Farmers Union Oil Co. of Williston v. Harp

• Decision Date: 31 October 1990
• Docket Number: No. 900136,900136
• Citation: 462 N.W.2d 152
• Parties: FARMERS UNION OIL COMPANY OF WILLISTON, Plaintiff and Appellant, v. John HARP, Defendant and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 152

462 N.W.2d 152

FARMERS UNION OIL COMPANY OF WILLISTON, Plaintiff and Appellant, v. John HARP, Defendant and Appellee.

Civ. No. 900136.

Supreme Court of North Dakota.

Oct. 31, 1990.

Paul W. Jacobson of Bjella, Neff, Rathert, Wahl & Eiken, Williston, for plaintiff and appellant.

Fred E. Whisenand of McIntee & Whisenand, Williston, for defendant and appellee.

VANDE WALLE, Justice.

Farmers Union Oil Company appealed from a summary judgment in favor of John Harp. We reverse.

Farmers Union brought this action against John Harp for contribution or indemnity for a judgment of $366,200 and costs entered against Farmers Union in Williams County district court, civil No. 18,326. That judgment was obtained by James Harp and Josie Harp, John Harp's uncle and aunt, for injuries sustained when a propane line leading to their house exploded. In the present action, Farmers Union alleges that John Harp negligently worked on the propane line shortly before the accident, thereby precipitating the accident.

In support of his motion for summary judgment, John Harp submitted affidavits from James Harp and Josie Harp, as well as from himself. These affiants denied that John had done any work on the propane line outside of the house. Harp also submitted the deposition testimony, taken in the present action, of Deputy Fire Marshal Richard E. Radspinner and Barbara Skogen, who investigated the accident. Harp asserts that the testimony given in these two depositions does not implicate Harp with the leaking propane line.

In opposition to Harp's motion for summary judgment, Farmers Union submitted a partial transcript of Williams County civil No. 18,326, which contained the testimony of Radspinner. Farmers Union asserts that Radspinner's prior testimony implicates John Harp. Farmers Union also submitted the deposition testimony of Radspinner and Skogen.

The trial court held that the testimony of Radspinner from civil No. 18,326 was inadmissible as hearsay and could not be considered for the purpose of the summary-judgment motion. The trial court found no other evidence that Harp had worked on the propane line outside of the house prior to the explosion and thus believing there was no genuine issue of material fact to be resolved, the trial court granted Harp's motion for summary judgment. Farmers Union appealed.

Summary judgment is a procedural device available for the expeditious disposition of controversies without the necessity of trial when, after viewing the evidence in a light most favorable to the opposing party and giving that party the benefit of all favorable inferences, there is no dispute as to either the material facts or inferences to be drawn from the undisputed facts. Production Credit Ass'n v. Davidson, 444 N.W.2d 339 (N.D.1989). In making a determination on an appeal from summary judgment, we view the evidence in a light most favorable to the party against whom summary judgment is granted. Williston Co-op Credit Union v. Fossum, 427 N.W.2d 804 (N.D.1988).

Rule 56(e), NDRCivP, requires a party opposing a motion for summary judgment to present competent admissible evidence by affidavit or other comparable means raising a material factual issue, or from which the court can draw an inference creating a material factual issue. Production Credit Ass'n v. Davidson, supra. If the party opposing summary judgment does not set forth specific facts showing there is a material factual issue, summary judgment is to be entered against him. Rule 56(e), NDRCivP.

While Farmers Union admits that the partial transcript from the prior trial was not an "affidavit," it asserts that the transcript was admissible under Rule 56(e) as a comparable means. In support of this position, Farmers Union directs the Court's attention to federal authority.

Rule 56, NDRCivP, is virtually identical to Rule 56, FRCivP. Rule 56, NDRCivP (Explanatory Note). Because of the substantial similarity to the federal rule, federal court interpretations are highly persuasive and we should be guided by them. Rule 1, NDRCivP (Explanatory Note); Hamilton v. Hamilton, 410 N.W.2d 508 (N.D.1987).

The First Circuit, United States Court of Appeals, has recently considered the admissibility of prior trial transcripts in a summary-judgment action in United States v O'Connell, 890 F.2d 563 (1st Cir.1989). The defendant-appellant in O'Connell, St. Augustine Trawlers, Inc., appealed from a ruling granting summary judgment against it and co-defendants John O'Connell and Jerry Thompson in a civil action brought by the United States under the False Claims Act. In ruling on the motion for summary judgment, the trial court considered excerpts of Thompson's testimony at the criminal trial of O'Connell and another co-defendant, James Norton.

The Court of Appeals concluded that the district court properly considered excerpts from the trial testimony because "there is no sensible rationale which would preclude reliance on sworn testimony faithfully recorded during the conduct of a judicially supervised adversarial proceeding. All of the hallmarks of reliability attend upon such trial transcripts." Id. at 567 [quoting Advance Financial Corp. v. Isla Rica Sales, Inc., 747 F.2d 21, 27 (1st Cir.1984) ]; accord Boston Athletic Ass'n v. Sullivan, 867 F.2d 22 (1st Cir.1989); see also Fisher v. Shamburg, 624 F.2d 156 (10th Cir.1980) [although appellate court reversed on other grounds, trial court properly considered a certified transcript on a motion for summary judgment]; Askew v. Bloemker, 548 F.2d 673 (D.C.Cir.1976) [criminal trial transcript cognizable in consideration of a motion for summary judgment]; see generally 6, Part 2, Moore, Federal Practice 56-757-758 (2d ed.1988) [discussing the reliability of different forms of affidavits under Rule 56, including transcripts from former trials].

Harp asserts that the prior trial testimony of Radspinner is inadmissible for consideration in the present action because Harp was not a party to the prior action and had no opportunity to cross-examine Radspinner. While Harp's assertion that he had no opportunity to cross-examine Radspinner is correct, it is not relevant. Affidavits submitted in support of, or opposing, summary judgment are never subject to cross-examination. Certainly, the degree of reliability attending Radspinner's sworn testimony from the prior trial is as great as the degree of reliability attending the sworn statements submitted by Harp in the present action.

In support of the proposition that the prior trial testimony is hearsay subject to exclusion, Harp mistakenly relies on Williston Co-op Credit Union v. Fossum, 427 N.W.2d 804 (N.D.1988). In Williston Co-op, the defendants opposing summary judgment submitted an affidavit in which one defendant set forth the deposition testimony of a third party, given in a prior lawsuit. This Court held that such testimony was hearsay subject to exclusion upon proper objection. In contrast to Williston Co-op, wherein the affiant set forth facts of which he had no personal knowledge, the present case involves an affiant setting forth facts of which he does have personal knowledge, i.e., Radspinner testifies as to the result of his investigation. The testimony in Williston Co-op was hearsay because of the nature of the testimony, not the nature of the form used. Deposition and trial transcripts are comparable to affidavits as a means of raising a material factual issue under Rule 56, NDRCivP. However, a transcript of prior testimony of a witness may not be admissible as evidence at a trial, just as a deposition of a witness is only admissible under certain circumstances. See NDRCivP 32(a)(3); NDREv 613(b).

While it is proper for the trial court to consider a prior trial transcript, that transcript must set forth facts that would be admissible in evidence. Rule 56(e), NDRCivP. At the prior trial, Radspinner testified that during his investigation he had been standing outside the Harp house beside the propane line with John Harp, James Harp...