Drake v. Winkler

• Decision Date: 08 October 1992
• Docket Number: No. 91-242,91-242
• Parties: Roy DRAKE, Appellant (Plaintiff), v. Brenda D. WINKLER, Personal Representative of the Estate of Gayle Frances Stagner, Deceased; and Pilot Butte, Inc., a Wyoming Corporation, Appellees (Defendants).
• Court: Wyoming Supreme Court

Page 1177

838 P.2d 1177

Roy DRAKE, Appellant (Plaintiff), v. Brenda D. WINKLER, Personal Representative of the Estate of Gayle Frances Stagner, Deceased; and Pilot Butte, Inc., a Wyoming Corporation, Appellees (Defendants).

No. 91-242.

Supreme Court of Wyoming.

Oct. 8, 1992.

F.M. Andrews, Jr. of Andrews and Anderson, P.C., Riverton, for appellant.

Joel Vincent of Vincent and Vincent, Riverton, for appellee Brenda Winkler.

Norman Young of Hill, Young and Barton, P.C., Riverton, for appellee Pilot Butte, Inc.

Before MACY, C.J., and THOMAS, CARDINE, URBIGKIT ^* and GOLDEN, JJ.

GOLDEN, Justice.

Appellant Roy Drake appeals a grant of summary judgment in favor of appellees Brenda D. Winkler (personal representative of the estate of Gayle Frances Stagner, deceased) and Pilot Butte, Inc., a Wyoming corporation. This dispute concerns moneys transferred to both Stagner and Pilot Butte by Drake before Stagner's death. Drake claims the moneys were a loan and meant to be repaid.

We reverse the grant of summary judgment for both appellees and remand this case for trial on the issues.

ISSUES

Appellant Roy Drake frames the issues on appeal as follows:

1. Did the court err in granting the summary judgment motion of defendant Brenda Winkler, Personal Representative of the estate of Gayle Frances Stagner, deceased?

2. Did the court err in denying plaintiff's motion for summary judgment against Pilot Butte, Inc.?

Appellees Brenda Winkler and Pilot Butte, outline the arguments on appeal as follows:

1. The dead man's statute requires corroboration both of the fact that money was transferred to the decedent and her corporation and also the reason why the money was transferred.

2. The decedent's mere receipt of checks does not sufficiently corroborate the reasons for the transfer of money.

3. The provisions of the Wyoming dead man's statute apply equally to the decedent's closely held corporation.

FACTS

Appellant Roy Drake and Gayle Frances Stagner were engaged to be married at the time of her death on May 20, 1990. Before her death, Drake claims to have made various "loans" to Stagner from September 20, 1989 to May 2, 1990, with the understanding, through a verbal prenuptial agreement, that these moneys would become mutual assets at the time of marriage or, in the alternative, be repaid to Drake. Stagner did not sign any promissory notes as assurance to repay the funds, nor was there any written evidence that the moneys paid were to be considered "loans."

Sometime before the loans began, Drake gave Bruce McMillan approximately $23,000, Drake's share of insurance proceeds from a fire at Logan Packing Company. McMillan would then disperse money to Drake through drafts on McMillan's account. A total of $23,023 was transferred to Stagner or her closely held corporation, Pilot Butte. Drake claims that various amounts were loaned to the decedent or her corporation on the following dates September 20, 1989, $500 cash loaned to Stagner

October 9, 1989, $750 cash loaned to Stagner

December 18, 1989, $1,500 check made to "cash" from the account of Bruce McMillan, endorsed by Stagner

February 5, 1990, $5,000 check made to "cash" from the account of Bruce McMillan, endorsed by Stagner

February 5, 1990, $2,000 check made to "cash" from the account of Bruce McMillan, endorsed by Drake and loaned to Stagner

February 27, 1990, $1,000 check made to "cash" from the account of Bruce McMillan, endorsed by Drake and loaned to Stagner

February 27, 1990, $6,000 check made to "cash" from the account of Bruce McMillan, deposited into the account of Pilot Butte

May 2, 1990, $3,273 check made to "cash" from the account of Bruce McMillan, endorsed by Drake and deposited into the account of Pilot Butte

May 2, 1990, $3,000 check made to "cash" from the account of Bruce McMillan, endorsed by Drake and deposited into the account of Pilot Butte

At the time the moneys were deposited with Pilot Butte, Drake was an officer, though not a shareholder, in the corporation. Duane C. Winkler, Secretary/Treasurer of Pilot Butte, testified that to his knowledge, no evidence exists to show that there was any obligation owed to Pilot Butte by Drake as motivation for the sums deposited.

On August 1, 1990, Drake filed a creditor's claim against the Estate of Gayle Frances Stagner for the amount of $23,023 with interest, which was rejected by the personal representative of the estate, Brenda D. Winkler, on August 31, 1990. Drake then filed a complaint for "money loaned" and "money had and received" against the Stagner estate which was answered by denial from appellee Winkler. An amended complaint was filed on December 17, 1990 bringing suit also against Pilot Butte, claiming $12,273 was paid to the corporation at the request of Stagner. These suits were consolidated on February 3, 1990.

Winkler and Pilot Butte filed motions for summary judgment on May 22, 1991 and July 3, 1991, respectively. Appellees contend that no written documentation exists evidencing Stagner's promise to repay money to Drake and that Wyo.Stat. § 1-12-102 (1988), requires a claim made against a party incapable of testifying to be corroborated. On August 26, 1991, Drake also filed a motion for summary judgment. The court granted appellees' motions on September 30, 1991. Drake appeals this order.

STANDARD OF REVIEW

Our standard of review for summary judgment is well known. As we have often stated:

On appeal from a grant of summary judgment, we review the judgment in the same light as the district court, using the same materials and following the same standards. The party moving for summary judgment has the burden of demonstrating that no genuine issues of material fact exist and that he is entitled to judgment as a matter of law. We have defined a material fact as one which, if proved, would have the effect of establishing or refuting an essential element of the claim of defense asserted by the parties. We review the record from the vantage point most favorable to the nonmoving party, giving that party the benefit of every favorable inference which may be drawn from the facts in the materials submitted in the record.

Home Ins. Co. v. Elston Equip. Co., 810 P.2d 992, 993 (Wyo.1991) (quoting Stephenson v. Pacific Power & Light Co., 779 P.2d 1169, 1171 (Wyo.1989)) (emphasis added).

DISCUSSION

Appellees contend that Wyoming's "Dead Man's Statute" is controlling at this stage of litigation. It provides:

In an action or suit by or against a person who from any cause is incapable of testifying, or by or against a trustee, executor, administrator, heir or other representative of the person incapable of testifying, no judgment or decree founded on uncorroborated testimony shall be rendered in favor of a party whose interests are adverse to the person incapable of testifying or his trustee, executor, administrator, heir or other representative. In any such action or suit, if the adverse party testifies, all entries, memorandum and declarations by the party incapable of testifying made while he was capable, relevant to the matter in issue, may be received in evidence.

Wyo.Stat. § 1-12-102 (1988) (emphasis added).

Though the parties address the application of this statute to the evidence or lack of evidence at issue in this case, the real question is not the statute's application, but the propriety of the summary judgment order. In other words, the question is whether the movants are able to show that no genuine issue of material fact exists as to the reason for the disposition of Drake's money to appellees. As acknowledged previously by this court,

[t]he motion for summary judgment is a drastic remedy and one which is designed to pierce the formal allegations and reach the merits of the controversy--but only when no material issue of fact is present. Although both parties are obligated to come forward with their evidence, the burden is on the moving party to demonstrate that there is no genuine issue of material fact.

Cordova v. Gosar, 719 P.2d 625, 639 (Wyo.1986) (quoting Weaver v. Blue Cross-Blue Shield, 609 P.2d 984, 986-87 (Wyo.1980)) (citations omitted). See also, Hozian v. Weathermon, 821 P.2d 1297, 1299 (Wyo.1991).

As appellant states, appellees do not dispute that the moneys were received by Stagner and Pilot Butte, nor do they provide any evidence that tends to support that the moneys were anything other than a loan. Appellees' entire argument relies on appellant's inability to produce corroborated evidence that the moneys were intended as a loan. We perceive that the burden here has been misplaced. It is the movant's obligation to show that no genuine issue of material fact exists, not to rely on the evidence or lack of evidence of the nonmovant. This court has stated repeatedly:

[U]ntil the moving party has established with its supporting evidence that there are no genuine issues of material fact requiring a trial, the nonmoving party has no obligation to support his pleadings with any evidence.

Home Ins. Co., 810 P.2d at 993 (quoting Matthews v. Wyoming Dep't of Agric., 719 P.2d 216, 220 (Wyo.1986)).

If the moving party does not refute the averment of the nonmoving party, the nonmoving party may rely on its averment and has no obligation to present any factual support.

Alewine v. State Dep't of Health and Social Serv., 803 P.2d 1372, 1376 (Wyo.1991) (citing Jung-Leonczynska v. Steup, 782 P.2d 578, 582 (Wyo.1989)).

The requirement of corroboration of evidence against a party incapable of testifying under the statute should not come into play at the summary judgment stage. At this point we debate only the existence or nonexistence of...