Roane v. United States Fidelity & Guaranty Company

• Decision Date: 08 May 1967
• Docket Number: No. 8419.,8419.
• Parties: N.H. ROANE, individually and as spokesman for Johnson & Roane, a joint venture, Appellant, v. UNITED STATES FIDELITY & GUARANTY COMPANY, a corporation, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

378 F.2d 40 (1967)

N.H. ROANE, individually and as spokesman for Johnson & Roane, a joint venture, Appellant, v. UNITED STATES FIDELITY & GUARANTY COMPANY, a corporation, Appellee.

No. 8419.

United States Court of Appeals Tenth Circuit.

May 8, 1967.

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Donald Church, Tulsa, Okl., for appellant.

David H. Sanders, Tulsa, Okl. (Sanders, McElroy & Whitten, Tulsa, Okl., of counsel, on the brief) for appellee.

Before LEWIS, BREITENSTEIN, and HICKEY, Circuit Judges.

BREITENSTEIN, Circuit Judge.

In this Miller Act¹ proceeding, appellant Roane attacks a judgment entered against him on the cross-claim of the appellee surety company.

Johnson, who was a party below but is not a party here, and Roane were joint venturers. In that capacity they made a contract with the United States for work on the Keystone Dam project in Oklahoma. The appellee surety executed the performance and payment bonds required by the statute. Defaults occurred and several Miller Act cases were brought and consolidated. These resulted in summary judgments for the use plaintiffs and against the joint venturers and their surety in the amount of $42,418. The surety paid the judgments, and by cross-claim asserted the right to recover this amount plus additional sums for taxes, insurance premiums, and expenses from the joint venturers. It obtained a judgment for $62,112 against appellant Roane and co-venturer Johnson. We are concerned with the validity of that judgment so far as it affects Roane.

Summary judgments were entered for the use plaintiffs. Although these will have to be considered in some detail, matters of general application should be dealt with at the threshold. Appellant says that, in part, the summary judgments are improper because of the existence of genuine issues of material facts. Our examination of the record discloses that the only pertinent issues are between the allegations in the appellant's pleadings and the affidavits submitted in support of the motions for summary judgments. A typical example of this is the appellant's claim that certain of the items for which the use plaintiffs were awarded recovery had as their basis work done by Johnson on a venture of his own under a contract with an agency of the State of Oklahoma.

The appellant's contentions run afoul of Rule 56(e), F.R.Civ.P., which, as amended in 1963, provides that in opposition to a motion for summary judgment an adverse party "may not rest upon the mere allegations or denials of his pleading" but must by affidavit or otherwise "set forth specific facts showing that there is a genuine issue for trial."² Neither the pleadings nor the statements made in brief and argument create a fact issue when opposed to positive contrary statements which were made in affidavits submitted in support of the motions for summary judgments. The affiants swore that the items were supplied at the request of Johnson for the Keystone project. Appellant made no response as required by the rule to create a fact issue.

In regard to certain of the claims, appellant says that the notice made necessary by 40 U.S.C. § 270b was not given. In each instance an adequate showing was made that the labor or materials were ordered by Johnson for the Keystone project. The notice is required when the claimant has no contractual relationship with the prime contractor. A Miller Act supplier who deals directly with a prime contractor does not have to give the notice.³ Here the dealings were directly with one of the joint venturers who held the prime contract.

The first Miller Act suit was brought by Butler-Sparks Equipment Company. Thereafter separate suits were brought by Sinclair Refining Co., Boecking-Berry Equipment Co., and Albert & Harlow, Inc. Appellant says that only one suit can be brought and, hence, the district court was without jurisdiction over the three later suits. Although this might have been the law under the Heard Act,⁴ it is no longer. The Heard Act has been superseded by the Miller Act which specifically provides⁵ that every person furnishing labor and materials has the right to sue on the payment bond. Nothing therein limits to one the number of suits on such bond. The court had jurisdiction of the three mentioned suits and properly consolidated them with the Butler-Sparks case.

On the Butler-Sparks claims, appellant says that the labor, parts, and materials were furnished at the instance of the owner of rented equipment and concludes that the joint venture is not responsible. An uncontroverted affidavit shows that the labor and materials were furnished at the request of Johnson for the Keystone project.

The claim of Communications Engineering Company covers the installation, rental and maintenance of two mobile radio units. Appellant says that these were capital equipment not consumed in the prosecution of the work and not a proper charge against the bond.⁶ A rental charge for equipment used in a public work project within the purview of the Miller Act is not a capital expense. The affidavit supporting the claim is sufficient.

Pate and Morris Construction Company furnished to the project two tractors with operators and presented a claim for the rental and the operators' wages. The argument that these wages are not a proper charge is farfetched. The showing is that the operators worked on the project at the instance of the joint venture. Liability may not be avoided on the ground that Pate and Morris actually paid them.

The claim of Conley-Lott-Nichols Machinery Company is for rental and repairs on two crawler tractors under contracts between Johnson and Nichols Machinery Company. An adequate showing is made that Conley-Lott-Nichols succeeded to the interest of Nichols and that the claim was in accordance with the rental contracts. The objection of the appellant is that at the time of the execution of the rental...