Hickey v. Burnett, 84-282

• Citation: 707 P.2d 741
• Decision Date: 15 October 1985
• Docket Number: No. 84-282,84-282
• Parties: Birdie HICKEY, individually and as guardian and next friend of Derek Hickey, Ted Hickey, and Travis Hickey, minors; and Ted Hickey and Connie Hickey, Appellants (Plaintiffs), v. Warren BURNETT; and Burnett & Ahders, Associated, a Texas association, Appellees (Defendants).
• Court: United States State Supreme Court of Wyoming

Page 741

707 P.2d 741

Birdie HICKEY, individually and as guardian and next friend of Derek Hickey, Ted Hickey, and Travis Hickey, minors; and Ted Hickey and Connie Hickey, Appellants (Plaintiffs), v. Warren BURNETT; and Burnett & Ahders, Associated, a Texas association, Appellees (Defendants).

No. 84-282.

Supreme Court of Wyoming.

Oct. 15, 1985.

Donald J. Sullivan, Cheyenne, for appellants.

Harley J. McKinney, Rock Springs, and Anthony A. Johnson of Rector, Retherford, Mullen & Johnson, Colorado Springs, Colo., for appellees; oral argument by Johnson.

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

CARDINE, Justice.

This action, commenced July 31, 1981, against a Texas lawyer and his professional association, alleged that they were guilty of legal malpractice in their representation of appellants in a lawsuit which had been dismissed three months earlier by the United States District Court for the District of Wyoming. In addition to the claim of negligence, a second claim was made that the wrongful acts of appellees resulted in damage to appellants from the intentional or reckless infliction of severe emotional distress. The present appeal is taken from entry of summary judgment against the appellants-plaintiffs who contend that the district court erred in incorrectly deciding questions of culpable negligence which were not susceptible to determination at the summary judgment stage and also that the district court's decision was based upon materials not properly before the court.

We reverse the district court for the reason that appellees failed to properly support their motion for summary judgment below as required by our prior decisions and Rule 56, W.R.C.P.

In their brief appellants phrase the issues:

"1. Did the trial court err in treating the question of culpable negligence as amenable to summary judgment?

"2. Did the trial court err in granting summary judgment upon the circumstances of this case?

"3. Did the trial court err in granting summary judgment where the motion was supported by no admissible evidence?"

Appellees counter with the following articulation:

"1. Whether the trial court erred in granting Defendant/Appellees' Motion for Summary Judgment.

"(a) Do the undisputed facts demonstrate absence of cause of action for any "(b) Do the undisputed facts demonstrate 'culpable negligence' on the part of Appellants' decedent?"

culpable negligence of any co-employees of Appellants' decedent?

Our resolution of the question: whether the motion for summary judgment was supported by material facts properly before the court, is dispositive of this appeal; and we will not address the other contentions of the parties.

Appellants are the surviving spouse, minor children, and parents of Lonnie L. Hickey who was electrocuted on May 23, 1978, when he grasped an energized electrical cable while employed as a mine foreman in Sweetwater County, Wyoming. In September 1979, appellants employed appellees as their legal representative to pursue a wrongful death action on their behalf. In May of 1980, a complaint, alleging that the death of Lonnie L. Hickey was caused by the defective design and manufacture of the electrical cable, was filed by appellees on behalf of the appellants in Wyoming state district court. This action was subsequently removed to the United States District Court for the District of Wyoming for further proceedings. This federal court products liability action was terminated by entry of summary judgment on May 1, 1981, in favor of the named defendants, no evidence having been produced that defendants had either manufactured or sold the allegedly defective cable. No appeal was taken from the federal court's summary judgment. ¹

On July 31, 1981, appellants' complaint in the instant proceedings was filed. As noted by the district court in its decision letter, appellants' contentions of negligence against the appellees focused upon alleged errors and omissions in the preparation of the federal court products liability case and the failure to pursue a claim based upon culpable negligence against the co-employees of appellants' decedent under the applicable Wyoming law, see, § 27-12-103, W.S.1977, and Barnette v. Doyle, Wyo., 622 P.2d 1349 (1981). During discovery appellees took the depositions of the appellant, Birdie Hickey, and the Wyoming attorney originally employed by them in the federal court action. In addition, written interrogatories were served upon appellants which were not answered until the court entered an order compelling discovery or in the alternative providing for dismissal of the case. Following a pretrial conference, held on June 21, 1983, the court entered a pretrial order which adopted by reference the parties' joint statement and ordered that the parties submit written briefs on questions of law involved in the case. Appellees filed a motion for summary judgment together with a supporting brief on June 7, 1984.

Appellants responded with a memorandum in opposition to motion for summary judgment with an attached affidavit by an experienced Wyoming attorney. In their memorandum appellants pointed out that appellees failed to file any supporting materials with the motion for summary judgment. Appellees, in their reply brief, argued that the motion for summary judgment incorporated the exhibits endorsed by them on the joint statement including the contents of the federal court file and the depositions taken in these earlier proceedings. The depositions taken by appellees in the instant case were not attached nor filed with the summary judgment motion.

A written decision letter granting the motion for summary judgment was issued by the district court on July 27, 1984. In reaching his decision, the district judge relied exclusively upon the contents of the record in the previous federal court litigation to establish the lack of a genuine issue of material fact as required for the issuance of summary judgment by Rule 56(c), W.R.C.P. ² Unfortunately, the contents In reviewing cases in which summary judgment has been granted our task is identical to that of the district court. Roth v. First Security Bank of Rock Springs, Wyoming, Wyo., 684 P.2d 93 (1984); Schepps v. Howe, Wyo., 665 P.2d 504 (1983); Hyatt v. Big Horn School District No. 4, Wyo., 636 P.2d 525 (1981). As explained in Reno Livestock Corp. v. Sun Oil Co. (Delaware), Wyo., 638 P.2d 147, 150 (1981):

of that record were not filed with the court below nor are they part of the record presently before this court. ³

"When a motion for summary judgment is before the supreme court, we have exactly the same duty as the district judge; and, if there is a complete record before us, we have exactly the same material as did he. We must follow the same standards. The propriety of granting a motion for summary judgment depends upon the correctness of a court's dual findings that there is no genuine issue as to any material fact and that the prevailing party is entitled to judgment as a matter of law. This court looks at the record from the viewpoint most favorable to the party opposing the motion, giving to him all favorable inferences to be drawn from the facts contained in affidavits, depositions and other proper material appearing in the record."

The problem in this case is that the materials relied upon by the district court in issuing summary judgment were not properly before the court but were provided by appellees' counsel outside of the record without the knowledge of appellants. ⁴ In Larsen v. Roberts, Wyo., 676 P.2d 1046, 1048 (1984), this court condemned the practice of late filing of affidavits in support of a motion for summary judgment noting:

"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."

In this case the documents and materials relied upon were not filed late. They simply were not filed at all.

It has long been the position of this court that the party moving for summary judgment has

"a definite burden to clearly demonstrate there is no genuine issue of material fact, * * * and unless this is clearly demonstrated no such judgment should be granted * * *." (Citations omitted.) Kover v. Hufsmith, Wyo., 496 P.2d 908, 910 (1972). See also, Western Surety Co. v. Town of Evansville, Wyo., 675 P.2d 258 (1984); Fugate v. Mayor and City Council of Buffalo, Wyo., 348 P.2d 76, 97 A.L.R.2d 243 (1959).

Appellees in the present case utterly failed to meet this burden upon the record before the trial court.

The only materials other than the pleadings properly before the court at the time of its consideration of the motion for summary judgment were the affidavit submitted in opposition to the motion by appellants, the facts contained in the parties' joint statement, and the answers to appellees' interrogatories. Viewing these materials in the light most favorable to appellants, as we must, Western Surety Co. v. Town of Evansville, supra, we find substantial questions of material fact exist which preclude the granting of summary judgment. In particular, those materials establish only that appellees agreed to represent appellants in the wrongful death action; that such an action was...