Davenport v. Epperly, 87-56

Decision Date03 November 1987
Docket NumberNo. 87-56,87-56
Citation744 P.2d 1110
Parties2 IER Cases 1456 Scott A. DAVENPORT, Appellant (Plaintiff), v. Howard C. EPPERLY, Jr., and Robert Cochrane, Carbon County Coal Company, Appellees (Defendants).
CourtWyoming Supreme Court

George Santini of Charles E. Graves and Associates, Cheyenne, for appellant.

Catherine MacPherson of Johnson, MacPherson & Noecker, Rawlins, for appellees.

Before BROWN, C.J., THOMAS, URBIGKIT and MACY, JJ., and LANGDON, District Judge.

BROWN, Chief Justice.

Appellant Davenport contends that appellees Epperly and Cochrane intentionally interfered with his employment contract. The district court granted summary judgment in favor of appellees and appellant appeals.

Appellant states one issue:

"Are co-employees subject to liability for intentional interference with an employment contract between an employee and their common employer?"

Answering the issue posed by appellant in the affirmative would not dispose of this case. He argues principles other than those suggested by his statement of the issue.

Appellees present the issues as "1. Was the entry of an order granting summary judgment proper, i.e., were there no genuine issues of material fact and were the defendants entitled to judgment in their favor as a matter of law on the claim of intentional interference with contract?

"2. Is a co-employee, who holds a supervisory position, as an agent of the company, and whose job duties require him to terminate and discipline employees, subject to liability for intentional interference with contract between another employee and their common employer?"

We will affirm.

Before October 24, 1985, both appellant and appellees were employed by Carbon County Coal Company. Appellee Cochrane was the training coordinator while appellee Epperly acted as mine superintendent.

On October 19, 1985, Cochrane saw Davenport hunting elk. At the time, appellant was receiving worker's compensation benefits and was on the employer's salary continuance program pending his return to work. On the salary continuance program, the employer pays the difference between the worker's compensation payment and the regular salary of the worker. Under the company's salary continuance program, disabled employees are required to report to the mine each work day at 9:00 a.m. October 19 was a Saturday, and ordinarily would have been Davenport's day off. The company had no written rules, policies or procedures limiting what employees on salary continuation could or could not do with the exception of requiring that said employees "report in."

On the following Monday, Cochrane reported to Epperly that he had seen Davenport hunting elk on October 19. Based on this report, a decision was made to recommend Davenport's termination. Joel Strid, the general manager of the mine, approved the termination letter drafted by Epperly. In the letter, Davenport was informed that he was being terminated for the following reasons:

"Your misrepresentation of facts in regard to your ability to return to work from your disability status and to perform the duties and responsibilities of your job.

"Your misrepresentation of facts in regard to your disability status which resulted in your continuing to receive salary continuation benefits.

"Your use of time off, with the company's salary continuance program, to engage in activities which are contrary to the intent of this program which indicates a discrepancy in your disability status."

While at a meeting with Epperly and the employee relations manager on October 24, 1985, Davenport was told that he was discharged. At that time, he protested the discharge on grounds that he went hunting with his doctor's verbal approval. He said he had exercised caution to avoid reinjury while elk hunting and transporting the meat back to his vehicle. Despite these protests, the termination was not rescinded; however, Davenport was told that if he obtained a written confirmation from his physician that he had permission to go elk hunting, the company would reconsider its decision. Davenport made numerous requests for such a letter from his treating physician but no letter was provided. However, in his deposition, Dr. Robert J. Curnow stated that he verbally approved appellant's hunting trip.

Appellant filed suit against Cochrane and Epperly alleging "intentional interference with contract." The trial court granted summary judgment in favor of appellees, resulting in this appeal.

Wyoming does recognize the tort of "intentional interference with contract." We said in Toltec Watershed Improvement District v. Johnston, Wyo., 717 P.2d 808, 813-814 (1986):

"Tortious interference with a contract is defined as:

" 'One who intentionally and improperly interferes with the performance of a contract (except a contract to marry) between another and a third person by inducing or otherwise causing the third person not to perform the contract, is subject to liability to the other for the pecuniary loss resulting to the other from the failure of the third person to perform the contract.' Restatement (Second) of Torts § 766, p. 7 (1979).

"In an interference with contract action, Board of Trustees of Weston County School District No. 1 v. Holso, Wyo., 584 P.2d 1009, 1016-1017 (1978), we said that the necessary elements of proof were:

" '(1) the existence of a valid contractual relationship or business expectancy;

" '(2) knowledge of the relationship or expectancy on the part of the interferor;

" '(3) intentional interference inducing or causing a breach or termination of the relationship or expectancy; and

" '(4) resultant damage to the party whose relationship or expectancy has been disrupted.' "

Although Wyoming recognizes the tort of intentional interference with contract, we hold that the trial court properly granted appellee's motion for summary judgment. Rule 56(c), Wyoming Rules of Civil Procedure, provides that summary judgment " * * * shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law * * *." The court granted summary judgment to appellees based on depositions, affidavits and stipulations contained in the pretrial order.

This court's standard for reviewing the propriety of summary judgment is well established. England v. Simmons, Wyo., 728 P.2d 1137 (1986). The initial burden is on the movant to show that there is no genuine issue of material fact. Fiedler v. Steger, Wyo., 713 P.2d 773 (1986). Once that showing is made, it is incumbent upon the party opposing the motion to come forward with specific facts to show that there is a genuine issue of material fact. Bettencourt v. Pride Well Service, Inc., Wyo., 735 P.2d 722 (1987); and Bryant v. Hornbuckle, Wyo., 728 P.2d 1132 (1986). Conclusory affidavits are insufficient and specific facts must be shown. Blackmore v. Davis Oil Company, Wyo., 671 P.2d 334 (1983).

In Cordova v. Gosar, Wyo., 719 P.2d 625, 634 (1986), we set forth a six-stage analysis normally used in determining whether summary judgment was properly entered by the district court. These six stages include:

"1. Legal sufficiency of the complaint.

"2. Procedural sufficiency of the motion for summary judgment and attached affidavits and deposition material.

"3. Substantive sufficiency of the affidavits to initially support the motion.

"4. Procedural sufficiency of responsive affidavits.

"5. Substantive legal issue disposition.

"6. Substantive sufficiency of responsive affidavits."

We will discuss this Cordova case following this six-stage analysis.

Appellees do not question the legal sufficiency of the complaint, and summary judgment was not granted because of any deficiency or flaw in the complaint. We therefore need not discuss stage one of the summary judgment analysis of the Cordova case.

Stage two of the analysis deals with the procedural sufficiency of the motion for summary judgment and the attached affidavits and deposition material in support of the motion. Appellant murmurs briefly about the affidavit of Epperly being filed a week after the motion for summary judgment; however, nothing in Rule 56, W.R.C.P., precludes filing a supporting affidavit after the motion for summary judgment has been filed. Appellant's complaint as to the timeliness of Epperly's affidavit is raised for the first time on this appeal; the issue was not raised at trial. An issue not called to the attention of the trial court will not be considered on appeal. ABC Builders, Inc. v. Phillips, Wyo., 632 P.2d 925 (1981).

In any event, appellant was not denied an opportunity to respond to meet the contents of the Epperly affidavit. The motion for summary judgment was filed October 17, 1986. The Epperly affidavit was filed October 23, 1986. Appellant submitted materials in opposition on November 12 and 14, 1986, and on December 9, 1986, the day the motion for summary judgment was heard.

Appellant further argues that his motion to strike the Epperly affidavit on the basis that it was hearsay, and that it did not comply with the requirement that affidavits be made on personal knowledge containing facts which would otherwise be admissible in evidence, was not ruled upon by the district court. Appellant failed to call up the motion to strike for hearing as contemplated by Rule 301, Uniform Rules for the District Courts of the State of Wyoming. He also neglected to call the motion to the attention of the district court at the hearing on the motion for summary judgment. We need not consider on appeal questions not properly raised in the trial court. ABC Builders, Inc. v. Phillips, supra.

Stage three involves sufficiency of the affidavits and depositions to support the motion...

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