Meyer v. Mulligan

GOLDEN, Chief Justice,

concurring, joined by MACY, J.

While I concur in the decision to reverse the trial court’s entry of summary judgment, I write separately to express my concerns with that court’s entry of summary judgment on a ground different from that pursued by the movant (Mulligan), and with this court’s review of materials not before the trial court on the original motion for summary judgment.

Mulligan originally sought summary judgment contending that because the Meyers had failed to produce expert testimony concerning Mulligan’s breach of duty, they had not presented facts sufficient to raise a genuine question of his negligence. In support of his motion for summary judgment, Mulligan attached a copy of the Meyers’ answers to interrogatories. These materials were submitted to support Mulligan’s contention that no genuine question of fact existed concerning the breach of duty issue.

The Meyers opposed Mulligan’s motion for summary judgment, submitting with that response two affidavits, one by their attorney attesting to his good faith belief that Mulligan had breached his duty and the other by Mr. Meyers attesting to his belief that Mulligan had undertaken to represent the Meyers’ interests and had failed in his efforts. They also submitted two letters between the parties concerning the transaction in question.

Mulligan’s motion for summary judgment did not seek judgment on the ground that no genuine issue of fact existed concerning the existence of an attorney-client relationship, and neither party submitted materials concerning the question whether that relationship existed. Nonetheless, this is the ground upon which the trial court awarded summary judgment to Mulligan. Only upon the Meyers’ motion for reconsideration, was the trial court presented with materials concerning the existence of an attorney-client relationship between the Meyers and Mulligan.

The Meyers filed a motion for reconsideration, to which they attached two letters and a transcript of Mulligan’s deposition taken in a different state, the thrust of which deposition was to establish his minimum contacts with that state. In their motion for reconsideration, the Meyers pointed out that they were unaware the court was considering the ques*519tion whether an issue of fact existed concerning the existence of the attorney-client relationship. They urged the court to allow them more time to conduct discovery to obtain the information necessary to demonstrate the existence of a genuine issue of material fact concerning the existence of the relationship.

Mulligan responded to the motion for reconsideration, but submitted no additional materials for the court’s consideration. The trial court ruled on the motion for reconsideration as follows:

This court has read the additional material submitted by plaintiffs in support of their motion for reconsideration, but fails to find in the supporting material any admissible evidence which would alter the decision already entered by this Court. * * * If the Court assumes for a moment that counsel for plaintiffs failed to discover the issue of whether there was an attorney-client relationship between Mulligan and the plaintiffs individually, such that the decision of this Court came as a total surprise, it remains readily apparent, that after receiving the decision letter of the Court and having scrounged up everything that he had to try to raise a question of fact on this issue, it still is simply not there.

T cannot condone the trial court’s disposition of the motion for summary judgment in this fashion. Our rules governing summary judgment provide a definite procedure to be followed by the movant, the party opposing the motion and the trial court. Wyo.R.Civ.P. 56.

The rules contemplate one party will move for summary judgment on the ground that the absence of any genuine issue of fact concerning a particular material allegation in the pleadings entitles him to judgment as a matter of law. Rule 56(c) requires the motion and supporting proof to be served at least ten days before the hearing on the motion. This provides the party opposing the motion with notice of the material allegation at issue and the proof to which he must respond. Wyo.R.Civ.P. 56.

Following submission of all materials by the parties, the trial court’s task is two-fold. The trial court must first determine whether a genuine issue of fact exists concerning the material allegations in question. If the trial court determines no genuine issue of material fact exists concerning the material allegation, it must next determine whether in light of that absence the moving party is entitled to judgment as a matter of law.

In this case, Mulligan moved for summary judgment alleging no genuine issue of fact existed concerning a material- allegation of the complaint — breach of duty. Mulligan submitted his motion and supporting proof within the prescribed time period. The Meyers responded to the particular allegation set forth in Mulligan’s motion and to the materials attached to his motion.

This court has commented:

The Rules of Civil Procedure provide an orderly process for the determination of controversies. They are intended to provide notice to a party of the other’s contentions, a fair opportunity to discover and develop the entire case and meet those contentions, and to avoid surprise — all to the end that a just result is more probable.

Larsen v. Roberts, 676 P.2d 1046, 1048 (Wyo. 1984) (reversing portion of summary judgment entered in reliance upon late-filed affidavits); Hickey v. Burnett, 707 P.2d 741, 744 (Wyo.1985) (reversing summary judgment entered in reliance upon materials never filed).

The trial court strayed from its task of answering the questions presented by Mulligan’s motion for summary judgment — whether a genuine issue of material fact existed concerning Mulligan’s breach of duty, and, if not, whether Mulligan was entitled to judgment as a matter of law. This deprived the Meyers of notice and a fair opportunity to conduct discovery and respond to the motion.

I would limit this court’s review to the motion for summary judgment as originally presented to the trial court, and I agree with the majority’s disposition of that issue. I would not address the question whether a genuine issue of material fact exists concerning the existence of an attorney-client relationship. When this court reviews a motion for summary judgment, it has exactly the *520same duty as the trial court and considers the question in the same light as the trial court. Four Nines Gold, Inc. v. 71 Constr., Inc., 809 P.2d 236, 238 (Wyo.1991). The question of the existence of an attorney-client relationship was not properly before the trial court and is thus not properly before this court.