Aho v. Maragos

1998 ND 107, 579 N.W.2d 165, 1998 N.D. LEXIS 117, 1998 WL 261563

• Court: North Dakota Supreme Court
• Decided: May 26, 1998
• Docket: Civil 970265
• Status: Published

Opinions

VANDE WALLE, Chief Justice.

[¶ 1] Alex Maragos appealed from a summary judgment quieting title to mineral interests in Gloria Aho, Beverly J. Hamel, and Darlene Aliff. We conclude the district court erred in denying Maragos’s motion for a continuance to conduct further discovery, and we reverse.

[¶ 2] Edwin and Mildred Feland owned the property in question and, in 1984, named Maragos their agent to clear title to the property. In 1988 the Felands granted an oil and gas lease with a primary term of three years to Maragos. In 1990, Maragos brought an action to quiet title to the mineral interests against Norwest Bank and Flore Properties. Upon motion of Norwest and Flore, the Felands were made involuntary plaintiffs in that action. Mildred Feland died while the case was pending, and Edwin Fe-land became sole owner of the property.¹ The case was ultimately settled on January 10, 1994, when the parties stipulated to quiet title to the minerals in Maragos and Edwin Feland. Edwin Feland died that same day, and his interest in the disputed minerals passed to his children, Gloria Aho, Beverly J. Hamel, and Darlene Aliff (hereafter “the heirs”).

[¶ 3] Maragos claims he had an oral agreement with Edwin Feland that, as soon as the Norwest litigation was concluded, Feland would lease the minerals to Maragos. The heirs have refused to honor this alleged oral agreement, and on January 7, 1997, they brought this action to quiet title to the disputed mineral interests. Maragos filed an answer on February 18, 1997. The heirs moved for summary judgment on April 3, 1997, and a telephonic hearing on the motion was held on April 23, 1997. At that hearing, Maragos moved for a continuance, asserting he had not had an opportunity to conduct necessary discovery to adequately oppose the summary judgment motion. On June 13, 1997, the district court, without specifically addressing Maragos’s motion for a continuance, granted summary judgment quieting title in the heirs.

[¶ 4] The dispositive issue on appeal is whether the district court erred in not granting Maragos’s request for additional time to conduct discovery to develop evidence in opposition to the motion for summary judgment. N.D.R.Civ.P. 56(f) provides:

“(f) When Affidavits Are Unavailable. Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party’s opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.”

A request for additional time for discovery under Rule 56(f) invokes the trial court’s discretion, and its decision will not be overturned on appeal absent an abuse of that discretion. Perry Center, Inc. v. Heitkamp, 1998 ND 78, ¶¶ 10-11, 576 N.W.2d 505; Continental Casualty Co. v. Kinsey, 513 N.W.2d 66, 69 (N.D.1994). However, summary judgment under Rule 56 is only appropriate if the nonmoving party has had a full opportunity to conduct discovery to develop information essential to its position. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n. 5, 257, 106 S.Ct. 2505, 2511 n. 5, 2514, 91 L.Ed.2d 202, 213 n. 5, 217 (1986); see also 11 Moore’s Federal Practice § 56.10[8][a] (1998) (“The district courts have a duty under Rule 56(f) to ensure that the parties have been given a reasonable opportunity to make their record complete before ruling on a motion for summary judgment”).

[¶ 5] In this ease, the district court did not address Maragos’s motion for a continuance or give any reasoning or rationale for its implicit denial of the motion. The court merely, at a later date, granted the heirs’ motion for summary judgment. The factual situation is virtually identical to Johnson Farms v. McEnroe, 1997 ND 179, ¶ 30, 568 N.W.2d 920, in which the trial court “ignored” the nonmoving party’s request for additional time for discovery and granted summary judgment. In concluding that the court erred in failing to allow additional time for discovery, we stressed that Rule 56(f) must be liberally applied:

“ ‘[t]he purpose of subdivision (f) is to provide an additional safeguard against an improvident or premature grant of summary judgment and the rule generally has been applied to achieve that objective. Consistent with this purpose, courts have stated that technical rulings have no place under the subdivision and that it should be applied with a spirit of liberality.’ ”

Johnson Farms, 1997 ND 179, ¶27, 568 N.W.2d 920 (quoting 10A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure: Civil 2d § 2740, at p. 532 (1984)); see also, e.g., Resolution Trust Corp. v. North Bridge Associates, Inc., 22 F.3d 1198, 1203 (1st Cir.1994).

[¶ 6] We note Maragos’s request for a continuance was not made by affidavit, but by an oral motion at the hearing. Johnson Farms, 1997 ND 179, ¶ 29, 568 N.W.2d 920, answers this concern:

“If the trial court’s reason for denying the request is because it was not made in affidavit form, that reason is not apparent from the decision and, in any event, would be a technical application of a rule that should be applied with a spirit of liberality.”

See also Larson v. Baer, 418 N.W.2d 282, 288-289 (N.D.1988); Davis v. Satrom, 383 N.W.2d 831, 833 (N.D.1986). Numerous cases construing the corresponding federal rule indicate the request for a continuance need not be in affidavit form. See, e.g., Stults v. Conoco, Inc., 76 F.3d 651, 657-658 (5th Cir.1996); St. Surin v. Virgin Islands Daily News, Inc., 21 F.3d 1309, 1314 (3d Cir.1994); Bryant v. Ford Motor Co., 886 F.2d 1526, 1534 (9th Cir.1989), cert. denied, 493 U.S. 1076, 110 S.Ct. 1126, 107 L.Ed.2d 1033 (1990).

[¶ 7] Our primary concern under Rule 56(f) is to ensure that parties are given a full and fair opportunity to conduct necessary discovery before being required to meet a motion for summary judgment. Rule 56(f) “is intended to safeguard against judges swinging the summary judgment axe too hastily.” Resolution Trust, 22 F.3d at 1203. We will apply the rule to prevent a “rush to summary judgment” when a party has been denied a fair opportunity to conduct discovery.²

[¶8] In this case, the heirs moved for summary judgment six weeks after Maragos served his answer. The hearing was held 20 days later. When presented with this accelerated time frame, we believe the district court abused its discretion in failing to allow Maragos additional time to conduct discovery to oppose the motion for summary judgment. See Weidner v. Engelhart, 176 N.W.2d 509, 520 (N.D.1970) (“due to the short period of time involved,” the trial court erred in refusing to allow time for discovery and granting summary judgment where actions were commenced in late 1967 and early 1968 and separate summary judgments were entered in June, September, October, and November of 1968).

[¶ 9] The summary judgment is reversed and the ease is remanded for further proceedings consistent with this opinion.

[¶ 10] MESCHKE and MARING, JJ., and MAURICE R. HUNKE, District Judge, concur. [¶ 11] MAURICE R. HUNKE, District Judge, sitting in place of NEUMANN, J., disqualified.

1 . For a detailed discussion of the complex factual background and procedural history, see Maragos v. Norwest Bank Minnesota, N.A., 507 N.W.2d 562 (N.D.1993).

2 . We have noted, however, that a court’s discretion to deny a Rule 56(f) request may be broader when further discovery would not involve an issue which is the subject of the summary judgment motion or when the summary judgment motion is based upon governmental immunity. Perry Center, 1998 ND 78, ¶ 10, 576 N.W.2d 505.