Action Collection Service Inc. v. Heim ( 2020 )

IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 47183
ACTION COLLECTION SERVICE, )
INC., ) Filed: September 28, 2020
)
Plaintiff-Respondent, ) Melanie Gagnepain, Clerk
)
v. ) THIS IS AN UNPUBLISHED
) OPINION AND SHALL NOT
DOUG HEIM and GLENDA HEIM, ) BE CITED AS AUTHORITY
)
Defendants-Appellants. )
)
Appeal from the District Court of the Third Judicial District, State of Idaho,
Washington County. Hon. Susan E. Wiebe, District Judge.
Judgment in collection action, affirmed.
Doug Heim and Glenda Heim, Weiser, pro se appellants.
Shaun R. Bonney of Shearer & Bonney, P.C., Boise, for respondent.
________________________________________________
LORELLO, Judge
Doug Heim and Glenda Heim appeal from a judgment entered in a collection action. We
affirm.
I.
FACTUAL AND PROCEDURAL BACKGROUND
The Heims incurred dental expenses and fell behind on their payments. The unpaid debt
of $10,935 was assigned to Action Collection Services, LLC. In an effort to collect on that debt,
Action Collection filed a complaint against the Heims. The Heims appeared pro se and filed an
answer.
Action Collection moved for summary judgment on its claim. The motion notified the
Heims of their responsibility under I.R.C.P. 56 to file responsive materials before the hearing.
Despite this warning, the Heims failed to file any responsive briefing, affidavits, or motions.
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At the hearing on the motion for summary judgment, Doug Heim stated he could testify to
certain topics, such as the terms of the contract. The Heims did not request a continuance for
additional time to present evidence. The district court informed the Heims they could not testify
at the hearing, but that the motion would instead be decided on the evidence contained in the
record. The district court orally granted Action Collection’s motion.
Moments after the district court’s ruling, an attorney asked to make a limited appearance
to argue on behalf of the Heims. The district court denied the attorney’s request because the
attorney had not filed a notice of appearance. After the hearing, the district court entered judgment
against the Heims, awarding the full amount sought. The judgment was later amended to include
an award of costs and attorney fees. The Heims appeal.
II.
ANALYSIS
As framed by the Heims, the sole issue on appeal is whether “the [district court] abuse[d]
its discretion in entering summary judgment in the amount ordered against [the Heims].” This
issue statement is somewhat unclear, as summary judgment is granted or denied as a matter of law,
not discretion. See, e.g., Edwards v. Conchemco, Inc., 111 Idaho 851, 852, 727 P.2d 1279, 1280
(Ct. App. 1986). In their briefing, however, the Heims make it clear that they do not challenge the
district court’s order of summary judgment1 but, instead, contend that the district court abused its
discretion by not allowing testimony at the summary judgment hearing, not sua sponte ordering a
continuance of that hearing, and not allowing argument from the attorney who attempted to appear
on a limited basis at that hearing.2 We hold that the Heims have failed to show that the district
court erred.
1
The Heims may have intended to challenge the order granting summary judgment, but
failed to present argument or authority on that point. A party waives an issue on appeal if either
argument or authority is lacking. Powell v. Sellers, 130 Idaho 122, 128, 937 P.2d 434, 440 (Ct.
App. 1997). As such, we decline to review the order of summary judgment for error.
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The Heims also assert a violation of Idaho’s Constitution because they have not had “their
day in court.” The Heims did not raise this issue at the trial court level. Generally, issues not
raised below may not be considered for the first time on appeal. Sanchez v. Arave, 120 Idaho 321,
322, 815, P.2d 1061, 1062 (1991). As such, their constitutional arguments will not be considered.
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A. Testimony at Summary Judgment Hearing
The Heims rely on Johnson v. City of Homedale, 118 Idaho 285, 796 P.2d 162 (Ct. App.
1990), for their contention that the district court abused its discretion by not recognizing it had
discretion to allow them to present testimony at the summary judgment hearing. In Johnson, the
Court stated that a trial court may allow parties to present testimony at a summary judgment
hearing. Id. at 288, 796 P.2d at 165. However, this part of Johnson has been overruled. See Golay
v. Loomis, 118 Idaho 387, 391 n.3, 797 P.2d 95, 99 n.3 (1990). According to Golay, testimony is
not permitted at a summary judgment hearing. Id. As a result, the district court had no discretion
in the matter and did not err by refusing to allow the Heims to present testimony at the summary
judgment hearing.
B. Continuance
The Heims contend the district court abused its discretion by failing to recognize that it had
discretion under I.R.C.P. 56(e) to either allow the Heims to present testimony at the summary
judgment hearing, continue the hearing to give the Heims an opportunity to present additional
evidence, or enter partial summary judgment and leave the remaining issues for another day. As
noted, the district court had no authority to allow testimony, negating the first option. The
remaining two options proposed by the Heims essentially were for a continuance of some kind.
Under I.R.C.P. 56(d), a party lacking facts essential to opposing summary judgment must request
a continuance. The Heims did not request a continuance prior to the district court granting
summary judgment. It is well-settled that in order for an issue to be raised on appeal, the record
must reveal an adverse ruling that forms the basis for assignment of error. Atkinson v. 2M Co.,
Inc., 164 Idaho 577, 582, 434 P.3d 181, 186 (2019). Because the Heims failed to move for a
continuance, they cannot now assert the district court erred by failing to grant one.3
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After entry of judgment, the Heims moved for relief under I.R.C.P. 60(b). In their
supporting memorandum, they contended that the district court could have granted a continuance.
The district court denied their Rule 60(b) motion and the Heims have not appealed that denial. As
such, we will not review the denial for error. Even if we construed their Rule 60(b) motion as a
request for a continuance, this request was raised months after the grant of summary judgment and
was not timely.
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C. Prohibiting Argument by Attorney Attempting to Represent the Heims
Although not well-articulated, the Heims appear to assert that the district court abused its
discretion by failing to allow the attorney to appear and argue on their behalf at the summary
judgment hearing. The attorney stated at the hearing that he was attempting to make a limited pro
bono appearance on behalf of the Heims. To make such an appearance, the attorney was required
to file and serve a notice of appearance “specifying all matters that are to be undertaken on behalf
of the party.” I.R.C.P. 11.4(a). The attorney did not file this required notice prior to the hearing.
As a result, the district court did not err in denying the attorney’s request to appear and argue on
behalf of the Heims.
D. Costs and Attorney Fees on Appeal
Action Collection requests costs and attorney fees under I.C. § 12-120(3).4 Action
Collection sought to recover on an account created by the Heims’ dental expenses, triggering a
potential award of attorney fees under I.C. § 12-120(3). Action Collection is the prevailing party
and, as such, is entitled to costs under I.A.R. 40(a) and attorney fees under I.C. § 12-120(3).
III.
CONCLUSION
The Heims have failed to show the district court abused its discretion during the summary
judgment hearing by denying their request to present testimony, by not sua sponte continuing the
hearing, or by denying the attorney’s request to argue on their behalf. Therefore, the judgment in
favor of Action Collection is affirmed. As the prevailing party, Action Collection is awarded its
costs and attorney fees on appeal.
Chief Judge HUSKEY and Judge BRAILSFORD, CONCUR.
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Action Collection also requests attorney fees under I.C. § 12-120(1). However, attorney
fees are not available under subsection (1) when subsection (3) applies, as is the case here. See
I.C. § 12-120(1) (“Except as provided in subsection[] (3) . . . .”). Action Collection also notes the
Court may award attorney fees if it determines that the Heims’ appeal was frivolous. See I.C. § 12-
121. However, Action Collection did not cite the relevant statute as the basis for its request for
attorney fees, so we will not consider attorney fees under that statute. See Stephen v. Sallaz &
Gatewood, Chtd., 150 Idaho 521, 529, 248 P.3d 1256, 1264 (2011).
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