Motors Ins. Corp. v. Richardson

• Decision Date: 23 July 1976
• Docket Number: No. 47998,47998
• Citation: 220 Kan. 288,552 P.2d 894
• Parties: MOTORS INSURANCE CORPORATION, Appellee, v. Glenn E. RICHARDSON, Appellant.
• Court: Kansas Supreme Court

Page 894

552 P.2d 894

220 Kan. 288

MOTORS INSURANCE CORPORATION, Appellee, v. Glenn E. RICHARDSON, Appellant.

No. 47998.

Supreme Court of Kansas.

July 23, 1976.

Ronald L. Bodinson, of Payne & Jones, Chartered, Olathe, argued the cause, and J. Eugene Balloun, Olathe, of the same firm, was with him on the brief for appellant.

Rod L. Richardson, of Wallace, Saunders, Austin, Brown & Enochs, Overland Park, argued the cause, and James O. Schwinn, Overland Park, of the same firm, was with him on the brief for appellee.

MEMORANDUM OPINION

PER CURIAM:

This action seeks to obtain possession of a Cadillac coupe or, in the alternative, to recover its value. The trial court entered summary judgment for the plaintiff (sometimes referred to herein as Motors) in the sum of $5,800.00 as representing the value of the car, plus interest from September 2, 1972. The defendant, Glenn E. Richardson, has appealed.

In its petition, the plaintiff alleged that it owned the Cadillac car which was worth $6,000.00; that about September 27, 1973, it demanded possession thereof from Dr. Richrdson; that the demand was refused; and that Richardson unlawfully detained the car. In response, the defendant denied these specific allegations.

By way of background, it appears from defendant's answers to interrogatories that he bought the car on a weekend from a dealer who gave him a bill of sale and told him the title certificate was in the bank and would be delivered when the bank opened. The certificate was never delivered as promised, the dealer flew the coop and Richardson later sued the Motor Vehicle Department together with the vanished car dealer. As a result of that lawsuit a certificate of title was issued to him.

Dr. Richardson demanded trial by jury and the court set the case for trial on March 26, 1975. Eight days prior thereto Motors filed a motion for summary judgment to which were appended a memorandum of law and two exhibits, one being a purported photocopy of a Minnesota certificate of title, the other being a copy of plaintiff's demand for possession of the car. On the date set for trial the court took up the motion for summary judgment, gave defendant a number of days to respond thereto and continued the jury trial.

Subsequently, the trial court sustained plaintiff's motion for summary judgment. The journal entry, prepared by plaintiff at the court's direction, contained findings of fact to which the defendant objected at the time, as being unsupported by the record.

Two points are presented on appeal: The trial court erred in sustaining Motors' motion for summary judgment (1) because the same was not timely filed and (2) be cause there were unresolved controlling issues of fact. Point two will first be considered.

Rules governing the entry of summary judgment are spelled out in Brick v. City of Wichita, 195 Kan. 206, 403 P.2d 964, where the court held:

'Where a motion for summary judgment is sought, the provisions of K.S.A. 60-256(c) authorize the judgment to 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.' (Syl. 1.)

Brick has frequently been cited in subsequent opinions, and its precepts have uniformly been followed. The case of Kern v. Miller, 216 Kan. 724, 533 P.2d 1244, is illustrative:

'Summary judgment is authorized in K.S.A. 60-256. We have repeatedly stated that in accord with subsection (c) thereof, before a motion for summary judgment may be granted the record before the court must show conclusively that there remains no genuine issue as to material fact, . . . A court should never attempt to determine the factual issues on a motion for summary judgment, but should search the record for the purpose of determining whether factual issues exist. . . .' (p. 727, 533 P.2d p. 1247.)

K.S.A. 60-256(c) provides that summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. It is defendant's position that two issues of fact remained undecided when summary judgment was rendered: (1) ownership of the automobile (defendant pointing out that in replevin actions the plaintiff must recover on the strength of his own title, not the weakness of his adversary's, Rauh v. Dumler, 170 Kan. 698, 702, 228 P.2d 694; Herl v. State Bank of Parsons, 195 Kan. 35, 39, 403 P.2d 110), and (2) the value of the car as of the date of the alleged conversion.

We believe defendant's position is well taken. There were no depositions, no affidavits, no admissions on file. Only the pleadings and the defendant's answers to interrogatories were before the court when summary...