Conley v. Hall

• Decision Date: 29 October 1965
• Citation: 395 S.W.2d 575
• Parties: Norcia CONLEY, Appellant, v. Geo. W. HALL et al., Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 575

395 S.W.2d 575

Norcia CONLEY, Appellant, v. Geo. W. HALL et al., Appellees.

Court of Appeals of Kentucky.

Oct. 29, 1965.

Duff Arnett, Bruce Stephens, Hazard, for appellant.

Robin Griffin, Miller, Griffin & Marks, Lexington, for appellees Hall, Maggard and Combs.

Armand Angelucci, Lexington, for appellees Rector and Napier.

CLAY, Commissioner.

This case presents for our consideration a procedural maze. The terminal point was a summary judgment for the appellee defendants.

Appellant plaintiff filed suit against defendant lessees and sublessees under a coal lease, claiming she had not been paid the royalties due. She asked for an accounting and a judgment for a specified sum.

Hereafter is set forth the chronological history of these proceedings:

October 21, 1960. Complaint.

December 2, 1960. Motion of original lessees to dismiss for failure to state a claim.

December 7, 1960. Same motion by sublessees.

March 1, 1961. Answers by original lessees with cross-claim against sublessees.

June 5, 1961. Original lessees' motion to dimiss overruled.

August 11, 1961. Deposition of the plaintiff and seven others taken 'to be read and used in the trial' of the action.

March 26, 1962. Original lessees' motion for summary judgment (admitting an indebtedness of $137.15).

April 13, 1962. Order assigning motion for summary judgment for hearing to June 5, 1962.

May 23, 1962. Motion of plaintiff to file amended complaint asking for punitive damages. (The complaint accompanied the motion but the motion was never passed upon.)

May 26, 1962. Attempt by plaintiff to take deposition of Bill Sloan, who refused to appear though subpoenaed.

August 7, 1962. Plaintiff filed her own affidavit concerning the nature of the testimony she expected from Bill Sloan.

August 9, 1962. Motion of original lessees to strike plaintiff's affidavit.

August 11, 1962. Depositions of two witnesses, who had explored the mine, taken by plaintiff.

August 15, 1962. Motion of plaintiff concerning her offer to permit defendants' representatives to verify evidence given by the two witnesses on August 11, 1962.

September 25, 1962. Order of court reciting that a hearing had been held on June 5, 1962, on defendants' motion for summary judgment, and giving the parties until October 11, 1962, in which to file memorandums on the merits of said motion.

January 18, 1963. Final order of the trial court reciting that plaintiff's affidavit of August 7 and the two depositions taken on August 11, 1962, would not be considered, sustaining motion for summary judgment, entering judgment for plaintiff in the sum of $137.15, and giving the original lessees a judgment against the sublessees on their cross-claim.

These proceedings remind us of a chess game played by mail between contestants at opposite ends of the globe. However, no one seemed quite sure of the name of the game, or the rules, and neither contestant paid much attention to the preceding move made by the other. With one exception, nobody paid any attention to time limitations.

As we see it, since this action involved an accounting, it was an equity case required to be tried on depositions. CR 43.04. The basic issue of fact was whether defendants had mined more coal than they had paid for. In the midst of the trial defendants injected a motion for summary judgment under CR 56. While such a motion may be made at any time, it cannot be converted into a method of short-circuiting the right of a plaintiff to prove his case. The function of the motion is to terminate unnecessary litigation, normally prior to the trial stage, when it clearly appears there exists no genuine issue of a material fact to be tried and decided. See Rowland v. Miller's Adm'r, Ky., 307 S.W.2d 3, and International Latex Corporation v. Lexicon Products, Inc., D.C.Pa., 37 F.R.D. 524.

There are two reasons why summary judgment should not have been granted in this case. The first is that the pleadings and the depositions filed prior to the 'hearing' date of June 5, 1962, not only failed to show the absence of an issue of fact but established beyond question that such an issue existed.

The plaintiff in her deposition testified that defendants had been late in paying royalties; that they had never given her a final accounting; that she had been unable to obtain from defendants or their representatives pertinent records; that one of the defendants had told her all of the merchantable coal had been taken out; and that according to her figures, by using a generally accepted method of calculation, defendants had removed approximately 30,000 tons of coal and had only accounted for approximately 4,000.

On the face of it, plaintiff's deposition standing alone shows an issue of fact as to whether defendants had accounted to her for all of the coal they had mined on the 9 1/2 acre tract involved. Defendants assert that plaintiff's testimony was in several respects hearsay. Assuming that is true, we are not concerned with the competency of evidence. See Corley v. Life & Cas. Ins. Co., 111 U.S.A.pp.D.C. 327, 296 F.2d 449. We are examining this record for the sole purpose of determining whether an issue of material fact exists. Plaintiff's deposition did not prove her claim so as to entitle her to judgment, but that is not the question involved on a motion for summary judgment.

Let us look at other depositions taken by plaintiff prior to the June 5 'hearing' date. Both expert and nonexpert witnesses testified that the method used by plaintiff in calculating the minable coal in the tract was correct; and they made estimates, based upon admitted facts with respect to the seam of coal involved, that between 26,000 and 38,000 tons of merchantable coal could have been mined from this tract. Clearly this evidence tended to establish that defendants had mined substantially more coal than they had accounted for (approximately 4,000 tons).

Defendants contend this evidence was not sufficient to establish how much coal had actually been mined. That may well be true, but we are not examining the sufficiency of the evidence. We are to decide this case on the motion for summary judgment, not on the merits. We are seeking only an issue of fact.

Let us examine further the deposition of Rector, one of the defendants. He admitted the existence of a seam of coal upon which the testimony of plaintiff and her other witnesses had been based. He admitted some records were lost. He also admitted that he had failed to comply with KRS 352.480(3), which requires a survey and a map to be made when a mine is abandoned or closed which will show the entire worked-out area. He made the following replies to the following questions:

Q. 'And you don't know if you paid for all this tonnage or not?

A. 'I think we did.

Q. 'As of right now you don't know if you have paid, is that correct?

A. 'No, I don't.'

In view of this last answer, how could it be said that no fact issue existed? It is positive proof to the contrary.

Defendant Rector filed with his deposition a statement of his accounting officer showing that this mine had 'received pay for' approximately 4,000 tons. This of course constituted a form of proof (though hearsay) on the fact issue of how much coal had been mined. Defendants contend that Rector's evidence established their nonliability, except in the amount of $137.15, which they admittedly had not accounted for. It would be a peculiar way of deciding a motion for summary judgment if a defendant's denial of liability would entitle him to judgment. However, we are not considering the question of liability. We must first decide if there is a disputed issue of fact which must be tried and determined.

It is plainly evident from the record and defendants' brief that they were seeking a judgment on the merits of this controversy via the route of a motion for summary judgment. Their basic contention is that at the time they made such motion plaintiff had failed to prove her right to judgment. This was wholly irrelevant to the question of whether a fact issue existed. See International Latex Corporation v. Lexicon Products, Inc., D.C.Pa., 37 F.R.D. 524. We would like to dispel once and for all the notion that one party may compel the other to try the question of ultimate liability on a motion for summary judgment. See Robert Simmons Const. Co. v. Powers Regulator Co., Ky., 390 S.W.2d 901; Turner v. McWhirter Material Handling Co., D.C.Ga., 35 F.R.D. 560.

The burden was on defendants to establish that there was no issue of a material fact. Essentially there was only one such issue in this lawsuit and defendants introduced nothing (by way of affidavit or otherwise) to establish it did not exist. There was nothing in the depositions taken by the plaintiff which even tended to make it disappear. The record before the court on June 5 conclusively showed there was this fact issue to be tried. If there was any doubt about it, the motion could not be granted. Mitchell v. Jones, Ky., 283 S.W.2d 716; Castlegate, Inc. v. National Tea Company, D.C.Ga., 34 F.R.D. 221. Since defendants failed to carry the burden of supporting their position, the motion should have been summarily denied.

There is yet another reason why the motion should not have been granted, and because it involves novel questions we will discuss them. They concern what constitutes a 'hearing' on such motion, and what supplemental matters may be considered.

CR 56.03 provides in part:

'The motion shall be served at least 10 days before the time fixed for the hearing. The adverse party prior to the day of hearing may serve opposing affidavits.' (Our emphasis.)

CR 56.05 provides in part:

'The court may permit affidavits to be supplemented or opposed by depositions or by further affidavits.' (Our emphasis.)

Defendants' motion was assigned for hearing on June 5, 1962. No notation in the record shows that a hearing was held on that date. However, an order was entered on September 25, 1962, reciting, 'a hearing...