Palzer v. Serv-U-Meat Co.
| Decision Date | 17 October 1966 |
| Docket Number | SERV-U-MEAT,No. 643,643 |
| Citation | 419 P.2d 201 |
| Parties | Chris PALZER, Marvel D. Palzer, and Gilbert Copper, a/k/a Gilbert M. Copper, Appellants, v.COMPANY, a division of Seattle Packing Company, Inc., a corporation, et al., Appellees. |
| Court | Alaska Supreme Court |
John W. Hendrickson, Groh & Benkert, Anchorage, for appellants Marvel D. Palzer and Gilbert M. Copper.
Theodore M. Pease, Jr., Burr, Boney & Pease, Anchorage, for appellees.
Before NESBETT, C. J., and DIMOND and RABINOWITZ, JJ.
Several questions of first impression concerning our Rules of Civil Procedure pertaining to requests for admissions and summary judgments are raised by this appeal. 1
In the court below appellee Serv-U-Meat and six other creditors instituted suit on January 29, 1965, against appellants for 'goods and materials' sold to named appellant Chris Palzer. In their complaint appellees sought recovery against appellants Marvel D. Palzer and Gulbert Copper (hereinafter referred to as appellants) on the theory that they were the third-party beneficiaries of a $25,000.00 payment bond furnished by Chris Palzer under a ferry concession contract with the State of Alaska. Alternatively, appellees sought recovery as 'protected beneficiaries' by virtue of AS 36.25.010-36.25.020. 2 Appellees predicated appellants' liability on the fact that the latter were the sureties on the payment bond supplied by Chris Palzer. 3 The contract in question pertained to the operation by Chirs Palzer of certain concession aboard the MV Malaspina, MV Taku, and MV Matanuska of the State of Alaska's ferry system.
After the complaint was served, an appearance on behalf of appellants was filed by Wendell P. Kay. Then, on February 24, 1965, before issue was joined, appellees served 'Requests For Admission Of Facts' upon appellants. Essentially, as to each of the seven claims, the requests sought admissions as to the existence of a concession contract between Chris Palzer and the State of Alaska; the delivery by Chris Palzer to the State of Alaska for a $25,000.00 payment bond (pursuant to the concession contract) signed by him as principal and by appellants as sureties; the purchase by Chris Palzer of goods and materials from the appellees 'under his contract with the State of Alaska'; and that the reasonable value of such goods and materials was as stated in the requests as to each of the seven claims. 4
On April 8, 1965, appellants filed a document captioned, in part, 'Response To Request For Admission Of Facts' (although filed on the 8th, the document was dated April 7, 1965). This response denied the requests of appellees pertaining to the alleged purchase by Chris Palzer of goods and materials from appellees and further denied the asserted reasonable values of the goods and materials allegedly sold by appellees. These responses were not sworn to by either appellant but were signed by appellants' then counsel Wendell P. Kay. 5 On the same day that appellants filed their responses to appellees' requests for admissions, appellees filed a motion for summary judgment. 6 No supporting affidavits were presented by the movants, instead their motion for summary judgment was 'based upon the complaint, request for admissions * * * and memorandum submitted herewith.'
On April 9, 1965, an answer was filed on behalf of appellants. In their answer appellants denied that goods and materials had been sold to their principal Chris Palzer by appellees as alleged by appellees. Appellants also interposed an affirmative defense in the nature of estoppel. 7 At this time appellants also filed a 'Statement Of Genuine Issues,' in which statement appellants reasserted their estoppel defense and then went on to state that:
The defendants have denied the material allegations of each of the causes of action stated in the complaint with regard to the amount of the purchases by Palzer and payments. 8
After oral argument was heard the court granted appellees' motion for summary judgment. In the course of his oral decision, the trial court indicated that he was of the opinion appellants had failed to comply witht the provisions of Civ.R. 36(a), 9 that they had thereby admitted all of appellees' requests, and that therefore a grant of summary judgment to appellees was appropriate. 10
Within five days of the superior court's decision on the summary judgment motion, appellants filed a three-part motion. In this motion appellants requested a rehearing on the summary judgment motion; 'leave to file a responding affidavit' to the summary judgment motion; and leave to file a supplemental pleading 'to add an additional party Plaintiff, William M. Shear, Trustee in Bankruptcy of Chris Palzer.' 11 With this motion appellants filed affidavits of Chris Palzer and appellant Gilbert Copper. In his affidavit Chris Palzer stated in part that the amounts alleged in the seven causes of action of appellees were 'incorrect, and in each instance alleged indebtedness in excess of the amounts actually owing.' 12
The lower court then heard arguments from counsel on the motion for rehearing. 13 At this hearing, then counsel for appellants, Mr. Kay, stated that he had informed opposing counsel that:
* * * * *
I was taking these interrogatories with me to Seattle on my trip outside. That I would discuss them with one of the sureties who happened to be in Seattle at that time, and that I would file responses to the interrogatories sometime after my return on March 29, 1965, and he verifies his understanding to that effect in this letter of March 16, 1965, and informs me in the letter, that, under these circumstances, he will not proceed or make any motion in the case until after April 15, of 1965. So, as far as there being any delay, this was a delay which was, in effect, requested by me, and authorized by them, and agreed upon by them.
At the conclusion of the hearing, the court took the matter under advisement and then by minute order, granted appellees summary judgment. 14 At this time the trial court also entered a formal 'Summary Judgment With Attachment' in which appellees recovered the principal sum of $25,000.00 and $2,600.00 in attorney's fees. 15
Several subsidiary issues warrant comment prior to disposition of what we deem to be the paramount issues in this appeal. We start with appellants' position that since the 'trial court never made a finding that there was 'no genuine issues of fact' to be tried,' the 'failure to make such a finding in and of itself is ample ground for the reversal of the judgment.' Neither the text of Civ.R. 52 nor Civ.R. 56 lends any support to appellants' position. Our Civ.R. 52(a) specifically provides in part that:
Findings of fact and conclusions of law are unnecessary on decisions of motions under Rules 12 or 56 or any other motion except as provided in Rule 41(b).
Decisions which have construed the federal counterparts of our Civ.R. 52 and Civ.R. 56 hold that no findings of fact are necessary in ruling on motions for summary judgment. 16 We conclude that in disposing of motions for summary judgment under our rules of civil procedure no findings of fact are required of the trial court. And we specifically hold that in granting summary judgment it is unnecessary for the trial court to make findings in regard to the lack of any genuine issues of material fact to be litigated.
Appellants tangentially argue that our rule of civil procedure providing for summary judgment requires that such motions be supported by affidavits, and if not so supported, the granting of summary judgment is precluded. Again, appellants' contention is contrary to the pertinent text of Civ.R. 56(c) which reads:
The motion * * * may be supported by affidavits setting forth concise statements of material facts made upon personal knowledge. * * * Judgment shall be rendered forthwith if the pleadings, depositions and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.
Despite the textual differences between our Civ.R. 56(c) and the federal rule, 17 we are in accord with those authorities which have interpreted Fed.R.Civ.P. 56 as not requiring the party moving for summary judgment to accompany his motion with supporting affidavits. 18 Civ.R. 56 contemplates the piercing of factual issues raised by the pleadings. 19 We hold that the use of affidavits is permissive under Civ.R. 56 since affidavits are but one of the several materials, and combinations of materials, which were intended by the rule as potential bases for the granting of summary judgments. 20
From the foregoing discussion it follows that 'admissions on file' may be used by the movant to establish facts which entitle him to summary judgment. 21 Under Civ.R. 36(a), 22 a party can be required to admit the 'truth of any relevant matters of fact set forth in the request.' Such requests are deemed admitted unless, within a designated time period, 23 the party makes 'a sworn statement denying specifically the matters of which an admission is requested' or files written objections to the requests. And, as we have previously indicated, a judgment may be based upon facts actually admitted or upon those facts which are deemed to have been admitted through a party's failure to serve sworn responses or objections to the requests. 24
This brings us to what we consider to be the crucial issue in this case, namely, whether the trial court correctly denied appellants' Civ.R. 60(b) 25 motion to set aside the summary judgment which the court had granted.
In Sanuita v. Hedberg, 26 we said that one of the purposes of our 'Rules of Civil Procedure is to secure the just, speedy and inexpensive determination of every civil action or proceeding and to provide for the efficient operation of the state court system.' 27 We also stated in Sanuita that:
circumstances may exist where strict adherence to the...
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...of admissions where no prejudice is demonstrated. Likewise, late filings may be permitted where no prejudice is shown. Palzer v. Serv-U-Meat Co., 419 P.2d 201 (Supreme Court, Alaska 1966); French v. United States, 416 F.2d 1149 (9th Cir. 1969); Moosman v. Joseph Blitz, Inc., 358 F.2d 686 (2......
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...Excusable neglect has also been used to allow additional time for a response to requests for admissions to be filed. Palzer v. Serv-U-Meat Co., 419 P.2d 201 (Alaska 1966). The Elevator argues that it was prejudiced by the district court's action because it had prepared for trial in reliance......