Burningham v. Ott

525 P.2d 620, 1974 Utah LEXIS 589

• Court: Utah Supreme Court
• Decided: July 29, 1974
• Docket: 13522
• Status: Published

Opinions

ELLETT, Justice:

This is an appeal by plaintiff from a summary judgment in favor of defendant Ott of no cause of action in a suit sounding in fraud.

Plaintiff bought some stock in a corporation in which Ott was an officer. Both were good friends apparently, business-wise and religious-wise. Nonetheless, this affection one for the other ceased to exist when the plaintiff learned that the stock, which on its face was escrowed, did not appreciate in value as Ott had indicated it would. Plaintiff in his pleadings and brief urges a guaranty of profit irrespective of future developments.

The defendants answered, denying the fraud and claiming that the action is barred by any one and all of three limitation statutes. ¹

The only apparent question of fact developed by the pleadings and the discovery process is that after plaintiff signed a stock purchase agreement having a restricted sales condition provision written therein, and after plaintiff received notices of stockholders’ meetings and statements of corporate operations, and after often contacting company representatives and its attorney, and after knowing or having the reasonable ability to discover any fraud, plaintiff was given some more shares of stock without consideration.

The additional stock given without consideration in no sense could have been construed as a modification of the written, specific contract of the stock purchase so as to toll the statutes of limitation.

The pleadings and the proof under the discovery process fail to show that there is any dispute of a material issue of fact.

Plaintiff says the case should be decided under the rules that (1) the evidence should be viewed in a light favorable to the plaintiff and (2) a summary judgment is a harsh rule. He is not correct in either claim. In summary judgments evidence is not to be viewed. The judgment can be given only in case there is no dispute on a material evidentiary matter. We do not see that it is a harsh rule to tell a party that he is or is not entitled to recover as a matter of law when the facts are not in dispute.

The dissent takes issue with the idea that it is not a harsh remedy for a court to grant a summary judgment and cites three cases by three separate justices of this court to the effect that a summary judgment is a harsh remedy. It could have cited twelve more by the author of the dissent² and nine by Justice Wade saying the same thing.³ In three ⁴ of the cases by Justice Wade he in substance said;

Such showing must preclude all reasonable possibility that the loser could, if given a trial, produce evidence which would reasonably sustain a judgment in his favor.

Who knows what evidence a party might produce if given the opportunity? In the light of the modern practice under the Rules of Civil Procedure, a trial is not to be by ambush. Instead, the evidence upon which one relies for judgment can be, and should be, known to the opponent; and when all the evidence is known, if there is no dispute on any material issue of fact, the rules provide that the court may apply the law and thus terminate the matter, thereby conserving the time of the court and avoiding expense to the state and to the litigants.

Gratuitous statements put in decisions to the effect that a summary judgment is a harsh remedy and should never be given if at trial a party might be able to produce evidence which would reasonably sustain a judgment in his favor, tends to cause trial judges to hesitate to grant motions for summary judgments in those cases where there are no disputed issues of material facts. The only harsh thing about summary judgments is for a trial judge to fail in his duty to apply the law and summarily decide a case when there is no disputed issues of material facts.

The judgment is affirmed with costs to the respondent.

CALLISTER, C. J., and TUCKETT, J, concur.

1 . Sec. 61-1-22(5), U.C.A.1953; 15 U.S. O.A. 77m; Sec. 78-12-26(3), U.C.A.1953.

2 . Allen’s Products Company v. Glover, 18 Utah 2d 9, 414 P.2d 93 (1966); Theros v. Metropolitan Life Insurance Company (dissenting opinion), 17 Utah 2d 205, 407 P.2d 685 (1965); Thompson v. Ford Motor Co., 16 Utah 2d 30, 395 P.2d 62 (1964); Kidman v. White, 14 Utah 2d 142, 378 P.2d 898 (1963); Samms v. Eccles, 11 Utah 2d 289, 358 P.2d 344 (1961); Henry v. Washiki Club Inc., 11 Utah 2d 138, 355 P.2d 973 (1960); Pender v. Alix (dissenting opinion), 11 Utah 2d 58, 354 P.2d 1066 (1960); Brandt v. Springville Banking Co., 10 Utah 2d 350, 353 P.2d 460 (1960); Richards v. Anderson, 9 Utah 2d 17, 337 P.2d 59 (1959); Auto Lease Company v. Central Mutual Insurance Co., 7 Utah 2d 336, 325 P.2d 264 (1958); Abdulkadir v. Western Pacific Railroad Co., 7 Utah 2d 53, 318 P.2d 339 (1957); Morris v. Farnsworth Motel, 123 Utah 289, 259 P.2d 297 (1953).

3 . Security Title Co. v. Payless Builders Supply, 17 Utah 2d 179, 407 P.2d 141 (1965); Gillmor v. Carter, 15 Utah 2d 280, 391 P.2d 426 (1964); Frederick May & Co. v. Dunn, 13 Utah 2d 40, 368 P.2d 266 (1962); Green v. Garn, 11 Utah 2d 375, 359 P.2d 1050 (1961); Tanner v. Utah Poultry & Farmers Cooperative, 11 Utah 2d 353, 359 P.2d 18 (1961); Bullock v. Deseret Dodge Truck Center, Inc., 11 Utah 2d 1, 354 P.2d 559 (1960); Bridge v. Backman, 10 Utah 2d 366, 353 P.2d 909 (1960); In re Williams’ Estates, 10 Utah 2d 83, 348 P.2d 683 (1960); Young v. Texas Co., 8 Utah 2d 206, 331 P.2d 1099 (1958).

4 . Green v. Garn, 11 Utah 2d 375, 359 P.2d 1050 (1961); Bullock v. Deseret Dodge Truck Center, Inc., 11 Utah 2d 1, 354 P.2d 559 (1960); Frederick May & Co. v. Dunn, 13 Utah 2d 40, 368 P.2d 266 (1962).