Bancroft v. Jagusch, No. 5230
| Court | United States State Supreme Court of Wyoming |
| Writing for the Court | Before RAPER; ROONEY |
| Citation | 611 P.2d 819 |
| Decision Date | 20 May 1980 |
| Docket Number | No. 5230 |
| Parties | Keith BANCROFT, Appellant (Plaintiff), v. James JAGUSCH, Appellee (Defendant). |
Page 819
v.
James JAGUSCH, Appellee (Defendant).
Louis A. Mankus, Cheyenne, and James T. Anest, Student Intern, for appellant (plaintiff).
J. Kent Rutledge, of Lathrop & Uchner, P. C., Cheyenne, Richard P. Boley, Cheyenne (argued), for appellee (defendant).
Before RAPER, C. J., and McCLINTOCK, THOMAS, ROSE and ROONEY, JJ.
ROONEY, Justice.
Appellant-plaintiff appeals from an order of the district court which affirmed a summary judgment entered in the county court in favor of appellee-defendant.
The only issue presented on appeal is whether there existed a genuine issue as to a material fact so as to make Rule 56(b), W.R.C.P. inapplicable. Since we find that one did not exist, we affirm.
Rule 56(c), W.R.C.P. provides in pertinent part that a summary judgment:
Page 820
" * * * shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that 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 standard under which we consider an appeal from a summary judgment is as follows: The burden of showing absence of a genuine issue of a material fact is upon the party moving for the summary judgment; and we look at the record from the viewpoint most favorable to the party opposing the motion, giving to him all favorable inferences to be drawn from facts contained in affidavits, exhibits, depositions and testimony. Miller v. Reiman-Wuerth Company, Wyo., 598 P.2d 20 (1979); Bluejacket v. Carney, Wyo., 550 P.2d 494 (1976).
Applying this standard and giving to appellant every favorable view of the facts and favorable inferences to be drawn therefrom, we, nonetheless, must conclude that an issue of a material fact is not shown in the record. The only items in this case to which we can look for this purpose are the complaint, the answer, appellant's affidavit and appellee's affidavit. There was no discovery.
Appellant acknowledges that the complaint is founded only in negligence and not in contract or warranty. The complaint alleges that appellee, a dentist, caused appellant's teeth to be extracted; that he replaced them with dentures; that the dentures were not "usable because of improper fit"; and that "the dental work * * * was done in a negligent and careless manner." In his answer, appellee admitted that he was a dentist; that he recommended extraction of appellant's teeth; and that he fitted him with dentures. He denied that he was negligent or careless, and he stated affirmatively that appellant "consented to the work and procedures * * * and assumed the risk that the dentures might become unusable."
In an affidavit in support of his motion for summary judgment, appellee recited his educational background and that he was a...
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In re Estate of Drwenski, No. 03-29
...Whether a particular defendant's actions have violated the required duty is generally a question for the jury. Bancroft v. Jagusch, 611 P.2d 819, 821 (Wyo.1980). The existence of a duty is, however, a question of law, "`making an absence of duty the surest route to summary judgment in negli......
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Northern Utilities Div. of K N Energy, Inc. v. Town of Evansville, No. 89-30
...fact regarding the liability or non-liability of NUD. Hyatt v. Big Horn School Dist. No. 4, 636 P.2d 525 (Wyo.1981); Bancroft v. Jagusch, 611 P.2d 819 (Wyo.1980). The Wyoming rule for granting summary judgment establishing proponent's burden to demonstrate an absence of factual issue is wel......
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Toltec Watershed Imp. Dist. v. Johnston, No. 85-169
...to the party opposing the motion, giving him all favorable inferences which may be drawn from the facts. Bancroft v. Jagusch, Wyo., 611 P.2d 819 ABUSE OF PROCESS AND MALICIOUS PROSECUTION The tort of abuse of process is defined thusly: "One who uses a legal process, whether criminal or civi......
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Morris v. Farmers Ins. Exchange, No. 87-187
...policy exclusion. Since we give all favorable inferences to the party opposing the motion, Cordova, 719 P.2d at 639; Bancroft v. Jagusch, 611 P.2d 819 (Wyo.1980), we find the psychological analysis of the intention factor as afforded by conflicting affidavits of separate psychologists also ......
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In re Estate of Drwenski, No. 03-29
...Whether a particular defendant's actions have violated the required duty is generally a question for the jury. Bancroft v. Jagusch, 611 P.2d 819, 821 (Wyo.1980). The existence of a duty is, however, a question of law, "`making an absence of duty the surest route to summary judgment in negli......
-
Northern Utilities Div. of K N Energy, Inc. v. Town of Evansville, No. 89-30
...fact regarding the liability or non-liability of NUD. Hyatt v. Big Horn School Dist. No. 4, 636 P.2d 525 (Wyo.1981); Bancroft v. Jagusch, 611 P.2d 819 (Wyo.1980). The Wyoming rule for granting summary judgment establishing proponent's burden to demonstrate an absence of factual issue is wel......
-
Toltec Watershed Imp. Dist. v. Johnston, No. 85-169
...to the party opposing the motion, giving him all favorable inferences which may be drawn from the facts. Bancroft v. Jagusch, Wyo., 611 P.2d 819 ABUSE OF PROCESS AND MALICIOUS PROSECUTION The tort of abuse of process is defined thusly: "One who uses a legal process, whether criminal or civi......
-
Morris v. Farmers Ins. Exchange, No. 87-187
...policy exclusion. Since we give all favorable inferences to the party opposing the motion, Cordova, 719 P.2d at 639; Bancroft v. Jagusch, 611 P.2d 819 (Wyo.1980), we find the psychological analysis of the intention factor as afforded by conflicting affidavits of separate psychologists also ......