concurring in part and dissenting in part.
I am in accord with that portion of the majority opinion which affirms the summary judgment entered in favor of the State and its officers. There is an additional reason for affirming that summary judgment. The complaint does not allege that Matthews ever filed a claim against the State as required by § 1-39-113, W.S.1977, and the record does not disclose that such a claim was filed. The requirement for a claim is a condition precedent to suit. Board of Trustees of University of Wyoming v. Bell, Wyo., 662 P.2d 410 (1983); Awe v. University of Wyoming, Wyo., 534 P.2d 97 (1975). The failure to file such a claim is a jurisdictional defect. Board of Trustees of University of Wyoming v. Bell, supra; Utah Construction Company v. State Highway Commission, 45 Wyo. 403, 19 P.2d 951 (1933). Even though this defect was not relied upon by the defendant, I am of the view that this court should recognize jurisdictional defects and dispose of cases on that basis when they are present. Board of Trustees of University of Wyoming v. Bell, supra, and cases cited therein. I therefore concur in the majority disposition as to the State of Wyoming and its officers.
I cannot agree, however, with the aspect of the majority opinion which reverses the summary judgment entered in favor of Krogman and Fetzner in their individual capacities. I join Justice Rooney in his opinion, and I also submit some additional observations.
In material part Matthews’ complaint alleges that:
“3. On or about February 6, 1984, defendant Douglas Krogman inspected the premises known as Upton Processing. “4. Pursuant to instructions from, and at the direction of and under the supervi*223sion of defendant Robert E. Fetzner, defendant Douglas Krogman tagged the kill floor portions of the plaintiffs premises as rejected.
“5. On or about February 7, 1984, the said tag was removed and the plaintiff continued meat processing operations.
“6. On or about February 8, 1984, defendant Douglas Krogman inspected the said premises.
“7. Pursuant to instructions from defendant Robert E. Fetzner, the defendant Douglas Krogman tagged the cooler and kill chute portion of the said premises as rejected and imposed a restriction of 14 carcasses in the cooler.
“8. On or about February 29, 1984, the said tag was removed and plaintiff continued operations.
“9. On or about February 29, 1984, pursuant to the instructions of defendant Robert E. Fetzner, defendant Douglas Krogman lifted the restriction of 14 carcasses to 16 carcasses.
“10. Since February 9,1984, the defendant Douglas Krogman, by and through and pursuant to the instructions of defendant Robert E. Fetzner, has arbitrarily inspected the premises and subjected the plaintiff to unreasonable and excessive standards of sanitation and has imposed an arbitrary and illegal restriction on the number of carcasses in the plaintiffs cooler.
“11. The defendant Douglas Krogman, by and through the action of defendant Robert E. Fetzner, has ordered plaintiff to remove property not on his premises and belonging to other persons.
“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.
“13. The defendant Robert E. Fetzner has stated he would take away the plaintiffs license to do business in the State of Wyoming.
“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.
“15. The aforementioned actions of defendant Douglas Krogman and defendant Robert E. Fetzner are arbitrary, capricious and malicious, and are without any legal or statutory basis or authority, and plaintiff is entitled to punitive damages.”
The answer of the defendants encompasses the following affirmative defenses:
“1. The defendants as an affirmative defense would state that the action against the defendants is prohibited by the Wyoming Constitution, Article 1, Section 8, based upon the Doctrine of Sovereign Immunity.
“2. That the action against the defendants is barred by the Wyoming Governmental Claims Act and that the actions of the defendants fail to fall within any of the statutory exceptions to said act. “3. That the individually named defendants at all times relevant hereto were acting within the scope of their employment and pursuant to statutory authority, and are therefore immune from liability.”
These pleadings structure an issue of fact as to whether Fetzner and Krogman acted within the scope of their employment.
There were three hearings which have a bearing upon this issue. First there was a hearing on an application for a preliminary injunction at which the court took testimony and at which exhibits were introduced. This was followed by a hearing on defendant’s motion to dismiss. Finally the court held a hearing on the motion for summary judgment. In arguing the motion to dismiss, Matthews’ attorney substantially conceded that Krogman and Fetzner were at all times relevant to the complaint acting within the scope of their employment. He *224persisted in arguing, however, that the two were individually liable. The defendants presented testimony and argued from that testimony that they were not individually liable. This testimony was cut off by the trial court with the assertion that it didn’t have anything to do with the case. Implicitly this was a recognition of the fact that Fetzner and Krogman had acted within the scope of their employment. The balance of that hearing was concerned with the question of whether the State and its officers fell within the statutory exception to immunity provided for health care providers in § 1-39-110, W.S.1977. The trial court denied the motion to dismiss indicating that, although the department was not a health care provider, he thought perhaps it was subject to the law enforcement exception which would permit Matthews’ action under § 1-39-112, W.S.1977.
■Because the scope of the matter had been limited in this way the argument on the motion for summary judgment was addressed to the proposition that Fetzner and Krogman were not law enforcement officers. The supporting documents were tailored to support this proposition. The affidavits which are found by the majority to be insufficient to justify summary judgment for Fetzner and Krogman read as follows. Fetzner’s affidavit says:
“2. That pursuant to statutory authority and the rules and regulations of the State Board of Agriculture, I am empowered and directed to carry out certain provisions of the Wyoming Wholesome Meat Act in conjunction with the Federal Meat Inspection Act.
“3. My duties require me to be involved in the license issuing process, the inspection program for licensed meat premises within the State of Wyoming, and to take certain action only pursuant to statutory authority against any operation not in compliance with the statutes and the rules and regulations of the State Board of Agriculture.”
Krogman’s affidavit recites:
“2. That pursuant to statutory authority and the rules and regulations of the
State Board of Agriculture, I am empowered and directed to carry out the provisions of the Wyoming Wholesome Meat Act in conjunction with the Federal Meat Inspection Act.
“3. My duties require me to be involved in the license issuing process, the inspection program for licensed meat premises within the State of Wyoming, and to take action pursuant to statutory authority against any operation not in compliance with the statutes and the rules and regulations of the State Board of Agriculture.”
These affidavits can be read fairly to say in substance, “In the course of my official duties I was authorized to do the things I am alleged to have done.” This is a sufficient statement of fact by affidavit to refute the conclusory allegations of Matthews’ complaint that these individuals acted outside the scope of their employment or without authority. The burden then shifted to the plaintiff to submit affidavits demonstrating in which particulars these individuals exceeded their authority. Matthews failed to do this, and a summary judgment for these defendants was proper.
“ * * * 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 * * * must set forth specific facts showing that there is a genuine issue for trial.” Rule 56(e), W.R.C.P.
This rule has been followed with respect to summary judgments in Wyoming for more than 20 years. Vipont Mining Company v. Uranium Research and Development Company, Wyo., 376 P.2d 868 (1962); Matter of Estate of Wilson, Wyo., 399 P.2d 1008 (1965). These affidavits, when read in the light of the conclusory complaint (which charges Krogman with acting pursuant to the instructions of Fetzner) and the answer, are sufficient to support the summary judgment in the absence of counter-affidavits from Matthews.
Furthermore, if I found it to be necessary in order to dispose of this case I would *225hold that the material facts from the testimony presented at the prior hearings can be relied upon in connection with the summary judgment. To the extent that the majority opinion is concerned with a problem of notice, the defendants’ Memorandum in Support of Motion for Summary Judgment refers to the hearing on the motion to dismiss and that hearing was mentioned by both attorneys at the hearing on the summary judgment motion. The authorities cited in support of the proposition that testimony from a prior hearing in the same proceeding can be utilized on a summary judgment only if it is transcribed and certified and properly noticed are distinguishable. I have no quarrel with the proposition set forth in the majority opinion that “[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. Newton v. Misner, Wyo., 423 P.2d 648 (1967).” Lane Company v. Busch Development, Inc., Wyo., 662 P.2d 419, 426 (1983). I must disagree with the proposed extension of the rule to these facts. In Lane the court was confronted with an unsworn affidavit. In Newton v. Misner, supra, the affidavits encompassed irrelevant data, conclusions and other impermissible material. The court held that such materials which were neither carefully tailored nor professionally correct enough to be admissible at trial should be stricken. Neither case addresses the facts involved in this instance in which prior testimony in the same proceeding in which the same judge and the same attorneys participated was relied upon. There does not seem to be any defect in that prior testimony which would cause it to be inadmissible at trial.
Certainly Sturm Jewelry, Inc. v. First National Bank, Franklin, 593 S.W.2d 813, 815 (Tex.Civ.App.1980) is distinguishable. That case was decided pursuant to a procedural rule which “provides that no oral testimony shall be received at the hearing on a motion for summary judgment” together with a ruling of the state supreme court that, consequently, testimony from a prior hearing could be considered only where it was properly transcribed and certified before the court when the summary judgment motion was heard. Wyoming does not have such a provision in its rule, and in fact the trial court has discretion to permit oral testimony at the summary judgment hearing. Dudley v. East Ridge Development Company, Wyo., 694 P.2d 113 (1985). In Wright & Miller, Federal Practice & Procedure: Civil § 2723, the authors note that the practice of taking oral testimony at a summary judgment hearing should be exercised “sparingly and with great care,” lest the hearing become a preliminary trial or lest surprise and disadvantage result. “[W]hen testimony taken at an earlier stage in the case is sought to be used, there is little danger of the hearing turning into a ‘preliminary trial,’ and therefore it should be more freely permitted once the testimony has been properly introduced.” Id. Certainly in this instance the former testimony could not have been any surprise to Matthews.
I would hold that the prior testimony could be relied upon by the court to settle any apparent issue of facts for purposes of summary judgment even though the trial court did not specifically articulate his reliance. There is no question that we can uphold the trial court’s action for any correct reason appearing from the record. Litzenberger v. Merge, Wyo., 698 P.2d 1152 (1985); Hurst v. State, Wyo., 698 P.2d 1130 (1985).
Finally the exhibits that were introduced at the prior hearing were properly before the court as part of the record at the time the summary judgment motion was heard. Defendants’ Exhibit A, “Wyoming Wholesome Meat Act of 1969 and Regulations; Wyoming Inedible Meat Rendering and Processing Act of 1969 and Regulations,” (1980), and United States Department of Agriculture “Layout Guide for Small Meat Plants,” Table 2., provide the trial court and this court with sufficient information to permit a decision that the factual allegations of the complaint that Fetzner and Krogman had acted outside the scope of *226their employment were incorrect. Thus there was no genuine issue of fact with respect to those allegations. The summary judgment in favor of Krogman and Fetz-ner should be affirmed.