Higgins v. Scherr

Citation837 F.2d 155
Decision Date12 January 1988
Docket NumberNo. 87-2580,87-2580
PartiesMilton P. HIGGINS, III, Plaintiff-Appellant, v. Nathan SCHERR, Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)

Geoffrey Robert Garinther (James L. Shea, Venable, Baetjer & Howard, Baltimore, Md., on brief), for plaintiff-appellant.

Curtis C. Coon (Stuart Levine, Rachel E. Zelkind, Burke, Gerber, Wilen & Francomano, Baltimore, Md., on brief), for defendant-appellee.

Before HALL and MURNAGHAN, Circuit Judges, and KAUFMAN, Senior United States District Judge for the District of Maryland, sitting by designation.

MURNAGHAN, Circuit Judge:

The factual antecedents of the present case began with a long friendship or acquaintanceship between the plaintiff, Milton P. Higgins, III, and the defendant, Nathan Scherr. Scherr enjoyed the good fortune of being the owner of the horse, Aloma's Ruler, which won the 1982 Preakness at Pimlico Race Track in Baltimore. Higgins, claiming he had provided services to Scherr, filed an action for breach of contract, for quantum meruit, and on a promissory estoppel theory. Higgins alleged that over several years he had provided assistance to Scherr (a) in syndication of the Preakness winner at stud, (b) in the purchase of horses, 1 and (c) in the seeking and investigation of a desirable site for purchase by Scherr of a farm to be used for horse breeding and training purposes. Higgins further alleged that Scherr and he had entered an understanding that Higgins would be compensated for his services. Upon Scherr's refusal to provide such compensation, suit was filed.

The district court 2 concentrated only on the services relating to the purchase of a horse farm 3 and granted full summary judgment in favor of Scherr. In this respect, we conclude it was in error. Complaints are liberally construed under Fed.R.Civ.P. 8(f). Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 79 S.Ct. 948, 3 L.Ed.2d 988 (1959). "A pleading which sets forth a claim for relief ... shall contain ... (2) a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a). A complaint need not state with precision all elements that give rise to a legal basis for recovery as long as fair notice of the nature of the action is provided. Cf. Wolman v. Tose, 467 F.2d 29 (4th Cir.1972). The case came up on an appeal from a grant of total summary judgment in favor of Scherr. The failure adequately to dispose of claims other than those related to the horse farm purchase leads us to conclude that there was error in the general summary judgment grant requiring reversal and remand.

Apparently the district court gave to Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), more weight than it is entitled to. The Supreme Court there indicated that the opponent of a summary judgment motion has a burden of showing, by proper affidavits or other evidence, the existence of a genuine dispute of material effect and cannot simply rest upon his unverified complaint. However, that is true as to what must be shown only after the movant for summary judgment has met the burden of production by showing that there is an absence of evidence to support the non-moving party's complaint. Scherr simply did not satisfy the burden of production as to Higgins' claim for compensation for services other than those connected with the horse farm purchase. Higgins, as the non-movant, was not required to prove his entire case upon the mere incantation by Scherr of "summary judgment" as to but one aspect. Celotex, supra, 106 S.Ct. at 2554.

The district court also sought to rely on a supposed error he perceived in failure of Higgins to allege a promise on behalf of Scherr in return for services concerning Aloma's Ruler. However, in fact, Higgins alleged an understanding with Scherr that Higgins "would be duly compensated."

Going further, the district court held that, in the absence of contract, a pleading of promissory estoppel would not suffice. However, promissory estoppel is sometimes rather loosely referred to as "a factor other than" compensation and sometimes as "a substitute for" compensation. Since the case must be reversed in any event, there being adequate assertions of contract or quantum meruit, we regard it as only fair that Higgins should be allowed to seek to prove promissory estoppel. In doing so, we by no means mean to suggest that he would be successful, for if he fails in proving consideration and, therefore, loses as to his claims of breach of contract and of quantum meruit, he may be reduced to a somewhat fanciful and difficult claim if he must...

To continue reading

Request your trial
17 cases
  • Green v. Didio (In re Didio)
    • United States
    • United States Bankruptcy Courts. Third Circuit. U.S. Bankruptcy Court — Eastern District of Pennsylvania
    • 26 Septiembre 2019
    ...entire case," but only to raise a triable factual dispute over the deficient aspects pointed out by the moving party. Higgins v. Scherr, 837 F.2d 155, 157 (4th Cir. 1988).The additional evidence offered in a Celotex rebuttal may be made by affidavits, but "the affidavits must be made on per......
  • Ezold v. Wolf, Block, Schorr and Solis-Cohen
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • 3 Febrero 1993
  • Temkin v. Frederick County Com'rs
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • 12 Septiembre 1991
    ...issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Higgins v. Scherr, 837 F.2d 155, 157 (4th Cir.1988). The burden then shifts to the non-moving party to come forward with facts sufficient to create a triable issue of fact. Ande......
  • Moore v. Morton
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • 2 Abril 1992
    ...of pointing to the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Higgins v. Scherr, 837 F.2d 155, 157 (4th Cir.1988). The burden then shifts to the non-moving party to come forward with facts sufficient to create a triable issue of fact. An......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT