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Wolford v. Montee

Supreme Court of Idaho

November 23, 2016

ROBERT WOLFORD, Plaintiff-Respondent,
SHAWN MONTEE and HEATHER MONTEE, husband and wife; SHAWN MONTEE, INC., an Idaho corporation dba SHAWN MONTEE TIMBER COMPANY; and ABCO WOOD RECYCLING, LLC., an Idaho limited liability company, Defendants-Appellants.

         2016 Opinion No. 137

          Appeal from the District Court of the First Judicial District, State of Idaho, Kootenai County. Hon. John T. Mitchell, District Judge.

         District court order granting summary judgment and order of contempt, affirmed in part, vacated and remanded in part.

          Paul W. Daugharty, Coeur d'Alene, argued for appellants.

          Witherspoon, Kelley, Coeur d'Alene, for respondent. Mark A. Ellingsen argued.

          BURDICK, Justice

         Shawn 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.


         On May 12, 2009, Montee executed a handwritten promissory note (2009 Note). That note, executed by Montee personally, provides as follows:

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 Timber Co.
/s/Shawn Montee 5/12/09

         On 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).

         On June 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, 2014.

         Oral 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.

         II. ANALYSIS

         A. Whether the district court erred in granting summary judgment to Wolford.

         Appellants 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.[1]

         We find 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.

         1. The motion to continue summary judgment.

         As an 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).

         Here, 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.

         After 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. ...

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