349 F.2d 235 (8th Cir. 1965), 17879, Neff v. World Pub. Co.

Docket Nº:17879.
Citation:349 F.2d 235
Party Name:Joseph A. NEFF, Appellant, v. WORLD PUBLISHING COMPANY, now known as Herald Liquidating Co., a Nebraska Corporation, W. Dale Clark, Peter Kiewit, Peter Kiewit Sons' Co., a Corporation, and World Publishing Company, a Delaware Corporation, Appellees.
Case Date:July 20, 1965
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 235

349 F.2d 235 (8th Cir. 1965)

Joseph A. NEFF, Appellant,


WORLD PUBLISHING COMPANY, now known as Herald Liquidating Co., a Nebraska Corporation, W. Dale Clark, Peter Kiewit, Peter Kiewit Sons' Co., a Corporation, and World Publishing Company, a Delaware Corporation, Appellees.

No. 17879.

United States Court of Appeals, Eighth Circuit.

July 20, 1965

Page 236

[Copyrighted Material Omitted]

Page 237

Herman Ginsburg, of Ginsburg, Rosenberg, Ginsburg & Krivosha, Lincoln, Neb., for appellant Joseph A. Neff.

Winthrop B. Lane, of Lane, Baird, Pedersen & Haggart, Omaha, Neb., for appellee W. Dale Clark.

Barton H. Kuhns, of Finlayson, McKie & Kuhns, Omaha, Neb., for appellee World Publishing Co. (now known as Herald Liquidating Co., a Nebraska Corp.).

Flavel A. Wright, of Cline, Williams, Wright, Johnson, Oldfather & Thompson, Lincoln, Neb., for appellees Peter Kiewit, Peter Kiewit Sons' Co., a corporation and World Publishing Co., a Delaware Corp.

Before BLACKMUN and RIDGE, Circuit Judges, and REGISTER, District judge.

REGISTER, District Judge.

This is an appeal from judgment sustaining defendants' motions for summary judgment.

For purposes of brevity and clarity, the parties will be referred to hereinafter as follows: Appellant-plaintiff will be called Neff; World Publishing Company, now known as Herald Liquidating Company, will be called World; W. Dale Clark, Clark; Peter Kiewit, Kiewit; and Peter Kiewit Sons' Co., a Corporation, and World Publishing Company, a Delaware Corporation, Kiewit Companies.

Jurisdiction is established by reason of diversity of citizenship and the amount in controversy.

In essence, Neff, by his complaint, alleged that he furnished certain services in negotiating a sale of World's assets at the request of that corporation and of Clark (Chairman of the Board) acting in its behalf, and sought to recover a broker's commission, basing his claim on both an express and implied contract with the appellees for services rendered by him at their request, with the understanding that he (Neff) was to be compensated therefor. Neff alleged the performance of such services; that a contract of sale was duly negotiated and that thereafter appellees breached and refused to perform same but subsequently sold said assets to Kiewit Companies; and that appellees, with knowledge of certain contractual interests and rights of Neff, did 'combine, scheme, and conspire to, and each of them did, interfere with the contractual relationship so existing * * *' and thereby caused the termination of such contractual relationship and arranged for the sale of World's assets to Kiewit Companies, which actions were done '* * * maliciously and without

Page 238

cause and with the intent to injure the plaintiff in his contractual rights * * *' Neff alleged liability on the part of appellees for the reasonable value of services rendered by him for the benefit of said appellees.

World and Clark, in their answers, admitted that Clark was, during the time involved, serving as Chairman of the Board of World, and that he did engage in certain negotations with a Mr. Newhouse, a resident of New York and the owner of a chain of newspapers, with reference to a possible purchase by Mr. Newhouse of the assets of World. World and Clark further admitted that Mr. Newhouse did submit a written offer or proposal for such purchase but aver that the same was never accepted and that no contract with reference thereto was ever entered into, but that such assets were in fact sold to Kiewit Companies. Said defendants alleged that in such negotiations all services rendered by Neff were solely as the representative and agent of Newhouse, and that there was no agreement that any compensation should be paid by them to Neff, and they denied Neff's allegations with reference to a conspiracy with Kiewit and Kiewit Companies. The answer of Kiewit and Kiewit Companies contained substantially the same allegations as were contained in the answers of Clark and World, and further denied Neff's allegations as to any scheme or conspiracy to interfere with any alleged contractual relationship, or potential contractual relationship, and alleged that in the purchase of World's assets they acted in good faith, without any knowledge of alleged contractual interest or rights of Neff, and denied that such purchase contract was entered into maliciously or without cause or with the intent to injure Neff in any of his alleged contractual rights.

It is apparent, therefore, that Neff's complaint embraces a cause of action for his commission, based upon contract, and also sounds in tort for alleged wrongful interference with claimed contractual rights. The defendants denied all liability to Neff.

Each of the defendants moved for summary judgment on the merits, pursuant to Rule 56, F.R.Civ.P., on the ground that no genuine issue existed as to any material fact and that such defendant was entitled to judgment as a matter of law. In support of their motions defendants offered, and the trial court received, the depositions of fourteen individuals (including Neff, Clark and Kiewit) which were then on file, and separate affidavits of Clark, Walter E. Christenson (Editor of the World-Herald, and President of World Publishing Company), Peter Kiewit, and William A. Cromartie, a lawyer who performed legal services for Kiewit and Kiewit Companies in the matter of the purchase of World's assets. In addition, there were offered and received, in support of said motions, certain interrogatories directed to Neff, and his answers thereto.

Neff offered, in opposition to said motions for summary judgment, his own affidavit (which was received subject to pending motions to strike), specified interrogatories and additional interrogatories of Neff addressed to World and Clark, together with answers thereto, and certain interrogatories (together with answers) propounded by Neff to Kiewit. Those interrogatories and answers not offered by Neff in opposition to the motions were subsequently offered and received on behalf of the movants in support of said motions.

The record before us discloses that this is not the usual case of summary judgment procedure, commonly alluded to as 'trial by affidavit'. This record, completed after unusually extensive discovery proceedings, includes not only the pleadings and affidavits, but testimony in the form of depositions of all the individual parties, of the lawyers representing such parties and participating in the negotiations involved, and of many other individuals having personal knowledge of the critical facts. Portions of the evidence produced will be referred to in detail as this opinion is developed.

Page 239

In seeking reversal, Neff contends that the trial court found, inter alia:

(1) that Neff was working for Newhouse only, and anything done by Neff created no obligation to him on the part of any of the defendants; (2) that no contract ever existed between the defendants and Newhouse, who was represented by Neff; (3) that Neff has no standing as a third-party beneficiary to enforce any alleged contractual relations; (4) that Clark owed no legal duty to Neff; and (5) that Kiewit and Kiewit Companies were not responsible for wrongful interference with any contractual or business relations allegedly existing between Newhouse and other defendants and in which Neff claims an interest.

Neff contends that, in making such findings, the trial Court in effect weighed the evidence and made determinations of disputed issues of material fact. Neff further contends that the trial court erred in certain conclusions of law, the merits of which it is not necessary for us to determine.

The general principles and applicable rule governing these proceedings are concisely stated in the following quotation from the opinion of this Court in Rubenstein v. Dr. Pepper Company, 8 Cir., 228 F.2d 528, at pages 532-533:

'As the judgment appealed from was entered in a summary proceeding we shall first consider the conditions under which a summary judgment may properly be entered. Rule 56, Federal Rules of Civil Procedure, 28 U.S.C.A., does not provide for a trial but is in the nature of a preliminary proceeding to determine whether or not there is involved a genuine issue as to any material fact. The proceeding is properly invoked even though the pleadings may on their face present a factual controversy. Durasteel Co. v. Great Lakes Steel Corporation, 8 Cir., 205 F.2d 438; Hurd v. Sheffield Steel Corporation, 8 Cir., 181 F.2d 269. The applicable rule governing these proceedings is thus stated in Durasteel Co. v. Great Lakes Steel Corporation, supra (205 F.2d 441):

'A summary judgment should not be entered unless it clearly appears that there is no genuine issue as to a material fact. Rule 56 of the Federal Rules of Civil Procedure, 28 U.S.C.A.; Dulansky v. Iowa-Illinois Gas & Electric Co., 8 Cir., 191 F.2d 881; Traylor v. Black, Sivalls & Bryson, Inc., 8 Cir., 189 F.2d 213; Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620, 64 S.Ct. 724, 88 L.Ed. 967. There may however, be a formal issue presented by the pleadings but shown by affidavit or otherwise not to be genuine. Hurd v. Sheffield Steel Corporation, 8 Cir., 181 F.2d 269; Parmelee v. Chicago Eye Shield Co., 8 Cir., 157 F.2d 582, 168 A.L.R. 1130; Broderick Wood Products Co. v. U.S., 10 Cir., 195 F.2d 433; Dewey v. Clark, 86 U.S. App.D.C. 137, 180 F.2d 766. An issue of fact is not genuine unless it has legal probative force as to a controlling issue, 35 C.J.S., Federal Courts, § 144, p. 1205. The motion for summary judgment is not a trial of the issues but for the purpose of determining whether in fact there are any genuine issues as to material facts. If it is made clearly to...

To continue reading