Braund, Inc. v. White

• Decision Date: 11 June 1971
• Docket Number: No. 1320,1320
• Citation: 486 P.2d 50
• Parties: 9 UCC Rep.Serv. 183 BRAUND, INC., Appellant, v. Frank WHITE, d/b/a Glacier Construction Company, Appellee.
• Court: Alaska Supreme Court

Page 50

486 P.2d 50

9 UCC Rep.Serv. 183

BRAUND, INC., Appellant, v. Frank WHITE, d/b/a Glacier Construction Company, Appellee.

No. 1320.

Supreme Court of Alaska.

June 11, 1971.

Clark S. Gruening, McCutcheon, Groh, Benkert & Greene, Anchorage, for appellant.

Eric E. Wohlforth and Robert B. Flint, McGrath, Wohlforth & Flint, Anchorage, for appellee.

Before DIMOND, RABINOWITZ, CONNOR and ERWIN, JJ.

OPINION

ERWIN, Justice.

This is an appeal from a partial summary judgment.

I. FACTS

The original complaint was filed by appellee, Glacier Construction Company, on November 20, 1969. It contained two counts. Count I alleged the conversion of ten items of quuipment with a value of approximately $25,000, taken in November of 1968. Count II, not at issue here, alleged a breach of contract with regard to a certain joint venture entered into between the parties resulting in damages in the amount of $272,000. The appellant's answer to Count I denied the allegations regarding the conversion, except that Braund, Inc., admitted that the property mentioned was, at the time it took possession, situated on premises of Glacier Construction near Palmer. All the other allegations were denied.

On March 26, 1970, Glacier Construction moved for a partial summary judgment on Count I, apparently on the basis that a sale agreement with attached inventory had been entered into between Braund, Inc., and Matanuska Valley Bank, that the property in question was not included in the agreement, and that therefore appellee was entitled to summary judgment as a matter of law.

Attached to the memorandum in support of the motion for partial summary judgment was an affidavit of appellee, Frank White. Mr. White affied that on the 24th day of October, 1968, he conveyed certain properties to the Matanuska Valley Bank, that such property was identical with the list of property sold by Matanuska Valley Bank to Braund, Inc., on October 24, 1968, and that he had no direct dealings himself with Braund, Inc. Mr. White further affied that the property in question herein was not covered in the bill of sale between Matanuska Valley Bank and Braund, Inc. Also attached to the above memorandum was a portion of the deposition of Melvin A. Braund taken in another case. Mr. Braund had testified that Braund, Inc., had bought the listed items from the Matanuska Valley Bank, and that the list was intended to include everything that Mr. White had conveyed to the bank, with the exception of certain equipment that was on the barge coming from Iliamna.

Subsequently, a statement of genuine issues of material fact was filed on behalf of Braund, Inc., which provided as follows:

Whether or not the items of property which plaintiff alleged were converted by defendant were included in the Bill of Sale of October 24, 1968.

In opposition to the motion for summary judgment, the affidavit of William Padgett was filed, which provided specifically that Mr. Padgett, then an officer of Braund, Inc., had gone to the premises of Glacier Construction near Palmer with a vice president of the Matanuska Valley Bank and was told that the bank wished to sell everything, including all equipment parts located on the premises. The affidavit further provided that Mr. Padgett was present at a meeting on October 2, 1968, when the sale took place, that it was the intention at that time of the Matanuska Valley Bank to sell all of the equipment to Braund, Inc., and that such equipment included all of the property alleged to have been converted. A similar affidavit was filed by Melvin Braund concerning the intention of the parties.

In its memorandum in opposition to the motion for summary judgment, Braund, Inc., contended that all of the property in question had been sold by Glacier Construction to the Matanuska Valley Bank and, in turn, sold by the latter to Braund. There was a further contention that the bill of sale contained certain language which was capable of more than one interpretation, but was intended to cover the property in question. Braund, Inc., asked for further discovery from the bank, indicating a belief that further discovery would show that the Matanuska Valley Bank actually repossessed all of Glacier Construction's property under a security agreement.

In reply to this, Glacier Construction argued that there was no ambiguity in the contract, that under the case of Port Valdez Co. v. City of Valdez, 437 P.2d 768 (Alaska 1968), no parol evidence would be permitted and that therefore discovery as to the intention of belief of bank officers could reveal only inadmissible facts. Glacier Construction further argued that no additional discovery should be permitted because Braund had already had ample time for discovery. Finally, Glacier Construction asserted that '(i)t is clear here that defendant has failed to set forth facts showing that they can produce admissible evidence which reasonably would tend to dispute or contradict plaintiff's evidence and thus demonstrate to the court a triable issue of fact exists * * *.'

The superior court heard the motion for summary judgment on May 12, 1970, and granted partial summary judgment as to Count I of the complaint. Subsequently, on May 19, 1970, Braund, Inc., objected to the judgment on the grounds that the valuation of the property converted was improper, and that additional testimony should be taken as to valuation. On May 29, 1970, a formal judgment was entered in the amount of $18,100.

On May 22, 1970, a combined motion to alter or amend the judgment and for leave to bring in the bank as a third party defendant was filed on the grounds that the bank had in fact warranted that all the property was salable to Braund, Inc. Another affidavit of William Padgett was filed the morning of June 16, 1970, which raised the additional contention that the sale of certain vans included in the property list was intended to include all of the meterials stored therein. That same day a hearing was held, the combined motion was benied, and notice of appeal was filed from the judgment signed May 20, 1970.

II. APPEALABLE ORDER

The partial summary judgment below as to Count I of a two-count complaint against the same defendant is clearly covered by Civil Rule 54 which provides in section (b) as follows:

When multiple claims for relief or multiple parties are involved in an action, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates less than all of the claims or the rights and liabilities of less than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

The judgment in this case does not mention the requirements of Civil Rule 54, and does not contain any language indicating that it was intended by the trial court to be immediately appealable:

Plaintiff's motion for partial judgment on count one of the complaint herein pursuant to Civil Rule 52, having come on for hearing on the 12th day of May, 1970, and the court being duly advised on the premises, and having considered by plaintiff's motion and affidavits and defendant's memorandum and affidavits in Opposition, and the court finding that there is no genuine issue as to the material fact that the following property of the following value was converted, to wit: (list omitted) for a total value of $18,100.00, and that plaintiff is entitled to a judgment as a matter of law in accordance with the complaint for damages in the amount of $18,100.00,

IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that plaintiff have judgment on count one of the complaint in the amount of $18,100.00.

Although Glacier Construction has not raised a finality issue on appeal, in Jefferson v. Spenard Builders' Supply, Inc., 366 P.2d 714, 715-716 (Alaska 1961), this court held that both an express determination that there is no just reason for delay and an express direction for the entry of judgment are actual prerequisites to the finality of judgment under Civil Rule 54(b) from which an appeal can be taken. However, the Spenard Builders' case also went on to hold that in the exercise of sound discretion this court, after finding that the policy permitting appeals only from the final decisions was outweighed by a need for early consideration of a non-appealable order, had the authority to review such order or decisions of the superior court regardless of the finality concept. ¹

The unusual fact situation in this case, together with the fact that a money judgment was entered against appellant with execution being stayed pending determination of this case on appeal, present sound reasons for review, even though appeal would not ordinarily be permitted.

III. SUMMARY JUDGMENT

The theory underlying a motion for summary judgment is substantially the same as that underlying a motion for directed verdict. ² The essence of both motions is that there is no genuine issue of material fact to be resolved by the trier of fact, and that the movant is entitled to judgment on the law applicable to the extablished facts. ³ As with a motion for directed verdict, all inferences of fact from the proferred proofs must be drawn against the movant and in favor of the party opposing the motion. ⁴ The moving party has the burden of proof to establish that the allegations the makes are true and that any defenses alleged are inapplicable under the facts of the case. ⁵

A motion for summary judgment should eliminate false claims and blanket denials. In effect it says to both parties, 'Tell us now what evidence you have to...