Somrak v. Junghans Agency, Inc.

• Decision Date: 27 September 2013
• Docket Number: No. 107,973.,107,973.
• Citation: 309 P.3d 974
• Parties: Mary SOMRAK and Mary Jennell Tebbetts, Appellants, v. JUNGHANS AGENCY, INC., Appellee.
• Court: Kansas Court of Appeals

309 P.3d 974

Mary SOMRAK and Mary Jennell Tebbetts, Appellants,

v.JUNGHANS AGENCY, INC., Appellee.

No. 107,973.

Court of Appeals of Kansas.

Sept. 27, 2013.

Appeal from Geary District Court; Steven L. Hornbaker, Judge.

Dan E. Turner and Phillip L. Turner, of Turner & Turner, of Topeka, for appellants.

David P. Troup and Keith R. Henry, of Weary Davis, L.C., of Junction City, for appellee.

Before LEBEN, P.J., ATCHESON and SCHROEDER, JJ.

MEMORANDUM OPINION

ATCHESON, J.

Plaintiffs Mary Somrak and Mary Jennell Tebbetts got into a dispute with Defendant Junghans Agency, Inc., over how the company was managing residential rental properties—nine mobile homes—they owned in Junction City and wound up suing in Geary County District Court for breach of the management contract, mishandling of rental receipts, and other alleged acts of misfeasance. The Junghans Agency duly answered and later filed a motion for summary judgment. The district court granted the motion and dismissed the suit, prompting this appeal from Somrak and Tebbetts. We affirm because Somrak and Tebbetts failed to show disputed issues of material fact that would prevent judgment against them.

In their petition, filed March 17, 2011, Somrak and Tebbetts allege in sparse fashion that the Junghans Agency failed to adequately manage the rental properties or to account for income generated by and expenses attributable to those properties. They contend they made a demand that the Junghans Agency turn over rental proceeds or the management contract would be terminated. The petition states that the company failed to do so, and Somrak and Tebbetts then notified the company they considered the contract terminated. The petition seeks damages for breach of contract and unspecified torts.

The Junghans Agency answered on May 3, 2011, denying any liability to Somrak and Tebbetts. Five months later, after the parties conducted discovery, the company filed a motion and supporting memorandum requesting summary judgment in its favor. The memorandum set out the company's statement of uncontroverted facts and included affidavits, deposition excerpts, and documents supporting those facts. Somrak and Tebbetts filed their response to the summary judgment motion on November 7, 2011, and included an affidavit from Somrak. The response included additional factual allegations. The company then filed a reply responding to those additional allegations and attached another affidavit with documents.

On March 6, 2012, the district court issued a four-page order analyzing the issues and finding that Somrak and Tebbetts had failed to controvert the material facts the Junghans Agency had set forth in its summary judgment papers and had otherwise failed to show any cognizable breach of contract or tort claim. The district court, therefore, entered judgment in favor of the Junghans Agency. Somrak and Tebbetts have timely appealed.

The parties have a separate appeal before this panel related to the district court's award of attorney fees to the Junghans Agency based on a clause in the contract allowing recovery of those expenses if the company “successfully defends” any action brought by Somrak and Tebbetts related to the management of the rental property. The panel has issued a separate decision on the attorney fee issue.

This court set forth the standards for appellate review of summary judgments in Estate of Belden v. Brown County, 46 Kan.App.2d 247, 269, 261 P.3d 943 (2011):

“A party seeking summary judgment has the obligation to show, based on appropriate evidentiary materials, there are no disputed issues of material fact and judgment may, therefore, be entered in its favor as a matter of law. Shamberg, Johnson & Bergman, Chtd. v. Oliver, 289 Kan. 891, 900, 220 P.3d 333 (2009); Korytkowski v. City of Ottawa, 283 Kan. 122, Syl. ¶ 1, 152 P.3d 53 (2007). In essence, the movant argues there is nothing for a jury or a trial judge sitting as factfinder to decide that would make any difference. The party opposing summary judgment must then point to evidence calling into question a material factual representation made in support of the motion. Shamberg, 289 Kan. at 900;Korytkowski, 283 Kan. 122, Syl. ¶ 1. If the opposing party does so, the motion should be denied so a factfinder may resolve that dispute. In addressing a request for summary judgment, the trial court must view the evidence most favorably to the party opposing the motion and give that party the benefit of every reasonable inference that might be drawn from the evidentiary record. Shamberg, 289 Kan. at 900. An appellate court applies the same standards in reviewing the entry of a summary judgment.”

We also mention the requirements of Supreme Court Rule 141 (2012 Kan. Ct. R. Annot. 247), governing summary judgment practice in the district court. The moving party must set forth the uncontroverted facts on which it relies with “precise reference to pages, lines and/or paragraphs ... of the record” providing evidentiary support for them. Rule 141(a)(2). In opposing summary judgment, the responding party has the same obligation to cite specific evidentiary materials in the record controverting those facts. Rule 141(b)(1)(C). Compliance with Rule 141 is not discretionary with the parties, and the failure to offer appropriate record citations precludes consideration of any insufficiently cited facts. Plummer Development, Inc. v. Prairie State Bank, 248 Kan. 664, 665–666, 809 P.2d 1216 (1991); Lovitt v. Board of Shawnee County Comm'rs, 43 Kan.App.2d 4, 12, 221 P.3d 107 (2009).

Affidavits used to support or oppose summary judgment must “set forth specific facts.” RAMA Operating Co. v. Barker, 47 Kan.App.2d 1020, Syl. ¶ 6, 286 P.3d 1138 (2012). So “mere conclusory denials ... are not sufficient to place a factual statement [offered in support of summary judgment] in dispute.” 47 Kan.App.2d 1020, Syl. ¶ 6; see Skrzypczak v. Roman Catholic Diocese of Tulsa, 611 F.3d 1238, 1244 (10th Cir.2010) (party opposing summary judgment may not rely on “conclusory” affidavits but must set forth facts that would be admissible as evidence at trial); Fischer v. Forestwood Co., Inc., 525 F.3d 972, 978 (10th Cir.2008) (“ ‘affidavit evidence’ “ submitted in opposition to summary judgment may fail to create a material factual dispute if it is “ ‘nonspecific ... vague, conclusory, or self-serving’ ”) (quoting Piercy v. Maketa, 480 F.3d 1192, 1197–98 [10th Cir.2007] ). The information in an affidavit would have to be admissible evidence at trial if the affiant were testifying. So bare opinions, unsupported generalizations, and broad summaries cannot stave off summary judgment.

In its submission in support of summary judgment, the Junghans Agency provided evidentiary materials—primarily an affidavit from one of its corporate officers and business records—showing it complied with its contractual obligations and supplied financial information to Somrak and Tebbetts. To controvert or dispute those factual representations, Somrak and Tebbetts submitted a 3–page, 11–paragraph affidavit from Somrak and some documents from the Junghans Agency. Somrak's affidavit addresses multiple aspects of the business relationship with the Junghans Agency.

The summary judgment response is legally inadequate in at least two ways that support the district court's decision to grant the motion. First, in attempting to dispute the specific factual statements in the Junghans Agency's motion papers, Somrak and Tebbetts repeatedly cite simply to “Affidavit of Mary Somrak.” That is not the sort of “precise reference” required in Rule 141. And the deficiency is more than just a technicality. The citation requirements in Rule 141 make summary judgment practice manageable for both courts and litigants by isolating the operative facts and the supporting evidence. See Bordelon v. Chicago School Reform Bd. of Trustees, 233 F.3d 524, 527–28 (7th Cir.2000) (considering federal district court rule comparable to Rule 141 and upholding district court decision to disregard facts contained in noncompliant summary judgment response).

Conversely, the generic references Somrak and Tebbetts used imposed on the district court and this court on appeal an obligation to study the affidavit and select one or more paragraphs that would seem to be responsive in some fashion to the particular factual representation offered by the Junghans Agency. Courts are not required to spend their time that way in considering summary judgment motions. See Gross v. Burggraf Const. Co., 53 F.3d 1531, 1546 (10th Cir.1995); Garcia v. Board of Educ. of Albuquerque Pub. Scho., 436 F.Supp.2d 1181, 1187 n. 5 (D.N.M.2006). While a court may peruse a summary judgment record for evidence the parties may not have specifically referenced, it need not do so. The failure here, however, is more basic. Somrak and Tebbetts never provided any citations to specific record evidence. Rather, they attempted to shift their job in marshalling evidence—and their duty under Rule 141—entirely to the reviewing courts.

In addition, particular paragraphs of Somrak's affidavit fail to set forth admissible evidence supporting the stated propositions. For example, Somrak's affidavit declares the Junghans Agency was required to keep rent money in a trust account under the terms of the management contract, which is true; but it then states that the company did not and does so without any supporting evidence to show that the company's separate account for funds belonging to property owners failed to satisfy that contractual obligation. The affidavit questions a security deposit refund for a tenant in one of the mobile homes and refers to an exhibit that is not readily discernible in the summary judgment record. Another paragraph generally alleges the Junghans Agency billed for repairs and maintenance that weren't performed but fails to describe the particular work or to cite to billing records showing charges. Yet another paragraph, however,...