Tripp v. May, 10325.

• Decision Date: 22 May 1951
• Docket Number: No. 10325.,10325.
• Citation: 189 F.2d 198
• Parties: TRIPP v. MAY et al.
• Court: U.S. Court of Appeals — Seventh Circuit

189 F.2d 198 (1951)

TRIPP v. MAY et al.

No. 10325.

United States Court of Appeals Seventh Circuit.

May 22, 1951.

Ralph S. McFarland, Jerome Lerner, Chicago, Ill., for appellants.

Benjamin H. Weisbrod, Sidney K. Jackson, Chicago, Ill. (Wilson & McIlvaine, Chicago, Ill., of counsel), for appellee.

Before MAJOR, Chief Judge, and KERNER and DUFFY, Circuit Judges.

KERNER, Circuit Judge.

Plaintiff sued for overtime compensation, liquidated damages, and attorney's fees alleged due under the provisions of the Fair Labor Standards Act, 29 U.S.C.A. § 201 et seq. Defendants answered denying liability and asserting plaintiff's exemption from the provisions of the Act relating to overtime compensation on the ground that he was employed in a bona fide administrative capacity. They also asserted good faith reliance on administrative rulings as a defense to either primary liability or the penalty provisions of the Act. Plaintiff served interrogatories inquiring as to the particular administrative rulings relied upon in defense. Defendants answered the interrogatories and then filed motion for summary judgment based on the same grounds set up in their answer — plaintiff's exemption and their own good-faith dealing with him as an exempt employee.

The matter came on for hearing on defendants' motion for summary judgment. The court, after reciting that he had read and considered plaintiff's complaint with exhibits thereto attached, defendants' answer thereto and their motion with supporting affidavits, and had heard arguments of counsel, denied defendants' motion and rendered findings of fact to the effect that throughout plaintiff's period of employment he was not an "employee employed in a bona fide * * * administrative * * * capacity" as set forth in the regulations of the Administrator of the Wage and Hour Division for the sole reason that plaintiff was not compensated for his services on the salary or fee basis required by such regulations; that the pleadings, exhibits, motion and supporting affidavits did not establish that defendants were relieved from liability or the payment of liquidated damages by reason of the Portal to Portal Act 29 U.S.C.A. § 251 et seq.; that defendants had admitted that if plaintiff were entitled to recover, the amount, $368.32, as computed by him, was correct; and that $500 was a reasonable attorney fee for the services rendered by plaintiff's attorney in the action. The court thereupon, "and on motion of the plaintiff," rendered judgment for plaintiff for overtime compensation and liquidated damages totalling $736.64 and $500 attorney fees.

Defendants' first contention is that it was error for the court to entertain and rule on plaintiff's oral cross motion for summary judgment advanced at the time of hearing on defendants' motion, without the requisite ten days' notice. However, as we view the record presented we are not convinced that that fairly describes the court's disposition of this cause. While the hearing was described as "on the motion of defendants for a summary judgment," it appears to be a fair inference from the record that the court and the parties at that time treated it as final and as presenting everything which could be presented in the determination of the issues of the cause. Obviously, the questions of exemption and good faith both presented issues of fact. See Walling v. General Industries Co., 330 U.S. 545, 67 S.Ct. 883, 91 L.Ed. 1088; Lassiter v. Guy F. Atkinson Co., 9 Cir., 176 F. 2d 984. But they are ultimate facts which must be established by evidence, and the sufficiency of such evidence to establish them is a question of law for the court to determine. Hurd v. Sheffield Steel Corp., 8 Cir., 181 F.2d 269, 271. Here it appears that defendants first asserted exemption and good faith as separate affirmative defenses in their answer to the complaint. They then filed their motion for summary judgment based on the same grounds, attaching thereto the evidentiary facts relied upon to establish each in the form of affidavits of two key executive employees of defendants, and certain documents. Hearing was had, and the court denied defendants' motion and apparently indicated his willingness to rule in favor of plaintiff. One week thereafter, findings of fact and conclusions of law were rendered, and final judgment entered for plaintiff.

Defendants admit that they made no objection to the alleged procedural defect now asserted, either following the hearing or in their statement of points for appeal, but explain that they were unaware of it, supposing that the rule was as stated in the case, Hooker v. N. Y. Life Ins. Co., D.C., 66 F.Supp. 313. It is true that there has been some conflict of decision on the question. The problem is discussed in 3 Barron and Holtzoff, § 1239:

"This rule Fed.Rules Civ.Proc. Rule 56, 28 U.S.C.A. makes no specific provision for a case in which the opposing party, and not the moving party, is entitled to summary judgment. Several cases have held that since the purpose of this procedure is to expedite the disposition of cases, a summary judgment may be rendered against the party moving for judgment and in favor of the opposing party although the latter has made no cross motion for judgment. Other cases have held that such a judgment may not be entered in the absence of a cross motion and have withheld disposition of the motion to allow a cross motion to be made. * * * In considering the principles discussed in this section, it should be kept in mind that a party moving for summary judgment concedes the absence of a factual issue only for the purpose of his motion. For example, a defendant who moves for a summary judgment on the ground that the claim is barred by limitations may contend that there is no issue of fact as to this defense, but if this defense is held ineffective as a matter of law, he may still contend that there is an issue of fact as to his liability on the claim asserted against him."

In our case, defendants did not seek further hearing to establish a different defense. Instead, they state in their brief that they were prepared to prove their good faith by their change in contract to conform with administrative regulations as construed by a decision involving the claim of other alleged administrative employees against themselves. Chepard v. May, D.C., 71 F. Supp. 389. However, this contract was already before the court as one of plaintiff's exhibits, and its sufficiency to meet the objections theretofore urged was for the court to determine.

Considering the judgment as a summary one entered on plaintiff's oral motion without notice, we think that under the circumstances disclosed by this record there was no procedural defect in such disposition of the cause. See Hennessey v. Federal Security Administrator, D.C., 88 F.Supp. 664, 668.

We find a further reason for approving the entry of a judgment on the record presented. In the instant case the attorney for defendants, in addressing the trial judge, said: "We can't offer anything further on the trial of this case. There is not any dispute as to...