Golay v. Loomis

797 P.2d 95, 118 Idaho 387, 1990 Ida. LEXIS 119

• Court: Idaho Supreme Court
• Decided: July 30, 1990
• Docket: 18303
• Status: Published

Opinions

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 summiary 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 cpntents 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 Go-lay. 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 there was a genuine dispute of material fact, requiring a trial on the merits.” For the reasons set out below, we vacate the Court of Appeals decision and affirm the decision of the district court and the magistrate.

I

We first address whether the magistrate erred by disallowing Loomis’ offer to testify in opposition to the summary judgment motion, or in the alternative, to verify his letter, which the magistrate accepted as an “answer to the allegations, unverified.”

On appeal Loomis argues that I.R.C.P. 43(e) permits a party to submit oral testimony in opposition to a motion for summary judgment at the time of the hearing on the motion.² However, I.R.C.P. 43 is a rule which deals primarily with the taking of testimony and evidence at trial and with the conduct of examination and cross examination. I.R.C.P. 56, on the other hand, specifically establishes the procedure to be followed in summary judgment proceedings. I.R.C.P. 56(a) and (b) set out who may bring such a motion and when it may be brought. I.R.C.P. 56(c) specifically provides that, “The motion, affidavits and supporting brief shall be served at least twenty eight (28) days before the time fixed for the hearing. If the adverse party desires to serve opposing affidavits he must do so at least 14 days prior to the date of the hearing.....” The procedure for summary judgment is specifically set forth in I.R.C.P. 56, and the general provision in I.R.C.P. 43(e) is inapplicable to summary judgment proceedings. Even if I.R. C.P. 43(e) were applicable, it is permissive only in that, “the court may direct that the matter be heard wholly or partly on oral testimony or depositions.” Here the trial court did not permit Loomis to be sworn and testify concerning the matters contained in his answer. Rather, the trial court correctly followed the dictates of I.R. C.P. 56(c) and decided the case upon the “pleadings, depositions, and admissions on file.” In so ruling the trial court did not err. I.R.C.P. 56(c) and (e).³

As the magistrate and district courts correctly pointed out, the. only document on file opposing Golay’s motion for summary judgment was the Loomis letter, which was not verified. Because “[u]nswom statements are entitled to no probative weight in passing on motions for summary judgment,” Camp v. Jiminez, 107 Idaho 878, 882, 693 P.2d 1080, 1084 (Ct.App.1984); see also Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970), the magistrate did not err in granting Golay’s motion for summary judgment. Additionally, as the district court correctly pointed out, Loomis did not move for a continuance nor did he submit an affidavit supporting a motion for “a continuance to permit affidavits to be obtained,” I.R.C.P. 56(f). Accordingly, the magistrate did not err by failing to order a continuance when there was presented neither a motion for continuance nor an affidavit necessary to support such motion.

II

Next we consider whether the magistrate erred by refusing to grant Loomis’ motion for relief from the summary judgment pursuant to I.R.C.P. 60(b). Loomis alleges that any failure on his part to properly oppose the motion for summary judgment was excusable neglect or the result of a mistake. Loomis argues that in fairness summary judgment should be reversed and a new hearing held because he acted conscientiously and in good faith at the initial summary judgment hearing; he just thought that what he was attending was a small claims trial, not a summary judgment proceeding.

We note initially that while Loom-is appeared at the summary judgment hearing pro se, he may not request special consideration on that basis. “Pro se litigants are held to the same standards and rules as those represented by an attorney.” Golden Condor, Inc. v. Bell, 112 Idaho 1086, 1089, n. 5, 739 P.2d 385, 388, n. 5 (1987); State v. Sima, 98 Idaho 643, 570 P.2d 1333 (1977). We agree with the district court’s analysis of this issue as set forth in its decision denying Loomis’ petition for rehearing.

The facts of the present case do not demonstrate excusable neglect as contemplated by I.R.C.P. 60(b)(1). The present case presents a situation more similar to that found in Golden Condor.

... Golden Condor dealt with a pro se litigant’s failure to preserve an issue for appeal which precluded consideration of the issue on appeal. The Idaho Supreme Court noted:

■In all likelihood this result [failure to preserve issue for appeal] has come about due to appellant’s lack of understanding of the procedural rules of law. Nevertheless, the failure to abide by such rules may not “be excused simply because [appellant was] appearing pro se and may not have been aware of the rule[s].” Scafco Boise, Inc. v. Rigby, 98 Idaho 432, 434, 566 P.2d 381, 838 (1977). Pro se litigants are held to the same standards and rules as those represented by an attorney. State v. Sima, 98 Idaho 643, 570 P.2d 1333 (1977). Golden Condor, Inc. v. Bell, [112 Idaho at 1089, n. 5, 739 P.2d at 388, n. 5] (1987). The summary judgment entered against the appellant in the present case was the result of his not being aware of the rules requiring verification of pleadings. Failure to be aware of the requirements of procedural rules does not constitute excusable neglect. Summary judgment having been properly entered and appellant having failed to show excusable neglect, the trial court properly denied appellant’s motion to set aside the judgment under Rule 60(b).

Had the trial court affirmatively misled appellant as to the adequacy of his unverified answer prior to the hearing on the summary judgment motion, a different case would be presented. However, as stated, appellant’s failings, as argued at summary judgment and on the motion to set aside, were the result of appellant’s lack of understanding of the procedural rules of law and, as such, do not constitute excusable neglect.

We conclude that the district court’s analysis of this case under I.R.C.P. 60(b) was not erroneous. The district court correctly stated and applied the standard for determining whether an I.R.C.P. 60(b) motion should have been granted by the magistrate court on the ground of alleged mistake or excusable neglect.⁴ Loomis cites Schraufnagel v. Quinowski, 113 Idaho 753, 747 P.2d 775 (1987), in support of his argument that he should be given special consideration due to his pro se status at the summary judgment hearing. In Schraufnagel, the Court of Appeals discussed the rule concerning pro se litigants as set forth by this Court in our cases, see, e.g., Golden Condor, Inc v. Bell, 112 Idaho 1086, 739 P.2d 385 (1987); Newbold v. Arvidson, 105 Idaho 663, 672 P.2d 231 (1983); Crumley v. Minden, 80 Idaho 391, 331 P.2d 275 (1958), characterizing it as “the general rule in Idaho that pro se litigants are normally held to the same rules as those represented by attorneys.” 113 Idaho at 755, 747 P.2d at 777 (emphasis added). However, our decision in Golden Condor, Inc., did not state that pro se litigants are only “normally” held to the same rules as those represented by attorneys, as the Court of Appeals stated in Schraufnagel v. Quinowski. Rather, in Golden Condor we held that, “Pro se litigants are held to the same standards and rules as those represented by an attorney.” Golden Condor, Inc. v. Bell, 112 Idaho at 1089, n. 5, 739 P.2d at 388, n. 5 (emphasis added). Accordingly, we reject Loomis’s argument that his failure to abide by the summary judgment procedural rules may “be excused simply because [appellant was] appearing pro se and may not have been aware of the rule[s].” Scafco Boise, Inc. v. Rigby, 98 Idaho 432, 434, 566 P.2d 381, 383 (1977).

Accordingly, we conclude that the magistrate did not abuse his discretion by denying Loomis’ I.R.C.P. 60(b) motion for relief due to alleged mistake and/or excusable neglect.

The order of the district court affirming the magistrate’s order granting summary judgment to plaintiff Golay is hereby affirmed; the opinion of the Court of Appeals in this matter is vacated.

JOHNSON and BOYLE, JJ., concur. McDEVITT, J., concurs in the result.

1 . At the hearing on Golay’s motion for summary judgment, the magistrate acknowledged that he accepted the Loomis letter as an answer upon receiving the appropriate filing fee. The magistrate commented: “It is in my file, it is listed as an answer to the allegations, unverified."

2 . Rule 43(e). Evidence on motions. — When a motion is based on facts not appearing of record the court may hear the matter on affidavits presented by the respective parties, but the court may direct that the matter be heard wholly or partly on oral testimony or depositions.

3 . Loomis acknowledges that Rawson v. Idaho State Board of Cosmetology, 107 Idaho 1037, 695 P.2d 422 (Ct.App.1985), cited in support of his argument that I.R.C.P. 43(e) permits oral testimony at a summary judgment hearing, is merely dicta. We conclude that this dicta directly contradicts the meaning of I.R.C.P. 56(e). In Rawson, the Court of Appeals wrote:

[Oral] testimony is a permissible, albeit seldom used, method of presenting information in support of, or in opposition to, a motion for summary judgment. The federal counterpart to Rule 43(e), I.R.C.P., authorizing the use of oral testimony on motions in general, has been held applicable to motions for summary judgment under rule 56. E.g., Hayden v. First National Bank, 595 F.2d 994 (5th Cir. 1979). Nothing in Rule 56 precludes such use of testimony. To the contrary, the practice has been recognized. See 10A C. WRIGHT, A. MILLER & M. KANE, FEDERAL PRACTICE AND PROCEDURE § 2723 (1983). Accordingly, we hold that testimony may be used in connection with motions for summary judgment in Idaho. It logically follows that such testimony, when introduced for this limited purpose, does not convert a Rule 56 hearing into a trial.

107 Idaho at 1042, 695 P.2d at 427.

We believe the correct analysis of I.R.C.P. 56 is that it does not allow for oral testimony to be heard at the time of hearing on a motion for summary judgment, regardless of the permissive language contained in I.R.C.P. 43(e), stating that “the court may direct that the matter be heard wholly or partly on oral testimony or depositions.” I.R.C.P. 56(e) plainly states that "an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing there is a genuine issue for trial." (Emphasis added.) Accordingly, to the extent any language contained in Rawson contradicts our holding today, it is expressly rejected.

4 . Under the predecessor to I.R.C.P. 60(b), former I.C. § 5-905, mistake and excusable neglect as grounds for vacating a judgment were “such as might be expected on the part of a reasonably prudent person. Johnson v. Noland, 78 Idaho 642, 308 P.2d 588 [ (1957) ].” Crumley v. Min-den, 80 Idaho 391, 394, 331 P.2d 275, 277 (1958). "One who willfully, for no sufficient legal reason, disregards processes of a court, does not act as a reasonably prudent person would or should act under similar circumstances.” 80 Idaho at 395, 331 P.2d at 277-278.