Dudley v. East Ridge Development Co., No. 84-89

• Court: United States State Supreme Court of Wyoming
• Writing for the Court: Before THOMAS; BROWN
• Citation: 694 P.2d 113
• Parties: Robert DUDLEY, Appellant (Third-Party Defendant), v. EAST RIDGE DEVELOPMENT COMPANY, a Utah limited partnership, and Price Development Company, a Utah corporation, Appellees (Defendants and Third-Party Plaintiffs).
• Decision Date: 25 January 1985
• Docket Number: No. 84-89

Page 113

694 P.2d 113 Robert DUDLEY, Appellant (Third-Party Defendant),
v.
EAST RIDGE DEVELOPMENT COMPANY, a Utah limited partnership, and Price Development Company, a Utah corporation, Appellees (Defendants and Third-Party Plaintiffs). No. 84-89. Supreme Court of Wyoming. Jan. 25, 1985.

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Les Bowron, Casper, for appellant.

Mark W. Gifford of Brown, Drew, Apostolos, Massey & Sullivan, Casper, for appellees.

Before THOMAS, C.J., and ROONEY, ROSE, BROWN and CARDINE, JJ.

BROWN, Justice.

The trial court granted summary judgment in favor of Eastridge Development Company and Price Development Company. Robert Dudley appeals that order and raises the following issues:

1. "Whether the district court erred in not allowing plaintiff's witnesses Pope and Woodworth to testify orally at the summary judgment proceeding.

2. "Whether the district court erred in concluding that there was no genuine issue of material fact."

We will affirm.

The action was initially brought by Lower and Company, Inc., a construction firm, against Lowrey Organ and Piano Center, Inc., Price Development Company, East Ridge Development Company, and others to foreclose Lower and Company's materialmen's liens for work performed on the Lowrey Organ store at the Eastridge Mall in Casper. Appellees Price Development Company and East Ridge Development Company subsequently filed a third-party action against appellant Dudley, manager of Lowrey Organ and Piano Center, Inc., as personal guarantor of the lease between Lowrey Organ and Piano Center, Inc. and appellees. The foreclosure action was settled and the trial court dismissed that portion of the action. Appellees subsequently filed a motion for summary judgment on the third party action against appellant based on his personal guarantee of the obligations of the Lowrey Organ and Piano Center, Inc. The trial court granted summary judgment in favor of the appellees and this appeal ensued.

I

Appellant subpoenaed two witnesses to give oral testimony at the summary judgment hearing. The trial court quashed the subpoenas and did not permit the witnesses to testify.

Rule 56, Wyoming Rules of Civil Procedure, does not expressly permit nor does it prohibit oral testimony at a summary judgment hearing. Rule 43(e), W.R.C.P., generally allows oral testimony at motion hearings. ¹

We have not had occasion to address the question of oral testimony at a summary judgment hearing. Appellant refers us to authority to the effect that allowing oral testimony is a discretionary matter with the court.

"Rule 43(e), which authorizes the use of oral testimony on motions, has been held to be applicable to motions for summary judgment, even though Rule 56 is silent on the point. In spite of its obvious advantages, the court should use oral testimony on a summary judgment motion sparingly and with great care. The purpose of summary judgment--providing a speedy adjudication in cases that present no genuine issue of material fact--would be compromised if the hearing permitted by Rule 43(e) and Rule 56(c) became a preliminary trial. * * * " Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d § 2723, pp. 61-62 (1983).

" * * * Our Rules are patterned after the Federal Rules and federal courts have ruled that oral testimony may be considered upon motions for summary

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judgment." Daniels v. Paddock, 145 Mont. 207, 399 P.2d 740, 743 (1965).

In Summers v. American Reliable Insurance Company, 85 N.M. 224, 511 P.2d 550, 552 (1973), the Supreme Court of New Mexico addressed the problem of oral testimony at summary judgment hearings:

"The authorities seem to be of two views as to whether oral testimony is proper in summary judgment proceedings. Rule 56 does not, in terms, authorize it, but does not prohibit it. But a pleading seeking summary judgment is, after all, a motion, and Rule 43(e) [citation] permits the court to hear oral testimony at a hearing on a motion. Permitting oral testimony might take the opposing party by surprise. On the other hand, the court would have the benefit of hearing cross examination and observing the witness which has certain advantages over affidavits and depositions. [Citations.] A decision on the propriety of using oral testimony in summary judgment proceedings is unnecessary here, and having confidence in the discretion of our trial courts, we decline to adopt any hard and fast rule. * * * "

In the case before us there is no indication in the record that appellant made an offer of proof at the summary judgment hearing regarding the proposed testimony of the two witnesses. We said in Valentine v. Ormsbee Exploration Corporation, Wyo., 665 P.2d 452, 460 (1983):

"This court has long followed the rule that the party who seeks to elicit the evidence must make an offer of proof showing what that party expected to prove, failing in which he may not assert the exclusion as error. [Citations.]"

We hold that the trial court did not abuse its discretion in refusing to allow...