Hoops v. Selid, 10977

• Citation: 379 N.W.2d 270
• Decision Date: 18 December 1985
• Docket Number: No. 10977,10977
• Parties: Ray HOOPS, Plaintiff and Appellant, v. Norman SELID, d/b/a Home Heating and Air Conditioning, Defendant and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 270

379 N.W.2d 270

Ray HOOPS, Plaintiff and Appellant, v. Norman SELID, d/b/a Home Heating and Air Conditioning,

Defendant and Appellee.

Civ. No. 10977.

Supreme Court of North Dakota.

Dec. 18, 1985.

Craig M. Richie, of Richie & Associates, Fargo, for plaintiff and appellant.

Robert A. Ramlo, of Ramlo Law Office, Fargo, for defendant and appellee.

VANDE WALLE, Justice.

Ray Hoops appealed from a judgment of the Cass County Court granting Norman Selid's motion for summary judgment against Hoops. He raises as issues on appeal the dismissal of the complaint; the granting of Selid's motion for summary judgment for Selid in regard to Selid's counterclaim; the court's refusal to issue a declaratory judgment (that he does not owe Selid $774); the court's refusal to order specific performance (to have his original compressor for his air conditioner replaced into his air conditioner); and the court's refusal to issue an order vacating Selid's notice of intention to claim a mechanic's lien. We affirm in part, reverse in part, and remand.

This case involves the repair of a home air-conditioner unit. The complaint alleges that Hoops called Selid's company, Home Heating and Air Conditioning, and requested Selid to examine and repair his home air-conditioning unit. The complaint further alleges that after examination of the unit, Selid's employee informed Hoops that a new compressor was needed, and a new compressor was installed, but "this did not repair the unit and it remained as hot as before in the home." According to the complaint, Hoops wrote to Selid requesting that he "fix the unit as it still did not work and had not been repaired." Hoops received a bill for $645, which he did not pay. Selid, at Hoops's request, sent workers to repair the unit. Hoops then received an additional bill for $141.74. Hoops alleges that the unit still did not work properly and, despite his repeated demands, "nothing was done." Hoops continued to refuse to pay the bill, and Selid subsequently filed a notice of intention to claim a mechanic's lien on Hoops's home. Hoops then brought this suit requesting, among other things, a determination that he does not owe Selid the money and an order vacating the notice of intention to claim a mechanic's lien.

Selid denied the allegations, except as to performing work on Hoops's air conditioner, and counterclaimed in the amount of $806.74, the alleged total of the two invoices. Hoops responded to the counterclaim denying he owed that amount. Selid subsequently moved for summary judgment against Hoops, submitting affidavits in support of the motion. Hoops opposed the motion, but failed to submit counter-affidavits. Selid also moved for summary judgment in his favor on the counterclaim, but failed to submit sufficient evidence by way of affidavit or by means otherwise provided by Rule 56, N.D.R.Civ.P., in support of the counterclaim. ¹

The lower court stated in its ruling:

"The Court finds that at the request of the Plaintiff, the Defendant made certain repairs and adjustments to Plaintiff's air conditioner, including replacement of the compressor, value of these goods and services totalling $806.74.

"There is no genuine issue as to any material fact and the Defendant is entitled to a judgment as a matter of law." [Emphasis added.]

It is possible that the lower court meant to say that due to Hoops's failure to submit counter-affidavits, summary judgment is proper pursuant to Rule 56(e). We must, however, take the court's words as their plain meaning dictates. The words quoted above constitute a factual finding as to the repair of the air conditioner and the value of the goods supplied and services rendered. And yet in the very next sentence the lower court states that there is no genuine issue as to any material fact.

In light of Hoops's denial of the counterclaim and Selid's failure to support it, these two assertions are clearly contradictory and, standing together, are antithetical to proper summary-judgment analysis. By definition the granting of summary judgment is improper where it is necessary for the court to make a finding of fact. We also note that the finding of fact as to the value of goods and services is not supported by sufficient evidence and rests merely on the assertion made in the counterclaim. Even in situations where a court has entered default, it is necessary for the nondefaulting party to submit an affidavit in support of a sum certain or, in all other cases, such proof as may be necessary to enable the court to determine and grant the relief, if any, to which the nondefaulting party may be entitled. Rule 55(a), N.D.R.Civ.P. An entry of summary judgment for a particular amount without sufficient evidence supporting that amount is erroneous.

We hold that, in light of the present procedural posture of this case, it was error for the lower court to grant summary judgment against Hoops and to dismiss the complaint with prejudice. It was also error to determine the amount of recovery without sufficient evidence as to the appropriate value of the goods and services.

The lower court, in its decision to deny the issuance of a declaratory judgment, states:

"The Plaintiff has not shown any controversy exists concerning the rights or legal status of the parties under their contract. The Plaintiff has an adequate remedy at law, which is to sue for breach of contract."

Hoops has sued claiming that the air-conditioning unit was improperly repaired. Selid denies the allegation and counterclaims for the amount of money allegedly owed. A dispute such as this, that involves...