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Carnell v. Barker Management6/3/2002
for summary judgment. Phillips Electric filed a motion to strike Bidstrup's second affidavit, and filed the second affidavit of Dillard in support of its motion. The Smiths joined in the motion to strike on March 16, 2000.
A summary judgment hearing as to causation was held on March 20, 2000. In an opinion dated April 6, 2000, the district court struck Bidstrup's second affidavit. The court found that plaintiffs had failed to disclose Bidstrup as an expert witness in violation of the court's scheduling order. The court also held that Bidstrup was not qualified as a fire cause and origin expert. The court found that Bidstrup's testimony was not based on "scientific, technical, or other specialized knowledge," and also found that his testimony would not assist the trier of fact. It struck the portions of Bidstrup's affidavits that were opinions as to questions of law. The district court granted summary judgment as to all defendants on the issue of causation. The court also addressed the Smiths', Barker's and Barker Realty's, and the plaintiffs' motions for reconsideration. The court granted summary judgment as to all issues to Barker and Barker Realty. The court denied the Smiths' and the plaintiffs' motions for reconsideration.
On May 1, 2000, the court denied plaintiffs' motion for reconsideration. Appellants filed a timely notice of appeal on May 26, 2000, and the IDHW filed a timely notice of cross appeal on June 9, 2000.
II. STANDARD OF REVIEW
On appeal from the grant of a motion for summary judgment, this Court applies the same standard as used by the district court originally ruling on the motion. Intermountain Forest Mgmt., Inc. v. Louisiana Pacific Corp., 136 Idaho 233, 235, 31 P.3d 921, 923 (2001) (citing Wensman v. Farmers Ins. Co. of Idaho, 134 Idaho 148, 151, 997 P.2d 609, 612 (2000)). Summary judgment is proper "if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." I.R.C.P. 56(c). "All disputed facts are to be construed liberally in favor of the nonmoving party, and all reasonable inferences that can be drawn from the record are to be drawn in favor of the nonmoving party." Jacobson v. State Farm Mut. Auto. Ins. Co., 136 Idaho 171, 173, 30 P.3d 949, 951 (2001) (citations omitted). "I.R.C.P. 56(e) provides that the adverse party may not rest upon mere allegations in the pleadings, but must set forth by affidavit specific facts showing there is a genuine issue for trial." Rhodehouse v. Sutts, 125 Idaho 208, 211, 868 P.2d 1224, 1227 (1994) (citation omitted). Affidavits supporting or opposing the motion for summary judgment "shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." Id. "The admissibility of the evidence contained in affidavits and depositions in support of or in opposition to a motion for summary judgment is a threshold question to be answered before applying the liberal construction and reasonable inferences rule to determine whether the evidence is sufficient to create a genuine issue for trial." West v. Sonke, 132 Idaho 133, 138, 968 P.2d 228, 233 (1998). "Summary judgment is appropriate where the nonmoving party bearing the burden of proof fails to make a showing sufficient to establish the existence of an element essential to that party's case." Jensen v. Am. Suzuki Motor Corp., 136 Idaho 460, 463, 35 P.3d 776, 779 (2001).
III. ANALYSIS
A. The District Court Did Not Err By Striking Bidstrup's Second Affidavit.
Appellants ar
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