Landmark, Inc. v. Stockmen's Bank & Trust Co.

• Decision Date: 13 April 1984
• Docket Number: No. 83-154,83-154
• Citation: 680 P.2d 471
• Parties: LANDMARK, INC., Appellant (Defendant and Third-Party Plaintiff), v. STOCKMEN'S BANK & TRUST COMPANY, (Third-Party Defendant), v. Arlie RUGER and Debbie Ruger, d/b/a Ruger Mobile Home Park, Appellees (Plaintiffs).
• Court: Wyoming Supreme Court

Page 471

680 P.2d 471

LANDMARK, INC., Appellant (Defendant and Third-Party Plaintiff), v. STOCKMEN'S BANK & TRUST COMPANY, (Third-Party Defendant), v. Arlie RUGER and Debbie Ruger, d/b/a Ruger Mobile Home Park, Appellees (Plaintiffs).

No. 83-154.

Supreme Court of Wyoming.

April 13, 1984.

James L. Edwards of Sheehan, Stevens & Sansonetti, Gillette, for appellant.

James N. Wolfe of Wolfe & Tate, Sheridan, for appellees.

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

ROSE, Justice.

Facts which this court is charged with considering in this appeal show that appellees Arlie and Debbie Ruger purchased a parcel of land approximately 15 miles from Gillette, Wyoming for the purpose of building a mobile home park. The Rugers hired appellant, Landmark, Inc., to install a water and sewer system on the property which the appellant did not complete on time and, even after the system was represented to be properly installed, it contained leaks of up to 200 gallons per hour. The appellees were therefore forced to hire labor and materials to repair the water system so that it would function and, at the time of trial, the system was still not working satisfactorily. The evidence is that appellees suffered loss of income and profit, and it is alleged that the appellees' losses are due to the breach of contract by and negligence of the appellant.

The district judge denied various of the appellant's preliminary motions including a motion for summary judgment on the issue of lost income and profits, and the case therefore went to trial, with the jury awarding the appellees damages in the amount of $89,500 for repairs and replacement We will affirm.

of the water and sewer system and an additional $40,500 for lost income.

ISSUES PRESENTED FOR REVIEW

The issues as defined by the appellant are:

"I. Did the District Court err in denying Appellant's Motion for Summary Judgment on the issue of plaintiffs' claim for lost profits or income?

"II. Did the District Court err in denying appellant's Motion for a Directed Verdict or Motion for Judgment Notwithstanding the Verdict on the issue of plaintiffs' claim for lost profits or income?

"III. Was the evidence before the District Court sufficient to establish an award of $89,500.00 for the repair and replacement of the water and sewer system?"

With respect to the resolution of all three of these issues, we will be mindful of the oft-repeated rule which says that, on appeal, this court assumes the evidence of the successful party is true, leaves out of consideration entirely the evidence of the unsuccessful party in conflict therewith, and gives to the evidence of the successful party every favorable inference which may reasonably be drawn from it. Krist v. Aetna Casualty & Surety, Wyo., 667 P.2d 665 (1983).

Issue No. 1

The Lost Profits or Income Summary-Judgment Issue

In its motion, the appellant-defendant third-party plaintiff moved for summary judgment

" * * * [a]gainst plaintiff [appellees here] as to plaintiff's claim against defendant for lost income."

According to the movant:

"This motion is based on the pleadings, answers to interrogatories, responses to requests for production of documents, depositions, and any and all items of record at this time, as well as on the attached affidavit as specifically incorporated herein. Such pleadings, filings, affidavits and other materials established that there is no genuine issue as to any material fact as outlined in the case authority under Rule 56 of Wyoming Rules of Civil Procedure and that therefore the defendant and third-party plaintiff Landmark is entitled to judgment as a matter of law as stated in its answer and counterclaim."

The record fails to disclose any depositions, interrogatories or answers to interrogatories. Nor does it contain a demand for the production of documents and there are no documents on file which appear to be responsive to such a demand. There are no exhibits, materials or filings of record which speak to lost income or profits which appear to have been of record when the motion for summary judgment was filed and denied.

The record does contain two affidavits of Stephen F. Hughes, President of Landmark, Inc., appellant-defendant, third-party plaintiff, in support of Landmark, Inc.'s motion for summary judgment. These affidavits address other subjects and do not even mention lost profits. The appellees-plaintiffs filed responsive affidavits which also do not mention lost income or profits. The record contains no other evidence or testimony--deposition-affidavit--response to interrogatory or other form of factual representation--pertaining to lost profits or income which predates the testimony of witnesses elicited at the trial.

Given this state of affairs, we are therefore forced to consider the appellant's contention of error as though the motion for summary judgment is based only on the pleadings. In this regard, the appellees' complaint alleges:

"That by virtue of Defendant's breach of contract in its failure to complete the project on time and to conform to the plans and specifications as agreed, the Plaintiffs have suffered damages by reason of the additional expenses, interest and costs for the project, and for lost income in a sum in excess of One Hundred Fifty Thousand Dollars ($150,000.00),"

in response to which the appellant Landmark, Inc. makes a general denial. No other mention of lost profits or income is contained in the pleadings.

The relevant aspects of Rule 56, W.R.C.P. provide:

"Summary judgment.

* * *

* * *

"(b) For defending party.--A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof.

"(c) Motion and proceedings thereon.--* * * The adverse party prior to the day of hearing may serve opposing affidavits. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Emphasis added.)

The ultimate question for our decision on this issue is this:

Can we say, given the nature of the case, that an allegation of loss of profits countered by a pleading denial is sufficient substructure to support a summary judgment for the party entering the denial?

A Rule 56 summary judgment has been described as an appropriate procedural device for the disposition of cases where there exists no question of material fact and only questions of law are involved. Carter v. Davison, Wyo., 359 P.2d 990, 994 (1961), quoting from Pen-Ken Gas & Oil Corporation v. Warfield Natural Gas Co., 137 F.2d 871, 877 (6 Cir.1943), cert. denied 320 U.S. 800, 64 S.Ct. 431, 88 L.Ed. 483.

In Carter v. Davison, supra, a malicious-prosecution action, it was shown that the defendant in the underlying criminal case had waived his preliminary hearing and was ultimately found not guilty. The defendant in the malicious-prosecution case, who had been the complaining witness in the criminal prosecution, moved for summary judgment on the pleadings on the grounds that he had made out a prima facie case of probable cause in the criminal case according to the law pertaining to such matters. It was the movant's contention that, if he were right in this as a matter of law, it would then be impossible to elicit such facts as would structure a question of material fact and, therefore, summary judgment was appropriate. In this case we held that a motion for summary judgment "may be made wholly on the pleadings," 359 P.2d at 994, citing Reynolds v. Needle, 77 U.S.App.D.C. 53, 132 F.2d 161 (1942), and 6 Moore's Federal Practice, 2d ed., p. 2063.

In Reynolds, supra, it was apparent upon the face of the pleading that the statute of limitations had run and it was held that summary judgment was therefore appropriate without presentation of supporting evidence.

In Moore's Federal Practice, supra, the author observes that, while a motion for summary judgment may be based solely upon the pleadings, it is then

" * * * functionally equivalent to a motion to dismiss for failure to state a claim under Rule 12(b)(6) or a motion for judgment under Rule 12(c)." ¹

We have followed this concept in Wyoming, when we recently said in Lafferty v. Nickel, Wyo., 663 P.2d 168, 169 (1983):

"In this case appellees based their motion for summary judgment on the pleadings without providing any other competent evidence to support the motion. In this posture appellees' motion for summary judgment is equivalent to either a motion to dismiss for failure to state a claim upon which relief can be granted made pursuant to Rule 12(b)(6), W.R.C.P., or a motion for a judgment on the pleadings made pursuant to Rule 12(c), W.R.C.P. Schwartz v. Compagnie General Transatlantique, 405 F.2d 270, 273 (2nd Cir.1968); United States v. Mills, 372 F.2d 693, 696 (10th Cir.1966); Parker v. De Kalb Chrysler Plymouth, 459 F.Supp. 184, 187 (D.C.Ga.1978), aff'd 673 F.2d 1178 (11th Cir.1982); 6 Moore's Federal Practice, pp 56.02, pp. 56-29, 56.11, p. 56-229. Therefore, for the purpose of this appeal the facts alleged in the complaint are deemed admitted and the allegations contained therein are viewed in a light most favorable to the appellant. Moxley v. Laramie Builders, Inc., Wyo., 600 P.2d 733, 734 (1979); State Highway Commission v. Bourne, Wyo., 425 P.2d 59, 63 (1967)."

Applying this rule to the case at bar, the appellees having alleged that they have

" * * * suffered damages by reason of * * * lost income in a sum in excess of One Hundred and Fifty Thousand Dollars ($150,000.00),"

and the appellant movant having simply denied the allegation, and it being our obligation, for summary-judgment purposes, to treat the facts alleged in the complaint as...