*1 41-1301, exempt (I.C. seq.) et are Code ultimately determined If it is ICPA.
from the not constitute program does Altrua’s insurance, mem- in the business engaging resort to the ICPA for presumably can
bers
remedial action. CONSTRUCTION,
MICKELSEN
INC., Plaintiff-Appellant, and Sunshine
Lesa HORROCKS Darlene Services, Inc., Defendants-
Secretarial
Respondents.
No. 38634-2011. Idaho,
Supreme Court
Boise, 2012 Term. June
March
398 *2 Paving owed Mickelsen
Accelerated Con- $34,980.00 Inc., struction, pro- the sum of Paving job- viding asphalt to an Accelerated Mickelsen Construction threatened site. lien real file materialmen’s done, being property on which the work was *3 Paving’s president and Accelerated vice it not because that would asked that do so delay receipt con- job. president offered to struction vice Express pay the debt with an American cred- card, Delwyn Mickelsen, president it but Construction, it responded that of Mickelsen Express accept did not American credit disagreement There is as to what cards. happened next.
Mr. Mickelsen testified that Accelerated
Paving’s
president said there was
vice
not
enough
pay-
card to fund the
credit
ment,
Paving
but when Accelerated
received
project
pay
payment for
would
down
enough
the balance so that there
credit
pay
to Mickelsen
with the cred-
Construction
agreed
it card.
Mickelsen Construction
Paving
to file
lien
could
Accelerated
guaranty
payment by
find
someone
Larsen,
Gary
Cooper, Cooper
L.
&
Poca-
agreed
the credit card. Ms. Horrocks
to do
tello, argued
appellant.
gave
so and
Mr. Mickelsen a check dated
$34,980.00
January
in the amount of
Thompson, May,
&
Aaron
Rammell
drawn on the account of Sunshine Secretarial
Chtd.; Pocatello; argued
re-
Thompson,
payable to
Construc-
Services and
Mickelsen
spondents.
general manag-
tion. Mr. Mickelsen told the
Paving
er of Accelerated
that a bank in a
EISMANN, Justice.
nearby
agreed
had
town
to facilitate the
County
appeal
is an
out of Bannock
This
card,
Express
American
transaction with the
summary judgment dismissing an ac-
from
funds
received from American
once
were
guaran-
to enforce an oral
tion
Express
to Ms.
would
returned
ty
ground
debt
on the
that the
of another
Paving
go
Accelerated
did not
Horrocks.
frauds.
agreement is barred
the statute of
card,
credit
the bank to
the debt with its
judgment
the district court.
We affirm the
receiving payment
and after not
Mickelsen
negotiate
attempted
Construction
twice to
I.
check,
but there were insufficient funds
Background.
Factual
in Sunshine Secretarial’s bank account.
January
Lesa Darlene Horrocks
Ms. Horrocks testified that she was asked
one of the owners of Sunshine Secretari-
Paving’s
president
vice
Accelerated
Services, Inc.,
in the
al
which was
business
manager
general
if she would facilitate
services, pro-
providing contract secretarial
payment to
Construc-
credit card
space
with in-house
fessional office
rental
credit
tion. Sunshine Secretarial had a
card
services,
management
accounting,
transacting
ser-
capable
that was
with
machine
space
including
It
common office
American Ex-
vices.
subleased
several credit cards
and,
times,
Inc.,
Paving,
pro-
They
told
that Amer-
press
Accelerated
credit cards.
her
services,
Express
approved
it with
and other
ican
had
the transaction
vided
secretarial
copying
cleaning.
and asked her
use Sunshine Secretarial’s
such as
$34,980.00
summary judgment,
machine
run
tion for
credit card
it is first neces-
check to Mickelsen
transaction and write a
sary
identify
alleged by
the cause of action
amount,
for the same
Construction
the Mickelsen Construction.
understanding
Express
that American
only
alleged
1. The
claim
in the com-
pay Sunshine Secretarial
that sum
plaint
was that Ms. Horrocks
ran
normal course
business. She
through
Paving.
card
Sunshine Secretarial’s
debt
Accelerated
credit
machine,
appeared
credit card
her
alleged by
claim
Mickelsen Con-
approved by
been
the transaction had
complaint
struction in its
was that Ms. Hor-
then
Express.
American
She
issued the
1 agreed
rocks
Accelerated’s
later,
days
Accelerated Pav-
check. Several
identifying
parties,
debt. After
the com-
ing
Express
informed her that American
plaint alleged
approved the transaction.
never
She
follows:
*4
anyone
informed
that Sunshine Secretarial
IV.
accept
Paving’s debt
would
Accelerated
to
testimony
The
Mickelsen Construction.
Construction,
Mickelsen
Inc. threatened
Paving’s
prеsident
gen-
Accelerated
and
vice
against
project
to file a material lien
in
agreed
manager essentially
eral
with that of
which
Paving,
Accelerated
Inc. was in-
Ms. Horrocks.
volved.
Paving
bankruptcy.
filed
Accelerated
had
V.
2010,
June
On
Mickelsen Construction
filed this action
Ms. Horrocks and
Alan Smith of
Paving,
Accelerated
Inc.
alleging
Sunshine Secretarial
Delwyn
came
requested
Mickelsen and
payment
agreed
guaranty
the credit card
Construction,
that Mickelsen
Inc. not file
and so issued the check. The Defendants
the lien
prevent
because
Accel-
summary
judgment, argu-
filed motion
Paving,
erated
getting paid
Inc. from
on
ing
alleged guaranty
by
that the
was barred
project.
by
Alan
pay
Smith offered to
in
the statute of
sec-
limitations
Code
explained
credit card but
that he would
response,
9-505.
tion
Mickelsen Con-
project payment
have to use the
argued
struction
cheek
suffi-
on his
balance
credit card before he could
and,
writing
cient
under the statute of frauds
necessary
obtain the credit
to fund the
not,
by
governed
the transaction was
payment.
credit card
Idaho Code section 9-506 and therefore ex-
empt from the statute of frauds. The district
VI.
court held that the
was an
cheek
insufficient
Construction,
agreed
Mickelsen
Inc.
writing
apply
and that section
did not
9-506
to file the lien on the condition that Alan
did
the Defendants
not receive
required by
direct benefit
Smith
Paving,
Reed v. Samu-
and Accelerated
Inc. obtain
els,
II. guarantee the payment credit card of Alan Granting Did the Err District Court Smith Paving, and Accelerated Inc. and to the Defendants’ Motion for do so wrote a check on account of Summary Judgment? Services, Sunshine Secretarial Inc. and Lesa D. Horrocks In order the amount to decide whether the district $34,980.00 granting January court erred in copy the Defendants’ mo- A complaint, allegation agent 1. In the Construction al- she did so as an of Sunshine agreed legеd Services, Inc., D. "Defendant Lesa Horrocks agreed Secretarial or that guarantee the credit card of Alan check. Paving, Smith and Accelerated Inc.” There is no do so wrote Check on hereto as Exhibit Accelerated attached check is said account of Sunshine Secretarial Ser- “A”. vices, and Lesa D. Horrocks Inc. VIII. $34,980.00 January amount of D. Hor- Lisa [sic] written 48) (the “Check”). (R„ 23, 28, pp. of Sunshine Secretar- account rocks on the Services, Lesa D. Horrocks Inc. and ial added)(foot- (emphases Brief at Appellant’s demands despite numerous bounced omitted). note the check checking on which account opening in its brief: Mickelsen also stated never had sufficient funds written “Mickelsen, hand, on the other states defi- Copies of letters from Idaho the check. nitely requested in his Affidavit that he some- January dated Union Central Credit payment by credit card body guarantee January 2009 are attached 2009 and guarantee the credit and Horrocks Exhibit “B”. hereto as payment____Mickelsen understood the card IX. guarantee the was to transаction.” Check liquidated is a sum That sum owed added).2 (emphases Id. at n. plaintiff is entitled interest at alleged agreement and after per annum from 2. The Ms. Hor- rate of 12% Judgment January until a Accelerated’s debt rocks in this matter. of frauds. The statute entered within statute of frauds set forth Idaho Code section 9- added.) (Emphases *5 505(2)provides as follows: Throughout complaint, the Mickelsen Con- following to alleges agreement it wanted someone In the cases the is that struction payment invalid, credit card the or guaranty Accelerated’s unless same some note or thereof, writing is agreed Ms. do so. There be in and and Horrocks memorandum any allegation by entered into trans- by party charged, no that she the or his subscribed guarantor. Evidence, therefore, agree- than as a Even action other of the agent. alleges agreed Ms. appeal, that Horrocks the ment cannot be received without writ- stating in guaranty debt. In the facts secondary ing or evidence its contents: brief, initial Mickelsen Construction wrote: promise A for special 2. to answer the agreed nоt file Construction Mickelsen another, debt, miscarriage default and the hen on the condition Smith except in eases in section provided the guarantee Accelerated obtain someone 9-506, Idaho Code. by payment credit card which was the (R., p. by
offered
Smith and Accelerated.
guaranty
above-quot
A
is within the
48)
Winn,
Magee
of frauds.
ed statute
(1932);
space,
No. wherein
advised
ment
is invalid
plaintiff
substance
could recover
because there
not a
writing
express
signed by
promise
defendant’s
sufficient
Ms. Horrocks.
pay,
plaintiff
held
An alleged
the debt
if
defendant’s
him,
responsible
invalid,
sister still
“is
another
unless the same or
collateral and
some
thereof,
note or memorandum
be in
defendant
unenforceable,
writing.
not in
writing
and subscribed
charged,
agent.”
his
9-505. “Failure to
added).
558,16
*6
Id. at
1063 (emphasis
at
comply with the statute of frauds renders an
Storer,
plaintiff
In
the
contended that he had
agreement
oral
an
unenforceable both in
ac
paid
money
party
a sum of
to a third
at the
tion at
for damages
law
and in
suit in
request
they
of the defendants and that
equity
specific performance.”
for
Am.
72
days.
such sum within ten
19
Frauds,
(1974),
§
Jur.2d
of
172,
Statute
285
73
Idaho at
113 P.
80.
at
The defendants
(1974).
§
Am.Jur.2d
of Frauds
Statute
513
they
any
that if
made
promise
contended
or
Even if
prove
there were sufficient facts
agreement,
at
guarantors
were
most
the
agreement
oral
it
it
by
proved,
and was
is
the action was barred
the
of
statute
173,
if
not a
at
P. at
unenforceable
there is
writ
frauds.
Id.
113
81. “The case
sufficient
ing to
upon
theory
comply
with the statute
tried
the
the defen-
of frauds.
Co.,
liable;
Inc.,
promise
187, 189,
102
any
dants were
if
S V
Idaho
Hoffman
218,
(1981).
by
defendants,
promise
were made
the
628 P.2d
220
“In
such
order
ren
writing.”
der
falling
was collateral and must be in
Id.
an oral contract
scope
within the
174,
at
P.
action,
at 81. The trial
of
of
by
court refused
the statute
frаuds enforceable
Evidence,
adopted
party charged,
agent.
3.
by
After this Court
the
Rules of
the
Federal
or
his
Procedure,
thereof,
Civil
statute
held
the
agreement
the
cannot be received
frauds could be raised as a
defense to motion
writing
secondary
without
the
or
evidence
summary judgment
though
it
even
had not
its contents:
Mathewson,
pled.
been
Milestone v.
103 Idaho
1209,
(1982).
649 P.2d
debt,
special promise
2. A
to answer for the
another,
miscarriage
except
default or
in the
prior
4.
Code
Revised
section 6009 was the
codifi-
section;
provided
cases
next
in the
9-505,
pro-
cation of Idaho Code
section
(1908).
Idaho Rev. Codes
The "next
vided
as is
insofar
relevant:
prior
section" was section
which is the
following
agreement
In the
cases the
is inval-
of Idaho
section
codification
Code
9-506.
Idaho
id,
the
some
unless
same or
note or memoran-
Rev. Codes
thereof,
writing
by
dum
be in
and subscribed
Therefore,
alleged
the con
struction.
must state
thereof
the memorandum
certainty that its essentials
agreement
with such
is void.
tract
itself,
memorandum
from the
can be known
9-506(2)
Code
is not an
Idaho
section
in it to some
by
contained
or
a reference
pled.
because it was
issue in this case
proof
to parol
recourse
writing, without
argues
appeal, Mickelsen Construction
On
Drug
supply them.” Blumauer-Frank
Ms. Horrocks was ex-
claim
501, 505, 167 P.
Young, 30 Idaho
Co. v.
by
cepted
of frauds
from
statute
(1917).
which evidences
memorandum
“The
9-506(2).5
pro-
That statute
all
Code section
must contain
agreement
the verbal
Otherwise, it can
agreement.
excepted
is
from the
terms
vides that an
equity.”
at law or in
not be enforced
if
statute of frauds
Hoff
man,
403 Reed, 506(3) plaintiffs alleged they that requires the that there be “consid- principal to waive eration promisor.” reduce the the beneficial to the Subsec- (2) merely owing by exchange debtor in tion interest states that the creditor must part Second, by pay adequate such with value. promise an oral the defendant to consider- 60-61, support ation to a Id. at 249 P. at contract does not have to lesser sum. 893-94. gain by promisor; be a it can be a loss The trial dismissed action promisee. As stated the Idaho Terri- ground complaint allege that the failed to a Court, torial Supreme “It would seem that upon granted, claim which relief could be any gain promisor, loss plaintiffs appealed. appeal, On Court promisee, ought trifling, however suffi- stated, “Any be promise debt of cient support express consideration to an party, writing, or not in third whether must Larson, promise.” 241, Vincent v. 1 Idaho in order founded a consideration quoted 248 The Court Vincent also 62, binding.” Id. at 249 P. The Patton, approval from v. Violett 9 U.S. Court then held that the consideration must (5 Cranch) 142, 150, (1809) L.Ed. stating alleged promisor, flow to the as fol- follows: “To constitute a consideration it is lows: absolutely necessary that a benefit moving was no There consideration re- making should accrue to the person spondent [defendant]. promise. isIt sufficient that something valu- Brown, rule in The is stated Curtis v. able from person flows whom is (Mass.) (1850) ], [ Cush. as follows: made; that is the induce- ground “It is no prevent sufficient ment to the transaction.” That understand- frauds, operation of the statute ing of consideration is still the law. Lettunich plaintiff relinquished advantage, has Key Ass’n, Bank Nat’l 141 Idaho lien, up given consequence of the (“It (2005) [consider- promise, advantage defendant’s has may ation] also consist of ‘detriment to the directly not also inured to the benefit of ”). promisee aor promisor.’ benefit to the defendant, so as effect to make it a opinion The Vincent issued before the purchase by plaintiff.” the defendant of the legisla- enactment in 1881 the territorial upheld Id. Court then the dismissal of ture of the statute that is now codified as complaint allege it did 9-506(3), Idaho Code section and there is no any direct benefit inured to the defendant. reason to believe that the statute should not The Court Reed erred two Therefore, be construed as written. we First, respects. authority upon by relied progeny overrule Reed and its to the extent Court hold that there must be a phrase hold that the “the creditor directly promisor benefit that inured to the parts requires with value” the value statute, construing were not much less one inure to party making the benefit of the was similar to Code section 9- promise. legislature power has the Reed, though Even we overrule change by creating the common law affirm judgment district court defining new causes action. Kirkland v. because Miekelsen Construction did not al Ctr., Cnty. Blaine Med. lege a claim under Idaho Code 9- section *8 1115, (2000); 1122 P.3d Olsen v. J.A. Free 506(2). allegation An party that a entered Co., 1285, 117 man Idaho 791 P.2d guaranty agreement allege into a does not (1990); Trunnell, 1296 105 Everett Idaho that party agreement the an entered into 787, (1983). 790, 387, 673 390 It P.2d did so 9-506(2). allegation under section An of an 9-506(2). enacting in Idaho Code section agreement guaranty allega a debt and an wording of the statute not does state 9-506(2) agreement tion of an under section go promisor. that value must the It mutually are exclusive. requires that part the creditor with value. 9-506(2) legislature’s Had it been the that provides intent the an Section directly promisor, agreement excepted valuе must inure to the it is from the of statute provided, could so as it in have did section 9- frauds if value, as to render the cumstances such or enters parts with the creditor debtor, making principal the promise the the in of obligation, consideration
into an made, it person the in whose behalf is promise the respect in which obligations surety.” his made, circumstances in terms or under is party making the the such as to render 173,113 Id. at P. at 80-81. debtor, per- and the principal the promise they were The defendants contended that made, surety. it is his in behalf son whose statute; original promisors under not Thus, from the statute of excepted they guarantors to be if or anything, were 9-506(2), Ms. Horrocks sureties; under section the action was therefore frauds and that agree to become “the have had to the of frauds in section 9- barred statute person A cannot be both principal debtor.” guarantor. and the principal
the
debtor
appellants
that the
contend
Counsel
“
promise
undertaking or
‘Guaranty’ is an
by the
facts of this case as shown
evidence
collateral to
part
guarantоr
which is
the
of
bring
of said
provisions
it within the
do
obligation and binds
primary
principal
or
section,
any
agree-
promise
if
or
but that
in the event of
guarantor
performance
plaintiff
ment was made between
obligor.”
nonperformance
principal
sum
defendants with reference
1128,
Cobbs,
1131,
Buchanan,
Hudson v.
money paid by plaintiff
(1989).
1222,
“Default
non
other than a
the same could
have been
debtor is re
performance
principal
undertaking
part,
their
in
collateral
in contract
quired
they
merely guarantors
to mature a cause
action
became
which
Heidemann,
guarantor.”
sureties,
against a
Gebrueder
falls
and therefore the action
Corp., 107 Idaho
provided by
G.
v. A.M.R.
the statute of frauds as
within
K.
1180, 1186
One cannot
Rev. Codes.
section
has
principal
debtor who
default
be both
173,113
Id. at
P. at 81.
secondarily lia
guarantor
who is
ed and
jury
The trial court refused to instruct the
Hudson,
such
ble in the event of
default.
theory,
jury
re-
on the defendants’
at
405 missing note or thereof was in writ- Complaint memorandum Mickelsen Construction’s ing by charged and subscribed because it still entitled to enforce the agent. (the Check) his negotiable instrument Secretarial.” In re- Horroeks/Sunshine 174-75, 113P. at Id. at state, sponse, the Defendants “For Storer, in if As this held under Court very first time on appeal, Mickelsen at- alleged agreement the creditor contended tempts argue new liability theories of liable, still original debtors were support proposition of the the check have then the defendants could not become regardless here is еnforceable of whether it debtors, principal necessary was original is sufficient obligation as an 9-506(2) or as apply. They for section could brief, guaranty.” reply its only guarantors. person have A been cannot Construction recovery admits that principal guaran- both the debtor and the under theory negotiable tor of the transaction. If a same instrument “was agreement could also be an within not the issue below and not addressed provisions of Idaho Code section 9- A trial court.” review the record 506(2), then have been no reason appeal on confirms that Mickelsen Con- jury to vacate the verdict failure to struction not did raise this issue below. regarding guaranty agree- instruct them “This Court will consider issues raised ments. the first time appeal.” on Clear Foods, Springs Spackman, Inc. v. 150 Ida- complaint Because the in 790, 812, (2011). 71, ho 252 P.3d 93 Ac- only alleged guaranty, stant case did cordingly, will we not address this issue. allege a claim under Idaho Code section 9- “ ‘[T]he issues considered on IV. summary judgment are those raised pleadings.’ A cause action not raised in Party Is Either an Entitlеd to Award may pleadings appeal, not be on raised Attorney Appeal? Fees on even the trial considered issue.” Mickelsen Construction seeks an award of List., Big Irrigation Nelson v. Lost River attorney appeal pursuant on fees to Idaho 160, 804, (2009) 157, 148 Idaho 219 P.3d 807 12-120(3) grounds Code section on the Astin, 440, (quoting 141 Vanvooren Idaho this was an action to a negotiable recover on (2005)) (citation 129 P.3d omit instrument, guaranty, or commercial transac- ted); Toro, Nava v. Rivas-Del 151 Idaho tion. Because is not prevailing party 853, 860-61, (2011); P.3d 967-68 appeal, on it is not entitled to award of Bingham Cnty., accord O’Guin v. attorney Storey fees under that statute. (2003). 9, 15, Constr., Hanks, Inc. v. plaintiff facing If a a motion for 224 P.3d summary judgment alleged decides it has also attorney Defendants seek an award wrong claim relief to raise an wants 12-120(3) pursuant fees on appeal to section claim, plaintiff must amend its grounds on the this is an action to O’Guin, complaint. 139 Idaho at recover on a or a commercial trans- at 855. Because Mickelsen Construction did action. this Because was an action to recov- casе, not do argument so that Ms. guaranty, er on a we award the Defendants guarantor Horrocks not a but instead attorney appeal. fees on principal awas debtor cannot considered appeal. V.
III. Conclusion. Failing Did the Court District Err in judgment We affirm the of the district Judgment Grant a to Mickelsen Con- court, and award respondents costs on Negotia- struction the Holder appeal, including attorney a reasonable fee. ble Instrument? BURDICK, argues Chief Justice Mickelsen Construction Justices W. JONES, appeal that trial court erred dis- “[t]he and HORTON concur.
406 “[ejourts Justice, frequently held should JONES, dissenting. have J. every to a make intendment sustain com opinion for two the Court’s I dissent from plaint that a concise statement of contains check made my estimation the reasons: constituting cause action the facts of Respondents to Mickelsen payable 752, a relief.” Id. at 274 P.3d at demand for (Mickelsen) is a writ- sufficient Construction pleadings “A party’s should be liberal 1267. 9-505, and, § dis- satisfy I.C. ing to ly just, speedy to secure a construed concluded, have appears to trict Young inexpensivе resolution of case.” provi- adequate to Complaint invoke 665, 668, 182 Higbee, 145 P.3d blood v. Idaho § I have concern that of 9-506. a sions (2008). Therefore, “[ujnder 1199, 1202 notice interpret holding may our practicing bar pleading, longer slavishly a party is no bound previ- degree our stepping a from back stating particular pleadings theories in its And, pleading. while decisions on notice ous ____ general policy behind the current a strongly that I.R.C.P. 56 is valu- I believe provide every procedure rules of civil weeding tool for out non-meritorious able day his litigant or her court.” Brown v. cases, enough are appears it me Pocatello, 807, City Idaho 229 of questions in this to allow it unanswered case (2010) (internal quotations upon at a decided trial merits. to be omitted). citations “Our liberal notice in the was sufficient evidence record There justice pleading standard is intended to see successfully summary resist for Mickelsen done, a prevent the dismissal of valid proceeding judgment. Before mer- failing.” for a mere technical Id. at claim its, appropriate it is to first consider the Thus, 809, 229 if a P.3d at even count Complaint. allegations of complaint a specific a does not state factu “[njotiee theory recovery, al pleading frees THE COMPLAINT pleading particular parties from issues or The conclusions reached in the Court’s theories, get through parties and allows overly-striet reading opinion are based merely stating door the courthouse claims “guarantee” in Complaint of the word —the granted.” which relief can Morten be Complaint is Court be deemed Co., sen v. Stewart Title Guar. art; because of use of term a term (2010). 235 P.3d art, Complaint alleges only theory, one theory guaranty; enforcing a correctly The Court notes that Mickelsen theory, any Complaint a states “guarantee” used word twice comply writing sufficient with I.C. 9- incorrectly Complaint, but determines this 505(2) every also contain each and ele- must art, limiting a be term Mickelsen’s necessary guaranty; for an enforceable ment recovery. theory “guaranty” The words single a Complaint alleges and because the “guarantee” are often used inter- theory, broadly specific can’t read lawyers changeably by and courts. Howev- claim, enough encompass any includ- technicalities, er, getting spellings into both a ing a claim within I.C. 9-506. Such generally separate merit a definition dic- strict, reading Complaint technical generally tionaries and are defined a previous required under the rules or Generally, “guar- slightly different fashion. decisions of this Court. broadly and to in- antee” is defined more Complaint “guaranty,” “guaranty” is must be considered clude while de- Mickelsen’s narrowly more and not to include pleading under Idaho’s liberal notice stan- fined “guarantee.” example, For de- in order to determine claims encom- dard Webster’s therein, “1 2 a passed rigid, “guarantee” than as: rather under fines a) assurance; reading. pledge specif., pledge “The Idaho Rules of Civil technical represented and system plead- something is as will Procedure set forth a of notice specifica- litigants replaced to free what does meet ing intended from were b) rigid requirements.” positive assurance that some- pleading once Carrillo tions Co., Inc., specified thing will be done in the manner v. Boise Tire Therefore, guarantor person 4 a who receives a *11 than guaranty sign portent.” narrowly guaranty, 5 a the more defined it Webster’s Dictionary (3rd practices seems College counter to this Court’s to so World New 1988). strictly Complaint. read and limit the Fur- “guaranty” the other hand Ed. On ther, Complaint alleges facts per- that are pledge as: “1 a which a is defined reading limiting inconsistent with the strict payment himself to the of son commits an- theory. guaranty Complaint a states debt the fulfillment of other’s another’s guarantee that Horrocks Acceler- obligation in the event of default an and, ated’s credit card in order to that secures existence or so, do wrote a check in the amount of something giv- something maintenance of $34,980. But, Complaint alleges then security guarantor.” held en or as a Id. “The cheek written Lesa D. Hor- have Our decisions often intermixed the rocks on account Sunshine Secretarial matter, but, general guar- as a two words Services, Inc. and Lesa D. Horrocks bounced anty used more as a to con- is term art despite checking numerous demands the guaranty agreement, a note where one account on which the check nev- was written promises pay anoth- indebtedness of er had sufficient funds for the check.” The default, guaran- er the other’s while Complaint incorporates copy then a of the given reading guar- tee often a broader is — check and two from notices the credit union guarantee rights, employment, antee on which the saying checks were drawn guarantee payment, guarantee of inten- account contained insufficient funds —one tions, and the like.6 Of interest here is the January dated and the consistently employs fact that Mickelsen face, January On 2009. its the check is “guarantee” in its Complaint and written an pay unconditional order to the sum of consistently arguments, while the Court $34,980 28-3-104(1) to Mickelsen. See I.C. term, “guaranty,” employs the narrower immediately An negotiable opinion. summary judgment At check, bearing agreement, the date of the case, stage of a be technicalities should de- guaranty theory. inconsistent with a Liabili- defending party. cided in favor It ty guaranty only on a matures when the using is fair to infer that Mickelsen was principal obligor perform. fails to The Com- sense, guarantee in its broader rather that plaint makes no mention of Accelerated’s re- narrow, term-of-art, technical sense. obligation, if maining any, for the indebted- Moreover, in the two instances where Complaint ness. Nor allege does employs “guarantee” Mickelsen the word in Respondents’ liability matured Complaint, it is used verb. anyone’s Complaint merely default. The “guaranty” appears critical instances where notes that the check bounced twice for insuf- opinion, employed the Court’s as a ficient funds but does not make mention of descriptions noun. The above both words nonperformance. Again, Accelerated’s this is meanings. are for the noun Webster’s states guaranty theory. inconsistent with a It follows, guarantee where is used as a guaranty would guaran- be odd where the “1 give guarantee verb: produced payment. tor immediate guarantee product/ 2 [to to state with Although “guar- Mickelsen used the word confidence; promise guarantee that [to antee” in briefing both before the district thing varying will Id. With these done/.” Court, opening court and this statement definitions, it appropriate does not seem in its in opposition memorandum submitted Mickelsen, “guarantee,” consider as used to Respondents’ summary judg- motion for a term of art. opposition ment summarized its sum- mary standard, judgment without the use that word. pleading Given our liberal argued: Mickelsen litigants allege specific fact that need not theories, Paving, and the fact that used Accelerated Inc. was indebted guarantee broadly pro- the more defined supplied rather Mickelson for materials on a guaran- present, appellate 6. A Westlaw word search indicates that vember 2012 to the decisions cases, substantially guarantee tee has been used more than used often in 42 while guaranty by appellate Idaho's courts. From No- used in CHECK SATISFIES Construction RESPONDENTS’ ject. Miekelson When 9-505 job, lien the Accelerated threatened card. a credit Paving offered no in this case that Re- dispute There is only accept Construction Miekelson signed January spondents’ check was gave a check card if a third a credit payable to Mickelsen in made *12 Lesa Horrocks what was owed. to cover $34,980, to delivered Mickel- amount of bearing the an account a check on wrote is no same date. There conten- sen that Secretarial Lesa name Horrocks/Sunshine immediately ne- the check was not tion that Express believing that American Services gotiable. There can be no contention transaction and would approved the had any language indicating contains the check to her card transaction any the credit fund based on condition negotiability is writing subject is of Hor- any check a sufficient to sort limitation. account. The However, suggestion a Mickel- rocks did not follow satisfy the or frauds. to statute only parties check.7 The postdate sen to obligation original is an not then this it is any of dispute purport or nature oral of Secretarial Horrocks/Sunshine understandings negotiability. regarding comply to with the Statute does not need of Frauds. for the Being рromise a to answer debt another, comply to required the cheek was urging alter- was It is clear Mickelsen § provides That statute with I.C. 9-505. Re- readings Complaint nate of its —either special promise to answer for the “[a] promise pay a Accel- spondents had made another, except in eases ... of debt check, erated’s debt with 9-506, ... in Idaho Code provided for section responsibility for primary the debt. assumed invalid, some note or is unless the same or event, the check was be Mickel- In either thereof, writing be in and sub- memorandum Respon- payment. sen’s source While § charged.” 9- I.C. scribed summary their for contended in motion dents language in the There no statute judgment supporting affidavit that nei- guaranty. In- application its to a limits guarantee Ac- ther of them had intended deed, nor guaranty guarantee appear neither indebtedness, they argue did not celerated’s cer- anywhere guaranty in the A statute. guaranty a valid whether or not was but, just tainly within statute was agreement. The focus of their motion statute, not agreement is within does satisfied the on whether autоmatically guaranty. it a The stat- make They requirements § writing I.C. 9-505. require writing, that a wherein ute does by the intended stated that the check was debt, promises to answer for another’s one Respondents Mickelsen Accelerat- required all of the elements contain Respon- words, According to the ed’s indebtedness. In is one guaranty. dents, encompassed pay- type promise within I.C. the check was be Mickelsen’s 9-505(2), types promises § but other are debt, credit ment but after the encompassed also within the statute. Nothing approved. card transaction was indicates, In their the check so however. concludes, opinion, In the Court in es- court, Respondents reply brief sence, employed the that because Mickelsen state, facilitator, “Sunshine, rely- acting aas Complaint in its and in “guarantee” word ing Express American cover briefing, written some of its written check, ran the transaction and wrote a check required to agreement or memorandum express with Mickelsen with the understand- every element of contain each ing Express comply that American would immediate- with the stat- order ly compensate the transaction.” ute. Sunshine for summary judgment hearing summary during opposing judgment, In his affidavit of the Accel- was to be the check was constitute Mr. asserted that the check They disputed terms oral debt. card erated held him until the credit transaction understanding as when under what condi- and then to be to Horrocks. concluded However, returned negotiated. parties argued to tions check was to be the district both estimation, Generally, disagree. my
I the use of construe the language Complaint not limit “guarantee” However, did instrument the drafter. guaranty theory, requiring to a Miekelsen Respondents essentially ask the Court writing or memorandum contain all it against person construe favor whose required guaranty agree- for a the elements the instrument was and to drafted whom it Complaint broadly Reading ment. was delivered. Their invitation should be in favor of drawing all reasonable inferences Certainly, declined. the record suffi- shows Miekelsen, easily Complaint can be read 9-505(2) compliance cient with I.C. to sur- alleging special promise to answer for vive summary judgment. another, alleging the debt without guaranty agree- a formal constituted ADEQUATE THE COMPLAINT WAS ment.8 TO INVOKE 9-506 *13 containing is a pre-printed The check form granted court summary judg- district Respondents, pay- the of both made names against ment Miekelsen on ba- $34,980, primarily the Miekelsen, able to in the amount of 9-506(2). § sis of I.C. Its that route to signed by and Horrocks. The check indi- face, interesting. destination is At the commence- cates it is for On it is “Accel.” its hearing Respondents’ ment of the on unconditionally negotiable. motion immediately and summary judgment, for the any party judge It not that district does indicate commented: nonperform must or it can default before cashed. While the that record indicates the I’ve read of all the briefs. I’ve read the parties discussed various conditions that all, if question affidavits---- First of the might upon negotiability of bear the the were whether or not an issue of fact exists cheek, none of those are stated on conditions or not whether Ms. Horrocks made a I writing adequately its face. believe this guarantee, then the motion would de- required a speciаl states the elements of instantaneously. clearly nied There is promise to answer the for debt of another. from question the the affidavits and —from The cheek could have been submitted for construing the facts in the favor of the and, very that day collection had there been nonmoving party plaintiff which is the account, funds in sufficient the Accelerated’s case, clearly question this a of fact paid. debt would have writ- been No other as to whether not Ms. Horrocks had ing required in accomplish was order to that guaranteed particular this I debt. But end. issue, don’t think that’s the and so I—I’m Indeed, required even if the check was also just you telling right up front. all guaranty, to contain of a I can’t elements Then, in following its written decision
imagine
Again,
what more would be needed.
hearing, the court observed:
it is not
contested that
check was intend-
affidavits,
ed to
particularly
constitute
Miekelsen
The various
of
only question
Accelerated debt. The
is what
[Respondents],
a
[Miekelsen]
create
parties orally
genuine
agreed as far as to when or
issue material fact аs to wheth-
[Respondents] guaranteed
under what
If
er
conditions
would occur.
the Acceler-
parties
had
wished to limit or condition
ated
If that
debt.
was the
issue
negotiability,
summary judgment
could have done so
which the
motion was
based,
placing
But,
appropriate language
some
on the
motion
would be denied.
Indeed,
above,
face of the check.
the check was
primary
noted
is not the
Horrocks,
written
who had exclusive con-
issue
purposes
raised
motion. For
language
trol over the
into it.
opinion,
accepts
went
this
the Court
true
decision,
appears
requirements
§
In its
the district court
check
9-
met
of I.C.
noted,
approach.
previously
have
As
apparent
taken
It is
the court
concluded
conflicting
indicated
in the
court
facts
agreement
debt
another does
issuing
judgment
precluded
summary
record
a
guaranty agreement
have to be a formal
order
guaranty theory, but
Miekelsen on a
then
9-505(2).
coverage
§
to fall
within
I.C.
on to
district
went
consider whether
Complaint as
court read the
guarantee the
that Horrocks
promise
a
to answer
seeking to
on
recover
Accelerated debt.
another,
ques-
the debt
aside from the
proceeded to consider
then
The district court
promise constituted
of whether the
tion
from
exempt
whether the
guaranty,
Respondents
seem
formal
9-505(2),
§
I.C.
based
requirement of
writing
Complaint in the same
to have read the
(1),
9-506, particularly
§
subsections
I.C.
supporting
In
memorandum
fashion.
their
(3).
asserted,
(2),
both
summary judgment,
Respondents
focus
summary judg-
briefing opposing
its written
solely
question of whether the
on the
argument before the district
ment
in oral
9-505(2),
§
requirements
of I.C.
satisfied
§
court,
of I.C.
9-506
that those subsections
there was an enforceable
not on whether
the district
applied.
without
Even
key
in deter-
guaranty contract. “The
issue
made
be-
have
the connection
court could
mining
validity
complaint
is whether
9-505(2) specifically excepts
§
I.C.
cause
put
adverse
on notice of
“provided
sec-
coverage
cases
from
it.”
v. Ada
brought against
claims
Gibson
9-505(2).
9-506,
Code.” I.C.
tion
Cnty.
Dept., 139 Idaho
Sheriff’s
event,
majority
argument
Respondents appear to have
summary judgment hearing
colloquy at the
pursuing a claim for
known Mickelsen was
I.C.
9-506 issue. The
devoted to the
recovery
for the debt
answer
complied
the check
issue of whether
another,
it constituted
whether
*14
9-505(2)
secondarily,
§
discussed
while
was
guaranty agreement. At the sum-
formal
no
practically
was
discussion
mary judgment hearing, when the district
guarantee
was either a
or not there
whether
observed that
the crux of the Com-
court
guaranty.
original
or a
plaint was an
to recover on an
action
9-506(2),
par-
§
obligation
I.C.
neither
under
erroneously
court
concluded
The district
objected.
it was
ty
Respondents contended
§
required “beneficial consid-
that I.C.
9-506
an
con-
agreement,
not such
while Mickelsen
Respondents
to the
ex-
eration”
flow
important point
is that
tended was. The
Mickelsen,
change
any promise
parties
opportunity
present
both
had an
a failure to show
such
that there was
positions
neither ob-
their
on the issue and
consideration,
Mickelsen
therefore
jected to the district court’s determination
The
rely
could not
on section 9-506.
district
a
within I.C.
Complaint
that the
stated
claim
primarily
holding
its
Reed
based
v.
9-506(2).
§
Samuels,
55, 249
P. 893
In
Drawing
inferences
favor of Mickel-
all
correctly analyzes
opinion,
Court
its
this
sen,
Complaint
perfectly adequate to
progeny
it and
Reed and overrules
its
a
a
assert
claim to recover on
they
phrase
that the
“the credi-
extent
hold
another,
for the
answer
indebtedness
requires
parts with value”
that the value
tor
or,
9-505,
I.C.
alter-
which would be within
making
party
inure to
of the
the benefit
Respondents
nately, a claim to hold
liable as
opin-
promise.
agree
part
I
with that
of the
9-506(2).
principal
debtor within I.C.
ion.
Heitfeld,
19 Idaho
plaint guar- in the instant case a certainly regard.10 could be read In allege anty, it did not a claim under Idaho essence, appears Mickelsen to be saying that 9-506(2).” Third, although Code a section rights he lien that would have secured party probably guarantor cannot be a both owing of the indebtedness Accel- time, principal debtor at the same erated, Respondents Accelerated and position summary judg- at the Mickelsen’s relinquish caused Mickelsen to those lien stage, readings ment based on alternate rights assurances, Respondents’ based on allegations the Complaint was that thereby and that prejudiced. Mickelsen was Respondents may have been one the other worth exploring What at trial is but both. prompted Respondents what could have immediately negotiable cheek, issue if all CONCLUSION they intended do to was to facilitate a trans- particularly important While this not they action claimed. Sunshine was Accel- case, significance legal even a case of modest provider erated’s and a landlord of other produce precedent. can an unfortunate services, entirely but it is not clear itwhy decision, narrow, estimation, my this subjected Horrocks would have themselves reading Complaint, technical takes potential liability, just were step pleading from Idaho’s liberal notice back being helpful. Did forego its lien By determining the standard. outcome rights representations based on affirmative single word in the based on non-teehnical by Respondents that the credit card had significance Complaint overlooking been cleared? inference in Com- incorporated allegations and documents that plaint And, is that it did. it is not clear word, are inconsistent with take *15 did, fact, forego whether Mickelsen its lien step slight pleading back to the old code rights. place The transaction took on Janu- days. 8, 2009, ary apparently and was clear Furthermore, January case reaches this Court when Mickelsen first process check, sought negotiate in a somewhat unusual things leaves questions gone awry. exactly number unanswered. The dis- had One wonders when rights expired. And, trict conflicting actually court determined that evi- the lien what dentiary as to or not among inferences whether was the oral between guaranty agreement precluded parties in the event the credit card summary judgment Respondents charge to the not honored American Ex- (even though they particu- press, that issue had not thought as Horrocks it had been. larly sought summary judgment on is- Was the check returned cashed? It they sought summary judgment parties differing on the is obvious the opinions sue— ground satisfy Express did not payment. after American declined 9-505(2)). Rather, Respondents the district court decid- In one instance assert summary judgment, incorrectly, ed the on check was not until cashed American presented by Respon- Express deposited money another issue not but in other moving papers dents in their 9- instances state that it was understood —I.C. obviously Express “compensate The district court consid- American would Sun- transaction,” Complaint adequately ered the assert shine and that Sunshine detriment, encompassed within “relying claim that code section. wrote the check to its disagreed in opinion. Express This Court I be- American These Accelerated.” 10. Brown, said, "Although estoppel.” promissory never mention 148 Idaho at name, ing promissory estoppel the short and Presumably, ap- at P.3d 1170. the same would plain succinctly allegations statement offered ply regard equitable estoppel. true, of a could meet elements claim can best be answered questions that
are
trial. reasons, I believe that foregoing
For the inappropriately judgment was
summary and that by the
granted upholds it are upon which this Court
grounds summary I vacate
insufficient. proceed- for further
judgment and remand
ings. Plaintiff-Respondent, Idaho,
STATE of Defendant-Appellant. JONES, G.
Russell
No. 39519. Idaho,
Supreme Court of
Boise, January 2013 Term.
April