Brosie v. Stockton

• Decision Date: 05 May 1970
• Docket Number: No. 9853,9853
• Citation: Brosie v. Stockton, 468 P.2d 933, 105 Ariz. 574 (Ariz. 1970)
• Parties: Donald S. BROSIE, Appellant, v. A. Henderson STOCKTON, Appellee.
• Court: Arizona Supreme Court

Page 933

468 P.2d 933

105 Ariz. 574

Donald S. BROSIE, Appellant, v. A. Henderson STOCKTON, Appellee.

No. 9853.

Supreme Court of Arizona, In Division.

May 5, 1970.

Rehearing Denied May 26, 1970.

Johnson & Shaw, by J. P. Shaw, Phoenix, for appellant.

Jennings, Strouss, Salmon & Trask, by Nicholas Udall, Phoenix, for appellee.

McFARLAND, Justice.

This is an appeal by Donald S. Brosie, plaintiff below, from an order of the Superior Court of Maricopa County dismissing his complaint against A. Henderson Stockton, defendant below, on the ground that 'plaintiff's complaint fails to state a claim upon which relief can be granted.'

Plaintiff alleged in his complaint that he and his wife, Alita M. Brosie, for a consideration, retained defendant to represent them in a divorce action; that prior to the time of the decree there were conferences between plaintiff, his wife, and defendant, regarding a property settlement; that the relationship was of fiduciary nature; and that plaintiff, relying upon inducements and representations of the defendant, signed the property settlement which was incorporated in the judgment and decree of divorce; that thereafter defendant brought proceedings, in behalf of plaintiff's former wive, against plaintiff on the documents on which he had made the representation. The plaintiff asked for both actual and punitive damages in the amount of one hundred thousand dollars.

The defendant answered in Paragraph I, stating plaintiff's complaint fails to state a claim upon which relief can be granted. The remainder of defendant's answer is to the effect that he represented the plaintiff's former wife, and examined an agreement which was prepared on the legal stationery of another law firm; that he never represented the plaintiff; that the physical condition of plaintiff's former wife was such that it was necessary that he and her father represent her interests and that they negotiated with plaintiff regarding the property; that it was clearly understood by the plaintiff that he was not represented by defendant; and set forth in his answer a paragraph of the property settlement agreement which provided:

'15. The parties hereto understand that Stockton & Hing have heretofore represented ALITA M. BROSIE, Party of the Second Part, and that Stockton & Hing are free to hereafter represent her.'

He further generally denied that he made inducements or representations to the plaintiff to cause him to execute the agreement; also pleading as a separate and distinct affirmative defense an alleged waiver, estoppel, and the statute of limitations. The defendant--pursuant to provisions of Rule 56, Rules of Civ.Proc., 16 A.R.S.--moved for a summary judgment, basing same upon the pleadings and affidavits. Both sides filed supporting affidavits and memoranda.

The court, after taking the motion under advisement, found that the plaintiff's complaint fails to state a claim upon which relief can be granted and ordered the complaint dismissed.

The only question presented by the plaintiff in his brief is 'Did the complaint state a claim upon which relief can be granted?' However, in his discussion, the plaintiff notes that the only formal motion before the court was for summary judgment, and he indicates it was error for the court to render judgment as if it were a motion to dismiss directed only to the pleadings.

We have held that summary judgment should not be entered unless it is clear that there is no genuine issue of fact presented. The issue must be of material facts. Hoopes v. Lamb, 102 Ariz. 335, 429 P.2d 447. Similarly, we have held that a motion to dismiss concedes the truth of all material facts. Lakin Cattle Co. v. Engelthaler, 101 Ariz. 282, 419 P.2d 66.

However, it seems to be immaterial whether the motion is termed one to dismiss on the pleadings or for summary judgment. In 5 Wright & Miller, Federal Practice and Procedure, § 1366, at page 676, it is pointed out that technically a motion for summary judgment goes to the merits of the claim while a motion to dismiss merely challenges the pleader's failure to properly state a claim. However, Federal Rule 12(b)(6) (after which our Rule 12(b)(6), Rules Civ.Proc., 16 A.R.S., is patterned), permitting introduction of affidavits davits and other matters extraneous to the pleadings on a motion to dismiss, merely acknowledges the close relationship between both motions.

'The element that triggers the conversion (from a motion to dismiss to one for summary judgment) is a challenge to the sufficiency of the pleader's claim supported by extra-pleading material. It is not relevant how the defense actually is denominated.' Wright & Miller, supra.

Conversely, where the extraneous matters neither add to nor subtract from the deficiency of the pleading, the motion for summary judgment will be treated as 'either a motion to dismiss under Rule 12(b), or a judgment on the pleadings pursuant to Rule 12(c), Rules of Civil Procedure, ...