Wagoner v. Mountain Savings and Loan Association, 6961.

• Decision Date: 03 December 1962
• Docket Number: No. 6961.,6961.
• Citation: 311 F.2d 403
• Parties: Fred K. WAGONER, Jack R. Wagoner, Donald L. Wagoner and Howard R. Wagoner, co-partners, doing business under the firm name and style of Wagoner Construction Company, Appellants, v. MOUNTAIN SAVINGS AND LOAN ASSOCIATION, a corporation, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

311 F.2d 403 (1962)

Fred K. WAGONER, Jack R. Wagoner, Donald L. Wagoner and Howard R. Wagoner, co-partners, doing business under the firm name and style of Wagoner Construction Company, Appellants, v. MOUNTAIN SAVINGS AND LOAN ASSOCIATION, a corporation, Appellee.

No. 6961.

United States Court of Appeals Tenth Circuit.

December 3, 1962.

No appearance for appellants.

C. Blake Hiester, Denver, Colo. (Hiester, Tanner & Clanahan, and Bill Earl Tom, Denver, Colo., were with him on the brief), for appellee.

Before LEWIS, BREITENSTEIN and SETH, Circuit Judges.

LEWIS, Circuit Judge.

Appellants-plaintiffs seek relief from an adverse and summary judgment entered by the District Court for the District of Colorado upon claim that the existence of disputed facts prevent the application of Rule 56, F.R.C.P. Plaintiffs' original complaint was filed May 12, 1959, and contained four causes of action; it was dismissed with leave to amend. A first amended complaint was similarly dismissed. A second amended complaint followed and, upon motion of appellee-defendant for summary judgment, was dismissed as to the third and fourth causes alleged because barred by the applicable statute of limitation; the trial court held in abeyance a ruling upon the first two causes of action pending compliance by plaintiffs with an order of the court requiring clarification of plaintiffs' counter-affidavits filed in opposition to the motion for summary judgment. Such order was premised upon the following procedural background.

In the first and second causes plaintiffs alleged:

(1) That plaintiffs entered into an oral and written agreement with defendant on or about June 29, 1955, whereby it was agreed that plaintiffs would convey to corporations controlled by the defendant certain real property in Boulder County, Colorado, in exchange for defendant's payment of outstanding obligations of the construction company incurred in connection with another property development. It was further agreed that the defendant would advance loans for the construction of homes upon the property conveyed by the agreement and would have the property reconveyed as needed for its development at the same consideration, a total amount of approximately $85,000. It is alleged that defendant has refused to provide the construction loans and to reconvey the property.

(2) That in a similar transaction on July 24, 1955, plaintiffs conveyed certain real property and water rights in Boulder to another corporation in exchange for defendant's promise to pay $120,000, advance construction loans, and reconvey the property as construction progressed. It is alleged that defendant has paid only $96,000 and has refused to provide loans or reconvey the property.

Defendant denied the agreements although admitting that several loans were made to the plaintiffs. In pre-trial conference plaintiffs admitted that the only portion of the agreements in writing were the deeds of conveyance.

Defendant also pleaded the statute of frauds and further alleged that two general releases were executed by plaintiffs on July 28, 1955, and June 19, 1956. These releases, supported by affidavits and copies, formed the basis for defendant's motion for summary judgment as to plaintiffs' first two alleged claims. In opposition to the motion plaintiffs filed affidavits alleging that the releases were executed without their knowledge or consent and without consideration. The order of the trial court requiring clarification was directed to the generalities of these affidavits and required plaintiffs:

"* * * to file another or other affidavits in opposition to defendant Mountain Savings and Loan Association\'s Motion for Summary Judgment within 15 days from the date of this Order, clarifying the statements made by plaintiffs in Paragraph 3 of plaintiffs\' affidavit in opposition to Motion by defendant Mountain Savings and Loan Association for Summary Judgment, now on file herein, to-wit:

"`Affiants and each of them allege that the said execution of said release as aforesaid was made without their knowledge and consent and without any consideration therefore.\'

"stating specifically what occurred with respect to the execution of these releases and stating with particularity why plaintiffs did not know that the releases were being executed or why they were executed without their knowledge and consent, also stating with particularity why the execution of said releases were made without any consideration therefor."

Holding that the affidavit of the plaintiff, Fred K. Wagoner, filed in response to the court's order did not constitute legal compliance with the order and did not show a disputed fact affecting plaintiffs' alleged first and second causes, the trial court entered summary judgment in favor of defendant. This appeal followed and questions only the correctness of the trial court's judgment upon the first and second causes claimed by plaintiffs.

The Wagoner affidavit stated:

"At no time was there any agreement between this affiant or any of the other plaintiffs and defendant, Mountain Savings and Loan Association, to give the latter a general release on or about the 28th of July, 1955; that any purported release * * * were (sic) obtained by trick and device and without the knowledge of this affiant or of any of said plaintiffs.

"It is inconceivable that this affiant or any of the plaintiffs would execute such release due to the fact that only a few days before plaintiffs borrowed the

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