United Elec. Service & Supply, Inc. v. Powers, 900316
| Decision Date | 16 January 1991 |
| Docket Number | No. 900316,900316 |
| Citation | 464 N.W.2d 818 |
| Court | North Dakota Supreme Court |
| Parties | UNITED ELECTRIC SERVICE & SUPPLY, INC., Plaintiff and Appellee, v. Ed Patrick POWERS, Jr., Defendant and Appellant. Civ. |
Ed Patrick Powers, Jr., Fargo, (argued), pro se.
Nilles, Hansen & Davies, Fargo, for plaintiff and appellee.
Ed Patrick Powers, Jr., (Powers) appeals from a June 8, 1990, judgment issued by the County Court for Cass County, which granted United Electric Service's motion for summary judgment. This action was initially commenced in a small claims court, but was subsequently removed to county court. Both parties filed summary judgment motions and appeared before the county court on June 4, 1990. Powers apparently contends that material issues of fact exist which preclude summary judgment.
In September of 1989, Powers brought a vehicle and an alternator to United Electric Service for various repairs. Powers signed the repair orders using his own name and without indicating that he was signing in any representative capacity. In paying for the services, he submitted a check allegedly issued by West Fargo Transportation, allegedly signed by Bruce Wylie, drawn on the First Guaranty Bank of Springfield, Louisiana. The check was returned because of insufficient funds in the account. United Electric Service then elected to proceed directly against Powers in small claims court.
On appeal, Powers does not dispute that the work was provided by United Electric Service or that he signed the repair orders. His contention seems to be that he is not personally responsible for the obligation. Powers asserts that this is a question of fact which must preclude summary judgment. Had he appropriately raised this issue in the trial court, he might have been successful in opposing summary judgment against him. To do so he would have had to comply with Rule 56(e), N.D.R.Civ.P. This he did not do. Although Powers did submit an affidavit and brief opposing the summary judgment, he failed to raise any issues of material fact which would preclude United Electric Service's motion for summary judgment. Powers conceded during oral argument that he failed to raise this issue in the trial court, his contention there being that United Electric Service should have sent the check through again.
Summary judgment is a procedural device which can be used to promptly and expeditiously dispose of a controversy without a trial, if there is no dispute as to any...
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