FAGEN, INC., Plaintiff-Respondent, v. LAVA BEDS WIND PARK, LLC, an Idaho limited liability company; and EXERGY DEVELOPMENT GROUP OF IDAHO, LLC, an Idaho limited liability company, Defendants-Appellants, and XRG DEVELOPMENT PARTNERS, LLC, an Idaho limited liability company, and TABOR WIND FARMS, LLC, an Idaho limited liability company, Defendants.
No. 42592-2014.
Supreme Court of Idaho, Boise
January 26, 2016.
364 P.3d 1193
January 2016 Term.
John R. Goodell, Racine, Olsen, Nye, Budge & Bailey, Chtd., Boise argued for respondent.
EISMANN, Justice.
This is an appeal out of Bingham County from the denial of the Appellants’ motion to continue a hearing on the Respondent‘s motion for summary judgment and from the denial of Appellants’ motion to reconsider the grant of the Respondent‘s motion for summary judgment. We affirm.
Factual Background.
On February 8, 2013, Fagen, Inc. (“Plaintiff“), filed this lawsuit seeking to recover damages for work it had done in the construction of a wind park located in Bingham County. It named as defendants Lava Beds Wind Park, LLC (“Lava Beds“); Exergy Development Group of Idaho, LLC (“Exergy Development“); and XRG Development Partners, LLC (“XRG“) (collectively “Defendants“); and Tabor Wind Farms, LLC (“Tabor“). On December 9, 2013, the district court entered an order dismissing Plaintiff‘s claims against Tabor pursuant to a stipulation of those parties. On December 9, 2013, Plaintiff filed an amended complaint against all of the Defendants alleging causes of action to foreclose a mechanic‘s lien, to recover damages for breach of contract, and to recover damages in quantum meruit.1
On June 27, 2014, Plaintiff moved for summary judgment seeking a judgment against Lava Beds and Exergy Development in the sum of $848,183.42 for breach of contract. In opposition to that motion, Defendants filed two affidavits, which merely contained vague and conclusory allegations. One was the affidavit of James T. Carkulis, who alleged:
12. Fagen structured the schedule of services to be tendered over a longer period of time than is typical for such a project. This modification was abused by Fagen in that the work undertaken was repetitive, arbitrary, and compulsory activities that became abusive of the parties’ intent. The Defendants’ [sic] also contest the amount due for the services rendered by Fagen with respect to the Project Site. These issues will be presented to the Court in depth in the Defendants’ response to Fagen‘s recently filed Motion for Summary Judgment.
Mr. Carkulis did not state any facts supporting the conclusory allegations in his affidavit.
The other affidavit was of Dustin Shively, who alleged:
1. In its amended complaint, Plaintiff included Tabor as a Defendant, even though Plaintiff had stipulated to dismiss its claims against Tabor.
3. Given my knowledge of the project, its timeline, the relevant critical path of development items, and the ultimate end result of Fagen‘s work, there appears to be a significant discrepancy between the billing tendered by Fagen, Inc. for work on the [contract] and the amount and quality of work undertaken. Further inquiry into this issue is needed in order for the correct amount due (which I understand to be the “damages” sought by Fagen in this matter) to be ascertained.
4. In addition, I am aware that the last few months of Fagen‘s involvement on the project did not consist of any substantive work or improvements on the land in question. There appears, therefore, to be a discrepancy between the billing records submitted by Fagen in support of its claims, and the true facts of what work was (or was not) undertaken and whether such work did (or did not) constitute compensable work under the terms of the [contract].
5. I am also aware that Fagen structured the schedule of services to be tendered over a longer period of time than is typical for such a project. This modification appears to have been consistent with the work undertaken by Fagen, which were repetitive, arbitrary, and compulsory activities. This will, I believe, affect the true amount due to Fagen for its services under the [contract].
Defendants filed a motion to continue the hearing on Plaintiff‘s motion for summary judgment. Their counsel, Mr. Rosa, contended that he had been unable to obtain critical depositions regarding Plaintiff‘s damages and Defendants’ affirmative defenses.
On June 27, 2014, Defendants also moved for summary judgment seeking a judgment dismissing Plaintiff‘s claim for foreclosure of a mechanic‘s lien and dismissing all of its claims against XRG. Plaintiff did not file anything opposing this motion for summary judgment.
The district court denied Defendants’ motion to continue the hearing on summary
On August 20, 2014, the court entered a judgment that: (a) dismissed with prejudice Plaintiff‘s claims against Tabor; (b) dismissed with prejudice Plaintiff‘s claims against XRG; (c) dismissed Plaintiff‘s claim for foreclosure of a mechanic‘s lien; (d) awarded Plaintiff a judgment in the sum of $848,183.42 against Lava Beds and Exergy Development; and (e) dismissed Plaintiff‘s claim for quantum meruit as moot.
On September 4, 2014, Lava Beds and Exergy Development filed a motion for reconsideration. The stated grounds for the motion were: (a) “Information obtained in the consolidated matters pending in Twin Falls County since entry of the Judgment has revealed information that supports offsets to the amounts claimed by Fagen as damages in this matter” and (b) “Discovery concerning the contract that is at issue in this case is ongoing and proof of offsets should be considered by the Court.”
The hearing on the motion for reconsideration was scheduled to be heard on September 30, 2014. Shortly before the commencement of the hearing, Lava Beds and Exergy Development served a rough draft of a portion of a deposition taken of Chuck M. Dickerson in the Twin Falls case of Fagen, Inc. v. Rogerson Flats Wind Park, LLC and a copy of Mr. Dickerson‘s affidavit filed in the Twin Falls case. During the hearing, the district court stated that it had received those documents, but had not had time to read them. It took the motion under advisement, and on November 20, 2014, it entered an order denying the motion. The court reasoned that Lava Beds and Exergy had ample time to produce affidavits in opposition to the motion for summary judgement but failed to do so; therefore they would not be permitted to do so belatedly by a petition for reconsideration. Lava Beds and Exergy Development then timely appealed.
II.
Did the District Court Err in Denying the Motion to Continue?
On June 27, 2014, Plaintiff filed five affidavits in support of its motion for summary judgment. The employee in Plaintiff‘s accounting department attached to her affidavit the seven Applications and Certificates for Payment dated December 27, 2011, through July 27, 2012, which she prepared for the Lava Beds Wind Park project. Each application included a description of the work done during the relevant period, the amount owed under the contract for that work, and the balance due. The affiant stated that Plaintiff had received no payment on the amounts set forth in the applications and that she had never received from Lava Beds or Exergy Development any communication, objection, or questioning regarding the amounts set forth in the applications. Plaintiff‘s Controller averred that she had caused the applications to be mailed to Exergy Development and that Plaintiff had not received any payment on the amounts set forth in the applications. Plaintiff‘s Project Manager averred that he had reviewed the copies of the applications attached to the affidavit of the accounting department employee; that “[t]he Applications accurately reflect the scope and timing of the work performed by Fagen or under Fagen‘s supervision for the Lava Beds Project“; that “[t]he principal amount owed under the Applications is $848,183.42[, which] ... represents the value of the labor, materials and services supplied by Fagen to the Lava Beds Project“; and that Exergy Development “never complained to me regarding the quality of work or the
In support of the motion for a continuance, Defendants filed the affidavits of their counsel, Mr. Rosa, and of Mr. Shively, an engineering consultant.
In his affidavit, Mr. Rosa claimed that Plaintiffs had refused to cooperate in scheduling depositions in this case. He stated that he had attempted to obtain “critical discovery in the form of depositions of the corporate representative of Fagen, Inc.“; that when he inquired of Mr. Goodell, Plaintiff‘s Idaho counsel, he was referred to Plaintiff‘s Minnesota counsel; that there was a case pending in a Minnesota federal district court involving Plaintiff and Exergy Development; that Mr. Rosa was representing Exergy Development in that case; that Plaintiff‘s Minnesota counsel was obstructive when Mr. Rosa attempted to schedule depositions in this case, in the Twin Falls case, and in the Minnesota case; that until those “critical depositions are taken, there will not be adequate discovery to respond meaningfully to Plaintiff‘s Motion for Summary Judgment“; and that as shown by the affidavit of Mr. Shively, “there are substantive issues that need to be explored which bear directly on the quantum of damages Plaintiff has suffered and facts that bear on Defendants’ affirmative defenses.” To support those assertions, Mr. Rosa attached copies of e-mails that he stated show “the delay is due solely to Plaintiff and its counsel.”
The district court found these assertions to be untrue. The first e-mail was sent on May 28, 2014, to Mr. Rosa by Mr. Goodell‘s paralegal in response to a request to schedule depositions of Mr. Fagen and Plaintiff‘s personnel. The paralegal stated that Mr. Goodell was out of the office that week but those depositions should be coordinated through Plaintiff‘s Minnesota counsel. The remaining e-mails were between Mr. Rosa and Plaintiff‘s Minnesota counsel. The district court found that those e-mails, commencing on June 17, 2014, all dealt with discovery in the Minnesota case, not this case. The court found that there “is no evidence about any obstruction issues, like that are being asserted.”
In his affidavit, Mr. Shively stated that he had been employed as an engineer by Exergy Development and was directly involved in the Lava Beds Wind Park project. He stated that “there appears to be a significant discrepancy between the billing tendered by Fagen, Inc. for work on the [contract] and the amount and quality of work undertaken” and that “[f]urther inquiry into this issue is needed in order for the correct amount due (which I understand to be the ‘damages’ sought by Fagen in this matter) to be ascertained.”
In denying the motion, the court noted the lack of diligence in conducting discovery. It stated that the case had been pending for over a year, that no depositions had been taken, that no motion to compel discovery had been filed, and that there was adequate time to conduct discovery. The court also stated that there was a lack of a showing what additional discovery was needed. It
A motion denying a continuance under
III.
Did the District Court Err in Denying the Motion for Reconsideration?
The first issue to consider is whether the motion for reconsideration was timely. On August 20, 2014, the district court entered its order granting Plaintiff‘s motion for summary judgment. Until the judgment was entered, the order was an interlocutory order subject to reconsideration pursuant to a motion filed under
A motion for reconsideration of a trial court‘s interlocutory order “may be made at any time before the entry of final judgment but not later than fourteen (14) days after the entry of the final judgment.”
This Court has in dicta indicated that the motion for reconsideration must be filed within fourteen days after the entry of judgment, Agrisource, Inc. v. Johnson, 156 Idaho 903, 912, 332 P.3d 815, 824 (2014) (“A final judgment triggers the second option under
The summary judgment standard applies to a motion to reconsider the granting of a motion for summary judgment. Fragnella v. Petrovich, 153 Idaho 266, 276, 281 P.3d 103, 113 (2012). “On a motion for reconsideration, the court must consider any new admissible evidence or authority bearing on the correctness of an interlocutory order.” Id. The court must first decide whether the new evidence is admissible, Arregui v. Gallegos-Main, 153 Idaho 801, 804, 291 P.3d 1000, 1003 (2012), and then, if so, whether it creates a genuine issue of material fact precluding the grant of summary judgment, Marek v. Lawrence, 153 Idaho 50, 53, 278 P.3d 920, 923 (2012).
In this case, Lava Beds and Exergy Development filed their motion for reconsideration on September 9, 2014, and then on September 30, 2014, the day of the oral argument on the motion, they served and filed a portion of a rough draft of the deposition of Chuck Peterson taken in the Twin Falls County case of Fagen, Inc. v. Rogerson Flats Wind Park, LLC, et al. and a copy of Mr. Peterson‘s affidavit that was filed in that case. Mr. Peterson was a construction manager for a privately owned construction company involved in the construction of the Lava Beds Wind Farm. The district court apparently did not consider these filings. It denied the motion for reconsideration on the ground that Lava Beds and Exergy Development had ample time to respond to the summary judgment motion, but did not do so, and so they “shall not be allowed to produce belated evidence to overturn the judgment entered in Fagen‘s favor.”
We need not describe the documents filed by Lava Beds and Exergy Development in support of their motion for reconsideration. During oral argument on appeal, Mr. Rosa admitted that they were of no evidentiary value.
The district court was entitled to disregard the documents because they were served on September 30, 2014, forty-one days after the entry of judgment. “When a motion is supported by affidavit(s), the affidavit(s) shall be served with the motion....”
Because Lava Beds and Exergy Development failed to serve the documents with the motion for reconsideration within the time required by
IV.
Is Plaintiff Entitled to an Award of Attorney Fees on Appeal?
Plaintiff seeks an award of attorney fees on appeal pursuant to the parties’ contract and
V.
Conclusion.
We affirm the judgment of the district court and we award Respondent costs, including attorney fees, on appeal.
Chief Justice J. JONES, Justices BURDICK, W. JONES, and HORTON concur.