Burns v. Cities Service Co., 13488

• Decision Date: 29 July 1975
• Docket Number: No. 13488,13488
• Citation: 158 W.Va. 1059,217 S.E.2d 56
• Court: West Virginia Supreme Court
• Parties: Robert B. BURNS, d/b/a Twin Rivers Steel Company v. CITIES SERVICE COMPANY, etc., et al.

Page 56

217 S.E.2d 56

158 W.Va. 1059

Robert B. BURNS, d/b/a Twin Rivers Steel Company v. CITIES SERVICE COMPANY, etc., et al.

No. 13488.

Supreme Court of Appeals of West Virginia.

July 29, 1975.

Syllabus by the Court

1. The unconditional assignee of a complete chose in action is the real party in interest and suit must be brought in his name.

2. A party is entitled to prosecute a civil action as the real party in interest

when he establishes an actual and justiciable interest in the subject matter of the litigation.

3. 'A party who moves for summary judgment has the burden of showing that there is no genuine issue of fact and any doubt as to the existence of such issue is resolved against the movant for such judgment.' Point 6, Syllabus, Aetna Casualty and Surety Company v. Federal Insurance Company of New York, 148 W.Va. 160 (133 S.E.2d 770).

4. 'Under the provisions of Rule 56 of the West Virginia Rules of Civil Procedure, when the moving party presents depositions, interrogatories, affidavits or otherwise indicates there is no genuine issue as to any material fact, the resisting party to avoid summary judgment must present some evidence that the facts are in dispute.' Point 2, Syllabus, Guthrie v. The Northwestern Mutual Life Insurance Company, W.Va. (208 S.E.2d 60).

5. 'Summary judgment cannot be defeated on the basis of factual assertions contained in the brief of the party opposing a motion for such judgment.' Point 3, Syllabus, Guthrie v. The Northwestern Mutual Life Insurance Company, W.Va. (208 S.E.2d 60).

Goldenberg & Hayhurst, Robert T. Goldenberg, Richard A. Hayhurst, Parkersburg, for appellant.

Raymond R. Hyre and J. K. Chase, Jr., Moundsville, for appellees.

SPROUSE, Justice:

Robert Burns, doing business as Twin Rivers Steel Company, appeals from the judgment of the Circuit Court of Marshall County in an action instituted by Burns against Cities Service Company, Columbian Carbon Company, Lawson-Light, Inc., and The Lummus Company. The action was brought to enforce a mechanic's lien for work done pursuant to a subcontract with Lawson-Light, Inc. By intervention, R. G. Richardson, Ira Houghton and the United States of America were made parties.

The trial court granted separate motions for summary judgment, dismissing the mechanic's lien as not timely filed and dismissing the appellant as a party. It is this latter action that the plaintiff appeals. The sole question presented for decision is whether the trial court properly granted summary judgment, dismissing appellant Burns as a party having no interest in the subject matter of the civil action.

Cities Service Company, the successor corporation of Columbian Carbon Company, contracted with The Lummus Company for construction of certain buildings on land owned by Columbian Carbon in Marshall County. Lawson-Light was a subcontractor with Lummus on the project. Lawson-Light, in turn, entered into a contract with the plaintiff to furnish labor and equipment for erection of the buildings. The contract, dated April 15, 1970, provided for a total contract price of $60,350.

On August 3, 1970, prior to the commencement of work under the contract, the plaintiff entered into an agreement designated as a 'Joint Venture Agreement', with Ira Houghton and R. G. Richardson. Houghton and Richardson agreed to pay for labor and equipment rentals and expenses necessary to complete the plaintiff's contract with Lawson-Light. In return, the plaintiff agreed to assign to Houghton and Richardson 'the proceeds due or to become due under these contracts', and to permit the use of the proceeds 'to reimburse * * * Houghton and * * * Richardson for any monies furnished * * * on the contracts and * * * for any amount loaned * * * on amounts otherwise owing * * *.' The agreement further provided as follows: 'Upon completion of the contracts the proceeds therefrom, after all necessary expenses have been paid or provided for, shall be paid to Robert Burns, save for a fee of 5% Of the gross proceeds from the jobs.' The plaintiff thereafter executed an assignment of all proceeds of the contract and notified Lawson-Light of such assignment.

Following the completion of the contract, the plaintiff instituted this action for enforcement of its mechanic's lien for $20,299.40 plus interest and costs. Upon the motion of Cities Service Company, summary judgment was granted, discharging the lien as not timely filed. The court, however, retained jurisdiction to determine the merits of the underlying contract claim.

After the dismissal of the mechanic's lien, Ira Houghton and R. G. Richardson intervened as parties plaintiff. Lawson-Light then filed a motion for summary judgment seeking to dismiss Burns as a party plaintiff 'on the ground that said plaintiff has no interest in the subject matter of this Civil Action, by virtue of an assignment of all of his interest in the contract which is the subject of this Civil Action, and the proceeds thereof, * * *.'

Attached to the motion for summary judgment as an exhibit was an affidavit of Ira L. Houghton. In the affidavit Houghton stated that 'on August 12, 1970, Robert B. Burns assigned all money due him from said contract to affiant and directed Lawson-Light, Inc. to pay all sums of money due from said contract to affiant.'

The affidavit further stated: 'Affiant further saith that he is the sole owner of the proceeds due from said contract * * *.'

A second exhibit to the motion was a letter from Burns to Lawson-Light in which Burns informed Lawson of the assignment of 'all moneys due our organization on this job' to Ira L. Houghton. In opposition to the motion for summary judgment, Burns filed an affidavit signed by his counsel which stated that statutory tax liens had been filed against Burns by the Internal Revenue Service for $21,216.42, representing the amount Burns owed the Service. No mention of the joint venture agreement was made in the affidavit and that agreement was never made a part of the record.

On October 23, 1970, Robert Burns was dismissed as a party to the civil action. Thereafter, the United States of America was permitted to intervene in the action. This intervention was based upon perfected tax liens in the amount of $23,400.51, plus accrued interest and penalties, which arose because of the failure of the plaintiff to withhold taxes for three quarterly periods.

The single issue to be determined is whether the record presents a genuine issue of material fact, which would preclude summary judgment dismissing the plaintiff as a party having no interest in the case. The plaintiff contends that, as his assignment to Houghton and Richardson was either for collection or for security purposes, he had an interest in any surplus funds remaining after payment to the assignees. Alternatively, Burns argues that he had an interest in the outcome of the case to the extent that any satisfaction of the Federal tax liens from the proceeds of the contract would result in a Pro tanto reduction of his tax liability. The validity of this latter argument, he concedes, depends on his contention that the assignment was for collateral security and was inferior to the tax liens because the assignees failed to record under the provisions of Section 301 and 302 of Article 9, Chapter 46, Code, 1931, as amended.

Rule 17(a) of the West Virginia Rules of Civil Procedure provides in part: 'Every action shall be prosecuted in the name of the real party in interest; * * *.' This Rule is largely a continuation of the law existing in this State at the time of its adoption rather than an innovation. Lugar & Silverstein, West Virginia Rules of Civil Procedure 161.

It is true that a minority of American jurisdictions, in determining real party in interest questions, have held...