No. 14343
I N THE S P E E C W O THE STATE O MNI!ANA
UH M O F F
1979
NATIONAL G P U COMPANY,
YS M
P l a i n t i f f and Appellant,
-VS-
RICHAIiD I. "DICK" JOHNSON,
Defendant and Respondent.
Appeal from: D i s t r i c t C o u r t of t h e Fourth Judicial D i s t r i c t ,
Honorable Jack L. Green, Judge presiding.
Counsel of Record:
For Appellant:
William George Harris, Missoula, Montana
For Respondent:
Turnage and McNeil, Polson, Ibntana
Sukmitted on briefs: March 29, 1979
Decided: juN 11 1979
r.
d
Mr. Chief Justice Frank I. Haswell delivered the Opinion of
the Court.
Plaintiff appeals from a summary judgment entered in
defendant's favor in the District Court for Ravalli County.
Defendant Richard Johnson was the holder of a Califor-
nia contractor's license which permitted him to bid on and
engage in certain types of construction work. He was also
president of Pacific Plastering Corp., a California corporation
which in its own right, held a contractor's license. A joint
venture license was issued which allowed the two entities to
"jointly submit ... bid[s] or otherwise act in the capacity
of a contractor." West's Cal. Bus. & Prof. Code, 87029.
The record does not disclose which contracting classif-
ications could be separately performed. However, by combination,
plastering, lathing and dry wall work could be done under a
single bid. In addition, the joint venture license "provided
greater and added financial stability which enable[d] Pacific
Plastering to provide bonds", according to the affidavit of
S. R. Murphy, General Manager of Pacific Plastering. Defendant
agreed, but by affidavit said: "This license . . . was never
actually utilized on or for any project in which I was involved
to the extent of performance under contract."
Plaintiff, National Gypsum Co., is a dealer in building
materials and transacted a substantial amount of business with
Pacific Plastering through its subsidiary, Commercial Lathing
Co. Over a period extending from December, 1970, to February
1971, plaintiff sold Pacific Plastering $40,254.67 worth of build-
ing supplies for use in various construction jobs. On April 2,
1974, a check payable to National Gypsum in the above amount
was drawn on Pacific Plastering's general account. Because of
nonsufficient funds, the check was not honored and the debt has
remained unsatisfied.
Johnson retired in 1973 and moved to Hamilton, Montana,
where he now lives. In July 1975, National Gypsum filed a
complaint seeking to hold Johnson individually liable on the
debt. Plaintiff's theory, both in District Court and on appeal,
is that Johnson as a joint venturer with Pacific Plastering
is personally responsible for the debt. After discovery and
the filing of affidavits, summary judgment was granted in defen-
dant's favor.
The sole issue before this Court is whether the District
Court erred in finding that, as a matter of law, there was no
joint venture between Johnson and Pacific Plastering.
"The elements which are essential to a joint ven-
ture are commonly stated to be: (1) an agree-
ment, express or implied among the members of the
group; (2) a common purpose to be carried out by
the group; (3) a community of pecuniary interest
in that purpose among the members; and (4) an
equal right to a voice in the direction of the
enterprise, which gives an equal right of control."
Sumner v. Amacher (1968), 150 Mont. 544, 437 P.2d
630. The California definition is substantially
similar. See e.g. Goldberg v. Paramount Oil
Company (1956), 143 CZLApp.2d 215, 300 P.2d 329,
332.
Rule 56, M.R.Civ.P. has frequently been discussed by
this Court. Upon motion, summary judgment will be rendered if:
" .. . the pleadings, depositions, answers to
interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter
of law." Rule 56(c), M.R.Civ.P.
Thus, summary judgment is proper in this case only if, as a matter
of law, there is no joint venture.
Included in the law pertinent to summary judgments is a
principle announced in the following language:
"The initial burden of establishing the absence
of any genuine issue of material fact is imposed
upon the moving party. Mustang Beverage Company,
Inc. v. Jos. Schlitz Brewing Company (1973), 162
Mont. 243, 246, 511 P.2d 1. But where the record
discloses no genuine issue of material fact, the
party opposing the motion is required to produce
evidence sufficient to raise a genuine issue of
fact before the trial court.
"In light of Rule 56, M.R.Civ.P., the party oppos-
ing a motion for summary judgment on a record
which reveals no issue of material fact must
present facts of a substantial nature. Conclu-
sory or speculative statements are insufficient
to raise a genuine issue of material fact." Barich
v. Ottenstror (1976), 170 Mont. 38, 41-42, 550
P.2d 395.
In addition:
"When a motion for summary judgment is made and
supported as provided in this rule, an adverse
party may not rest upon the mere allegations or
denials of his pleading, but his response, by
affidavits or as otherwise provided in this rule,
must set forth specific facts showing that there
is a genuine issue for trial." (Emphasis added.)
Rule 56(e), M.R.Civ.P.
The record in this case is barren of facts indicating
that defendant joint ventured with Pacific Plastering in accord-
ance with the license which allowed him to do so. Thus, this
Court's inquiry must focus on the facts that plaintiff, as the
opponent of the motion, has shown to exist.
In answer to an interrogatory asking plaintiff to disclose
the proof it would rely on at trial in linking the joint venture
license to the projects which underlie the debt, plaintiff replied
it would "rely on the State of California License authorization
power to allow Defendant to operate as a joint venture entity
and upon its accounting records and documents to substantiate
that the said [joint venture] license #255715 was involved in
projects utilizing the materials and supplies [which are the
subject of the debt]." Pursuant to a court order, the answer
was supplemented to the effect that in addition to its own records
plaintiff would rely on the testimony of certain contractors.
Much of plaintiff's brief is spent discussing the exis-
tence of the joint venture license and the authority of the State
of California to issue such licenses. The mere issuance and pro-
curement of such a license is insufficient to indicate that it
was actually used or that a joint venture existed. A license is
a permit to do something. Blatz Brewing Co. v. Collins (1945),
69 Cal.App.2d 639, 160 P.2d 37, 39. Its possession is not the
same as actually doing the authorized act. The records which
plaintiff asserts show that the joint venture license was used
indicate only that materials and supplies were sold to Comrner-
cia1 Lathing. No mention of a joint venture or any indication
that it existed was included. The statement that certain con-
tractors would testify to the existence of the joint venture is
an unsupported conclusion.
In answer to defendant's interrogatories, plaintiff
said the joint venture agreement between Johnson and Pacific
Plastering was oral. Plaintiff was then asked to "give the date
of the alleged agreement, place where the agreement was entered
into, who the agreement was entered with, witnesses to the agree-
ment, and substance of the agreement." The answer referred to
a Dun and Bradstreet report. No particular segment of the re-
port was cited as relevant; the portion which is closest to the
mark reads: "Operates as lathing and plastering contractor under
Calif License #135302-C35, performing work for general contrac-
tors on routine progress payments basis." License no. 135302-C35
refers only to the license held by Pacific Plastering. There
is no mention of Johnson's license or the joint venture license.
None of the foregoing indicates the existence of any
fact which could support plaintiff. His assertions are conclu-
sions of law rather than indications of fact. As such they are
insufficient to prevent summary judgment. Barich v. Ottenstror,
supra; see also, Price v. Wrather (Tex.Civ.App. 1969), 443
S.W.2d 348, 343.
Affirmed.
Chief Justice
We concur:
/I
'
Justices