Strom-Sell v. COUNCIL FOR CONCERNED CITIZENS

• Decision Date: 13 July 1999
• Docket Number: No. 980351, No. 990011.
• Citation: 597 N.W.2d 414,1999 ND 132
• Parties: Paula STROM-SELL, Plaintiff and Appellant, v. COUNCIL FOR CONCERNED CITIZENS, Inc., Defendant, and Toni Austad, Executive Director, William Wilkerson, Board President, Defendants and Appellees. Paula Strom-Sell, Plaintiff and Appellee, v. Council for Concerned Citizens, Inc., Defendant, and Toni Austad, Executive Director, William Wilkerson, Board President, Defendants and Appellants.
• Court: North Dakota Supreme Court

597 N.W.2d 414

1999 ND 132

Paula STROM-SELL, Plaintiff and Appellant, v. COUNCIL FOR CONCERNED CITIZENS, Inc., Defendant, and Toni Austad, Executive Director, William Wilkerson, Board President, Defendants and Appellees.

Paula Strom-Sell, Plaintiff and Appellee, v. Council for Concerned Citizens, Inc., Defendant, and Toni Austad, Executive Director, William Wilkerson, Board President, Defendants and Appellants.

Nos. 980351, 990011.

Supreme Court of North Dakota.

July 13, 1999.

Paula Strom-Sell, Fargo, pro se.

Thomas D. Fiebiger, Fargo, for defendants, appellees, and appellants Toni Austad and William Wilkerson.

NEUMANN, Justice.

[¶ 1] Paula Strom-Sell appealed from a summary judgment dismissing her action against Toni Austad and William Wilkerson. Austad and Wilkerson appealed from a post-judgment order denying their motion for attorney fees. We affirm.

I

[¶ 2] Council for Concerned Citizens, Inc. (CCC) was a Montana-based non-profit corporation organized to promote fair housing and prevent discrimination, funded in part through grants from the Department of Housing and Urban Development. Between March 1995 and June 1996, Strom-Sell was employed as the Fair Housing Coordinator for CCC's Fargo office. She was in charge of the Fargo office and supervised an administrative assistant and college interns.

[¶ 3] Austad was CCC's Executive Director and worked in its Great Falls, Montana office. Wilkerson served as a board member and president of CCC in 1995 and 1996. He was not an employee of CCC, and received no pay for his services.

[¶ 4] In October 1996, Strom-Sell filed a complaint with the Montana Department of Labor and Industry alleging she was due overtime wages for her employment with CCC. CCC considered Strom-Sell an executive or administrative employee exempt from overtime. The United States Department of Labor subsequently advised CCC its Fair Housing Coordinators were not exempt employees. The Department of Labor accepted the results of a self-audit conducted by CCC, which indicated Strom-Sell was entitled to $6,080.12 in overtime wages. It was further determined CCC owed overtime wages to fifteen other employees.

[¶ 5] In early 1997, CCC's board of directors determined the corporation did not have sufficient funds to pay the overtime wage claims and decided to dissolve the corporation. Wilkerson served as trustee during the dissolution. CCC determined it had sufficient funds to pay the overtime claimants 32 percent of their outstanding claims, and it sent Strom-Sell a check for $1,945.64, which was 32 percent of the $6,080.12 it had previously determined Strom-Sell was owed.

[¶ 6] Strom-Sell brought this action against CCC, Austad, and Wilkerson, seeking unpaid overtime wages of $10,752.00, treble damages for intentional and willful violation of the wage and hour laws, and attorney fees. CCC did not respond to the complaint, and a default judgment was entered against it. Austad and Wilkerson answered the complaint, denying Strom-Sell's allegations and asserting they acted within the scope of their employment or duties and were not personally liable. They subsequently moved for summary judgment dismissing all claims against them. The court denied their motion and the case was scheduled for trial.

[¶ 7] The first witness at trial was Strom-Sell. Her testimony focused primarily upon the amount of overtime owed. Upon completion of her testimony the court expressed concern about the lack of evidence to establish a basis for personal liability of Austad or Wilkerson. The court severed the issue of the amount of overtime, and directed Strom-Sell's counsel to present evidence about the specific acts of Austad and Wilkerson which would give rise to personal liability.

[¶ 8] After a recess, Strom-Sell's counsel called one of CCC's former board members as a witness. The trial court interrupted the direct examination of the witness, again expressing concern that the examination was focused upon irrelevant matters having nothing to do with actions by Austad or Wilkerson which would create personal liability. The court then told Strom-Sell's counsel, "Unless you get specific on the acts and actions that are required to support your allegations, I am going to ask that the Defendants in this matter renew their motions for summary judgment." Counsel explained that he had two witnesses en route from Montana who he planned to call on the second day of trial. The court asked counsel to present an offer of proof as to the substance of their testimony. When counsel stated he was unable to explain what their testimony would be, the court granted Austad and Wilkerson's renewed motion for summary judgment.

[¶ 9] Strom-Sell appealed from the judgment dismissing her action against Austad and Wilkerson. Austad and Wilkerson appealed from the court's post-judgment order denying attorney fees.

II

[¶ 10] Strom-Sell asserts the court's pre-trial ruling denying Austad and Wilkerson's motion for summary judgment became the "law of the case" and precluded the court from considering the renewed motion. We disagree.

[¶ 11] Summary judgment is governed by N.D.R.Civ.P. 56. We have not previously addressed whether a denial of a motion for summary judgment becomes the law of the case, precluding subsequent motions. Because N.D.R.Civ.P. 56 is virtually identical to Fed.R.Civ.P. 56, federal court interpretations are highly persuasive and we will be guided by them. Farmers Union Oil Co. v. Harp, 462 N.W.2d 152, 154 (N.D.1990).

[¶ 12] Several federal appellate courts have held denial of a motion for summary judgment does not become the law of the case precluding consideration of a subsequent motion, particularly where there is additional evidence before the court. See, e.g., Curran v. Kwon, 153 F.3d 481, 487 (7th Cir.1998); Lovett v. General Motors Corp., 975 F.2d 518, 522 (8th Cir. 1992); Lindsey v. Dayton-Hudson Corp., 592 F.2d 1118, 1121 (10th Cir.1979); see also 10A Charles Alan Wright, Arthur R. Miller, Mary Kay Kane, Federal Practice and Procedure § 2718 (3d ed.1998). We agree with the reasoning of the United States Court of Appeals for the Eighth Circuit in Lovett, at 522 (citations omitted):

The law of the case doctrine provides that a court's decision on legal issues should govern the same issues in later stages of the same case. The doctrine, however, applies only to issues decided by final judgments. The district court's rulings on GM's motion to dismiss and motion for summary judgment were not final judgments. Further, a district court may properly depart from an earlier holding "if convinced that it is clearly erroneous and would work a manifest injustice." Arizona v. California, 460 U.S. [605,] 618 n. 8, 103 S.Ct. [1382,] 1391 n. 8 [75 L.Ed.2d 318 (1983)]. When a district court is convinced that it incorrectly decided a legal question in an interlocutory ruling, the district court may correct the decision to avoid later reversal.

[¶ 13] We recognize this case presents an unusual procedural posture. The parties cited no cases or other authorities addressing a trial court's authority to consider a renewed motion for summary judgment during trial. Nothing in the language or spirit of the rule, however, prohibits granting of summary judgment in this case. Rule 56(b), N.D.R.Civ.P., permits a defendant to move for summary judgment "at any time." Furthermore, we have often reiterated the purpose of summary judgment is to allow "the prompt and expeditious disposition of a controversy without trial" if there are no genuine issues of material fact. Hurt v. Freeland, 1999 ND 12, ¶ 7, 589 N.W.2d 551. That purpose is equally served if summary judgment is allowed when it becomes evident during trial that there is no evidence on a required element of the plaintiff's claim. See Pulkrabek v. Sletten, 557 N.W.2d 225, 226 (N.D.1996) (quoting Soentgen v. Quain & Ramstad Clinic, P.C., 467 N.W.2d 73, 77 (N.D.1991)) ("The plain language of Rule 56 requires the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to establish the existence of a factual dispute as to an essential element of his claim and on which he will bear the burden of proof at trial."). As noted by the court in Lindsey v. Dayton-Hudson Corp., 592 F.2d 1118, 1121 (10th Cir.1979):

When the second motion was considered there was a significantly expanded record, including the full transcript of the state criminal case. Until final decree the court always retains jurisdiction to modify or rescind a prior interlocutory order. Fed.R.Civ.P. 54(b). Although the court might properly refuse to consider a second motion, we will not require a judge to perpetuate error or take a more roundabout way to arrive at an ultimately necessary judgment by refusing him the right to entertain a second motion for summary judgment after he has ruled once the other way.

Similarly, in this case it would have been an exercise in futility and a waste of judicial resources to require completion of the scheduled two-day trial after it became evident there was no evidence forthcoming on an essential element of Strom-Sell's claim.

[¶ 14] The trial court explained its reasons for granting the renewed motion during trial. The court noted it originally denied the motion, even though there were no material issues of fact properly raised, because the opposing affidavits contained hearsay evidence and conclusory statements on matters which may have provided a basis for personal liability and the court "suspected that there may be some direct substantive evidence." The court, in effect, gave Strom-Sell the benefit of the doubt and allowed her the opportunity to present direct, admissible evidence on a possible basis for personal liability at trial. When it became obvious Strom-Sell had no such evidence, the court allowed Austad and Wilkerson to renew their motion for summary judgment. Although we do not recommend this procedure as a matter of...