Western Sur. Co. v. Town of Evansville, 83-136

• Decision Date: 18 January 1984
• Docket Number: No. 83-136,83-136
• Citation: 675 P.2d 258
• Parties: WESTERN SURETY CO., Appellant (Defendant), Barbara Moore, (Defendant), v. TOWN OF EVANSVILLE, Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 258

675 P.2d 258

WESTERN SURETY CO., Appellant (Defendant) Barbara Moore, (Defendant), v. TOWN OF EVANSVILLE, Wyoming, Appellee (Plaintiff).

No. 83-136.

Supreme Court of Wyoming.

Jan. 18, 1984.

David A. Scott of Murane & Bostwick, Casper, for appellant.

Frank R. Chapman, Casper, for appellee.

Before ROONEY, C.J., and THOMAS, ROSE, BROWN and CARDINE, JJ.

CARDINE, Justice.

The Town of Evansville brought suit upon a bond issued by Western Surety Company to recover losses resulting from misappropriation of funds by the town treasurer and clerk of the municipal court. From a summary judgment granted appellee, Town of Evansville, Western Surety brings this appeal.

The sole issue presented for our determination, as stated by appellant, is whether:

"[The court] erred in granting a summary judgment in favor of the Appellee and against the Appellant, the summary judgment being granted on information contained in an affidavit submitted by the Appellee and in a written report prepared by the Office of the State Examiner of the State of Wyoming concerning certain financial books and records of the Appellee."

We will affirm the summary judgment in the amount of $25,000 for losses in each of the five years following the fiscal year ending June 1975, and remand for trial appellee's claim for the fiscal year commencing June 1974 and ending June 1975.

The state examiner undertook an audit of the books and accounts of the Town of Evansville for the period commencing July 1, 1978 through February 29, 1980. When large deficiencies were disclosed in this audit, material from two previous examinations for the periods December 1, 1973 through January 31, 1976, and February 1, 1976 through June 30, 1978, was re-examined and evaluated. As a result of the examinations, the town treasurer was charged with misappropriation of funds in the amount of $192,906.17 and thereafter pled guilty to a charge of "failure to account at the end of office." Section 6-7-306, W.S.1977. The town treasurer gave bond to the Town of Evansville in the amount of $5,000 conditioned that she would,

" * * * honestly * * * perform all the duties of * * * Treasurer * * * prescribed by law * * * with all reasonable skill, diligence, good faith and honesty safely keep and be responsible for all funds [received by virtue of the office] and pay over without delay * * * all moneys * * * [to her successor] * * *."

Admissions at the pretrial conference held in this case, as shown by the pretrial memoranda of the parties, were as follows:

"1. That Western Surety Company's bond 5530268 was initially issued on August 16, 1974, and executed by Barbara A. Moore, as Treasurer of the Town of Evansville, and Western Surety Company as surety, in the sum of $5,000.00, that said bond was renewed annually until it was cancelled by Western Surety Company as a result of the termination by the Town of Evansville of Barbara A. Moore's employment as treasurer of that town.

"2. That said bond provided coverage for losses up to and including the amount of $5,000.00 on an annual basis providing said losses were attributable to Barbara A. Moore in her capacity as Treasurer of the Town of Evansville."

Western Surety made further admissions in its statement of factual issues as follows:

"Defendant Western Surety Company does not dispute the amount of the loss claimed by the plaintiff nor that the losses are attributable to Barbara Moore. Neither does Western Surety Company dispute the findings stated in the offices [sic] of the State Examiner's report which is attached to the plaintiff's Complaint as an exhibit."

Appellant, Western Surety Company, filed a motion requesting that summary judgment be entered in favor of the Town of Evansville in the amount of $15,000 and no more than this amount. Appellant took the position that the only losses established by the examiner's report were for the years 1978, 1979, and 1980; that losses due to misappropriation of funds by the town treasurer exceeded $5,000 in each of those years; and that the maximum coverage provided by the bond issued by Western Surety Company was $5,000 for each year. In essence, appellant's motion was an offer or confession of judgment in the amount of $15,000.

Appellee filed an affidavit in opposition to the motion for summary judgment. The affidavit was prepared by a certified public accountant employed by appellee. Although the affidavit was entitled "in opposition of," it did not "oppose" but sought summary judgment in the amount of $30,000 or $15,000 more than the amount contended for by appellant. The parties raise no issue concerning timely filing of the affidavit, opportunity to respond to it or the propriety of entry of summary judgment. The dispute between them concerns only whether the summary judgment should be entered in an amount greater than $15,000.

The affidavit prepared by appellee's certified public accountant stated the following:

"4. That your Affiant has reviewed the State Examiner's report dated March 16, 1980 regarding the books and records of the Town of Evansville including receipts and deposits for January 1, 1975 to February 29, 1980 inclusive.

* * *

* * *

"6. That the Town of Evansville was on a June to June fiscal year and that the bond coverage on Barbara Moore began in 1974 and continued thereafter from June to June each year.

"7. That beginning in December of 1975, deposits of currency from the Town of Evansville court fund fell drastically and were apparently compensated by monies from the Town's water sink fund being placed into the Town's general fund from which funds were used to cover the shortages.

* * *

* * *

"10. That your Affiant has reviewed the available bank records of the Town of Evansville for the period 1975 through 1980 and it appears that there was over $5,000.00 loss in each year as a result of the cash deposit shortages and the water sink fund shortages for fiscal years 1975, 1976, 1977, 1978, 1979 and 1980."

The court entered summary judgment for the maximum loss covered under the bond in each year in a total amount of $30,000 in favor of appellee, Town of Evansville. Appellant contends the affidavit of the CPA should not have been considered because of its conclusory nature; that, in the absence of the affidavit, there was only the examiner's report for the court to consider; and that it was insufficient to support the entry of summary judgment for the six-year period in the amount of $30,000.

We have before us the report of the examiner, the affidavit of appellee's expert, and all other material that was before the district court when it considered this motion for summary judgment. On review our duty is the same as that of the district court in determining whether and to what extent summary judgment should be entered. Dubus v. Dresser Industries, Wyo., 649 P.2d 198 (1982).

A party seeking summary judgment has the burden of proving that there is no genuine issue of material fact. Any doubt as to the existence of such an issue is resolved against the party carrying that burden. Underwater Storage, Inc. v. United States Rubber Company, 371 F.2d 950 (C.A.D.C.1966), cert. denied 386 U.S. 911, 87 S.Ct. 859, 17 L.Ed.2d 784 (1967). Thus,

" * * * The court, upon considering a motion for summary judgment is compelled to closely scrutinize the moving party's document; whereas, the opposing parties' papers, if any, should be treated with some indulgence. * * * " Continental Aircraft Sales v. McDermott Brothers Company, 316 F.Supp. 232, 236 (D.C.Pa.1970).

In considering all of the materials presented, both in support of and in opposition to the motion for summary judgment, we view the record in a light most favorable to the party opposing the motion for summary judgment and give to that party the benefit of all favorable inferences that might be drawn from those materials. Schepps v. Howe, Wyo., 665 P.2d 504 (1983); Dubus v. Dresser Industries, supra; Bender v. New Zealand Bank & Trust (Bahamas) Ltd., 67 F.R.D. 638 (D.C.N.Y.1974).

Here appellant filed a motion for summary judgment, but it was more in the nature of a confession of judgment in the amount of $15,000. Appellee filed an affidavit seeking entry of summary judgment in the amount of $30,000. To the extent that appellee sought summary judgment in an amount greater than $15,000, he was the moving party; and it is the affidavit he presented that we closely scrutinize as we view the evidence in a light most favorable to appellant.

Rule 56(e), W.R.C.P. ¹ , requires that affidavits filed in summary judgment proceedings "shall set forth such facts as would be admissible in evidence," and shall have attached thereto "copies of all papers or parts thereof referred to" in the affidavit. Appellee employed a certified public accountant as an expert who presented an affidavit that was partly factual but mostly contained opinions based upon a review of certain documents and records. He concluded that

" * * * deposits of currency from the Town of Evansville court fund fell drastically and were apparently compensated by monies from the Town's water sink fund * * *," (Emphasis added.)

and that

" * * * it appears that there was over $5,000.00 loss in each year * * *." (Emphasis added.)

No supporting documents were attached, nor even identified, nor were facts stated supporting the opinions. If deposits of cash were less than usual, how much less were they, how often did that occur, and in what amounts?

Affidavits used in summary judgment proceedings must set forth such facts as are admissible in evidence, and that is especially true when the affidavit contains significant opinions and conclusions that may be critical in the outcome of the case. It matters not that the opinion of an expert may be admissible at trial without first revealing the underlying facts and basis for that opinion. This is a summary judgment hearing and the requirements are different. The fact finder must have the material facts,...