               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 39907

STERLING SAVINGS BANK,                            )     2013 Unpublished Opinion No. 633
                                                  )
       Plaintiff-Respondent,                      )     Filed: August 20, 2013
                                                  )
v.                                                )     Stephen W. Kenyon, Clerk
                                                  )
WILLIAM D. FAIRFIELD,                             )     THIS IS AN UNPUBLISHED
                                                  )     OPINION AND SHALL NOT
       Defendant-Appellant,                       )     BE CITED AS AUTHORITY
                                                  )
and                                               )
                                                  )
NICHOLAS S. BROWN, LANCE A.                       )
DANIELS, MATTHEW ABRAHAM                          )
DEREN, and DONNA M. FAIRFIELD,                    )
                                                  )
       Defendants.                                )
                                                  )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho,
       Valley County. Hon. Michael R. McLaughlin, District Judge.

       Summary judgment, affirmed.

       Robert A. Bartlett, St. Maries, for appellant.

       Witherspoon Kelley; Mark A. Ellingsen, Coeur d’Alene, for respondent.
                 ________________________________________________
LANSING, Judge
       Defendant William D. Fairfield appeals from the judgment entered after the district court
granted plaintiff Sterling Savings Bank’s motion for summary judgment. Fairfield contends that
the district court erred by denying his motion for a continuance of the summary judgment
hearing and by granting the summary judgment motion. We affirm.
                                                 I.
                                        BACKGROUND
       In November 2010, Sterling Savings initiated suit against Fairfield and others to recover
the deficiency owed on a loan after a foreclosure sale of the real property that secured the loan.

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Fairfield filed an answer in February 2011. In May 2011, Sterling Savings filed a motion for
summary judgment, along with an affidavit and other materials in support. A hearing date of
July 7, 2011, was set. This hearing date, and one set thereafter, were continued so as to allow
discovery to be completed. A new hearing date of December 7, 2011, was set. In October 2011,
the son of Fairfield’s attorney was killed in a hunting accident. To allow Fairfield’s attorney
time to recover and deal with this tragic loss, Sterling Savings stipulated to moving the hearing
date to March 8, 2012.
       On February 22, 2012, Fairfield filed a motion to continue the hearing and an affidavit of
his attorney in support. In the affidavit, Fairfield’s attorney asserted that he had not yet had time
to recover from the loss of his son, that he had somehow lost his entire file, and that he had
miscalendared the hearing date, all leaving him unable to prepare for the hearing. He requested a
hearing date sometime after May 7, 2012. Sterling Savings filed an objection to the motion.
Fairfield filed a response memorandum on the day before the scheduled hearing. The district
court heard the matter the next day. Neither Fairfield nor his attorney attended the hearing. The
district court denied Fairfield’s motion to continue and granted Sterling Savings’ motion for
summary judgment. Fairfield appeals from the resulting judgment, certified as final under Idaho
Rule of Civil Procedure 54(b).
                                                 II.
                                           ANALYSIS
A.     Motion for Continuance
       Fairfield first asserts that the district court erred by denying his motion for a continuance.
The decision to grant or deny a continuance of a summary judgment hearing is within the sound
discretion of the trial court. Taylor v. AIA Services Corp., 151 Idaho 552, 572, 261 P.3d 829,
849 (2011). When reviewing a discretionary decision of the district court, this Court determines
whether the court (1) correctly perceived the issue as one of discretion; (2) acted within the
boundaries of such discretion and consistently with applicable legal standards; and (3) reached
its decision by an exercise of reason. Blackmore v. Re/Max Tri-Cities, LLC, 149 Idaho 558, 563,
237 P.3d 655, 660 (2010).
       The argument section of the appellant’s brief on this issue states in its entirety:
              The Defendant’s motion, and subsequent reply to Plaintiff’s opposition,
       included a declaration of counsel that provided sufficient facts to support the
       motion. It was essentially the first motion filed for cause, and the cause was

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       sufficient to warrant the motion. The court abused its discretion by denying the
       motion, even though the moving party was not present at the hearing.

Regarding Fairfield’s attorney’s need for more time to recover from the loss of his son, the
tragedy he describes is overwhelming, and it is understandable that he would be unable to
effectively represent clients for an extended period of time. Nevertheless, in such circumstance a
trial court is not required to postpone proceedings indefinitely, to the detriment of other parties.
Rather, it is incumbent upon the attorney to move to withdraw from representation so that
another attorney can take his place and protect the client’s interests.        See Idaho Rule of
Professional Conduct 1.16(a)(2).
       The affidavit of Fairfield’s attorney also averred that for the reasons stated there had “not
been sufficient time for me to prepare for the hearing” and that if the motion for a continuance
were not granted “[m]y Client’s defense will be severely prejudiced.” In an unsworn response to
Sterling Savings’ opposition to the motion, the attorney added that “the Defendant does have
several means in which they (sic) intend to present material issues of fact that could possibly
defeat the Plaintiff’s motion.” To support a motion for a continuance of a summary judgment
proceeding, and to establish prejudice from a trial court’s denial of the same, a party must do
more than make vague references of this sort. This is made clear by our Supreme Court’s
holding in Jenkins v. Boise Cascade Corp., 141 Idaho 233, 108 P.3d 380 (2005), where the
Jenkins’ attorney filed a motion to vacate the summary judgment hearing, asserting he was not
prepared to respond to the motion within the time allowed. The attorney filed an affidavit
generally stating that the Jenkins had served written discovery and notices of depositions, that he
believed the discovery would produce additional documents and testimony supporting the
Jenkins’ theories, and that he required the opportunity to use the responses and testimony in
additional discovery in order to thoroughly respond to summary judgment. The district court
denied the motion, finding that the Jenkins’ attorney had failed to provide specific information in
an affidavit as to what additional discovery was necessary and how it would be relevant to
address the issues raised on summary judgment.          On Jenkins’ appeal, our Supreme Court
affirmed, stating:
               Moreover, the district court was soundly within its discretion in denying
       the motion. Rule 56(c) mandates the entry of summary judgment, after adequate
       time for discovery and upon motion, against a party who fails to make a showing
       sufficient to establish the existence of an element essential to that party’s case,


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       and on which that party will bear the burden of proof at trial. See Celotex Corp. v.
       Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265, 273
       (1986) (emphasis added). Pursuant to I.R.C.P. 56(f), a party may request from the
       court more time to respond to a pending motion for summary judgment.
       However, that party must articulate what additional discovery is necessary and
       how it is relevant to responding to the pending motion. I.R.C.P. 56(f).
               It has been noted that a party who invokes the protection of Rule 56(f)
       must “do so in good faith by affirmatively demonstrating 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.” Allen v. Bridgestone/Firestone, Inc., 81 F.3d
       793, 797 (8th Cir. 1996). Further, in order to grant a motion for additional
       discovery before hearing a motion on summary judgment, the plaintiff 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.” Nicholas v. Wallenstein, 266 F.3d 1083,
       1088-89 (9th Cir. 2001).
               In this case, the Jenkins’ attorney’s affidavit stated that additional written
       discovery and depositions were pending, but did not specify what discovery was
       needed to respond to Boise Cascade’s motion and did not set forth how the
       evidence he expected to gather through further discovery would be relevant to
       preclude summary judgment. Although the affidavit states that the issues were
       too complex and the documents too numerous for the attorney to make an
       adequate response in fourteen days, he does not articulate why the issues were too
       complex for him to be prepared within fourteen days to present evidence through
       his own witnesses to create a genuine issue of material fact in a case that had been
       pending for more than a year. The district court recognized it had the discretion
       to deny the motion, articulated the reasons for so doing and exercised reason in
       making the decision. There was no abuse of discretion in denying the motion to
       vacate.

Jenkins, 141 Idaho at 239, 108 P.3d at 386.
       Applying the Jenkins analysis to this case, Fairfield did not state facts demonstrating why
he needed more time to present his opposition to the summary judgment motion. By the time of
the scheduled summary judgment hearing, the action had been pending for about sixteen months,
and the summary judgment motion had been pending for approximately ten months.                  The
attorney’s affidavit did not state why in that amount of time, including two continuances prior to
his son’s passing, he had not been able to assemble evidence to respond to the summary
judgment motion. The district court concluded that “I can’t find, then, from the record before the
court, that there’s a basis or good cause for continuing the motion for summary judgment.” We
cannot say that an abuse of discretion has been shown.



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B.     Merits of the Summary Judgment
       Fairfield also contends that the district court erred in granting the summary judgment
motion because the plaintiff failed to properly calculate and give notice of the deficiency amount
and because the evidence filed in support of the summary judgment motion was insufficient to
warrant granting the motion. (Fairfield does not state in what way the evidence is insufficient.)
Fairfield filed no substantive response to the summary judgment motion and did not appear at the
hearing. Therefore, these issues were not raised below. This Court will not consider issues that
are raised for the first time on appeal. Barmore v. Perrone, 145 Idaho 340, 343, 179 P.3d 303,
306 (2008).
C.     Attorney Fees and Costs
       As an additional issue presented under Idaho Appellate Rule 41(a), Sterling Savings
requests an award of its attorney fees incurred in this appeal under Idaho Code § 12-120(3) and
under a provision of the guaranty. We need only address the former. Idaho Code § 12-120(3)
provides, in relevant part, as follows:
       In any civil action to recover on an open account, account stated, note, bill,
       negotiable instrument, guaranty, or contract relating to the purchase or sale of
       goods, wares, merchandise, or services and in any commercial transaction unless
       otherwise provided by law, the prevailing party shall be allowed a reasonable
       attorney’s fee to be set by the court, to be taxed and collected as costs.

(emphasis added). This is an action to recover on a guaranty. Therefore, Sterling Savings, as the
prevailing party in this appeal, is entitled to an award of attorney fees under section 12-120(3) in
an amount to be determined by this Court.
                                                III.
                                          CONCLUSION
       The district court’s order denying Fairfield’s motion for continuance and the judgment in
favor of Sterling Savings is affirmed. Attorney fees and costs on appeal to Sterling Savings.
       Chief Judge GUTIERREZ and Judge GRATTON CONCUR.




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