Blackmore v. Davis Oil Co.

ROSE, Justice.

This appeal concerns the propriety of a summary judgment granted defendants-ap-pellees in a suit for specific performance, accounting and damages arising out of a letter agreement concerning a geologist’s prospect.

We will affirm.

INTRODUCTION

A prospect is a promoter’s assessment of a drilling or mining site which is based on information obtained from observations, tests and other sources. The merit of the prospect depends upon the promoter’s skill and the viability of the data he gathers, and it is common practice for a promoter to exchange his work-up for a retained interest in the venture.

FACTS

In 1963, Marvin Davis, a partner in Davis Oil Company of Denver, Colorado, and R.B. Blackmore, a promoter from Casper, Wyoming, signed a letter agreement which Blackmore required before submitting his oil prospect in the Powder River Basin in Campbell County, Wyoming. Davis then referred Blackmore’s work-up to Donald Mettler, the geologist for Davis Oil Company, who, having studied the prospectus, concluded that it was without merit. Mettler told Blackmore that Davis Oil Company was not interested and, save for a later attempt by Blackmore to rekindle interest in the prospect, there was no further communication between them. Mettler left Davis Oil in 1968.

Ten years later, Davis Oil began to acquire leases in the Powder River Basin, all of which were supported by the reports and recommendations of Gordon Heele, then geologist for Davis. Heele’s recommendations and reports to Davis were not presented until other extensive development and drilling activity in the Powder River Basin had been accomplished and the data therefrom made available to Heele. The record in this case reveals that Heele did not rely on Blackmore’s prospectus in making his geological recommendations to Davis Oil. The leases acquired by Davis Oil Company after 1973 covered a large area which included a small portion of the two townships mentioned in Blackmore’s 1963 prospect. Davis *336drilled and successfully completed several wells within this area.

Blackmore remained active in his business until his death in 1976, but did not claim to have any rights under the 1963 agreement after Davis Oil began to acquire the leases in 1973. Drilling in the precise area mentioned in the letter agreement began in 1977. In March of 1981, Millard Huey, who introduced Blackmore to Davis and to whom Blackmore assigned 25% of his interest in the letter agreement, learned of Davis Oil’s productive wells and, in September of that year, asserted an interest in the wells. Davis Oil refused to recognize any obligation to Huey or the Blackmore estate. In July of 1982, Huey and Frances Black-more (successor to the remaining 75% interest in the letter agreement) brought suit against Davis Oil seeking specific performance of the 1963 agreement, an accounting of the proceeds from the well, and damages. The district court granted defendant’s motion for summary judgment.

THE LAW

The duty of this court on review of summary judgment has often been stated' as follows:

“ * * * When a motion for summary judgment is before the supreme court, we have exactly the same duty as the district judge; and, if there is a complete record before us, we have exactly the same material as did he. We must follow the same standards. The propriety of granting a motion for summary judgment depends upon the correctness of a court’s dual findings that there is no genuine issue as to any material fact and that the prevailing party is entitled to judgment as a matter of law. This court looks at the record from the viewpoint most favorable to the party opposing the motion, giving to him all favorable inferences to be drawn from the facts contained in affidavits, depositions and other proper material appearing in the record.” Reno Livestock Corporation v. Sun Oil Company (Delaware), Wyo., 638 P.2d 147, 150 (1981).

The moving party is entitled to summary judgment when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Rule 56(c), W.R.C.P.; Lafferty v. Nickel, Wyo., 663 P.2d 168 (1983). Furthermore, the party moving for summary judgment has the burden of showing that there is no genuine issue of material fact. Timmons v. Reed, Wyo., 569 P.2d 112, 121 (1977). A material fact is one with legal significance which would affect the outcome of litigation. Thus,

“ * * * a determination, as to whether or not a fact is material, depends greatly upon the principle of law to be applied.” Timmons v. Reed, supra, 569 P.2d at 117.

In this- contract action, appellees demonstrated to the trial judge that they did not drill on the basis of information provided by Blackmore in 1963 and thereby made a pri-ma facie showing that there was no genuine issue of material fact.

Once the moving party has made a prima facie showing that there is no genuine issue of material fact, the burden shifts to the party opposing the motion to show that a genuine issue of material fact exists which justifies taking the case to trial. Gennings v. First National Bank at Thermopolis, Wyo., 654 P.2d 154, 156 (1982). Appellants attempted to discharge this burden by producing the affidavit of a consulting petroleum engineer who merely expressed his opinion to the effect that Davis Oil had undertaken a drilling program utilizing the Blackmore 1963 prospect. However, this conclusory affidavit is inadequate to raise an issue of material fact. This court has often said that under Rule 56(e), W.R.C.P., affidavits on a motion for summary judgment must set forth specific facts indicating the presence or absence of a genuine issue of material fact.

“It is incumbent upon the appellant to come forward with not only competent evidence but also specific facts in opposition to those set forth by appellee, as the movant for summary judgment, if there is to remain a genuine issue of fact for *337trial. Gennings v. First National Bank at Thermopolis, supra, 654 P.2d at 155.

See also, Kimbley v. City of Green River, Wyo., 663 P.2d 871 (1983); Hunter v. Farmers Insurance Group, Wyo., 554 P.2d 1239, 1242 (1976); Maxted v. Pacific Gar & Foundry Company, Wyo., 527 P.2d 832, 834 (1974); McClure v. Watson, Wyo., 490 P.2d 1059, 1062 (1971); In re Estate of Wilson, Wyo., 399 P.2d 1008, 1009 (1965).

Our holding in Lieuallen v. Northern Utilities Company, Wyo., 368 P.2d 949, 952 (1962), is applicable to the situation which confronts this court in the case at bar. There we said:

“We cannot say that this response met the requirements of Rule 56(e) above noted. It does not set forth specific facts which challenge in any way the truth of defendant’s affidavits * * *. Plaintiffs affidavit also fails to develop any specific facts * * *. Thus not even an implication remained * * *.”

We recognize that it is our appellate duty to consider the record in the light most favorable to the party opposing the motion, Timmons v. Reed, supra, 569 P.2d at 116; Reno Livestock Corporation v. Sun Oil Company (Delaware), supra, 638 P.2d at 150, and to give him all favorable inferences.

“ * * * [W]e look at the record from the viewpoint most favorable to the party opposing the motion, giving to him all favorable inferences to be drawn from facts contained in affidavits, exhibits, and depositions. Bluejacket v. Carney, Wyo., 550 P.2d 494 (1976); Timmons v. Reed, supra.” Miller v. Reiman-Wuerth Company, Wyo., 598 P.2d 20, 24 (1979).

In this case the most that can be said for appellants’ position is that, even if the 1963 agreement was binding at the outset, and even if 14 years is a reasonable time for an oil and gas lease agreement to remain operative and viable under an open-ended contract, and even if Blackmore did not waive any interest he may have had by his failure to assert it between 1973 and 1976, then there remains only a possible inference, unsupported by fact, to the effect that Davis’ decision to drill was influenced by Black-more’s prospect. Appellants would have us hold that, even though they presented no specific facts constituting an issue, the bare inferences in and of themselves — when pitted against the hard testimony of nonreliance which was introduced by Davis — raise a genuine issue of material fact. Specifically, appellants rely upon inferences which say that the letter agreement was a continuing contract, that Davis waited until after Blackmore died to drill the wells in question so as to avoid the agreement, and that Davis in fact used the information obtained from Blackmore in 1963 to support the contention that. Davis Oil is liable to them. While the appellants are entitled to all favorable inferences which may be drawn from the material facts, in this appeal they have presented no specific facts upon which such inferences could rest.

We said in Forbes Co. v. MacNeel, Wyo., 382 P.2d 56, 57 (1963), that an inference which is contrary to direct testimony is insufficient to support a finding that a genuine issue of material fact exists:

“ * * * Plaintiff presented no affidavit which on its face showed defendant to have been negligent but now argues that an inference of negligence was inherent in the diagram attached to the patrolman’s affidavit. Nothing therein contained was contradictory of the defendant’s answer to interrogatories * * ⅜.
“Inferences contrary to direct testimony are not ordinarily sufficient to support a finding.” Forbes Co. v. MacNeel, supra, 382 P.2d at 57.

Even if we were to assume that inferences in the appellants’ favor might be drawn from the facts presented (an assumption we make only for the sake of discussion), the inferences cannot stand against uncontro-verted testimony to the contrary. The Davis witnesses have testified unequivocally that they did not rely upon Blackmore’s prospectus in order to make their drilling decisions in the Powder River Basin and there is no testimony in this record which contradicts this evidence. This direct testimony nullifies any asserted inference which *338the appellants seek to establish for the purpose of structuring an issue of fact.

Appellants in this case have failed to show that there exists a genuine issue of material fact which should have been submitted to the trier of facts. Without a fact question upon the issue of whether Davis utilized the Blackmore information, the ap-pellees are entitled to judgment as a matter of law. Therefore, summary judgment was the correct disposition of the case by the trial court. In fact, as we said in Reno Livestock Corporation v. Sun Oil Company (Delaware), supra, 638 P.2d at 151:

“The various aspects of the case before us make it an excellent candidate for summary judgment. The district judge aptly recognized it as such.”

Affirmed.