Plummer Development, Inc. v. Prairie State Bank, 65303

• Decision Date: 15 April 1991
• Docket Number: No. 65303,65303
• Citation: 809 P.2d 1216,248 Kan. 664
• Parties: PLUMMER DEVELOPMENT, INC., Appellant, v. PRAIRIE STATE BANK, Appellee.
• Court: Kansas Supreme Court

Page 1216

809 P.2d 1216

248 Kan. 664

PLUMMER DEVELOPMENT, INC., Appellant, v. PRAIRIE STATE BANK, Appellee.

No. 65303.

Supreme Court of Kansas.

April 15, 1991.

Syllabus by the Court

1. A trial court's ruling that an opposing party is deemed to have admitted the uncontroverted facts submitted by the movant for the failure to follow Supreme Court Rule 141 (1990 Kan.Ct.R.Annot. 110) rests within the sound discretion of the trial court.

2. The trial court's exercise of sound discretion will not be disturbed on appeal without a clear showing of abuse. Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable person would take the view adopted by the trial court. One who asserts the court has abused its discretion bears the burden of showing such abuse of discretion.

3. The general rule is that a point not presented to the trial court will not be considered for the first time on appeal.

4. The burden is upon the appellant to designate a record sufficient to present its points to the appellate court and to establish claimed error.

William L. Fry, of Fry, White, Birch & Reeves, P.A., Wichita, argued the cause and was on the brief, for appellant.

Michael G. Coash, of Bond, Bond & Coash, El Dorado, argued the cause and was on the brief, for appellee.

ABBOTT, Justice:

Plummer Development, Inc., (PDI) appeals from the trial court's grant of summary judgment in favor of Prairie State Bank (Bank). PDI's suit against the Bank alleged wrongful setoff of its bank account. It also alleged conversion and bad faith and requested actual and punitive damages.

PDI raises four issues on appeal, two of which contend that factual issues remain and thus summary judgment was premature. PDI also raises an argument that does not appear to be relevant to this case, that a personal account cannot be set off against a corporate debt. PDI finally contends it cannot get a fair trial in Butler County.

When the Bank filed its first motion for summary judgment, PDI responded, but failed to set forth in separately numbered paragraphs corresponding to movant's memorandum whether each factual contention is controverted, as required by Supreme Court Rule 141 (1990 Kan.Ct.R.Annot. 110). Although PDI did attach an affidavit by the owners of PDI, it was over 50 pages in length and PDI failed to make precise references to pages, as required by Supreme Court Rule 141.

The Bank moved for an order deeming its statement of facts to be uncontroverted for failure to comply with Rule 141. The trial court held that PDI did not comply with Rule 141 and gave it until May 11, 1990, to file a response that complied with Rule 141. PDI filed an additional document entitled "Plaintiff's Additional Response to Defendant's Motion for Summary Judgment." In this response, PDI did have numbered paragraphs that corresponded with the Bank's motion, but it contained no reference to any evidentiary documents for some of the paragraphs; instead, PDI referred to other pleadings. In the few paragraphs that did refer to evidentiary documents, the references were again vague, such as: "See depositions of the Plummers and their Affidavits, along with the Depositions of defendant's officers." (There were no depositions in the record at trial and there are none on appeal. The depositions were from a previous case and, apparently, were six inches thick.)

At the hearing on summary judgment, the trial court said that PDI had had two chances to comply with Rule 141, and the court was unwilling to give it a third chance. The trial court held the second response was not in compliance with Rule 141, and, thus, PDI "is deemed to have admitted all of the uncontroverted contentions of fact set forth in the Memorandum of the Defendant." The trial court held: "[T]he court further finds that in accordance with said facts, the court hereby grants summary judgment in favor of the Defendant and against the Plaintiff and hereby adopts as its own the uncontroverted facts and conclusions of law set forth in the Defendant's motion and supporting memorandum."

On appeal, PDI does not argue that the trial court erred in holding that it failed to comply. Instead, PDI completely ignores this and argues that some of the uncontroverted facts are controverted.

"Where the appellant fails to brief an issue, that issue is waived or abandoned." Bazine State Bank v. Pawnee Prod. Serv., Inc., 245 Kan. 490, 495, 781 P.2d 1077 (1989), cert. denied 495 U.S. 932, 110 S.Ct. 2173, 109 L.Ed.2d 502 (1990). Had PDI argued the trial court erred, it would have made little difference. Rule 141 provides:

"No motion for summary judgment shall be heard or deemed finally submitted for decision until:

"(a) The moving party has filed with the court and served on opposing counsel a memorandum or brief setting forth concisely in separately numbered paragraphs the uncontroverted contentions of fact relied upon by said movant (with precise references to pages, lines and/or paragraphs of transcripts, depositions, interrogatories, admissions, affidavits, exhibits, or other supporting documents contained in the court file and otherwise included in the record); and

"(b) Any party opposing said motion has filed and served on the moving party within twenty-one (21) days thereafter, unless the time is extended by court order, a memorandum or brief setting forth in separately numbered paragraphs (corresponding to the numbered paragraphs of movant's memorandum or brief) a statement whether each factual contention of movant is controverted, and if controverted, a concise summary of conflicting testimony or evidence, and any additional genuine issues of material fact which preclude summary judgment (with precise references as required in paragraph [a], supra ).

"The motion may be deemed submitted by order of the court upon expiration of twenty-one (21) days, or expiration of the court ordered extended period, after filing and service on opposing counsel of the brief or memorandum of moving party notwithstanding the failure of the opposing party to comply with paragraph (b), supra. In such cases the opposing party shall be deemed to have admitted the uncontroverted contentions of fact set forth in the memorandum or brief of moving party. In determining a motion for summary judgment the judge shall state the controlling facts and the legal principles controlling the decision in accordance with Rule 165." 1990 Kan.Ct.R.Annot. 110-11.

This court has frequently upheld trial court decisions to deem the movant's facts uncontroverted for the respondent's failure to comply. For instance, in Ruebke v. Globe Communications Corp., 241 Kan. 595, 738 P.2d 1246 (1987), the plaintiff's response to a motion for summary judgment contained only general references to the entire trial transcript. This court upheld the trial court's ruling that the opposing party was deemed to have admitted the uncontroverted facts, saying that the rule vests discretion on the trial court,

"whose sound discretion will not be disturbed on appeal without a clear showing of abuse. Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable person would take the view adopted by the trial court. One who asserts the court has abused its discretion bears the burden of showing such abuse of discretion." 241 Kan. at 604, 738 P.2d 1246.

Here, the trial court did not abuse its discretion. PDI was given ample opportunity to comply.

On appeal, PDI may not controvert these facts which were deemed uncontroverted. PDI is bound by the uncontroverted facts presented by the Bank. We will, however, consider legal issues based on these uncontroverted facts.

Franklin and Julia Plummer, sole shareholders of PDI, were involved in two cases prior to this one. The Plummers were sued by Alan Mason in Butler County District Court for fraud in connection with another corporation. A jury awarded Mason $11,800. Then, the Plummers (individually and not as a corporation) attempted to sue Prairie State Bank in federal court on what amounts to the same cause of action as is asserted by the corporation in this suit. The federal court granted summary judgment for Prairie State Bank, saying that some of the Plummers' claims were frivolous.

In this case, the trial court adopted the Bank's uncontroverted statement of facts as follows:

"1. Plaintiff, PDI, is a corporation which at all material times hereto was jointly owned by Franklin I. Plummer and Julia A. Plummer.

"2. Defendant PSB is a banking corporation located in Augusta, Butler County, Kansas.

"3. Stockholder Frank Plummer and others became involved in the development of a new product, a charcoal grill, which they attempted to develop and market through a firm called First American Products, Inc. (FAP). Mr. Plummer was the president and inventor of the product being manufactured by FAP. PSB financed the firm's activities.

"4. Mr. and Mrs. Plummer, along with others, were expressly personal guarantors of part of the indebtedness owed by FAP to PSB. On or about May 13, 1986, Mr. and Mrs. Plummer entered into a Loan Guaranty Agreement with PSB in which they agreed to be personally liable on loans by PSB to FAP for up to $9,500.00. In the agreement Mr. and Mrs. Plummer agreed that such amount was immediately due and owing upon FAP's failure to satisfy its obligation and also they expressly waived any required notice of dishonor. FAP closed business and ceased operation in late April of 1987. Two of the three FAP notes came due and owing in May of 1987. Mr. and Mrs. Plummer did not make payment on their personal guarantees when they became due and owing.

"5. At some point, Mr. and Mrs. Plummer moved to the State of Missouri. When the FAP notes became past due and in default PSB was unable to contact either of...