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Franklin Bldg. Supply Co., Inc. v. Hymas

Supreme Court of Idaho

November 28, 2014

AARON MICHAEL HYMAS, Defendant-Appellant

2014 Opinion No. 123.

Page 358

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. Chief Justice BURDICK, Justices EISMANN, HORTON and Justice Pro Tem WALTERS CONCUR.


Page 359

[157 Idaho 634] 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.



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 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

Page 360

[157 Idaho 635] 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.

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 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

Page 361

[157 Idaho 636] 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 ...

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