Northen v. Elledge

• Court: Arizona Supreme Court
• Writing for the Court: UDALL; STANFORD, J., having disqualified himself, the Honorable C. C. FAIRES
• Citation: Northen v. Elledge, 72 Ariz. 166, 232 P.2d 111 (Ariz. 1951)
• Decision Date: 28 May 1951
• Docket Number: No. 5264,5264
• Parties: NORTHEN v. ELLEDGE.

Page 111

232 P.2d 111

72 Ariz. 166

NORTHEN v. ELLEDGE.

No. 5264.

Supreme Court of Arizona.

May 28, 1951.

V. L. Hash and Virginia Hash, Phoenix, for appellant.

Carl W. Divelbiss, Phoenix, for appellee.

FAIRES, Superior Court Judge.

This is an appeal from a summary judgment in favor of the defendant-appellee and against the plaintiff-appellant entered upon the motion of the former in an action to recover an alleged balance due the plaintiff on a verbal contract for the erection of buildings for the defendant by the plaintiff on a cost-plus basis. There is but one assignment of error with its subdivisions, to wit: 'That the court erred in granting a summary judgment upon the motion of defendant, for the reason that many issues of fact were to be tried.'

The complaint alleges that the plaintiff engaged to furnish material and perform the labor. Defendant agreed to pay for such material and labor, and in addition, agreed to pay to plaintiff an additional 15 per cent of the amount expended for material and labor as compensation for the superintendency and construction of said buildings; that building was commenced on February 4, 1946, and completed on May 26, 1947; that under the terms of the contract the defendant became indebted to plaintiff in the sum of $18,443.63; that plaintiff in payment thereon had received the sum of $11,634.10; and that defendant owed a balance to plaintiff of $6,814.53.

The defendant in her answer generally denies the material allegations of plaintiff's complaint but admits the terms of employment under the contract except that she agreed to pay only ten per cent of the total amount expended for material and labor as compensation to plaintiff W. D. Northen. The answer further denies that plaintiff is entitled to maintain said action by reason of the fact that his license to contract expired June 30, 1946.

The defendant moved for summary judgment in her favor pursuant to the provisions of sections 21-1210 to 1216, A.C.A.1939, Rules Civ.Proc., Rule 56, upon the grounds that the plaintiff could not maintain the action bacause he was not a licensed contractor when the alleged cause of action arose and because, under the facts as stated in the pleadings and affidavits, performance of the contract was not completed by the plaintiff. Said motion was supported by the affidavit of defendant, substantially reiterating matters alleged in her answer, and the affidavit of Morgan G. Pratt, the Registrar of Contractors, stating that the license of plaintiff W. D. Northen as a contractor expired on June 30, 1946, and that no license had been issued to him thereafter. A counter-affidavit was filed by plaintiff reaffirming substantially the allegations of his complaint, but admitting the expiration of his contractor's license and his failure to apply for any renewal thereof.

It may be fairly said that the record discloses, without dispute, from the pleadings and affidavits that plaintiff on or about February 4, 1946, entered into a verbal contract with the defendant for the erection of a building or buildings by the plaintiff for the defendant on a cost-plus basis; that at the time of the making of the contract the plaintiff was a duly licensed contractor, such license being issued to him by the Registrar of Contractors of the State of Arizona on June 25, 1945, and that it expired on June 30, 1946, and was not renewed and no application for its renewal was ever made by the plaintiff; that no contractor's license was issued to the plaintiff subsequent to the expiration of said license, and the plaintiff was not and has not been a licensed contractor at any time since June 30, 1946; that the plaintiff commenced work under said contract in March or April, 1946, and continued such work intermittently until an undetermined date in 1947, March 22, according to the defendant, May 26, according to the plaintiff; that said contract did not provide in terms when payment should be made thereunder, or whether payment should be made as the work progressed or only upon final completion thereof; that the work covered by the contract was never completed by the plaintiff but was taken over and completed by the defendant; that all money due plaintiff for work done by him under the contract up to and before June 30, 1946, was paid to him by the defendant on or before said date; that no money was or is due or owing the plaintiff from the defendant for any work done by the plaintiff under said contract at any time on or before June 30, 1946, or while plaintiff's said contractor's license was in effect.

The defendant in her affidavit in support of her motion for summary judgment stated that plaintiff had been paid any and all sums due him under the contract for labor and materials furnished up to and including June 30, 1946, the date on which the contractor's license of plaintiff expired. This statement was not denied by the plaintiff. The plaintiff in his affidavit makes the following statement: 'That the defendant did not settle with the said W. D. Northen (plaintiff) after the 16th day of August, 1946.' (Emphasis supplied.)

The plain implication arising from said statement is that defendant made payment to said date, indicating conclusively that plaintiff's cause of action accrued subsequent to the date of expiration of plaintiff's license, to wit, June 30, 1946.

Since a motion for summary judgment is not a trial by affidavits in which the court can summarily try factual issues, the initial question to be decided on such a motion is whether there is a genuine issue of fact, and not how such issue, if one exists, should be decided.

Motions for summary judgment should be entertained where the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that, except as to the amount of damages, there is no genuine issue as to any material fact, entitling the moving party to a judgment as a matter of law. Conversely, if an examination of the record discloses that there is a genuine issue as to any material fact, motion for summary judgment should be denied. Cress v. Switzer, 61 Ariz. 405, 150 P.2d 86; Manor v. Barry, 62 Ariz. 122, 154 P.2d 374; Lewis v. Palmer, 67 Ariz. 189, 193 P.2d 456.

The pleadings and affidavits in this case show that the alleged cause of action, if any existed, accrued subsequent to the date on which plaintiff's license expired; hence, the motion for summary judgment was entirely proper. This is true though there were minor conflicts on the facts involved which if resolved either way would not affect the determination of the issues. The appellant maintains that the trial court erred in granting the summary judgment upon the motion of the defendant for the reason that many issues were to be tried and enumerates several issues such as compensation to be paid, quantity and value of material and labor furnished, and a number of cases are cited in support of the general statement that a summary judgment will not be granted if there is an issue of fact to be tried. While this broad statement is often found in the decisions, the correct view is that a motion for summary judgment should not be granted where there is a genuine issue of any material fact. The determination of what constitutes a genuine issue as to any material fact is often difficult. It has been said that an issue is material if the facts alleged are such as to constitute a legal defense, Keehn v. Brady Transfer & Storage Co., 7 Cir., 159 F.2d 383, 170 A.L.R. 999, certiorari denied 331 U.S. 844, 67 S.Ct. 1535, 91 L.Ed. 1864, or, are of such nature as to affect the result of the action, McComb v. Southern Weighing & Inspection Bureau, 4 Cir., 170 F.2d 526.

Thus, in the present case, although there were some issues and facts in dispute, such issues and facts were in no sense controlling and their resolution, one way or the other, could not possibly affect the final result of the action. It follows that the motion for a summary judgment was properly filed and entertained.

We thus come to the final question, namely, whether the court was right or wrong in granting the motion for a summary judgment in this case. The answer to that question depends upon the interpretation and effect to be given section 67-814, A.C.A.1939, the material part of which reads as follows: 'No contractor as defined by sec. 3 (§ 67-803) of this act shall act as agent or bring or maintain any action in any court of the state for the collection of compensation for the performance of any act for which a license is required by this act without alleging and proving that such contractor was a duly licensed contractor at the time the alleged cause of action arose.' (Emphasis supplied.)

Although the wording of the statute is clear and explicit to the effect that a...