Sorenson v. Adams

• Decision Date: 22 November 1977
• Docket Number: No. 12149,12149
• Citation: 98 Idaho 708,571 P.2d 769
• Parties: Myron P. SORENSON and Beulah R. Sorenson, husband and wife, and J. Gaurth Thompson and Carol Joyce Thompson, husband and wife, Plaintiffs-Appellants, v. Rex ADAMS and Ruth L. Adams, husband and wife, Defendants-Respondents.
• Court: Idaho Supreme Court

Page 769

571 P.2d 769

98 Idaho 708

Myron P. SORENSON and Beulah R. Sorenson, husband and wife, and J. Gaurth Thompson and Carol Joyce Thompson, husband and wife, Plaintiffs-Appellants, v. Rex ADAMS and Ruth L. Adams, husband and wife, Defendants-Respondents.

No. 12149.

Supreme Court of Idaho.

Nov. 22, 1977.

Robert M. Kerr, Jr., of Kerr, Williams & Clarke, Blackfoot, for plaintiffs-appellants.

Herman E. Bedke, Burley, Walter G. Mann of Mann & Hadfield, Brigham City, Utah, for defendants-respondents.

BISTLINE, Justice.

This dispute arose out of an alleged shortage of the quantity of tillable acres involved in the sale of a farm.

In the spring of 1970, J. Gaurth Thompson, plaintiff-appellant, and David L. Bird approached Rex Adams, defendant-respondent, regarding the purchase of Adams' farm, situated in Power and Bannock Counties, Idaho. Adams stated that he wanted to sell the farmlands, some equipment, and a grain elevator he owned in Virginia, Idaho, for the sum of $280,000. After two meetings, Bird withdrew and was replaced by Thompson's uncle, Myron P. Sorenson, the other plaintiff-appellant in this case.

Sorenson and Thompson met with Adams in mid-June, 1970. As at the previous meeting with Thompson and Bird, Adams had produced a paper from the United States Department of Agriculture, Agricultural Stabilization and Conservation Service (A.S.C.) showing the farm's wheat allotment of 231.3 acres, the barley allotment of 198 acres, and the conserving base of 589 acres for that year of the federal program. The stamp at the top of the form bore Adams' name, address, farm number and the headings, "FARM-LAND---- 1307---- CROP-LAND---- 1238." The contract and the warranty deed which the parties signed on July 15, 1970, described the property without any mention of acreages involved, either as to total, or as to the particulars of tillable, range, or waste land. Appellants took possession immediately thereafter.

Sorenson and Thompson allege that their suspicions regarding the amount of tillable acreage were first aroused on discovering a large amount of seed left over from the spring planting of 1972. A check of A.S.C. maps convinced them that the property contained only 1,076 acres of tillable land. They traveled to Tremonton, Utah, on May 24, 1972, and confronted Adams with the discrepancy. Adams turned to his own maps and adding machine, but was unable to make the figures add up to the 1,238 acres of "farmland" listed on the A.S.C. form. Sorenson requested Adams to make some compensation for the shortage. Adams declined, saying he would consult with his attorney. This litigation followed. The case went to trial in September, 1975, with plaintiffs-appellants alleging fraudulent misrepresentation and seeking $33,000 damages for the shortage of tillable (approximately 165 acres at $200 per acre).

After plaintiffs rested, defense counsel made a motion for "nonsuit," pursuant to I.R.C.P. 41(b). The trial court granted the motion and plaintiffs appeal from that order. ^{1 1} They also appeal from the denial of their motions to amend the complaint and for a new trial, which assignments of error we need not reach.

I. THE PROCEDURES TO BE FOLLOWED IN RULING ON A MOTION UNDER I.R.C.P. 41(b).

Plaintiffs here argue that they made out a prima facie case of fraud, and thus that the trial court erred in dismissing the action. The argument misconceives the nature of a motion for involuntary dismissal which defendant makes at the close of plaintiffs' evidence in a non-jury case, pursuant to I.R.C.P. 41(b).

In pre-Code days, it is true, a plaintiff need only have made out a prima facie case in order to avoid being "non-suited," as it was then called. In making such a determination the trial court was instructed that,

"It is axiomatic that upon motion for nonsuit or directed verdict, the evidence must be construed in the light most favorable to plaintiff." Bogovich v. Capitol Silver-Lead Mining Co., 71 Idaho 1, 3, 224 P.2d 1078, 1079 (1950).

Bogovich was a jury action. Shortly afterwards, in Quinn v. Hartford Accident & Indemnity Co., 71 Idaho 449, 232 P.2d 965 (1951), the Court applied the same standard in reversing an order granting a motion for nonsuit in a non-jury case:

"If the evidence disclose that the plaintiff is entitled to any relief within the issues, it is error to grant a motion for nonsuit." 71 Idaho at 454, 232 P.2d at 967.

Similarly, in the non-jury case of Patton & Anderson v. Melior, 78 Idaho 336, 303 P.2d 242 (1956), it was held that,

"A motion for nonsuit admits the truth of the adversary's evidence, and every inference of fact that may be legitimately drawn therefrom (citing Quinn v. Hartford Accident & Indemnity Co., supra )." 78 Idaho at 337, 303 P.2d at 243.

This standard was rejected, as to non-jury cases, in Stratton v. Stratton, 87 Idaho 118, 391 P.2d 340 (1964). We there emphasized the fact that Idaho's adoption of the "federal rules" in 1958 brought about a whole new ball game where there is a "Motion for Involuntary Dismissal" under Rule 41(b) in a non-jury trial. We hold that the "prima facie" test applicable in jury cases is inappropriate for non-jury cases,

". . . for if the court, which is the trier of the facts in such cases, determines that the plaintiff has failed in his burden of proof and grants a motion to dismiss, it is a determination of the cause on its merits . . . ." 87 Idaho at 125, 391 P.2d at 344.

The following year Grieser v. Haynes, 89 Idaho 198, 404 P.2d 333 (1965), made it clear that the Stratton decision brought Idaho civil procedure in line with the amended federal rule.

The case-law change in Rule 41(b) was codified in 1975 when the federal amendment of the rule was added to the Idaho rule, so that it now reads:

"Rule 41(b). Involuntary dismissal Effect thereof. . . . After the plaintiff, in an action tried by the court without a jury, has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence. If the court renders judgment on the merits against the plaintiff, the court shall make findings as provided in Rule 52(a)." (Emphasis supplied). (Italicized words denote the 1975 amendment.)

It is thus clear that when defendant moves for an involuntary dismissal at the close of plaintiff's presentation in a non-jury case, the court sits as a trier of facts and is not required to construe all evidence and inferences to be drawn therefrom in the light most favorable to plaintiff. But see, In re Estate of Stibor, 96 Idaho 162, 164, 525 P.2d 357, 359: "This court has repeatedly held that the testimony of a witness which is not inherently improbable and is not contradicted and impeached may not be disregarded. (Citing cases.)" When the trial court grants a defendant's 41(b) motion, the judgment which it renders is a judgment on the merits. The findings of fact and conclusions of law required by Rule 52(a) must be made. Where such findings are lacking, this Court is hampered in the performance of its appellate function.

In Paullus v. Liedkie, 92 Idaho 323, 442 P.2d 733 (1968), error was, as here, assigned to "the action of the trial court in dismissing" on a 41(b) motion. In that case, where there were no findings or conclusions, judgment was reversed and the cause remanded with directions to make findings and conclusions.

Similarly, in Fairchild v. Fairchild, 96 Idaho 375, 529 P.2d 771 (1974), dismissal was entered on defendant's 41(b) motion without the requisite findings of fact and conclusions of law. Again error was not assigned in that regard, but only with regard to the trial court's dismissal of the action. Citing Paullus, this Court summarily reversed, stating that the assignments of error involved factual issues which could not be properly reached in the absence of findings of fact from the trial court.

On the other hand, this Court has on rare occasions gone to the evidentiary record in ruling on appeals from involuntary dismissals when the record was sufficiently clear that the absence of findings of fact did not prevent a complete understanding of the issues. See, Killinger v. Iest, 91 Idaho 571, 428 P.2d 490 (1967); Merrill v. Merrill, 83 Idaho 306, 362 P.2d 887 (1961).

A final judgment entered at the conclusion of a plaintiff's case on a 41(b) motion is a determination on the merits, and requires findings of fact and conclusions of law, every bit as much as when the final judgment is entered after both sides have made their presentations. I.R.C.P. 52(a). Defendants who have made successful 41(b) motions should complete the record by reminding the trial court that findings are required. Plaintiffs must ask the trial court to comply with Rule 52(a) as a condition precedent to bringing the case here. Compliance with the rule of writing out specific findings and legal conclusions as we have recently noted in Compton v. Gilmore, 98 Idaho 190, 560 P.2d 861 (1977) is a salutary practice which requires a trial court to give full consideration to the entire record as the purported justification for its own announced ruling. ²

Although failure to make findings and conclusions is not assigned as error, the defendants urge upon us that the trial court did in fact make the requisite findings. We can only assume that defendants would have us accept the trial court's bench remarks, made in passing upon the motion, as the equivalent of compliance with Rule 52(a) which reads: "If an opinion or memorandum decision is filed, it will be sufficient if the findings of fact and conclusions of law appear therein." The defendants are not on sound ground; there are no findings of fact and conclusions of...