Blackmore v. Davis Oil Co., 83-27

Citation671 P.2d 334
Decision Date04 November 1983
Docket NumberNo. 83-27,83-27
PartiesFrances B. BLACKMORE, widow of R.B. Blackmore, and Millard Huey, Appellants (Plaintiffs), v. DAVIS OIL COMPANY, a Colorado partnership, and Marvin Davis, individually and as general partner, Appellees (Defendants).
CourtUnited States State Supreme Court of Wyoming

Lubnau & Drew, Gillette, Robert C. Hawley of Dechert, Price & Rhoads, Denver, Colo., Kirk B. Holleyman, Aspen, Colo., for appellants.

Morris R. Massey of Brown, Drew, Apostolos, Massey & Sullivan, Casper, and Erik Carlson, of Davis Oil Company, Denver, Colo., for appellees.

Before ROONEY, C.J., and RAPER, * THOMAS, ROSE and BROWN, JJ.

ROSE, Justice.

This appeal concerns the propriety of a summary judgment granted defendants-appellees in a suit for specific performance, accounting and damages arising out of a letter agreement concerning a geologist's prospect.

We will affirm.

INTRODUCTION

A prospect is a promoter's assessment of a drilling or mining site which is based on information obtained from observations, tests and other sources. The merit of the prospect depends upon the promoter's skill and the viability of the data he gathers, and it is common practice for a promoter to exchange his work-up for a retained interest in the venture.

FACTS

In 1963, Marvin Davis, a partner in Davis Oil Company of Denver, Colorado, and R.B. Blackmore, a promoter from Casper, Wyoming, signed a letter agreement which Blackmore required before submitting his oil prospect in the Powder River Basin in Campbell County, Wyoming. Davis then referred Blackmore's work-up to Donald Mettler, the geologist for Davis Oil Company, who, having studied the prospectus, concluded that it was without merit. Mettler told Blackmore that Davis Oil Company was not interested and, save for a later attempt by Blackmore to rekindle interest in the prospect, there was no further communication between them. Mettler left Davis Oil in 1968.

Ten years later, Davis Oil began to acquire leases in the Powder River Basin, all of which were supported by the reports and recommendations of Gordon Heele, then geologist for Davis. Heele's recommendations and reports to Davis were not presented until other extensive development and drilling activity in the Powder River Basin had been accomplished and the data therefrom made available to Heele. The record in this case reveals that Heele did not rely on Blackmore's prospectus in making his geological recommendations to Davis Oil. The leases acquired by Davis Oil Company after 1973 covered a large area which included a small portion of the two townships mentioned in Blackmore's 1963 prospect. Davis Blackmore remained active in his business until his death in 1976, but did not claim to have any rights under the 1963 agreement after Davis Oil began to acquire the leases in 1973. Drilling in the precise area mentioned in the letter agreement began in 1977. In March of 1981, Millard Huey, who introduced Blackmore to Davis and to whom Blackmore assigned 25% of his interest in the letter agreement, learned of Davis Oil's productive wells and, in September of that year, asserted an interest in the wells. Davis Oil refused to recognize any obligation to Huey or the Blackmore estate. In July of 1982, Huey and Frances Blackmore (successor to the remaining 75% interest in the letter agreement) brought suit against Davis Oil seeking specific performance of the 1963 agreement, an accounting of the proceeds from the well, and damages. The district court granted defendant's motion for summary judgment.

drilled and successfully completed several wells within this area.

THE LAW

The duty of this court on review of summary judgment has often been stated as follows:

" * * * When a motion for summary judgment is before the supreme court, we have exactly the same duty as the district judge; and, if there is a complete record before us, we have exactly the same material as did he. We must follow the same standards. The propriety of granting a motion for summary judgment depends upon the correctness of a court's dual findings that there is no genuine issue as to any material fact and that the prevailing party is entitled to judgment as a matter of law. This court looks at the record from the viewpoint most favorable to the party opposing the motion, giving to him all favorable inferences to be drawn from the facts contained in affidavits, depositions and other proper material appearing in the record." Reno Livestock Corporation v. Sun Oil Company (Delaware), Wyo., 638 P.2d 147, 150 (1981).

The moving party is entitled to summary judgment when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Rule 56(c), W.R.C.P.; Lafferty v. Nickel, Wyo., 663 P.2d 168 (1983). Furthermore, the party moving for summary judgment has the burden of showing that there is no genuine issue of material fact. Timmons v. Reed, Wyo., 569 P.2d 112, 121 (1977). A material fact is one with legal significance which would affect the outcome of litigation. Thus,

" * * * a determination, as to whether or not a fact is material, depends greatly upon the principle of law to be applied." Timmons v. Reed, supra, 569 P.2d at 117.

In this contract action, appellees demonstrated to the trial judge that they did not drill on the basis of information provided by Blackmore in 1963 and thereby made a prima facie showing that there was no genuine issue of material fact.

Once the moving party has made a prima facie showing that there is no genuine issue of material fact, the burden shifts to the party opposing the motion to show that a genuine issue of material fact exists which justifies taking the case to trial. Gennings v. First National Bank at Thermopolis, Wyo., 654 P.2d 154, 156 (1982). Appellants attempted to discharge this burden by producing the affidavit of a consulting petroleum engineer who merely expressed his opinion to the effect that Davis Oil had undertaken a drilling program utilizing the Blackmore 1963 prospect. However, this conclusory affidavit is inadequate to raise an issue of material fact. This court has often said that under Rule 56(e), W.R.C.P., affidavits on a motion for summary judgment must set forth specific facts indicating the presence or absence of a genuine issue of material fact.

"It is incumbent upon the appellant to come forward with not only competent evidence but also specific facts in opposition to those set forth by appellee, as the movant for summary judgment, if there is to remain a genuine issue of fact for See also, Kimbley v. City of Green River, Wyo., 663 P.2d 871 (1983); Hunter v. Farmers Insurance Group, Wyo., 554 P.2d 1239, 1242 (1976); Maxted v. Pacific Car & Foundry Company, Wyo., 527 P.2d 832, 834 (1974); McClure v. Watson, Wyo., 490 P.2d 1059, 1062 (1971); In re Estate of Wilson, Wyo., 399 P.2d 1008, 1009 (1965).

trial." Gennings v. First National Bank at Thermopolis, supra, 654 P.2d at 155.

Our holding in Lieuallen v. Northern Utilities Company, Wyo., 368 P.2d 949, 952 (1962), is applicable to the situation which confronts this court in the case at bar. There we said:

"We cannot say that this response met the requirements of Rule 56(e) above noted. It does not set forth specific facts which challenge in any way the truth of defendant's affidavits * * *. Plaintiff's affidavit also fails to develop any specific facts * * *. Thus not even an implication remained * * *."

We recognize that it is our appellate duty to consider the record in the light most favorable to the party opposing the motion, Timmons v. Reed, supra, 569 P.2d at 116; Reno Livestock Corporation v. Sun Oil Company (Delaware), supra, 638 P.2d at 150, and to give him all favorable inferences.

" * * * [W]e 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, and depositions. Bluejacket v. Carney, Wyo., 550 P.2d 494 (1976); Timmons v. Reed, supra." Miller v. Reiman-Wuerth Company, Wyo., 598 P.2d 20, 24 (1979).

In this case the most that can be said for appellants' position is that, even if the 1963 agreement was binding at the outset, and even if 14 years is a reasonable time for an oil and gas lease agreement to remain operative and viable under an open-ended contract, and even if Blackmore did not waive any interest he may have had by his failure to assert it between 1973 and 1976, then there remains only a possible inference, unsupported by fact, to the effect that Davis' decision to drill was influenced by Blackmore's prospect. Appellants would have us hold that, even though they presented no specific facts constituting an issue, the bare inferences in and of themselves--when pitted against the hard testimony of nonreliance which was introduced by Davis--raise a genuine issue of material fact. Specifically, appellants rely upon inferences which say that the letter agreement was a continuing contract, that Davis waited until after Blackmore died to drill the wells in question so as to avoid the agreement, and that Davis in fact used the information obtained from Blackmore in 1963 to support the contention that Davis Oil is liable to them. While the appellants are entitled to all favorable inferences which may be drawn from the material facts, in this appeal they have presented no specific facts upon which such inferences could rest.

We said in Forbes Co. v. MacNeel, Wyo., 382 P.2d 56, 57 (1963), that an inference which is contrary to direct testimony is insufficient to support a finding that a genuine issue of material fact exists:

" * * * Plaintiff presented no affidavit which on its face showed defendant to have been negligent but now argues that an inference of negligence was inherent in the diagram attached to the patrolman's affidavit. Nothing therein contained was contradictory of the defendant's answer to interrogatories * * *.

"Inferences contrary to direct testimony are...

To continue reading

Request your trial
32 cases
  • Morris v. Farmers Ins. Exchange
    • United States
    • Wyoming Supreme Court
    • March 22, 1989
    ...movant's allegations by setting forth specific facts which permit the fact finder to infer those ultimate facts. Blackmore v. Davis Oil Co., 671 P.2d 334, 336-37 (Wyo.1983); Bancroft v. Jagusch, 611 P.2d 819, 821 Alleging that it was relieved of its duties to defend and indemnify by a polic......
  • Nowotny v. L & B Contract Industries, Inc.
    • United States
    • Wyoming Supreme Court
    • March 7, 1997
    ...the record.' Reno Livestock Corporation v. Sun Oil Company (Delaware), Wyo., 638 P.2d 147, 150 (1981). See also, Blackmore v. Davis Oil Company, Wyo., 671 P.2d 334, 336 (1983). "A summary judgment should only be granted where it is clear that there are no issues of material facts involved a......
  • Hovendick v. Ruby, 99-197.
    • United States
    • Wyoming Supreme Court
    • August 22, 2000
    ...quality to meet the direct testimony offered by Ruby in his affidavit. Matter of Estate of Roosa, 753 P.2d at 1035; Blackmore v. Davis Oil Co., 671 P.2d 334, 337 (Wyo.1983). In my judgment, the Hovendicks have failed to produce any factual matter to overcome the direct testimony of Ruby tha......
  • Mostert v. CBL & Associates
    • United States
    • Wyoming Supreme Court
    • August 14, 1987
    ...issue of material fact. [Citations.] Conclusory affidavits are insufficient and specific facts must be shown. Blackmore v. Davis Oil Company, Wyo., 671 P.2d 334 (1983)." In this case CBL showed from affidavits and depositions submitted to the court in connection with its motion, that its st......
  • 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