Van T. Junkins and Associates, Inc. v. U.S. Industries, Inc., 83-7380

• Decision Date: 17 July 1984
• Docket Number: No. 83-7380,83-7380
• Citation: 736 F.2d 656
• Parties: VAN T. JUNKINS AND ASSOCIATES, INC., an Alabama corporation, Plaintiff-Appellant, v. U.S. INDUSTRIES, INC., et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 656

736 F.2d 656

39 Fed.R.Serv.2d 728

VAN T. JUNKINS AND ASSOCIATES, INC., an Alabama corporation Plaintiff-Appellant, v. U.S. INDUSTRIES, INC., et al., Defendants-Appellees.

No. 83-7380.

United States Court of Appeals Eleventh Circuit.

July 17, 1984.

Charles Dunn, Birmingham, Ala., for plaintiff-appellant.

T. Thomas Cottingham, Julia Smeds, F.A. Flowers, III, Birmingham, Ala., for defendants-appellees.

Appeal from the United States District Court for the Northern District of Alabama.

Before GODBOLD, Chief Judge, JOHNSON and CLARK, Circuit Judges.

CLARK, Circuit Judge:

The plaintiff-appellant Van T. Junkins and Associates, Inc. (Junkins) claims in this appeal that the district court erred in granting summary judgment to the defendants-appellees, U.S. Industries, Inc., A & S Building Systems, Inc., and others (A & S). To support its motion for summary judgment, A & S filed the deposition of Junkins, President of plaintiff. Prior to the hearing on A & S's motion, plaintiff filed nothing in contradiction to the deposition. Two weeks later Junkins filed its affidavit, although untimely, in that Fed.R.Civ.P. 56 requires that opposing affidavits be filed prior to hearing. The district court considered the affidavit, found it to contradict in part Junkins' testimony on deposition, but then found the affidavit to be a sham and granted A & S's motion. Although there may be some occasions where a party may by affidavit clarify testimony given in his deposition and thereby create a genuine issue as to a material fact, we affirm the district court here and hold a district court may find an affidavit which contradicts testimony on deposition a sham when the party merely contradicts its prior testimony without giving any valid explanation.

Junkins' complaint alleges that it was in the business of constructing prefabricated buildings and that the defendant was in the business of supplying such buildings. It alleges that the defendant contacted it about becoming a dealer and through their agents told Junkins that one of the terms and conditions of a dealership agreement would be that plaintiff purchase one of defendant's buildings. Plaintiff alleges that it relied upon these representations, purchased a building and land upon which to put it, but that thereafter the defendant refused to enter into the dealership contract. Plaintiff claimed damages for fraud and reckless misrepresentations.

Junkins' deposition was taken May 7, 1982 by counsel for the defendant. Junkins testified that Dunbar and Smith, representatives of A & S, contacted him and then visited with him, explaining that they understood he was contemplating building a prefabricated building and wanted also to know if he were interested in being a dealer. Junkins stated he was and that the building would be his office building and also a warehouse for building supplies. He said he also had thought about becoming a dealer for a manufacturer of such buildings. Junkins, Dunbar, and Smith left Junkins' office and went to dinner, which was attended for a portion of the time by Charles Hollis, Superintendent for Junkins and Associates and Stewart Sims, a real estate agent in Pelham, Alabama, where Junkins apparently planned to construct the prefabricated building. Two or three weeks later the three principals met again. Dunbar and Smith brought the contract for the sale of the building and also brought literature about A & S. They mentioned to the restaurant manager where they were dining that Junkins was going to be a new dealer for their company. Charles Hollis, as superintendent for Junkins, signed the contract to purchase the building from A & S on February 24, 1981, two or three days after this meeting.

Junkins makes it clear on deposition that he had been contemplating buying a prefabricated metal building, that representatives of A & S contacted him saying that they had heard he needed a building, and that before he ordered the building no one stated that he had to buy a building from A & S as a condition, a term, or a prerequisite to becoming a dealer. The fact that there was no condition attached to his purchasing the building was made crystal clear in three places in the deposition. He further admitted that he had been told by Dunbar that his application for dealership had to go through a review board and that somebody other than Dunbar had to approve the application. The proposed dealership agreement which was signed by Junkins on May 7, 1981, clearly states that it must be approved by a duly authorized representative of A & S at its main office in Houston. Junkins in his deposition testified that he had attended two years of college and that he had achieved experience and success in the construction business. He described a number of contracts which he had entered into with nationally-known companies. Thus, there is no indication that Junkins was a neophyte in the business world.

In his affidavit Junkins says:

About two or three weeks thereafter [the first meeting], it must have been a day or so before February 24, 1981, [the day the order for the building was signed] Darryl Dunbar and Kent Smith again came to my office. We again discussed the dealership. It was at that time that Darryl Dunbar told me that I was going to be their new dealer and that the paper work would just be a formality of being hand-carried through. He stated at that time that he had the authority to tell me whether or not I was a dealer.

Additionally, Junkins stated:

He [Dunbar] further stated to me that if, in addition, I would purchase one of their buildings then I would be awarded the dealership.

(R. 46)

Under these facts as presented, we agree with the district court that the affidavit constituted a sham. When a party has given clear answers to unambiguous questions which negate the existence of any genuine issue of material fact, that party cannot thereafter create such an issue with an affidavit that merely contradicts, without explanation, previously given clear testimony.

Rule 56 of the Federal Rules of Civil Procedure permit a partial or final judgment to be entered without a jury trial if a party can establish that as to one or all of the issues in the case 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." The party adverse to the movant for summary judgment cannot rest on his pleadings to present an issue of fact since the 1963 enactment of subparagraph (e). This part of the Rule now mandates that a party moved against respond with affidavits, depositions, or otherwise, in order to reflect that there are material facts which must be presented to a jury for resolution. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 159-61, 90 S.Ct. 1598, 1609-10, 26 L.Ed.2d 142 (1970).

The question presented by this case is whether a party's affidavit can create an issue of fact when contrasted with the party's deposition. In Kennett-Murray Corp. v. Bone, 622 F.2d 887 (5th Cir.1980), ¹ our predecessor court held that a genuine issue can exist by virtue of a party's affidavit, even if it conflicts with his deposition. There the court found that Bone's affidavit explained certain aspects of his deposition testimony and clarified certain ambiguities created by frequent shifts in the questioning of Bone about a promissory note and the employment contract. Finding that the affidavit was not inherently inconsistent with Bone's earlier testimony, the court found that there was no sham but instead that there was created a genuine issue of material fact. In writing the opinion, the court recognized that other circuits had affirmed grants of summary judgment when a party attempted to contradict his own prior testimony. Thus, in Perma Research and Development Co. v. Singer Co., 410 F.2d 572 (2d Cir.1969), the court affirmed the grant of a summary judgment notwithstanding the fact that the owner of the plaintiff corporation, Perrino, filed an affidavit which contradicted in part his deposition. Perrino was deposed for four days and repeatedly asked to specify the basis of the fraud he alleged and at one point stated: "There is no way of me knowing exactly what their intention was at the time they said it, except that they promised certain things when everything else points to the fact that they did not intend to do what they said they were going to do." (Ibid. p. 577-78.) In his affidavit, Perrino attributes certain statements to witnesses Person and Kloby, representatives of Singer, which statements he had failed to disclose on his deposition. Finding that the district court could properly conclude that the statements made in the affidavit were less reliable than those in the deposition, the court found that there was no triable issue of fraud. Likewise, in Radobenko v. Automated Equipment Corp., 520 F.2d 540 (9th Cir.1975), the court affirmed a grant of summary judgment by the district court which had found that the party urging fraud had not created a genuine issue of material fact when he filed an affidavit which conflicted with his deposition.

There is no conflict in the Perma Research and Radobenko decisions and the Fifth Circuit opinion in Kennett-Murray Corp., supra. Each grant by a district court of a summary judgment rests upon the distinct issues and facts of that particular case. Here the plaintiff affirmatively stated on deposition that the representatives of A & S did not tell him that he had to buy their company's building in order to become a dealer. He signed a contract to purchase a building in February at the second meeting with the representatives. He had been planning to buy such a building. He did not sign the proposed dealership agreement until May. Contained in the agreement was a statement that approval of the party seeking the dealership by A & S's representative in the Houston office was a prerequisite to the contract...