Bluestone v. Mathewson , 103 Idaho 453 ( 1982 )

DONALDSON, Justice.

The defendant-respondent, John B. Mathewson, owned a rental house in Cheney, Washington. Around August 15, 1977, the plaintiff-appellant, Joyce Bluestone, contacted him about the possibility of her renting the house. Mathewson informed her that another person had already contacted him, but if that person did not rent the house he would hold the premises open for her. Bluestone then paid him $390.00 for the first and last months rent and a damage deposit.

Bluestone claimed she paid the $390.00 so that she would be considered for tenancy if the other person decided not to rent the house. She alleged that Mathewson was to let her know by August 31, 1977, as to whether or not he would rent to her. When she did not hear from him she decided not to rent the house and requested that the money be returned. The money was not returned and she commenced this suit.

Mathewson alleged that the money was not returned to Bluestone because a contract had been entered into between them on August 23, 1977, and was to continue until September 1, 1978. He claimed that after she informed him that she no longer wanted to rent the house he found another party interested in renting the house beginning October 1, 1977. He then offered to return the rent for one month plus the deposit, but Bluestone refused the offer. Because she would not release him from the agreement he believed he could not re-rent the premises until November 1, 1977, and alleged that he suffered damages equal to two months rent plus the deposit.

Bluestone filed a complaint on December 9, 1977, for the return of the $390.00 that she had deposited with Mathewson. Mathewson filed his answer and cross-complaint.¹ On March 31, 1978, Mathewson filed an amended answer and cross-complaint alleging that the parties had entered into an agreement on August 23, 1977. Bluestone filed her reply to the amended cross-complaint on May 1, 1978.

On May 18,1978, Bluestone filed a motion for summary judgment and alleged that, for purposes of this motion, she agreed with Mathewson that there was a contract entered into in August. However, she argued that the agreement was invalid because it was not in writing as required by I.C. § 9-505(l).²

The magistrate entered his order granting summary judgment based on I.C. § 9-505(1). He found that both parties agreed that an oral contract was entered into on August 23, 1977, and was to run from September 1, 1977, to August 31, 1978. However, he found the contract was unenforceable because it was not in writing and could not be performed within one year of its making.

The respondent filed his notice of appeal to the district court. The district judge entered an opinion reversing the summary judgment and remanding the matter for trial on its merits. The judge found the statute of frauds was waived because it is an affirmative defense and must be pleaded in the complaint or the reply to the counterclaim. This appeal followed.

Firstly, the respondent, Mathewson, argues that the appeal should be dismissed on the ground that the district court’s denial of the summary judgment motion is not appealable. Mathewson claims that the magistrate’s granting of the summary judgment motion was appealable but that the district court’s denial is not because following Wilson v. DeBoard, 94 Idaho 562, 494 P.2d 566 (1972), a denial of a summary judgment motion is not appealable.

I.A.R. 11(a)(1), which addresses appealable judgments, reads in pertinent part:

“Rule 11. Appealable judgments and orders. — An appeal as a matter of right may be taken to the Supreme Court from the following judgments and orders:

(a) Civil Actions. From the following judgments and orders of a district court in a civil action:

(1) Final judgments and decrees including decisions by the district court dismissing, affirming, or reversing or remanding an appeal.”

This Court construed Rule 11(a)(1) in Winn v. Winn, 101 Idaho 270, 611 P.2d 1055 (1980), and held that “[djecisions by the district court dismissing, affirming, or reversing or remanding an appeal are appeal-able.” Id. at 271, 611 P.2d at 1056.

Therefore, because the district court was acting as an appellate court and reversing and remanding a magistrate court’s decision, this case is distinguishable from that situation set out in Wilson, supra. Following Wilson, a denial of a summary judgment motion is not appealable when a district court is not acting as an appellate court. However, when a district court is acting as an appellate court, I.A.R. 11(a)(1) allows a party to appeal when the district court reverses a granting of the summary judgment motion.

Next, the appellant, Bluestone, contends that the district court erred in finding that she had waived the right to raise the statute of frauds defense for the first time in a summary judgment motion. The statute of frauds is an affirmative defense that must be raised in a responsive pleading or it is waived. I.R.C.P. 8(c).³ The appellant argues that she should have the right to raise the defense in a summary judgment motion because this Court held in Cook v. Soltman, 96 Idaho 187, 525 P.2d 969 (1974), that the statute of limitations defense was properly presented to the district court in a motion to dismiss. This motion to dismiss was treated by the Court as a motion for summary judgment.

The respondent argues, however, that Cook does not apply because in Cook the record shows that there was no pleading filed prior to the summary judgment motion and in this case the appellant filed a reply to the counterclaim before the summary judgment motion. The respondent states that under the facts of this case Resource Engineering, Inc. v. Siler, 94 Idaho 935, 500 P.2d 836 (1972), applies and the affirmative defense must be raised in a mandatory pleading that has been filed or it is waived. The respondent argues that this Court held in Resource Engineering that a reply to the counterclaim is a mandatory pleading. Therefore, he claims that following Cook, supra, and Resource Engineering, an affirmative defense can be raised in a summary judgment motion only when a party has not yet responded to a mandatory pleading.

The respondent’s argument has some merit but we are not persuaded. It is true that several federal circuit courts have held that a party may raise an affirmative defense by way of a motion for summary judgment only when the motion is the initial pleading tendered by a party. Funding Systems Leasing Corp. v. Pugh, 530 F.2d 91 (5th Cir. 1976); Roe v. Sears, Roebuck & Co., 132 F.2d 829 (7th Cir. 1943). However, even though it would have been a better practice for the appellant to have raised the affirmative defense in the reply to the counterclaim or to have requested an amendment, See Paloukos v. Intermountain Chevrolet Co., 99 Idaho 740, 588 P.2d 939 (1978), we decline to follow the federal circuit courts cited. The defendant knew of the affirmative defense and was given time to present argument in opposition to the defense. This case is unlike Paloukos where the affirmative defense was not raised until the appeal to this Court.

Therefore, in light of I.R.C.P. 1(a), which mandates that the rules “be liberally construed to secure the just, speedy and inexpensive determination of every action and proceeding,” we hold that where the defense was raised before trial and the defendant was given time to present argument in opposition, the defense of statute of frauds can be raised for the first time in the summary judgment motion even though the reply to the counterclaim has been filed. McKinley v. Bendix Corp., 420 F.Supp. 1001 (W.D.Mo.1976); Greenwald v. Cunard Steam-Ship Company, 162 F.Supp. 250 (S.D.N.Y.1958); See Baker v. Chicago, Fire & Burglary Detection, Inc., 489 F.2d 953 (7th Cir. 1973).

We reverse the district court’s decision and reinstate the judgment of the magistrate court.⁴

Costs to appellant. No attorney fees on appeal.

BAKES, C. J., and McFADDEN and SHEPARD, JJ., concur. BISTLINE, J., concurs in result.

1 . The defendant, pro se, prayed for affirmative relief against the plaintiff in a document which he labeled a “cross-complaint.” Under I.R.C.P. 13(a) and 13(b), any claim “against any opposing party” is a counterclaim and not a cross-claim.

2 . “9-505. Certain agreements to be in writing. —In the following cases the agreement is invalid, unless the same or some note or memorandum thereof, be in writing and subscribed by the party charged, or by his agent. Evidence, therefore, of the agreement cannot be received without the writing or secondary evidence of its contents:

1. An agreement that by its terms is not to be performed within a year from the making thereof.”

3 . This Court, as well as a number of federal courts, have predicated the waiver of an unpieaded affirmative defense on the language of I.R.C.P. 12(h) but Rule 12(h) only controls the waiver of defenses in Rule 12. However, “the waiver of affirmative defenses can be supported upon general statutory construction principles in view of the mandatory character of the language of Rule 8(c).” 5 C. Wright & A. Miller, Federal Practice And Procedure § 1278, at 344 (1969).

4 . The respondent makes a one-sentence statement supporting the district court’s decision as follows: “there was also presented by the pleadings and answers to interrogatories sufficient evidence to show partial performance of the rental agreement and the motion should have been denied on this basis also.” However, it is not supported by reference to any portion of the transcript or record, nor citation of authority on argument to persuade us that the doctrine has any applicability to this case. Furthermore, it does not appear that the issue was presented at the trial court level. Therefore, this Court will not consider it. In re Holt, 102 Idaho 44, 625 P.2d 398 (1980); Dunn v. Baugh, 95 Idaho 236, 506 P.2d 463 (1973).