Opinion No. 137
from the District Court of the First Judicial District, State
of Idaho, Kootenai County. Hon. John T. Mitchell, District
court order granting summary judgment and order of contempt,
affirmed in part, vacated and
remanded in part.
W. Daugharty, Coeur d'Alene, argued for appellants.
Witherspoon, Kelley, Coeur d'Alene, for respondent. Mark
A. Ellingsen argued.
and Heather Montee, Shawn Montee, Inc., and ABCO Wood
Recycling, LLC (collectively "Appellants" and
individually "Montee, " "Montee, Inc., "
and "ABCO") appeal, among other things, the
Kootenai County District Court's grant of summary
judgment in favor of Respondent, Robert Wolford (Wolford).
Appellants argue the district court erred in ruling that
certain promissory notes (Notes) granted to Wolford by
Appellants were clear and unambiguous and that under the
terms of those notes Appellants were in default and Wolford
was entitled to judgment as a matter of law. Appellants also
state that several of their motions were erroneously denied,
including a motion to continue, a motion for examination of
Wolford, a motion to amend or alter judgment, and various
motions to quash. Additionally, Appellants appeal the
district court's order of contempt entered against them.
We affirm in part and vacate and remand in part.
I. FACTUAL AND PROCEDURAL BACKGROUND
12, 2009, Montee executed a handwritten promissory note (2009
Note). That note, executed by Montee personally, provides as
May 12th, 09
Promise to Pay
I Shawn T. Montee agree to pay Bobby Wolford the sum of
$1.153mm dollars I owe him for a number of
fragmented loans too [sic] me. In addition I agree to pay him
$250k for a 90 day extenion [sic] all due &
payable by July 31st 09. This loan will be paid
back by sale of the Tea Cup River Ranch ($4.8mm) or by the
funds the U.S. Forest Service ($3.9mm) owes Shawn Montee
/s/Shawn Montee 5/12/09
February 16, 2010, a second promissory note was executed by
Montee in favor of Wolford, which, unlike the first, was
executed on behalf of Montee's companies, Montee, Inc.
and ABCO (2010 Note). That note provides in pertinent part:
Promise to Pay. Shawn Montee, Inc. &/or Abco Wood
Recycling, LLC (Borrower) promises to pay the 10% monthly
interest on the above principle [sic] balance (starting
January 2010) to Bobby Wolford (Lender), in lawful money of
the United State[s] of America.
Payment Plan: TBD (between Shawn Montee & Bobby Wolford).
11, 2014, Wolford filed a "Complaint for Money Due"
alleging that the Notes were in default and requesting
judgment for the amounts due and owing. Appellants disputed
the intent of the parties in drafting the Notes; however,
they admitted the existence of the Notes and did not deny
that the Notes were in default. On August 15, 2014, Wolford
moved for summary judgment. Appellants filed a motion to
continue the motion for summary judgment on September 2,
argument was held on September 17, 2014. At oral argument,
the district court denied the motion to continue. On
September 19, 2014, the district court issued its memorandum
decision and order, granting Wolford's motion for summary
judgment. The district court then entered two judgments. The
first judgment, based on the 2009 Note, was entered against
"Shawn Montee and the marital community comprised of
Shawn Montee and Heather Montee, husband and wife, " in
the amount of $2, 321, 037.71. The second judgment, based on
the 2010 Note, was entered against "Shawn Montee, Inc.,
an Idaho corporation d/b/a Shawn Montee Timber Company and
Abco Wood Recycling, LLC, an Idaho limited liability company,
jointly and severally" in the amount of $2, 161, 464.91.
Appellants filed various motions, including a motion to
prohibit issuance of writs of execution and an emergency
motion to quash writs of execution, which were denied by the
district court. Thereafter, Wolford's writs of execution
against Shawn and Heather Montee and Montee, Inc. and ABCO
were returned unsatisfied. The court then entered an order of
examination of judgment debtors, Shawn and Heather Montee.
Appellants moved to quash that order, and the district court
denied their motion. Shawn and Heather Montee did not produce
the specified documents or appear for questioning as required
in the order of examination. Based on their failure to comply
with the examination order, the district court entered an
order of contempt against Shawn and Heather Montee. Citing
concern that Montee was avoiding payment on the judgment by
fraudulently transferring assets to recently created
out-of-state businesses, Wolford requested an injunction to
prevent Montee from creating more out-of-state business
entities and from transferring assets. The court granted the
injunction. Appellants timely appeal.
Whether the district court erred in granting summary judgment
contend the district court erred in granting summary judgment
because the Notes were not clear and unambiguous and that
there were genuine issues of fact regarding the nature of the
Notes, specifically whether the 2009 Note was a condition
contract and whether the 2010 Note was intended to replace
the 2009 Note. Further, Appellants argue that neither the
2009 Note nor the 2010 Note was in default and the district
court erred in concluding otherwise. Finally, Appellants
assert that the district court erred in failing to provide an
offset against the Notes' amounts based on various items
Montee delivered to Wolford.
the district court was correct in determining that the 2009
Note was clear and unambiguous. However, we find the district
court erred in its determination that the 2010 Note was clear
and unambiguous. Accordingly, we affirm summary judgment
based on the 2009 Note but vacate and remand summary judgment
on the 2010 Note.
The motion to continue summary judgment.
initial matter, Appellants argue the district court
erroneously denied their motion to continue summary judgment.
This argument fails.
"The decision to grant or deny a Rule 56(f) continuance
is within the sound discretion of the trial court."
Taylor v. AIA Servs. Corp., 151 Idaho 552, 572, 261
P.3d 829, 849 (2011). When seeking a continuance under Rule
56(f), the moving party must "affirmatively
demonstrate why he cannot respond to a movant's
affidavits . . . and how postponement of a ruling on the
motion will enable him, by discovery or other means, to rebut
the movant's showing of the absence of a genuine issue of
fact. " Jenkins v. Boise Cascade Corp., 141
Idaho 233, 239, 108 P.3d 380, 386 (2005). "The movant
'has the burden of setting out what further discovery
would reveal that is essential to justify their opposition,
making clear what information is sought and how it would
preclude summary judgment.' " Boise Mode, LLC v.
Donahoe Pace & Partners Ltd., 154 Idaho 99, 104, 294
P.3d 1111, 1116 (2013) (quoting Jenkins, 141 Idaho
at 239, 108 P.3d at 386).
the district court noted the grant of a continuance was
within its discretion. Next, the district court, citing
Jenkins, properly noted the applicable law requiring
the movant for continuance set forth by affidavit "what
additional discovery is necessary and why such discovery is
pertinent to rebut the pending motion for summary
judgment." The court then reviewed the affidavit
submitted with the motion and concluded that the affidavit
failed "to state specific facts demonstrating
why the depositions of Robert Wolford and Nellie
Jacobsen are needed to respond to Wolford's motion for
summary judgment, and fails to set forth how such
evidence would be relevant to summary
judgment." Thus, because counsel's affidavit failed
to meet the applicable legal standard for granting a motion
to continue, the district court denied the motion.
reviewing the affidavit attached to the motion, we find the
district court is correct. There is simply no mention as to
what the depositions of Wolford or Jacobsen would reveal, let
alone how information from those depositions would preclude
summary judgment. Accordingly, we affirm the district
court's decision to deny the motion to continue. ...