Estate of Obra, Matter of, No. 87-198

• Court: United States State Supreme Court of Wyoming
• Writing for the Court: Before BROWN; URBIGKIT; Blume
• Citation: 749 P.2d 272
• 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).
• Decision Date: 27 January 1988
• Docket Number: No. 87-198

Page 272

749 P.2d 272 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). No. 87-198. Supreme Court of Wyoming. Jan. 27, 1988.

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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.

URBIGKIT, Justice.

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:

"1. Did the lower court commit error as a matter of law by allowing Appellee to file depositions nine days after hearing?

"2. Did the lower court commit error as a matter of fact by granting summary judgment in spite of Appellants' filed Affidavit?

"3. Did the lower court commit error as a matter of law by granting summary judgment on the count of undue influence?"

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.

FACTS

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

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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 above-entitled matter coming on before the Court on June 15, 1987, upon the motion of defendant for summary judgment,

"The Court examined the evidence introduced by the defendant which consisted of the depositions of Adolfo J. Torrez, Jr., M.D., and Joyce Fitzhugh and stipulation for deposition of Margaret Wilson.

"The Court examined the evidence submitted by the petitioners being an affidavit of Pat Vialpando.

"The Court having heard the arguments of counsel and being fully advised in the premises finds generally for the defendant and against the petitioners and determines there remains no genuine issue of fact for trial, and it is therefore hereby

"ORDERED that the petition to revoke probate of the petitioners be, and it hereby is, dismissed with prejudice."

SUMMARY JUDGMENT

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:

" '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.' " 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

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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.

"The Rules of Civil Procedure provide an orderly process for the determination of controversies. They are intended to provide notice to a party of the other's contentions, a fair opportunity to discover and develop the entire case and meet those contentions, and to avoid surprise--all to the end that a just result is more probable. To condone a practice which permits parties to simply ignore the rules will defeat their purpose. Thus, where the moving party, as in this case, has failed to comply, there is not often a reasonable justification for the failure. He is in control of the situation. He can file his motion for summary judgment at any time he chooses. Ordinarily he should not file it nor set it for hearing until it is ready to be heard. When he undertakes to do otherwise, and the decision is against him or the hearing must be vacated, he has only himself to blame." 676 P.2d at 1048.

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).

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There is no question in this case the proper procedure was not followed; however, our inquiry is whether this defect was waived by appellants....