Estate of Obra, Matter of
Citation | 749 P.2d 272 |
Decision Date | 27 January 1988 |
Docket Number | No. 87-198,87-198 |
Parties | In the Matter of the ESTATE OF Carl D. OBRA, Deceased. Benita O. MACARAEG, Paulino Obra, Paciencia Obra, Paulina Baniqued, and Alejo Obra, Appellants (Petitioners), v. Margaret H. WILSON, Personal Representative, Appellee (Respondent). |
Court | United States State Supreme Court of Wyoming |
Ron Arnold of McCartney & Arnold, P.C., Cheyenne, for appellants.
William A. Swainson, Cheyenne, for appellee.
Before BROWN, C.J., and THOMAS, CARDINE, URBIGKIT and MACY, JJ.
This is an appeal from a will contest summary judgment by relatives of the decedent, Carl Obra, who devised his modest property, consisting primarily of a small dwelling, to Margaret H. Wilson, a friend who had been his employer.
Appellants state the issues as:
We find the summary-judgment procedure utilized to have been improper, but we affirm because the procedural irregularity was waived and no evidence of prejudice is demonstrated in the record.
Carl D. Obra, an immigrant from the Philippines, came to Cheyenne in 1927 and resided here since that year. He executed a will on March 17, 1976, which left his property to appellants:
"I give, devise and bequeath all of my property, real, personal and mixed unto the following persons or the survivors of them, share and share alike: Benita O. Macaraeg, Binalonan, Pangasinan, Philippines; Paulino Obra, Tacurong, Cotabato, Philippines; Paciencia Obra, Tacurong, Cotabato, Philippines; Paulina Baniqued, Barriao Lichauco, Tayug, Pangasinan, Philippines; and Alejo Obra, Tacurong, Cotabato, Philippines."
Subsequently, about four years after retirement in 1979 or 1980, he executed another will on July 12, 1984, revoking prior wills and leaving his property to Wilson, who was also designated to be the executrix. Shortly after signing this second will, decedent was diagnosed as having lung cancer and died June 4, 1985. A petition to admit the will to probate without administration was filed and granted, as then subjected to the present petition to revoke by appellants as surviving relatives who claim that they should inherit under the 1976 will, or alternatively by intestacy pursuant to § 2-4-101, W.S.1977, 1987 Cum.Supp.
Devisee Wilson first filed a motion to dismiss on October 1, 1985, 1 followed by a "The above-entitled matter coming on before the Court on June 15, 1987, upon the motion of defendant for summary judgment,
motion for summary judgment on February 5, 1987 without accompanying affidavits or designation of existent depositions. The relatives filed their resistance to the motion, supported by the affidavit of Pat Vialpando, on June 10, 1987, predating the scheduled hearing date of June 15, 1987. The order of dismissal was signed June 24, 1987. The two depositions which had been taken by appellee on November 19, 1986, with both counsel participating in examination, were officially filed with the clerk of court as reflected by a filing stamp, on June 24, 1987, 2 which filing obviously occurred concurrently with the entry of the order. That order, in succinct and dispositive language provided:
The standards to be followed in regard to reviewing a summary judgment are established in the six-stage analysis in Cordova v. Gosar, Wyo., 719 P.2d 625, 639 (1986). See also Williams v. Blount, Wyo., 741 P.2d 595, 596 (1987).
Recently, this court in Davenport v. Epperly, Wyo., 744 P.2d 1110, 1112 (1987), outlined the six stages as:
" " Quoting from Cordova v. Gosar, supra, 719 P.2d at 634.
The first issue involves a Stage 2 analysis--the procedural sufficiency of the motion and attached affidavits. Clearly, Rule 56(c), W.R.C.P. 3 , Rule 6(d), W.R.C.P., 4 and 676 P.2d at 1048.
Rule 302, Uniform Rules for the District Courts of the State of Wyoming, 5 envision that the supporting material be filed with the motion for summary judgment. Wyoming law requires that the supporting material must be filed with the motion for summary judgment. Atlas Construction Company v. Slater, Wyo., 746 P.2d 352 (1987); Larsen v. Roberts, Wyo., 676 P.2d 1046, 1047 (1984); DeHerrera v. Memorial Hospital of Carbon County, Wyo., 590 P.2d 1342, 1343 (1979); 6 Moore's Federal Practice, p 56.14; Wright & Miller, Federal Practice and Procedure: Civil § 2719. See Hickey v. Burnett, Wyo., 707 P.2d 741 (1985), for a case where the material supporting the district court's summary judgment ruling was not filed late but was simply never filed. Furthermore, an attorney cannot choose simply to ignore the Wyoming rules of civil procedure. We have held previously, and must reiterate most strongly, that compliance with these rules is mandatory, not optional. Greenwood v. Wierdsma, Wyo., 741 P.2d 1079 (1987). Additionally, a movant faced with this situation could have requested an enlargement of time for filing 6 or moved that the filing be permitted where the failure to act was the result of excusable neglect as outlined in Rule 6(b), W.R.C.P. 7 Larsen v. Roberts, supra, 676 P.2d at 1047-1048. However, the record is devoid of any request by appellee for permission to file late
Thus, we hold there was error in this procedure of accepting supporting depositions, filed late in rule contravention, as sufficient to sustain entry of summary judgment. Matthews v. Wyoming Department of Agriculture, Wyo., 719 P.2d 216 (1986).
There is no question in this case the proper procedure was not followed; however, our inquiry is whether this defect was waived by appellants. Objection to the trial court's consideration of the depositions in summary-judgment determination at the scheduled hearing is not presented to us by anything of record. Appellants could have objected at the summary-judgment hearing, moved to strike the depositions or deny their consideration, or asked for a continuance of the summary-judgment hearing. Lack of knowledge did not exist, since both counsel had participated in the noticed deposition inquiry on November 19, 1986 as used by movant appellee to secure the testimony of the decedent's doctor as well as of his long-time friend. McCloud River Railroad Company v. Sabine River Forest Products, Inc., 735 F.2d 879, 882 (5th Cir.1984). Lacking any recorded action of appellant to object to the court's consideration of the depositions and responsive affidavit, any formal defects in filing schedule were waived. 8 Davenport v. Epperly, supra, 744 P.2d 1110.
The purpose behind filing evidentiary material supporting a motion for summary judgment is to give notice to the opposite party, as respondent, in order to afford a meaningful opportunity to challenge the submitted evidence. Kimbley v. City of Green River, Wyo., 642 P.2d 443, 445 (1982); Jankovsky v. Halladay Motors, Wyo., 482 P.2d 129 (1971); CIA, Petrolera Caribe, Inc. v. ARCO Caribbean Inc., 754 F.2d 404, 409 (1st Cir.1985). Thus, when the movant does not file his material to support his motion, respondent is left without facts upon which a response can be engendered. We consider the sequence in this case: depositions taken November 1986; motion for summary judgment February, 1987; resistance to motion for summary judgment and attached affidavit of appellants filed June 10, 1987 being generally responsive to the earlier depositions; and then hearing held according to the scheduled assignment June 15, 1987 whereby objection to evidentiary consideration by the court of the depositions was not made. Objection to the court's examination of factual support or opposition to a motion for summary judgment first made on appeal, after consideration by the trial court without objection at the scheduled hearing is waived. Conway v. Guernsey Cable TV, Wyo., ...
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