Sump v. City of Sheridan

• Citation: 358 P.2d 637
• Decision Date: 17 January 1961
• Docket Number: No. 2963,2963
• Parties: Donald F. SUMP, Appellant (Plaintiff below), v. CITY OF SHERIDAN, Wyoming, a Municipal Corporation, Appellee (Defendant below).
• Court: United States State Supreme Court of Wyoming

Page 637

358 P.2d 637

Donald F. SUMP, Appellant (Plaintiff below), v. CITY OF SHERIDAN, Wyoming, a Municipal Corporation, Appellee (Defendant below).

No. 2963.

Supreme Court of Wyoming.

Jan. 17, 1961.

Rehearing Denied Feb. 21, 1961.

See 359 P.2d 1008.

Lonabaugh & Lonabaugh, E. E. Lonabaugh, Sheridan, for appellant.

Bruce P. Badley, City Atty. and R. G. Diefenderfer, Sheridan, for appellee.

Before BLUME, C. J., and PARKER and HARNSBERGER, JJ.

Mr. Justice HARNSBERGER delivered the opinion of the court.

Plaintiff's complaint alleged he was a citizen, resident, property owner and taxpayer of the City of Sheridan, Wyoming; that defendant was 'expending, and * * * will continue to expend, money, unlawfully for the acquisition of easements, employment of persons to obtain easements and the survey of lands in the City of Sheridan, and adjacent thereto, for the purported purpose of controlling floods' and 'unless said defendant is enjoined from committing such acts, * * * this petitioner will sustain an irreperable (sic) injury and damages, both financially and to his property'; that he 'has no adequate remedy at law' and prayed defendant be enjoined from so spending money.

Defendant filed a motion to dismiss under the provisions of Rule 12(b)(6) of the Wyoming Rules of Civil Procedure, which in applicable part is as follows:

'Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: * * * (6) failure to state a claim upon which relief can be granted * * *.'

Plaintiff moved to strike defendant's motion. Although this motion was not ruled upon at the time, the judgment of dismissal found that it should be denied.

No other pleading, deposition, admission or affidavit was filed with defendant's motion to dismiss, but, some ten days after the motion was made, defendant filed an affidavit of the president of its Town Council, to which were appended certain resolutions, other data, and city ordinances. Seventeen days after defendant's motion was filed, the plaintiff filed two affidavits, one his own and the other that of a lady, and the defendant filed a further affidavit. On the day of these last filings, a hearing was had, following which the court entered judgment dismissing the complaint. The salient portions of that judgment are as follows:

'* * * and the Court considering the Motion to Dismiss filed by the City of Sheridan as a Motion for Summary Judgment and the Court having considered all of the Affidavits and related matters filed in addition to the pleadings and having heard the arguments of Counsel with respect to the law thereto and being fully informed in the premises finds:

'1.

'That the Plaintiff's Motion to strike Defendant's Motion to Dismiss and for Special Findings should be overruled.

'2.

'That the City is lawfully and legally at this time from the evidence presented at this hearing expending and will continue to expend money for the acquisition of easements, employment of persons, and survey of lands in the City of Sheridan as directed by the duly authorized and elected City Council of the City of Sheridan for flood control purposes.

'3.

'That the City Council of the City of Sheridan has authority to spend City funds for flood control purposes on Big Goose Creek and Little Goose Creek.

'4.

'That the Motion to Dismiss Plaintiff's Complaint for failure to state a claim upon which relief can be granted should be sustained.

'It Is Therefore Hereby Ordered, Adjudged And Decreed by the Court that Plaintiff's Complaint be and the same is hereby dismissed.' (Emphasis supplied.)

From this judgment dismissing the complaint, plaintiff appeals, claiming:

'1. The trial court erred in considering the [defendant's] motion to dismiss as a motion for summary judgment without giving the appellant an opportunity to submit affidavits and extraneous proofs as required by Rule 12(b) and Rule 56(c) of the Wyoming Rules of Civil Procedure.

'2. The affidavits filed on behalf of the appellee indicate illegal expenditures by the City, are self-contradictory, and not in accord with Rule 56(e) in that they fail to set forth such facts as would be admissible in evidence.

'3. The complaint states a claim upon which relief can be granted and the appellee's motion to dismiss should have been overruled.

'4. The affidavits of Donald F. Sump and Madge I. Brown raise a question of fact which is controverted in the affidavits filed on behalf of the appellee, and the granting of summary judgment was, therefore, improper.

'5. If the appellate court becomes convinced that the appellant, although acting in good faith, has failed to raise at the trial court level a genuine factual issue, it should make such disposition of the appeal as will permit him to do so.

'6. The broad findings of the trial court are unwarranted conclusions exceeding the scope of the inquiry and are unsupported by competent and uncontroverted evidence.

'7. Summary judgment is seldom appropriate in cases of this nature, involving a public issue.

'8. The expenditures of the City appear to be in violation of the Constitution of the State of Wyoming.'

Applicable portions of the Wyoming Rules of Civil Procedure claimed by appellant to have been violated are as follows:

Rule 12(b).

'* * * If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.'

Rule 56(c).

'The motion shall be served at least 10 days before the time fixed for the hearing. The adverse party prior to the day of hearing may serve opposing affidavits. The judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. * * *'

Rule 56(e).

'Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions or by further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.'

By filing its motion to dismiss the defendant admitted, for the purposes of the motion, that it was expending money to acquire easements and to make surveys for the purpose of controlling floods, but defendant did not admit that in so doing it was acting in an unlawful manner.

Although defendant's motion to dismiss raised only the question of the sufficiency of the complaint, the filing of affidavits by the respective parties poses the additional question of whether those affidavits injected new matter into the action or raised a genuine issue of fact. We have closely examined these affidavits and find that while defendant's affidavits, to which were appended certain City ordinances and other data, set forth the reasons which impelled the City Council to undertake the flood control program, neither the affidavits, ordinances or other data brought in any new or different matter than that alleged in the complaint. The president's first affidavit merely asserted the City Council authorized the survey of lands, acquisition of easements and employment of persons in connection with the flood control project, and directed the mayor to effectuate such authority. It also recited that funds for the purposes authorized were appropriated from the City's general fund, that the legality of acquisition of similar easement had been adjudicated in May of 1950, and the City Council had thoroughly investigated the need for its flood control project. The ordinances attached to the affidavit only confirmed these recitations and a memorandum also attached to the affidavit simply recited the history of reports concerning need for flood control and the consideration given to matter affecting and affected by the flood control program.

The president's second affidavit recited the City Council's adoption of a further resolution authorizing its attorney to proceed with eminent domain proceedings for acquisition of right of way for its flood control program and had attached to it that resolution.

Furthermore, neither the plaintiff's own affidavit, which merely said that during his thirteen years' residence he had never seen a flood on Goose Creek and he had not been damaged, nor the lady's affidavit, saying her home had not been damaged by flood, raised any genuine issue of fact. None of these four affidavits presented matters outside the complaint that charged the City money was being unlawfully spent to control floods. Hence, that portion of Rule 12(b) which relates to changing a motion to dismiss to one for summary judgment, and Rules 56(c) and 56(e) of our Rules of Civil Procedure did not apply, and defendant's motion to dismiss was not converted into a motion for summary judgment. This conclusion leaves for...