Tobler & Oliver Const. Co. v. Board of Trustees of Health and Ins. Fund For Carpenters Local Union No. 971

• Decision Date: 03 July 1968
• Docket Number: No. 5473,5473
• Citation: 84 Nev. 438,442 P.2d 904
• Parties: TOBLER AND OLIVER CONSTRUCTION COMPANY, Appellant, v. BOARD OF TRUSTEES OF the HEALTH AND INSURANCE FUND FOR CARPENTERS LOCAL UNION NO. 971 et al., Respondents.
• Court: Nevada Supreme Court

Page 904

442 P.2d 904

84 Nev. 438

TOBLER AND OLIVER CONSTRUCTION COMPANY, Appellant, v. BOARD OF TRUSTEES OF the HEALTH AND INSURANCE FUND FOR

CARPENTERS LOCAL UNION NO. 971 et al., Respondents.

No. 5473.

Supreme Court of Nevada.

July 3, 1968.

Theodore H. Stokes, Carson City, for appellant.

[84 Nev. 439] Lorin D. Parraguirre, Reno, for respondents.

OPINION

BATJER, Justice.

During the months of September and October of 1966, the appellant, Tobler and Oliver Construction Company, was the general contractor for the construction of a micro-wave station. White Concrete Co., Inc., was the sub-contractor for the appellant.

White had bound itself under the terms of a collective bargaining agreement with the respondents to pay specified amounts of employer contributions into certain trust funds for the benefit of the employees covered by the agreement.

White failed to carry out its sub-contract and did not pay all of its labor bills. As required by NRS 608.150, ¹ Tobler paid off the balance of White's labor indebtedness and in addition paid the insurance premiums owed to the Nevada Industrial Commission. However, Tobler did not pay the amount owed by White to the respondents under the terms of the collective bargaining agreement.

The respondents sued both Tobler and White for the sum of $1,064.59 due under the agreement, plus costs and attorneys fees. Shortly after suit was commenced, White confessed judgment in the amount prayed for in the complaint. The respondents then moved for summary judgment as against Tobler.

In opposition to the motion for summary judgment an affidavit was executed by Tobler's office manager stating that 'all claims for indebtedness for labor's owing by Tobler because of White's default had been paid.

Upon the pleadings and proceedings on file, the lower court granted the respondents motion for summary judgment in the sum of $1,064.59, together with costs in the amount of $38.00, and attorney fees in the amount of $250. This appeal is taken from the order for summary judgment and judgment.

Both parties agree that the sole question on this appeal is the propriety of the lower court's order granting summary judgment.

Even though the appellant admits that White was in complete default, it nevertheless contends that the respondents were obligated to exhaust all possibilities of recovery against White before they could avail themselves of the benefits under NRS 608.150. The appellant cites no authority to support its position, nor does the wording of NRS 608.150 lend any support to its contention.

The appellant also argues as a cardinal rule that facts asserted by the party opposing the motion for summary judgment must be taken as true and as a corollary of that rule that a motion for summary judgment admits all allegations of fact contained in the opposing party's pleadings. We find the appellant's reasoning in this regard to be untenable.

NRCP 56(c) reads in pertinent part: '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 pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing there is a genuine issue for trial.' Dzack v. Marshall, 80 Nev. 345, 393 P.2d 610 (1964).

The intent of the rule is clear and unambiguous. The party opposing the motion for summary judgment may not assume that the allegations and assertions in his pleadings will be taken as true. Here appellant's pleadings and supporting affidavit do not set out any specific facts that show there is a genuine issue for trial.

The appellant further contends that respondents are not entitled to summary judgment because their complaint is unverified and no supporting affidavits were filed by respondents with their motion for summary judgment. This contention is without merit. The appellant has cited no special rule or statute requiring that a complaint filed pursuant to NRS 608.150 be verified. Independent research reveals none. NRCP 11 reads in part: 'Except when otherwise specifically provided by rule or statute, pleadings need not be verified or accompanied by affidavit. The signature of an attorney constitutes a certificate by him that he has read the pleading; that to the best of his knowledge, information and belief there is good ground to support it; and that it has not been interposed for delay.'

It is well established that under NRCP 56(c), ² when there remains no material issue of fact to be resolved and when it appears the moving party is entitled to judgment as a matter of law, that summary judgment must be granted. McColl v. Scherer, 73 Nev. 226, 315 P.2d 807 (1957); Short v. Hotel Riviera, Inc., 79 Nev. 94, 378 P.2d 979 (1963); 3 Barron and Holtzoff, Federal Practice and Procedure § 1234, pg. 119; 6 Moore's Federal Practice, § 56.15, pg. 2101.

In this case the parties agree that the appellant paid all of the claims against White except for the employer contributions due under the collective bargaining agreements. The appellant contends that there remains an issue of fact to be tried based on its office manager's affidavit asserting that all indebtedness for labor against White had been paid. This contention is completely without merit because the affidavit does not raise an issue of fact, but rather, states a conclusion of law.

After Tobler's answer was filed...