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Frontier Bank v. Montgomery Homes Inc.

May 27, 1997

FRONTIER BANK, A WASHINGTON BANKING CORPORATION, RESPONDENT,
v.
MONTGOMERY HOMES, INC.; ROGER MONTGOMERY AND JUDITH MONTGOMERY, HUSBAND AND WIFE, APPELLANTS.



Appeal from Superior Court of Snohomish County. Docket No: 94-2-08668-3. Date filed: 06/28/95. Judge signing: Hon. Linda Krese.

Authored by C. Kenneth Grosse. Concurring: Ronald E. Cox, Susan R. Agid.

The opinion of the court was delivered by: Grosse

GROSSE, J. -- In response to a motion for summary judgment in an action on a note and personal guarantee, Montgomery Homes, Inc., and Roger and Judith Montgomery relied solely on their request for a continuance. Such a request required the Montgomerys to at least make a showing of their defenses and to provide some detail as to what facts would likely be established by further discovery. Because they did not do so until their motion for reconsideration, and then did not present evidence that was not in their possession at the time of the initial hearing on summary judgment, the trial court did not err in granting the motion for summary judgment or in denying the motion for reconsideration.

Frontier Bank is the successor to the Bank of Northshore. Montgomery Homes had a loan from the Bank of Northshore for $120,000 providing for regular monthly payments until May 15, 1994, when the remaining balance was due and payable. Roger Montgomery guaranteed this indebtedness on behalf of himself and the marital community. The note was not paid when due and in November of 1994 Frontier Bank filed suit. In January 1995, Frontier Bank moved for summary judgment, supporting that motion with an affidavit attesting to the above facts.

The Montgomerys now claim that they had an agreement with the Bank of Northshore whereby the bank loan would roll over when it became due until such time as the construction business picked up. However, in response to the motion for summary judgment, the Montgomerys filed a declaration of counsel only asserting that they were entitled to conduct full discovery prior to the court considering the motion. *fn1 The Montgomerys did not controvert the material facts contained in the affidavits submitted by Frontier Bank that they executed the note and guarantee and that the note was past due.

Applying the usual standard of review, we hold that the trial court did not err in granting summary judgment. Frontier Bank met its burden as the moving party under CR 56, demonstrating the absence of genuine issues of material fact, and its entitlement to judgment as a matter of law. *fn2 In response, the Montgomerys either had to set forth facts evidencing a dispute of material fact, *fn3 which they did not do, or to justify their need for a continuance under CR 56(f).

CR 56(f) provides:

Should it appear from the affidavits of a party opposing the [summary judgment] motion that he cannot, for reasons stated, present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.

A summary judgment proceeding should be continued under CR 56(f) if the moving party offers good reason why certain evidence cannot be obtained in time for the summary judgment proceeding, the nature of the evidence is identified, and the evidence raises a genuine issue of material fact. The trial court may deny a motion under CR 56(f) when these criteria are not met. *fn4 They were not met here and what was eventually submitted was too late.

The supplemental affidavits and declarations of the Montgomerys were filed after the order on summary judgment had been decided, and after the order was formally filed. Although a party may submit additional evidence after a decision on summary judgment has been rendered, it must be submitted before a formal order has been entered. *fn5 This court has said that a party may not submit additional evidence after a decision on summary judgment has been rendered and a formal order entered. *fn6 Here the additional evidence was filed after the order was filed.

On March 3, 1995, the Montgomerys filed a motion for reconsideration supported by supplemental documentation. Here, for the first time, the Montgomerys challenged the substance of the affidavits submitted by Frontier Bank. At this time Roger Montgomery included a declaration setting forth the alleged existence of a subsequent oral agreement between the Montgomerys and Northshore/Frontier Bank whereby the Montgomerys would be allowed to pay off the note in a period of 10 years at a payment of $1,500 a month. The trial court denied the motion for reconsideration ruling that this "new" evidence presented for reconsideration was available to the Montgomerys prior to the entry of the summary judgment and therefore it was not timely and would not be considered by the court.

We agree with the trial court. The evidence was untimely because the declaration failed to present new evidence unknown to the Montgomerys at the time of the original summary judgment hearing. Only newly discovered evidence allows setting aside a judgment under CR 59.

The underlying note contains a provision which provides for attorney fees. Fees are awarded to ...


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