Hardscrabble Ski Area, Inc. v. First Nat. Bank of Rice Lake

• Decision Date: 01 April 1969
• Docket Number: No. 160,160
• Citation: 42 Wis.2d 334,166 N.W.2d 191
• Parties: HARDSCRABBLE SKI AREA, INC., a Wis. Corp., et al., Respondents, v. FIRST NATIONAL BANK OF RICE LAKE, Wis., a national banking corp., Appellant.
• Court: Wisconsin Supreme Court

Page 191

166 N.W.2d 191

42 Wis.2d 334

HARDSCRABBLE SKI AREA, INC., a Wis. Corp., et al., Respondents, v. FIRST NATIONAL BANK OF RICE LAKE, Wis., a national banking

corp., Appellant.

No. 160.

Supreme Court of Wisconsin.

April 1, 1969.

Edward J. Coe, Rice Lake, for appellant.

Cletus D. Howard, Eau Claire, for respondents, George P. Hoke and David W. Larson, Minneapolis, Minn., of counsel.

BEILFUSS, Justice.

The notice of appeal includes both the order of Judge KINNEY dated January 5, 1968, and the order of Judge SCHOENGARTH dated June 5, 1968. Inasmuch as the order of June 5th reconsidered the motion and the order of January 5th in toto, we deem the appeal should have been only from the order of June 5th. In any event, all the issues were fully reconsidered in the memorandum and order of June 5th.

For the past year or so this court has been somewhat concerned about a possible over-use of the motion for summary judgment and the voluminous number of appeals from orders overruling motions for summary judgment. We state emphatically that we do not mean that the motion for summary judgment should not be used, it is most appropriate in proper instances, but we are inclined toward a belief that its use has been extended beyond its original purpose. Recent cases which illustrate this concern are: Becker v. City of La Crosse (1960), 9 Wis.2d 540, 101 N.W.2d 677; Becker v. City of La Crosse (1961), 13 Wis.2d 542, 109 N.W.2d 102; Peterson v. Maul (1966), 32 Wis.2d 374, 376, 377, 145 N.W.2d 699; Spoehr v. Mittelstadt (1967), 34 Wis.2d 653, 663, 664, 150 N.W.2d 502; Frewe v. Dupons Construction Co. (1968), 37 Wis.2d 676, 689, 155 N.W.2d 595; Schandelmeier v. Brown (1968), 37 Wis.2d 656, 658, 659, 155 N.W.2d 659; Bank of Commerce v. Paine, Webber, Jackson & Curtis (1968), 39 Wis.2d 30, 158 N.W.2d 350; Schuster v. Germantown Mut. Ins. Co. (1968), 40 Wis.2d 447, 452, 162 N.W.2d 129.

In Zimmer v. Daun (1968), 40 Wis.2d 627, at page 631, 162 N.W.2d 626, at page 627, we stated:

'We think sec. 270.635, Stats., providing for summary judgment, does not confer a right to summary judgment but rather confers on the trial court a discretionary power to grant summary judgment when it believes summary disposition of a case is called for. The language of this section provides that 'Summary judgment may be entered' as provided in the section and that 'The judgment may be entered in favor of either party.' In subsec. (3) it is provided that a summary judgment 'may be awarded' to the plaintiff although he has not moved therefor if upon motion by a defendant it shall appear to the court that the plaintiff is entitled to such judgment. There is no requirement, however, that the court must do so.'

We quote, herein, extensively from the memorandum opinion of Judge SCHOENGARTH because we agree with his conclusions and because it illustrates a situation 'which the court shall deem sufficient to entitle him to a trial.' It is our opinion that the quoted portion of the statute vests discretion in the trial court as to whether the case should be tried. It follows that an order denying a motion for summary judgment will not be reversed until it appears that the trial court has abused its legal discretion or has not exercised it.

Portions of the memorandum opinion are as follows:

'It appears from the pleadings that the plaintiff, Casper Hagen, is the owner and operator of a ski area in the vicinity of Rice Lake, Wisconsin, and is an officer of Hardscrabble Ski Area, Inc., a Wisconsin Corporation. He also operates a motel in the City of Rice Lake. The defendant is a banking institution located in that city.

'Early in June of 1965 Hagen contacted the Small Business Administration for a loan of $50,000.00 to make improvements to Hardscrabble Ski Area, and to install equipment for making artificial snow. Sometime prior to June 17th he contacted Elmer J. Einum, executive vice-president of the defendant bank, to see if the bank would participate in the proposed loan to the extent of 10% thereof. Einum told Hagen he would present the request at the next meeting of the board of directors. On June 17th the board agreed to participate, and on June 29th Hagen submitted his application to the Small Business Administration.

'Sometime during the summer of 1965 Hagen contacted a manufacturing concern and ordered the snow-making equipment. He also made arrangements with an engineering firm to plan and supervise the installation of this equipment. He arranged for delivery of the equipment around the first of September, and for the engineers to come shortly thereafter.

'On August 19th the Small Business Administration contacted the bank indicating that in its opinion Hagen needed $85,000.00 to complete the contemplated improvements, and inquired of the bank if it wished to participate in this new loan figure to the extent of 10% thereof. The bank directors agreed to this increase in the loan and so notified the Small Business Administration.

'On August 24th the Small Business Administration approved the loan in the amount of $85,000.00 and advised the bank thereof. At that time it also informed the bank not to act on said matter until written authorization was received and the Small Business Administration forwarded the necessary documents. They were received by the bank on September 10th or 11th.

'The documents and forms were turned over to the bank's attorney, G. P. Gannon, who was also a member of the board of directors, for processing and completion on September 13th.

'The snow-making equipment arrived C.O.D. early in September, and was held in storage. The engineers arrived in September to supervise the installation, but because of its being tied up in storage and later commitments, the engineers left without making the installation.

'The bank completed the documents on October 8th, and forwarded them to the Small Business Administration on that date. The Small Business Administration sent its check which was received and disbursed by the bank on October 20th. The snow-making equipment was released at that time.

'Plaintiff contends he was unable to install the equipment properly for the 1965--66 skiing season and that he suffered great financial loss by reason thereof. * * *

'* * *

'The defendant has undoubtedly properly stated the distinction between a demurrer and a motion for summary judgment when it says a demurrer raises the question as to whether the complaint sets forth a cause of action while a motion for summary judgment assumes a cause of action is alleged but raises the question as to whether the plaintiff has sufficient facts to prove or at least create an issue of fact as to his cause of action.

'It further correctly states the law to be that the ultimate question for the court to decide on a motion for summary judgment is whether there is any issue of fact to be tried in the case. Voysey v. Labisky (1960), 10 Wis. (2d) 274, 103 N.W.2d 9.

'The technique by which the trial court is to approach the problem is set forth as follows:

"* * * we first examine the moving papers and documents to determine whether the moving party has made a prima facie case for summary judgment under sec. 270.635(2), Stats., and if he has, we then examine the opposing party's affidavits and other proof to determine whether facts are shown which the court deems sufficient to entitle the opposing party to a trial. If the material facts are not in dispute and the inferences which may reasonably be drawn from the facts are not doubtful and lead only to one conclusion, then only a matter of law is presented which should be decided upon the motion.' Leszczynski v. Sturges (1965), 30 Wis. (2d) 534, p. 538, 141 NW (2d) 261.

'It now becomes necessary for the court to examine the affidavits and other proofs of evidentiary facts produced by each of the parties in support of their respective positions.

'Defendant has supplied the affidavits of Marshall T. Brekke, G. P. Gannon, Elmer J. Einum, Francis B. Schneider, Clarence A. Sims, Warren D. Leary, Jr., Edward J. Doyle and Alfred Sockness, who were all of the officers and directors of the defendant bank at the time these transactions were transpiring, and also Edward J. Coe, their attorney in this action.

'Each and every one of the directors and officers of the bank allege specifically that he at no time between January 1, 1965, and October 20, 1965, made any comments, statements, promises, commitments or representations to Casper Hagen, or anyone else, as to when the defendant would make a loan to the plaintiffs, and if made, when it would be processed, closed or disbursed, and that it, at no time, told, advised or represented that a loan would be made to plaintiffs in time so they could purchase or install any equipment or improvements in time for use during the 1965--66 ski season.

'In his affidavit in opposition to the motion for summary judgment, Casper Hagen states the foregoing statements are not true, and that during the summer and fall of 1965 he had many conversations with Elmer J. Einum concerning the loan for snow-making equipment and T-bar lifts and that he had to have the equipment early in September, so that he would have time to install the snow-making equipment in order to make snow as soon as possible for the 1965-66 ski season. He said Mr. Einum assured him more than once that there was nothing to worry about and that at the very latest the loan proceeds would be available about the middle of September.

'Defendant points out that in an adverse examination taken of Mr. Hagen on September 19, 1967, he could not remember any promises...