Liquor Control Commission v. Athas

• Decision Date: 10 April 1952
• Docket Number: No. 7738,7738
• Citation: 121 Utah 457,243 P.2d 441
• Parties: LIQUOR CONTROL COMMISSION et al. v. ATHAS et al.
• Court: Utah Supreme Court

Page 441

243 P.2d 441

121 Utah 457

LIQUOR CONTROL COMMISSION et al. v. ATHAS et al.

No. 7738.

Supreme Court of Utah.

April 10, 1952.

Clinton D. Vernon, Atty. Gen., Ira A. Huggins, Sp. Asst. Atty. Gen., Allen B. Sorensen, Asst. Atty. Gen., for appellant.

Mulliner, Prince & Mulliner, H. L. Mulliner, and J. R. Mulliner, Salt Lake City, for respondent.

LEWIS, District Judge.

This is an appeal by the Liquor Control Commission of Utah from an order of the trial court dismissing appellant's complaint against Chris E. Athas for (1) 'failure to state a claim upon which relief could be granted', and (2) 'failure to furnish a more definite statement as ordered by the court pursuant to Rule 12(e) of the Rules of Civil Procedure'. The defendant Lack does not participate in this appeal.

The complaint in issue alleges that Lack and Athas were partners in the ownership and operation of a retail drug store located in Salt Lake City known as the Brigham Street Pharmacy. During the period of the partnership, the Liquor Control Commission entered into a written agreement with the defendant Lack, under the terms of which Lack was authorized to sell and distribute liquor for the Commission at the Brigham Street Pharmacy pursuant to the provisions of the Liquor Control Act, Title 46 U.C.A.1943. The agreement between Lack and the Commission is set forth in full in the complaint as Exhibit A and is admittedly an agreement in which Lack contracts only as an individual and natural person. Thereafter (the complaint alleges) the Commission delivered to the defendants at the Brigham Street Pharmacy certain quantities of liquor and that the defendant took possession of the same pursuant to the terms of Exhibit A. The complaint concludes by alleging that defendants thereupon sold the liquor and have, after demand, failed to account and have converted the value of the liquor to their own use.

Respondent's principal contention in support of the trial court's ruling that the complaint fails to state a claim is that the conclusion of a conversion by Athas is nullified by the specific facts alleged. Emphasis is placed upon the showing that no contractual relationship existed between the Commission and Athas either as an individual or as a partner of Lack, and upon the relationship of Lack and Athas as partners in the retail drug store only. Although these allegations tend to cloud and make ambiguous any legal theory and factual situation in support of the ultimate conclusion of conversion pleaded, we cannot say as a matter of law that the conclusion is nullified by such facts. A motion to dismiss should not be granted unless it appears to a certainty that plaintiff would be entitled to no relief under any state of facts which could be proved in support of its claim. Asher v. Ruppa, 7 Cir., 173 F.2d 10. Where the complaint states a claim in general language but is not sufficiently definite in certain respects to enable defendant to answer, the remedy is a motion for a more definite statement, not a motion to dismiss. Porter v. Karavas, 10 Cir., 157 F.2d 984.

Under the Rules of Civil Procedure, a claim upon which relief may be granted can be pleaded by the recitation of conclusions of law or fact or both. Mails v. Kansas City Public Service Co., D.C., 51 F.Supp. 562; 1 Barron and Holtzoff, Federal Practice and Procedure, Rules Ed., 255; 22 Am.Bar Assn.Jnl. 447. This the pleader has done by alleging, in substance, a conversion by both defendants after delivery of the liquor to a single defendant, Lack, pursuant to a contract entered into with Lack alone. We conclude that no fact pleaded necessarily defeats the conclusion of a conversion by Athas, and that consequently the motion to dismiss and the subsequent order of dismissal for failure to state a claim should not have been granted or made.

The trial court, at the time of granting the motion to dismiss, also granted a motion for a more definite statement under Rule 12(e) and subsequently dismissed the action when plaintiff failed to furnish such statement. We are of the opinion that both motions cannot consistently be granted, for it is only when a complaint states a claim that a motion under Rule 12(e) can be properly considered. If a complaint does not state a claim upon which relief can be granted, no responsive pleading is required and any further attack upon the pleading is useless.

Motions for a more definite statement are not favored, U. S. v. United Shoe Machinery Co., D.C., 76 F.Supp. 315, and are not properly used to obtain evidence from the pleader, Montgomery v. Kingsland, 83 U.S.App.D.C. 66, 166 F.2d 953; Sierocinski v. E. I. DuPont de Nemours & Co., 3 Cir., 103 F.2d 843. Nor should the motion be granted for the convenience of the parties, U. S. v. Association of American Railroads, D.C., 4 F.R.D. 510, but should be summarily dealt with if made for the purpose of delay, Brinley v. Lewis, D.C., 27 F.Supp. 313. Trial courts have a wide discretion in applying this Rule to effectuate the purpose and spirit of the Rules. U. S. v. Association of American Railroads, supra. A motion under Rule 12(e) is properly made only when the...