Joslyn v. Professional Realty, 5337

• Decision Date: 28 January 1981
• Docket Number: No. 5337,5337
• Citation: 622 P.2d 1369
• Parties: Joseph I. JOSLYN and Janice E. Joslyn, Appellants (Plaintiffs), v. PROFESSIONAL REALTY, a Wyoming Corporation, Jean Koski, George O. Pasco and Connie D. Pasco, Appellees (Defendants).
• Court: Wyoming Supreme Court

Page 1369

622 P.2d 1369

Joseph I. JOSLYN and Janice E. Joslyn, Appellants (Plaintiffs), v. PROFESSIONAL REALTY, a Wyoming Corporation, Jean Koski, George O. Pasco and Connie D. Pasco, Appellees (Defendants).

No. 5337.

Supreme Court of Wyoming.

Jan. 28, 1981.

Earl R. Johnson, Jr., Casper, for appellants (plaintiffs).

Donn J. McCall, Brown, Drew, Apostolos, Massey & Sullivan, Casper, for appellees (defendants), Professional Realty and Jean Koski.

John C. Brooks, Vlastos & Reeves, Casper, for appellees (defendants), Pasco.

Before ROSE, C. J. ^*, and McCLINTOCK, THOMAS, RAPER ^** and ROONEY, JJ.

ROONEY, Justice.

Appellants-plaintiffs appeal from an order granting appellees-defendants a summary judgment after treating a motion to dismiss as a motion for summary judgment. Appellants word the issues on appeal as follows:

"1. Can the Court convert a Motion to Dismiss to a Motion for Summary Judgment without notifying the respondent of the change in proceedings and without allowing the respondents an opportunity to oppose the motion as required by the Rules of Civil Procedure?

"2. Do the Pleadings before the District Court fail to present a material question of fact or law regarding Plaintiffs' suit for breach of fiduciary duty by its agents, the Defendants?"

We affirm the action of the district court with reference to these issues, but remand the case for an order relative to $500.00 of the money deposited in court.

Appellants filed a complaint against appellees Professional Realty and Jean Koski, a broker with Professional Realty, alleging that Professional Realty and Jean Koski had obtained an offer from appellees Pasco to purchase appellants' property pursuant to a multi-listing of it; that appellees Professional Realty and Jean Koski as real estate brokers under the multi-listing received a $34,780.00 down payment on the sale from the Pascos; and that such was being held in trust for appellants and should be paid over to them. A copy of the Appellees filed a pleading denominated "Motion to Dismiss" in which they alleged that the appellants had conveyed the involved property to third parties subsequent to the filing of the complaint and that appellants' claim was thus "barred and estopped" since appellants could not perform the agreement on their part. A copy of the deed for the property from appellants to third parties was attached to the "Motion to Dismiss." It reflected a recording date of February 11, 1980.

Purchase Offer, Acceptance and Receipt, executed by all parties to this action, was attached to and made a part of the complaint. Although the complaint was primarily one for specific performance, appellants now contend that "the thrust of their suit * * * was for money damages for breach of Appellees' (Professional Realty and Jean Koski) duty as Appellant's agents * * *." Professional Realty and Jean Koski answered the complaint and counterclaimed for interpleader, in which they alleged that they had returned all of the down payment, except $3,000.00 to Pascos when Pascos refused to close the sale, and that the $3,000.00 was tendered into court with a motion to join the Pascos as parties to the action. Pursuant to stipulation, the Pascos were joined, and they alleged in answer to the counterclaim for interpleader that they did not complete the closing of the sale because they purchased another residence, and that the down payment, except for $3,500.00 was returned to them for payment on the other residence. Appellants did not answer the counterclaim for interpleader.

NOTICE REQUIREMENT

In a decision letter of May 8, 1980, the trial court advised that it would "treat the motion as a motion for summary judgment" and in the order granting motion for summary judgment, the court found "that defendants' motion to dismiss should be treated as a motion for summary judgment."

In the first issue presented by appellants to us, they speak of the trial court as converting a motion to dismiss to a motion for summary judgment. In their briefs and oral arguments, both parties argue from the same premises. They concern themselves with the last sentence in Rule 12(b), W.R.C.P. Rule 12(b) provides:

"(b) How presented. Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, (5) insufficiency of service of process, (6) failure to state a claim upon which relief can be granted, (7) failure to join a party under Rule 19. A motion making any of these defenses shall be made before pleading if a further pleading is permitted. No defense or objection is waived by being joined with one (1) or more other defenses or objections in a responsive pleading or motion. If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, he may assert at the trial any defense in law or fact to that claim for relief. If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56."

The motion here filed does not allege the failure to state a claim upon which relief can be granted, i. e., defense numbered (6) in Rule 12(b). Nor does it allege any of the other defenses set forth in Rule 12(b) as a proper basis for a motion to " * * * The entitlement given to the instrument by the defendants was not determinative of its contents and could be ignored. * * *" State Highway Commission v. Black, Wyo., 417 P.2d 750, 754 (1966).

                dismiss.  The trial court properly recognized that it was not in truth a motion to dismiss regardless of the domination used for it by the movant.  Since it was not a motion to dismiss, it could not be converted to a motion for summary judgment or "treated" as such pursuant to the last sentence of Rule 12(b).  However, it could be "treated" as that for which it really was at the time it was filed, i. e., a motion for a summary judgment.  1  The trial court did so.  The use of the word "converted" or of the word "treated" is not of major importance.  The important distinction is between a motion to dismiss which can be converted to or treated as a motion for summary judgment pursuant to Rule 12(b), and a motion which was in fact initially a motion for summary judgment and which was treated as such regardless of its denomination inasmuch as it did not meet the qualifications of a motion to dismiss.  The latter action was the one here taken by the trial court
                

" * * * (I)t is the content of the pleading and not the label which determines its nature and effect * * *." Alexander v. Daugherty, D.C.Wyo., 189 F.Supp. 956, 958 (1960), affirmed, 10 Cir., 286 F.2d 645 (1961), cert. denied 366 U.S. 939, 81 S.Ct. 1666, 6 L.Ed.2d 849 (1961).

As such it was served at least ten days before the time fixed for the hearing. ² A copy of the deed which set forth the sale upon which the motion was premised was attached to the motion. Appellants had full notice and opportunity to present opposing affidavits or other countering evidence before the hearing. Not only did they not do so, but they have not indicated the existence of such evidence, even during this appeal.

Accordingly, appellants' contention that they lacked proper notice is without merit.

QUESTION OF FACT

The second issue presented to us by appellants asserts the existence of "a material question of fact or law" regarding a breach of "fiduciary duty by" appellants' agents. The correct basis for determination of the propriety of a summary judgment is whether or not there is a genuine issue as to any material fact and, if not, whether or not the movant is entitled to a judgment as a matter of law. Rule 56(c), W.R.C.P.

A careful review of the pleadings reflect that the only allegations of the complaint which are controverted by the pleadings are (1) those which aver that Professional Realty and Jean Koski "are trustees of said funds," and (2) those which aver that Professional Realty and Jean Koski are "presently" holding the same. The question of trusteeship is one which is to be determined through construction of the contract between the parties. ³ When the terms of an instrument are unambiguous, its meaning is to be determined from...