Central Bank & Trust Co. v. Robinson

• Decision Date: 26 May 1958
• Docket Number: No. 18062,18062
• Citation: 326 P.2d 82,137 Colo. 409
• Parties: The CENTRAL BANK AND TRUST COMPANY, a Banking Corporation, Plaintiff in Error, v. Jack ROBINSON, Cloe Robinson, Lemon Saks, Gertrude Pinkas, Jolanthe Saks, Saul Edelman, Charles Milton Scheyer, and Henry J. Minsey, Defendants in Error.
• Court: Colorado Supreme Court

Page 82

326 P.2d 82

137 Colo. 409

The CENTRAL BANK AND TRUST COMPANY, a Banking Corporation, Plaintiff in Error, v. Jack ROBINSON, Cloe Robinson, Lemon Saks, Gertrude Pinkas,

Jolanthe Saks, Saul Edelman, Charles Milton

Scheyer, and Henry J. Minsey, Defendants in Error.

No. 18062.

Supreme Court of Colorado, En Banc.

May 26, 1958.

Rehearing Denied June 16, 1958.

Ireland, Ireland, Stapleton & Pryor, Denver, for plaintiff in error.

Creamer & Creamer, Denver, for defendants in error.

HALL, Justice.

In the trial court plaintiff in error was one of three defendants, and defendants in error were plaintiffs. In this opinion we refer to the defendants in error as plaintiffs, and to the plaintiff in error as the Bank, and to Neilsen and Newton, Defendants below, by name.

On February 7, 1955, plaintiffs commenced this action, naming as defendants Silas M. Newton, Charles C. Neilsen and Central Bank and Trust Company. By their complaint the plaintiffs seek to recover from the defendants, pursuant to provisions of The Federal Securities Act of 1933 and The Securities Law of Colorado, the respective amounts paid by them to Neilsen for participation certificates, each representing a 1/48 interest in a 3% overriding mineral royalty controlled by Neilsen and conveyed in trust to the Bank; said certificates having been prepared, executed and sent through the United States mails by the Bank to the purchasers. No service has been had on Newton. Neilsen filed his answer and in substance confessed judgment and judgment was entered in favor of plaintiffs and against Neilsen. No review of this judgment is sought.

On February 9, 1955, the plaintiffs filed and caused to be served on the Bank their Requests for Admissions of Facts and of Genuineness of Documents, calling for sworn statements of the truth of fity-nine alleged relevant matters of fact set forth in the requests, all as provided in Rule 36, R.C.P. Colorado.

On February 17, 1955, the Bank filed (1) its motion to dismiss the complaint, as not stating a claim against the Bank; (2) its motion to strike portions of the complaint as being immaterial and redundant. Ruling on these motions was not had until the entry of summary judgment as hereinafter set forth.

On February 21, 1955, Bank filed its sworn statements, in response to the above request of February 9, 1955.

On June 23, 1955, the plaintiffs filed their motion for summary judgment. Attached thereto and made a part thereof are the above mentioned sworn statements of the Bank and an affidavit of Neilsen.

On July 2, 1955, the Bank's motions to dismiss and strike and plaintiffs' motion for summary judgment were argued and taken under advisement.

On September 20, 1955, the Bank filed its motion for summary judgment and, in support thereof, attached thereto (1) affidavit of V. T. Reece, Jr., its assistant trust officer; (2) a portion of the testimony of Neilsen given by deposition taken on cross-examination by the Bank March 1, 1955, and (3) depositions of five of the plaintiffs taken on cross-examination by the Bank March 10, 1955. No counter affidavits were filed.

On June 8, 1956, the trial court entered its Findings, Order, Judgment and Decree, adjudicating the following:

1. Bank's motion to dismiss denied;

2. Bank's motion to strike denied;

3. Plaintiffs' motion for summary judgment granted and judgment entered in accordance with prayer of plaintiffs' complaint;

4. Bank's motion for summary judgment not expressly ruled upon.

The Bank is here by writ of error, seeking reversal of the judgment and an order directing summary judgment in favor of the Bank.

Both the Bank and the plaintiffs in their respective motions for summary judgment urge that there was no real issue of fact before the trial court. The fact that all parties so contend does not necessarily require the trial court to resolve the matter on one or the other of the motions for summary judgment. Each motion, together with evidentiary matters tendered in support thereof, must stand on its own, and cannot be aided by the motion of the opposing party, with its supporting documents, for summary judgment.

In Morlan v. Durland Trust Co., 127 Colo. 5, 252 P.2d 98, 100, 36 A.L.R.2d 874, we have a case almost parallel to the case at bar. There, in an action to reform a deed, the defendant had filed a motion for bill of particulars, and, pursuant to Rule 36, served interrogatories to be answered by plaintiff, which interrogatories the plaintiff answered, attaching to its answers all of the correspondence exchanged between the parties concerning the transaction involved in the suit. On filing of these answers to interrogatories, defendant, not having filed an answer, moved for summary judgment. A few days later plaintiff moved for summary judgment. Both parties stated, as in this case, that there was no genuine issue as to any material fact. The trial court denied defendant's motion, granted plaintiff's motion, and entered judgment reforming the deed in accordance with the prayer of plaintiff's complaint. In reversing the trial court, this court said:

'* * * It is the law, that when defendants filed their motion for summary judgment they admitted thereby all facts properly pleaded by plaintiff, and as appeared in the record at that time, but such admissions imputed by law are confined to consideration of such motion only and within the limits of movants' theory of the law of the case. * * *.

'To warrant the granting of summary judgment, the stitution must be such that no material factual issue remains in the case. The intent and purpose of the rule is that, where the facts are undisputed, or so certain as not to be subject to dispute, the court is in position to determine the issue strictly as a matter of law. It is properly to be exercised only where the facts are clear and undisputed, leaving as the sole duty of the court the determination of the correct legal principles applicable thereto. Parrish v. De Remer, 117 Colo. 256, 273, 274, 187 P.2d 597, 606; Smith v. Mills, 123 Colo. 11, 15, 225 P.2d 483, 485; see, also, Flanders v. Kochenberger, 118 Colo. 104, 111, 112, 193 P. 281, 285; Tamblyn v. City and County of Denver, 118 Colo. 191, 193, 194, 194 P.2d 299, 300. * * *

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"The fact that both parties make motions for summary judgment, and each contends in support of his respective motion that no genuine issue of fact exists, does not require the Court to rule that no fact issue exists. Each, in support of his own motion, may be willing to concede certain contentions of his opponent, which concession, however, is only for the purpose of the pending motion. If the motion is overruled, the concession is no longer effective. Appellants' concession that no genuine issue of fact existed was made in support of its own motion for summary judgment. We do not think that the concession continues over into the Court's separate consideration of appellee's motion for summary judgment in his behalf after appellants' motion was overruled.' Begnaud v. White, 6 Cir., 1948, 170 F.2d 323, 327.'

Counsel for the Bank contend that the case in its then condition was not a proper case for summary judgment, and that the trial court decided six material issues of fact in granting plaintiffs' motion for summary judgment, and decided them erroneously. We now take up these alleged erroneous findings in the order as presented by the Bank.

Finding No. 1.

That the Plaintiff in Error Bank Offered or Sold the Securities in Question.

It is true that the trial court so decided. In so deciding, the trial court had before it the Bank's answers to the request for admissions. The Bank had admitted under oath that it had agreed to act as trustee, pursuant to written agreement attached to plaintiffs' complaint; that it had acquired title to the 3% royalty and held the same in trust; that it had prepared, signed and issued forty-eight participation certificates each for a 1/16 of 1% royalty, all in the same form as Certificate No. 13, attached to plaintiffs' complaint; that it had sent said certificates through the United States mails to the respective purchasers in Colorado, together with forms of receipts therefor to be signed and returned by the purchasers in self-addressed envelopes, and that receipts were signed by the purchasers and by them returned to, and accepted by, the Bank; that it had not caused the securities to be registered and knew that no registration had been made. The trial court with these admissions of the Bank before it properly resolved as a matter of law and fact that the Bank had offered and sold the securities as contemplated by the Securities Act of 1933, 15 U.S.C.A. § 77a et seq.

Clearly the Bank's admitted actions in making up, signing and delivering said certificates by means of the mails and without registration, fall within the inhibitions of Title 15 U.S.C.A. § 77e, which, among other things, provides:

'(a) Unless a registration statement is in effect as to a security, it shall be unlawful for any person, directly or indirectly----

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'(2) to carry or cause to be carried through the mails * * * any such security for the purpose of sale or for delivery after sale.'

For violation of the above section, § 77l among other things, provides:

'Any person who----

'(1) offers or sells a security in violation of section 77e of this title * * * shall be liable to the person purchasing such security from him * * * [for] the consideration paid for such security * * *.'

In Schillner v. H. Vaughan Clarke & Co., 2 Cir., 134 F.2d 875, 877, it is said:

'In the case at bar the contract of sale was concluded orally and the stock was paid for by the buyers without any use of the mails, but the mails were used for the delivery of the stock certificate to the buyers. In our opinion such a transaction falls within both the letter and purpose of the statute. Section 2(3) of the Act, 15 U.S.A. § 77b(3) provides that 'unless the context...