Torrey v. Twiford

• Decision Date: 06 February 1986
• Docket Number: No. 85-147,85-147
• Citation: 713 P.2d 1160
• Parties: Glen TORREY, Appellant (Plaintiff), v. James TWIFORD and Jenne Twiford, Appellees (Defendants).
• Court: Wyoming Supreme Court

Page 1160

713 P.2d 1160

Glen TORREY, Appellant (Plaintiff), v. James TWIFORD and Jenne Twiford, Appellees (Defendants).

No. 85-147.

Supreme Court of Wyoming.

Feb. 6, 1986.

Harold F. Buck of Kline, Buck & Asay, Cheyenne, for appellant.

J. Patrick Hand of Hand, Hand & Hand, P.C., Douglas, for appellees.

Before THOMAS, C.J., and ROONEY, ^* BROWN, CARDINE and URBIGKIT, JJ.

URBIGKIT, Justice.

In response to a complaint alleging malicious prosecution and defamation, the defendant filed a motion to dismiss for failure to state a claim upon which relief could be granted, pursuant to Rule 12(b)(6), W.R.C.P. After the trial judge heard arguments of counsel and reviewed the record, he granted the motion to dismiss. The plaintiff appeals from that order.

We will reverse.

Appellant Glen Torrey framed the issue as follows:

"Does a Complaint alleging malicious prosecution and defamation claims state a claim upon which relief can [be] granted sufficient to withstand a Rule 12(b)(6) motion as to the individuals who caused the issuance of a criminal complaint against Appellant * * * ?"

Appellees James and Jenne Twiford supplemented and restated the issues:

"Whether or not the District Court properly dismissed Appellant's Complaint, under either WRCP 12(b)(6) or 56."

"Whether the dismissal was under WRCP 12(b)(6) or 56; whether or not it made any difference by virtue of the conduct of the parties; or, if the District Court's dismissal can be sustained on any grounds."

"Whether or not the Court was correct in determining that 'probable cause' did exist in the Appellees, and that the question of 'probable cause' is a question of law for the Court.

Defendants James Twiford and his mother, Jenne Twiford, entered J.C. Penney Company in Casper on December 15, 1983, to try on clothes. Plaintiff Torrey was a salesman in the men's department, and fitted James for clothing. The following day, James told his mother that the salesman had fondled him. Mrs. Twiford complained to J.C. Penney Company and reported the incident to the police. A Casper police department employee signed and filed a complaint against Torrey, alleging that he had taken indecent liberties with James Twiford. After Torrey passed two separate lie detector tests, the action was dismissed by motion of the prosecutor's office, but in the meantime Torrey had lost his job.

One year later, Torrey filed suit against the Twifords, alleging malicious prosecution and defamation. Defendants responded by a motion to dismiss for failure to state a claim, and other basis. ¹ The parties began discovery prior to the hearing on the motion which was scheduled by written order. Pursuant to scheduled hearing, the motion to dismiss was sustained.

This court must first determine whether the motion to dismiss was converted to a motion for summary judgment. If the trial court's order was actually a summary judgment, we must decide whether it was properly granted. If the conversion to summary judgment was not accomplished, we must determine whether the plaintiff-appellant's complaint is sufficient to withstand a Rule 12(b)(6) attack.

Conversion From Rule 12(b)(6) to Summary Judgment

If a trial judge actually considers matters other than the pleadings on a motion to dismiss pursuant to Rule 12(b)(6), his decision is converted to a summary judgment. See discussion in Newberg v. American Dryer Corporation, 195 F.Supp. 345 (E.D.Pa.1961). ² The conversion may be automatic, as when the judge considers affidavits in connection with a Rule 12(b)(6) motion, Greaser v. Williams, Wyo., 703 P.2d 327 (1985); International Longshoremen's and Warehousemen's Union v. Kuntz, 334 F.2d 165 (9th Cir.1964), or the conversion may be accomplished by motion of one of the parties. Yet as this case illustrates, there are situations which make it difficult for a party to know whether a motion will be decided pursuant to Rule 12(b)(6) or Rule 56, W.R.C.P. In these unclear situations, the key factor is that both parties had notice of the intent to convert and the evidence upon which summary judgment will be considered. Another factor rarely discussed by appeals courts is the time factor required for defensive response to the converted motion. In this case, the notice of setting denominated the subject for consideration by the court as a "Motion to Dismiss."

Conversion Notice

There is ample authority for the requirement of notice. Wright & Miller, Federal Practice and Procedure, instructs that:

" * * * It is important that the court give the parties notice of the changed status of the motion and a 'reasonable opportunity to present all material made pertinent to such a motion by Rule 56.' In this way no one will be taken by surprise by the conversion." 5 Wright & Miller, Federal Practice and Procedure: Civil § 1366, p. 683.

The Wyoming Supreme Court, in an opinion authored by Justice Rooney, adopted the same position in Kimbley v. City of Green River, Wyo., 642 P.2d 443 (1982):

" * * * [T]he fact that a motion to dismiss is being converted into a motion for summary judgment must be made known to all counsel together with a reasonable opportunity being afforded to the non-moving party to present that which he considers necessary to rebut the contention of the moving party. [Citations.]" 642 P.2d at 445.

The court also said that the conversion of a Rule 12(b)(6) motion into a summary judgment need not be by written order, but:

" ' * * * the record must adequately demonstrate that all counsel were aware of the intentions of the district judge to treat the motion as converted, together with a reasonable opportunity afforded to the non-moving party to present, by way of affidavit or otherwise, anything necessary to rebut the contention of the moving party.' " 642 P.2d at 445, quoting from Davis v. Howard, 561 F.2d 565, 571-572 (5th Cir.1977).

The requirement of conversion notice to be shown by the record as enunciated by Kimbley, follows the earlier decisions of Kirby Building Systems, Inc. v. Independence Partnership No. One, Wyo., 634 P.2d 342 (1981), and Wyoming Insurance Department v. Sierra Life Insurance Company, Wyo., 599 P.2d 1360 (1979).

Applying Wright & Miller and the Kimbley case to the facts in the case at bar, the trial judge did not convert the Rule 12(b)(6) motion to a motion for summary judgment. ³ No notice was given to the nonmoving party that the motion would be converted. The defendants did not request that their Rule 12(b)(6) motion be converted, and the action taken was stated to be on the motion to dismiss. No advance notice of the use of depositions or other evidence was given.

The question of conversion arises because the trial judge did consider material in addition to the pleadings in making his decision to grant the motion to dismiss. The order states that he examined the file and heard arguments of counsel. The record on appeal contained requests and answers to requests for production of documents and admission of facts, which could have been considered in making his decision. The trial judge also apparently considered depositions which had been taken but which are not part of the record on appeal. These documents do not generally appear in court files, but should have been filed in conjunction with a motion for summary judgment. See Rule 302(b), Uniform Rules for the District Courts of the State of Wyoming. ⁴ Even if the trial court elects to consider discovery documents as evidence, that is not sufficient to automatically or properly convert a proceeding initiated under a Rule 12(b)(6) motion to justify a decision entering summary judgment. Notice of the conversion must be demonstrated in the record before this court will recognize the conversion. Kimbley v. City of Green River, supra. The difference from Kimbley is noted in that in no way does the plaintiff classify the present motion as "in essence" a motion for summary judgment.

We also distinguish the case before us from the footnote in our recent decision of Greaser v. Williams, supra. In Greaser, this court treated a ruling under Rule 12(b)(6) as a summary judgment. This court did so because both parties had submitted affidavits along with other documents in connection with the Rule 12(b)(6) motion which were considered by the trial judge. The documentation which would have been filed pursuant to a motion for summary judgment was filed under the motion to dismiss, indicating that the parties were prepared to have the motion decided pursuant to Rule 56. When a party files an affidavit which a judge considers under a Rule 12(b)(6) motion, this court will treat the motion as a motion for summary judgment subject to the time requirements of Rule 56, whether or not the record demonstrates that the parties had other notice of the conversion, unless the record otherwise demonstrates unfair or inappropriate surprise to either party but normally for the nonmoving party. If affidavits have not been filed but other documents have been filed which a judge may consider pursuant to a Rule 12(b)(6) motion, the "notice in the record" requirement of Kimbley becomes mandatory. The burden of proving that the adverse party had notice of the intent to convert the Rule 12(b)(6) motion to one for summary judgment is on the movant. Notice should be evidenced in the record by a writing such as a pleading, a letter, a written stipulation, or an oral stipulation on a transcribed record, but in cases where affidavits are not filed, the record must clearly indicate that the nonmoving party had notice of the intent to convert.

In this case, defendants should have prepared a summary-judgment order for submission to the court if expecting a Rule 56 result. Likewise, a record problem exists. Hickey v. Burnett, Wyo., 707 P.2d 741 (1985).

We hold that since no notice of conversion to a summary judgment proceeding was given to appellant prior to hearing, the proceeding was conducted under Rule 12(b)(6), and will be considered under its purview.

...