasoning was in error. There is nothing procedurally improper with a
motion for reconsideration of an order denying a motion for reconsideration. A motion for
reconsideration of “any interlocutory orders of the trial court may be made at any time before the
entry of final judgment but not later than fourteen (14) days after the entry of final judgment”
and “[a] motion for reconsideration of any order of the trial court made after entry of final
judgment may be filed within fourteen (14) days from the entry of such order . . . .” I.R.C.P.
11(a)(2)(B) (emphasis added). The clear language of the rule permits a party to make a motion
for reconsideration of an order denying a motion for reconsideration. See Agrisource, Inc. v.
Johnson, 156 Idaho 903, 912, 332 P.3d 815, 824 (2014) (noting that the district court’s order
denying a motion for reconsideration was an interlocutory order that a party could move the
court to reconsider). In Agrisource, Inc. v. Johnson, an opinion issued after the district court’s
decision, this Court squarely addressed the district court’s concern that a party in Hymas’
position could use the rule to file an endless series of motions for reconsideration. Because “a
motion to reconsider the denial of a motion to reconsider is still asking the court to reconsider the
underlying interlocutory order,” a motion to reconsider an order denying a motion to reconsider
an order granting summary judgment is a motion for reconsideration of the order granting
summary judgment. Id. at 824–25. The district court’s order granting summary judgment was an
interlocutory order. So, where the underlying order is a summary judgment order, I.R.C.P.
11(a)(2)(B) requires that any motion asking the court to reconsider an order denying a motion for
reconsideration—no matter how many motions for reconsideration preceded it—must be made
within fourteen days of the entry of final judgment. Hymas filed his motion within fourteen days
of the entry of final judgment.
Though the district court erred in denying Hymas’ motion for the reason that it did, it
nevertheless properly denied the motion. “[I]t is well established that this Court will use the
correct legal theory to affirm the correct decision of a district court even when it is based on an
erroneous legal theory.” J.R. Simplot Co. v. Idaho State Tax Comm’n, 120 Idaho 849, 853, 820
P.2d 1206, 1210 (1991).
While Hymas timely filed his motion for reconsideration, he did not timely file his
affidavit in support of that motion. Hymas filed his motion on April 19. He filed an affidavit
with evidence in support of his motion on April 30, twenty-two days after the entry of final
13
judgment. 7 I.R.C.P. 7(b)(3)(B) requires that “[w]hen a motion is supported by affidavit(s), the
affidavit(s) shall be served with the motion . . . .” Hymas failed to do so and the district court
could properly have refused to consider the affidavit for that reason. See Jensen v. State, 139
Idaho 57, 64, 72 P.3d 897, 904 (2003) (holding that a district court properly refused to consider
affidavits submitted in support of, but not with, a motion for reconsideration). In addition, the
affidavits were not submitted in the time for filing of the motion. Hymas had fourteen days to file
his motion. Though he filed his motion within fourteen days of the entry of final judgment, he
did not support his motion within that period. A party cannot sidestep the requirement to file a
motion within a certain period by filing an unsupported motion and promising support down the
road. See Kuhn v. Coldwell Banker Landmark, Inc., 150 Idaho 240, 248, 245 P.3d 992, 1000
(2010) (holding that motions for a new trial were untimely where the movant filed the motions
within the fourteen-day period dictated by the rule, but did not provide factual support for the
motions until after the period expired, “[b]ecause there was no factual support filed in support of
these motions within the fourteen-day period prescribed by the rule”). Rule 11(a)(2)(B) does not
require that a movant support a motion for reconsideration with an affidavit. A movant who does
so, however, must serve the affidavit with the motion and within the period of time for filing of
the motion.
The district court might, in its discretion, have permitted Hymas to file an untimely
affidavit had he requested leave to do so. See Cumis Ins. Soc’y, Inc. v. Massey, 155 Idaho 942,
946, 318 P.3d 932, 936 (2014) (noting that a district court’s decision to accept an untimely
affidavit is reviewed for an abuse of discretion). Hymas did not request leave to do so. Further,
the district court clearly indicated that it would not have exercised such discretion had Hymas
requested leave. The court repeatedly noted that Hymas had multiple opportunities to present his
evidence regarding the dissolution of Crestwood Construction, Inc., and that nothing prevented
him from doing so, yet he failed to take advantage of those opportunities.
Because Hymas failed to serve his affidavit with his motion and within the time required
by Rule 11(a)(2)(B), the motion was without any factual support in the record. The district court
properly denied the motion, though for the wrong reason.
F. FBS is entitled to attorney fees on appeal.
7
Even the initial affidavit filed by Hymas, which did not include the articles of incorporation and dissolution as
attachments, was filed eighteen days after the entry of final judgment on April 26.
14
FBS claims to be entitled to attorney fees on appeal based upon the terms of the guaranty
contract and Idaho Code sections 12-120(3) and 12-121. Hymas also requests fees on appeal.
Because Hymas is not the prevailing party, he is not entitled to fees on appeal.
The clear terms of the guaranty agreement provide that Hymas will “pay . . . any and all
collection fees and attorney fees we [FBS] incur in collecting past due sums . . . .” Contractual
terms providing for recovery of attorney fees “are generally honored in Idaho.” Zenner v.
Holcomb, 147 Idaho 444, 452, 210 P.3d 552, 560 (2009) (awarding attorneys’ fees and costs on
appeal under the terms of a contract providing that litigation fees involved in the enforcement of
the contract will be paid by the prevailing party). FBS is entitled to fees and we award them
under the guaranty agreement. As a result, we need not consider application of the cited statutes.
IV.
CONCLUSION
The judgment of the district court is affirmed. FBS is awarded its costs and fees on
appeal.
Chief Justice BURDICK, Justices EISMANN, HORTON and Justice Pro Tem
WALTERS CONCUR.
15