Opinion
April 15, 1975.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 646
Calkins, Kramer, Grimshaw & Harring, P.C., Bruce B. McCrea, Denver, for plaintiff-appellee.
Keller & Dunievitz, Lionel D. Dunievitz, Denver, for defendants-appellants.
ENOCH, Judge.
Defendants appeal from a summary judgment entered for plaintiff in a suit on a promissory note. We reverse.
On February 21, 1974, plaintiff filed his complaint alleging defendants had defaulted on a $100,000 note and owed the full principal plus interest, attorneys' fees, and costs. A copy of the note attached to the complaint shows a due date of April 26, 1974. The note provides for interest payments to be made in 1973 on June 26, September 26, and December 26, and in 1974 on March 26 and April 26. The defendants filed answers on March 8 and March 22, 1974, admitting execution of the note, but denying all other allegations and alleging that the note was not in default.
On May 8, 1974, plaintiff moved for summary judgment, supported by his affidavit. The affidavit recited that a dispute had arisen as to the timely payment of the interest installment due June 26, 1973, and that three of the five interest payments had subsequently been received, but that neither of the interest installments due in 1974 had been received nor had the principal been paid by April 26, 1974, as required by the note. Plaintiff further recited that pursuant to the terms of the note $20,000 attorneys' fees were also due, as well as interest on the amounts due.
Plaintiff's counsel filed a supporting brief alleging facts not disclosed in the pleadings or affidavits. These were that when the initial interest payment was late, plaintiff had accelerated the note as provided by its terms, making the entire sum due and payable immediately, and had credited the payments made toward the full amount outstanding. Counsel attached to his brief a copy of a telegram purporting to be evidence of notice to defendants that the note had been accelerated when the first interest payment was not timely made. A supplemental brief was filed with four unsigned typed pages attached, purporting to be excerpts from a deposition of defendant DeWitt in which he admited owing the principal and unpaid interest. Defendants filed no counter affidavits.
The court granted plaintiff's motion for summary judgment and entered judgment against defendants for $100,000 together with interest plus $20,000 attorneys' fees and costs. Defendants promptly moved for a new trial, which motion the court initially granted, but after plaintiff moved for a new hearing, it reinstated and affirmed the summary judgment. Defendants again filed a motion for a new trial which was subsequently denied. The court made no findings to support any of its actions except in the initial judgment where it found 'that there is no genuine issue as to any material fact . . ..'
Defendants contend that summary judgment was not proper in this case since the record presented questions of fact which could not be determined in a summary judgment hearing and further that plaintiff cannot augment the record by unverified documents attached to his briefs.
Summary judgment is a drastic remedy. For it to be applicable, 'the complete absence of any genuine issue of fact must not only be apparent, but all doubts thereon must be resolved against the moving party.' Abrahamsen v. Mountain States Telephone & Telegraph Co., 177 Colo. 422, 494 P.2d 1287.
Here, the district court entered summary judgment on the basis of the complaint filed prior to the due date of the note. The complaint alleged the execution of the note, default and demand, and that the amount of the note was owing. In his affidavit, dated after the maturity date of the note, plaintiff acknowledged receipt of the first three interest payments, which were the only payments called for by the note at the time of filing the complaint, though noting a dispute as to the timeliness of the first. This is insufficient to remove all doubts about the factual issue of whether there was a default on the note. The note provides that plaintiff may accelerate the due date in the event an interest payment is not timely made, but he did not allege in his affidavit that he had elected to accelerate, and the only evidence of such election is the unverified copy of the telegram attached to plaintiff's brief.
In ruling on a motion for summary judgment the court is to consider the pleadings, depositions, answer to interrogatories, and admissions on file, together with any affidavits. C.R.C.P. 56(c). Where a party contends there is or is not a genuine issue of fact, he cannot do so simply by hypothetical argument; he must support his contention in accordance with C.R.C.P. 56. See Sullivan v. Davis, 172 Colo. 490, 474 P.2d 218. In this case, plaintiff argues that the note was accelerated and that any acceptance of payments was only conditional and to be applied against the total outstanding. This position is unsupported by affidavit or verified evidence which meets the requirements of C.R.C.P. 56. Consequently the question of default remains a genuine issue of fact to be resolved, and summary judgment should not have been granted. Abrahamsen v. Mountain States Telephone & Telegraph Co., Supra.
We also agree with defendants' contention that the award of $20,000 attorneys' fees was improper. The mere fact that the note provided for 20% Attorneys' fees is not enough to support the automatic award of such a sum, without a showing that such fees are reasonable, are commensurate with services and time expended, and that the fees were paid or incurred. Stevens v. Liberty Loan Corp., 161 Colo. 312, 421 P.2d 732; Haffke v. Linker, 30 Colo.App. 61, 489 P.2d 1050, cert. dismissed, 178 Colo. 456, 514 P.2d 633.
The judgment is reversed and cause remanded for further proceedings consistent with this opinion.
PIERCE and STERNBERG, JJ., concur.