Matthews v. Wyoming Department of Agriculture

719 P.2d 216, 1986 Wyo. LEXIS 554

• Court: Wyoming Supreme Court
• Decided: May 16, 1986
• Docket: 85-7
• Status: Published

Opinions

CARDINE, Justice.

James Matthews appeals from a summary judgment order issued by the district court in favor of the Wyoming Department of Agriculture and three of its employees. The district court held that the Wyoming Governmental Claims Act, §§ 1-39-101 through 1-39-119, W.S.1977, Cum.Supp. 1985, barred all of Matthews' claims for damages. We affirm in part and reverse in part.

FACTS

Appellant Matthews operates a commercial meat processing plant in Upton, Wyoming under a state license which subjects him to regulation by the Wyoming Department of Agriculture. Sections 35-7-701 through 35-7-710, W.S.1977, Cum.Supp. 1985 (Wyoming Wholesome Meat Act of 1969). On July 25, 1984, appellant initiated this action against the department; its commissioner, John Orton; the administrator of the state meat inspection program, Robert Fetzner; and a meat inspector, Douglas Krogman. Orton was named in his official capacity while Fetzner and Krogman were sued in both their official and individual capacities. Appellant sought to enjoin all the appellees from restricting the use of his cooling facilities and animal holding pens, and from otherwise interfering with his operations. He also sought compensatory and punitive damages for loss of business.

On November 13, 1984, appellees filed a joint summary judgment motion supported by a memorandum and affidavits. The motion was limited to the action for damages and relied upon § l-39-104(a), W.S.1977, Cum.Supp.1985, which states in part:

“A governmental entity and its public employees while acting within the scope of duties are granted immunity from liability for any tort except as provided by W.S. 1-39-105 through 1-39-112.”

Appellees also discussed § 1-39-112, the law enforcement exception, which states:

“A governmental entity is liable for damages resulting from tortious conduct of law enforcement officers while acting within the scope of their duties.”

Appellees argued that they enjoyed governmental immunity because they were public employees of a governmental entity and because none of the exceptions to § l-39-104(a), including the law enforcement exception, applied. In their affidavits, appellees Orton, Fetzner and Krog-man outlined their official duties, emphasizing that none of those duties involved law enforcement. But neither Fetzner nor Krogman, who were sued in their individual capacities, stated whether they were acting within the scope of their official duties when the alleged tortious acts took place. The only evidence involving the actions of Fetzner and Krogman appears in transcripts they gave at a hearing on a motion to dismiss and a hearing on appellant’s preliminary injunction claim. Although these transcripts have been included in the record on appeal, they were not attached to appellees’ summary judgment motion or otherwise available to the district court. Appellees never mentioned the prior hearings in their summary judgment motion or brief accompanying that motion. If the district court based its summary judgment on the testimony contained in the transcripts, the court did so purely from memory-

The district court granted injunctive relief to appellant but also granted summary judgment to all appellees on all of appellant’s damage suits. Appellant has raised the propriety of the summary judgment on appeal.

IMMUNITY UNDER THE GOVERNMENTAL CLAIMS ACT

Appellant has sued all the appellees, including the department, in their official capacities. A person acting in an official capacity is, by definition, acting within the scope of his duties. Therefore, the exception in § l-39-104(a) which permits suit against governmental employees who act outside the scope of their duties cannot apply to these “official capacity” claims. The basic immunity language of § 1-39-104(a), supra, bars appellant’s “official capacity” claims unless one of the other statutory exceptions to immunity applies.

The only exception that could arguably apply is the law enforcement exception, § 1-39-112, supra. Factually there is no genuine issue concerning the law enforcement aspects of appellees’ duties. Appel-lees Orton, Fetzner and Krogman all submitted uncontradicted affidavits detailing their official duties. Commissioner Orton’s affidavit is typical:

“5. I do not have the power under the Wyoming Statutes dealing with the Act, nor is it my duty under those statutes to hold in custody any person accused of a criminal offense or of a violation of the Act, or to arrest any person charged with committing a crime or a violation of the Act, nor is it one of my duties nor within my authority to maintain public order or to carry a weapon in the performance of my duties under the Act.

“6. That the Attorney General or the county and prosecuting attorney where the violation occurred has the responsibility pursuant to Wyoming Statute § 35-7-709 to charge persons with' violations of the Act and to initiate criminal action under the Act.”

Because the department can act only through its employees and because the department’s liability in this case derives solely from the acts of the three individual appellees, there was no need for the department to submit additional affidavits detailing the law enforcement powers of the department as a whole.¹ The only official duties relevant to the department’s liability in this case are the duties of the three individual appellees which were fully covered by their affidavits.

Once the appellees established their official duties as a matter of fact, they were entitled to summary judgment if, as a matter of law, those duties did not make them law enforcement officers. We recently interpreted the term “law enforcement officers,” for purposes of § 1-39-112 to mean only those public officials charged with traditional peace-keeping duties. Hurst v. State, Wyo., 698 P.2d 1130, 1134 (1985).

It is clear from appellees’ affidavits that they are not charged with traditional peace-keeping duties and are not law enforcement officers. They have no power to maintain public order, to carry a weapon, or to hold or arrest persons accused of violating the act. Criminal enforcement of the act is delegated entirely to either the attorney general or the county or prosecuting attorney where a violation occurs. The law enforcement exception of § 1-39-112 does not apply to appellees. The portion of appellant’s suit claiming damages against appellees in their official capacities is barred by § l-39-104(a). The district court properly granted summary judgment in favor of all appellees, including the department, to the extent they were sued in their official capacities.

CONDUCT BY FETZNER AND KROGMAN OUTSIDE THEIR OFFICIAL DUTIES

In a summary judgment proceeding, the movant has “ ‘a definite burden to clearly demonstrate there is no genuine issue of material fact * * Hickey v. Burnett, Wyo., 707 P.2d 741, 744 (1985), quoting Kover v. Hufsmith, Wyo., 496 P.2d 908, 910 (1972).

“A material fact is one which, if proved, would have the effect of establishing or refuting one of the essential elements of the cause of action or defense asserted by the parties.” Colorado National Bank v. Miles, Wyo., 711 P.2d 390, 393 (1985).

Until the movant has established that there is no issue of material fact requiring a trial, the non-moving party has no obligation to support his pleadings with affidavits or other evidence. O’Donnell v. City of Casper, Wyo., 696 P.2d 1278, 1287 (1985).

Appellant sued appellees Fetzner and Krogman in their individual as well as official capacities. He alleged in his complaint that they committed wrongful acts outside the scope of 'their authority as public employees:

“12. The defendant Robert E. Fetzner has falsely, maliciously and without any legal or statutory basis or authority and in excess of and beyond the scope of his employment, accused plaintiff of committing criminal acts.

# * # # * He

“14. The defendant Douglas Krogman and Defendant Robert E. Fetzner have subjected the plaintiff James Matthews to a continuing pattern of harassment in plaintiffs daily operations and use of plaintiffs facilities and further said defendants have unfairly, arbitrarily and capriciously and maliciously applied standards, without any legal or statutory basis or authority, on plaintiffs operations and facilities.”

The Governmental Claims Act bars suit against governmental employees only to the extent that they act within the scope of their duties. Therefore, appellees Fetzner and Krogman were entitled to summary judgment on the claims against them in their individual capacities only if they could establish that they acted solely within their official duties when they dealt with appellant. But the affidavits filed by Fetzner and Krogman in support of their motion for summary judgment do not establish these material facts.

Appellees can supply the necessary material facts only if testimony from prior hearings in the case could be considered by the court at the summary judgment hearing. The prior testimony was presented at a preliminary injunction hearing and at a hearing on a motion to dismiss. At the preliminary injunction hearing the trial judge made it clear that he viewed appel-lees’ testimony only in the context of the law of injunctions. He was looking for a risk of irreparable harm, inadequate remedy at law, and probability of success on the merits. And at the hearing on the motion to dismiss the judge correctly interrupted and disregarded appellee Fetzner’s testimony because a motion to dismiss under Rule 12(b)(6), W.R.C.P. is based on the pleadings. The court accepts the averments in the pleadings as true. Carbon County School District No. 2 v. Wyoming State Hospital, Wyo., 680 P.2d 773 (1984). The judge ignored Fetzner’s statement that he had acted within the scope of his authority, and he did not permit appellee Krogman to testify at all. The judge stated at the hearing on the motion to dismiss:

“This isn’t a motion for summary judgment. * * * [Everything that this man says in his complaint must be taken as true in a motion to dismiss. So you have to admit this. You have to admit that they acted arbitrarily and capriciously and were negligent in supervision. * * *

I don’t need any testimony.”

It is clear that the judge did not evaluate the prior testimony under summary judgment standards. Whether he later recalled that testimony or relied upon it in the summary judgment context must be questioned.

Appellees did not file their motion for summary judgment until November 13, 1984, almost four months after the preliminary injunction hearing and two months after the hearing on the motion to dismiss. They never referred to the testimony from those hearings in their summary judgment motion or supporting memorandum. Instead, they stated that

“[t]he grounds upon which this motion are based are those as indicated in the attached Affidavits and Memorandum in Support of Motion for Summary Judgment.”

They did not rely on the prior testimony which indicated that they acted within the scope of their authority because they thought that they were entitled to summary judgment without making that showing. They erroneously suggested that

“[t]he sole issue on which the Motion for Summary Judgment is based is whether the actions of the defendants can be considered actions of a law enforcement officer.”

Even if appellees intended to rely upon the testimony from the prior hearings to support their summary judgment motion, they had to present that testimony to the district court in a form .that would be admissible at trial.

In Wyoming

“[t]he material presented to the trial court as a basis for summary judgment should be as carefully tailored and professionally correct as any evidence which is admissible to the court at the time of trial.” Lane Company v. Busch Development, Inc., Wyo., 662 P.2d 419, 426 (1983).

“[TJestimony given at a hearing or trial that is prior to the summary judgment hearing * * * may * * * be utilized at the summary judgment hearing, provided the testimony is properly presented at the latter hearing.” 6 J. Moore, W. Tag-gart & J. Wicker, Moore’s Federal Practice ¶ 56.11[8] at 56-295 (2nd ed. 1985). See also 10A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure: Civil 2d § 2719 at 15-16 (1983); Sturm Jewelry, Inc. v. First National Bank, Franklin, Tex.Civ.App., 593 S.W.2d 813, 815 (1980).

If the prior testimony was not before the district court in admissible form, we cannot consider it in this appeal.

“The scope of appellate review of a summary judgment is to examine the judgment ‘ * * * in the same light as the district court, using the same material and information as did the district court.’ ” Dudley v. East Ridge Development Company, Wyo., 694 P.2d 113, 115 (1985) (quoting Lane Company v. Busch Development, Inc., supra).

Even if a court accurately recalls prior testimony, it would be unfair to allow summary judgment based on that testimony unless it is submitted with the summary judgment motion in admissible form, i.e., transcribed and authenticated. The party opposing summary judgment should have notice of the materials before the court so that he can prepare his defense to the motion. See Nation v. Nation, Wyo., 715 P.2d 198 (1986). Materials in the court’s files, and affidavits, depositions and exhibits attached to the summary judgment motion fulfill this requirement. The only exception to the notice requirement involves oral testimony at the summary judgment hearing itself which most courts permit even though it can result in surprise to the non-moving party. 10A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure: Civil 2d § 2723 at 62 (1983). Unlike testimony from prior hearings, the judge hears the summary judgment testimony with summary judgment standards in mind and can take notes on what he finds relevant.

We hold that in a summary judgment proceeding, a court may consider testimony from prior hearings only if that testimony is transcribed and authenticated. Sturm Jewelry, Inc. v. First National Bank, Franklin, supra, 593 S.W.2d at 815. It must be submitted with the motion or already filed with the court. In this case, the transcripts of the preliminary injunction hearing and the hearing on the motion to dismiss were not before the district court when it considered the summary judgment motion. We cannot affirm the summary judgment based on what is in those transcripts.

It is possible, despite the affidavits which were the only materials properly before the court, that Fetzner and Krogman acted outside the scope of their duties. In that case, the governmental immunity defense of § l-39-104(a), supra, does not protect them because it only applies to employees acting within the scope of their duties. The district court improperly granted summary judgment to Fetzner and Krogman in their individual capacities. The suits against Fetzner and Krogman were properly dismissed on summary judgment only to the extent that they were sued in their official capacities.

RESPONSE TO OPINION CONCURRING IN PART AND DISSENTING IN PART

It is stated in Justice Rooney’s concurring and dissenting opinion that we hold appellees Fetzner and Krogman are “liable individually because there is no averment that they were acting in their official capacities.” Our opinion does not hold them “liable” but merely states that they are not entitled to summary judgment in their favor upon the record before the court. We recognize that in all probability there will be a new motion for summary judgment containing the necessary allegations. But we do not see that as a waste of judicial time and expense. It would be a sorry state of affairs if a court could grant summary judgment without any evidentiary basis simply because it thought that the motion could ultimately be supported by evidence. No rule provides for that kind of procedure.

Summary judgment is affirmed as to all appellees in their official capacities but reversed as to appellees Fetzner and Krog-man in their individual capacities.

1 . Even if we looked to the department’s general statutory powers, we could not find any law enforcement duties. The Wyoming Wholesome Meat Act of 1969 empowers the commissioner of agriculture to issue licenses to meat slaughtering and processing plants, § 35-7-704, to inspect such facilities for compliance with statutory and regulatory standards, § 37-7-705, to segregate or destroy meat when appropriate, § 35-7-705(g) and (p), and to prohibit the use of unsanitary facilities, § 35-7-705(t). The commissioner is also authorized to employ or contract with persons to implement the provisions of the act. The department's statutory duties do not involve keeping the peace as that concept is generally understood.