Braund, Inc. v. White
486 P.2d 50
Alaska
1971
Check Treatment

*1 BRAUND, Appellant, INC., WHITE,

Frank d/b/a Company, Appellee.

No. 1320.

Supreme Court Alaska.

June Groh, McCutcheon, Gruening,

Clark S. appel- Greene, Anchorage, for Benkert & lant. *2 Flint, had and that he dealings and Robert B. no direct himself

Eric E. Wohlforth Braund, Flint, Anchorage, with Inc. White further af- McGrath, Mr. Wohlforth fied that the in property question herein appellee. was not covered in the bill of sale between RABINOWITZ, DIMOND, Before Braund, Valley Matanuska Bank and ERWIN, CONNOR and JJ. Also attached to the above memorandum portion was a deposition of the of Melvin OPINION A. taken Braund in another case. Mr. Inc., Braund, Braund had testified ERWIN, that had Justice. bought the listed items the Matanus- from partial appeal This is from a summa- Valley Bank, ka and that the list was in- ry judgment. tended to everything include that Mr. conveyed bank, White had with I. FACTS exception of certain equipment that was on by ap- complaint was original filed barge coming from Uiamna. pellee, Company, Construction Subsequently, a statement of is- two It contained November 1969. sues .of material fact was filed on behalf alleged I conversion counts. Count Braund, Inc., provided as follows: ap- equipment with a ten items of value $25,000, in proximately taken November Whether not the items property II, here, alleged not at issue 1968. Count plaintiff alleged were converted regard contract to a cer- a breach of by defendant were included in Bill joint entered into between tain venture Sale of October amount resulting opposition summary to the motion for $272,000. appellant’s answer to judgment, Padgett the affidavit of William allegations regarding Count I denied the filed, provided specifically was that Braund, Inc., conversion, that except Braund, Padgett, Mr. then an officer of was, property admitted that mentioned Inc., gone premises had of Glacier possession, at the took situated pres- near Construction Palmer with a vice premises Glacier near Pal- Construction Valley ident of the Matanuska Bank allegations mer. All the other were de- (cid:127)was told that the wished sell ev- nied. erything, equipment lo- including parts 26, 1970, On March premises. cated on the The affidavit fur- moved for a provided ther that was Mr. I, Count apparently on the basis a sale 2, 1968, a meeting October when inventory had attached place, sale the intention took it was at. Braund, Inc., been into entered between Valley time of the Matanuska Bank to Bank, Valley prop- Inc., Braund, Matanuska equipment all of sell erty question was equipment and that included all agreement, appellee property alleged therefore been converted. to have entitled to as a matter by A similar affidavit filed Melvin of law. concerning Braund the intention

Attached to the memorandum in opposition to the In its partial summary judg- memorandum motion for summary judgment, appellee, ment was an affidavit of Frank Inc., that all contended White. affied that on 24th Mr. White Con- day October, 1968, question had been sold conveyed certain Bank Valley properties struction the Matanuska Valley Matanuska and, turn, sold latter Braund. that such was identical with further list There was a contention sold Matanuska language Braund, Inc., certain Bank bill of contained on October day a stored therein. That same inter- materials capable of more than one which was held, hearing was the combined to cover the pretation, but was intended denied, appeal asked was filed from question. notice of property in signed May discovery indi- for further a belief cating *3 the Matanuska

would show that ORDER II. APPEALABLE repossessed all of actually Glacier Bank as The below security Construction’s complaint I of to Count a two-count agreement. clearly cov- the same defendant this, provides in which reply ered Civil Rule 54 to Construction Glacier ambiguity in the was no section as argued (b) that there follows: contract, Port Val of that under the case multiple claims for relief or When Valdez, City of dez Co. multiple parties ac- are involved no (Alaska 1968), tion, entry court direct discovery permitted as and that therefore judgment final to one or more but intention of belief of bank officers or than all the claims fewer only facts. Gla could reveal inadmissible only upon an express determination that argued that cier no Construction further just delay no there is reason for permitted be additional express entry upon an for the direction ample already had had because Braund judgment. such de- In the absence discovery. Finally, Con time direction, any termination and clear here asserted that struction “[i]t decision, desig- other form of however has forth facts that defendant failed to set nated, adjudicates less than all of they showing produce can admissible rights the claims or the and liabilities reasonably tend all shall termi- less than dispute plaintiff’s evidence or contradict any of the nate the action as to claims demonstrate court a triable and thus parties, other form the order * * fact exists subject decision is revision adju- entry of judgment before the superior court heard the dicating rights and the the claims 12, 1970, summary judgment May on liabilities of all the granted partial summary as to judgment complaint. Subsequently, I of the Count judgment in this case does not men- 19, 1970, Braund, Inc., May objected requirements tion the Civil Rule grounds that the val- judgment the' any language indicating not contain was im- uation of the converted trial that it was intended court to testimony proper, and that appealable: immediately May taken as to valuation. On partial judgment Plaintiff’s motion for 20, 1970, judgment a formal entered in one herein count $18,100. the amount of 52, having pursuant to Civil Rule come day May, 22, 1970, the 12th hearing on for May On a combined motion to duly being advised and the court or amend judgment alter and for leave having premises, considered bring in de- the bank as a third plaintiff’s and affidavits fendant filed on grounds and affidavits defendant’s memorandum in fact had all the warranted that finding Opposition, and the court was salable Inc. An- mate- is no issue as there other affidavit of William following property of rial fact morning filed the June converted, following value was raised the additional contention for a total value (list omitted) proper- wit: certain vans is entitled ty $18,100.00, plaintiff list was intended all of the include order, non-appealable ac- consideration judgment as a of law authority had to review order or complaint for cordance with the regardless superior decisions $18,100.00, in the amount of finality concept.1 AD- ORDERED, IT HEREBY IS The unusual situation in fact plain- AND DECREED JUDGED, case, together money fact that a on count tiff have one against appellant was entered $18,100.00. complaint in amount of being stayed pending with execution deter Although Construction has appeal, present mination of this case on finality appeal, raised issue on Jeffer- review, though ap sound reasons even Spenard Supply, son v. Builders’ peal ordinarily permitted. would not 1961), *4 express held both an determination SUMMARY III. JUDGMENT just delay that there is no reason for and theory underlying The a motion express an entry judg- for the direction summary judgment substantially finality ment are prerequisites actual same as that underlying motion for directed of judgment under Rule from Civil 54(b) verd ict.2 The essence of both mo appeal which an can be taken. genuine tions is that there is no issue of Spenard case also on to Builders’ went material fact to be resolved the trier hold that in the exercise of sound discre- fact, and that court, tion this movant entitled to finding policy after judgment on applicable the law to permitting appeals only the es from the de- final tablished cisions was facts.3 As with motion for di outweighed by early a need for necessarily particular prolong 1. Normally, case, appeal this decision discretionary multiple we have thus one count used our au count thority to consider as a writ our controlled decision Airlines, Dodge of review. Alaska tion, Inc. v. Red Avia (Alaska 1970), 475 P.2d 229 2. For an excellent discussion en- premature appeal dismissed as an aof subject, Clary, Summary Judg- tire see multiple on one count of a (Cal. Continuing ment Before Trial complaint. However, count in this case Bar, Education of other For the court decided both the lia treatments, Moore, see 6 worthwhile bility and toas Count I of the [3]; Federal Practice 56.01 [l]-56.27 §§ complaint and issued a writ of execution Bauman, Summary Judgment, The Texas upon judgment, finally intending its to Experience, (1953); Tex.L.Rev. dispose party of this count. Neither Comment, Judgment Summary in Federal finality raised the issue of before the Courts, 2 America Catholic U. of L.Rev. court, lower nor was the issue raised Forkosch, (1951); Summary Judg- both because Negligence in Automobile Cases: the trial court assumed the to decision Analysis Suggestions, A Procedural circumstances, be final. Under these it (1968); Hays, L.Rev. 814 Cornell appropriate not insist Judgment, Summary 28 F. The Use interpretation 54(b) a technical of Rule (1960); Korn R.D. requirement noting Paley, Survey Summary Judgment there is no reason for Pleadings the cedures, & Related Pre-Trial Pro- delay in order insure the trial court Quarterly 483, 42 Cornell L. it intended has the to be final. The trial court (1957); Trautman, 488-90 Summary Judgment Motions discretionary authority to issue Use and Ef- —Their pro such tunc [see nunc Kauf Washington, fect 45 WashX.Rev. Rosenberg man & Ruderman v. Cohn & Note, Judgment (1970); Summary in er, (2nd Cir. F.2d 849 Use Courts, Federal 99 U.Pa.L.Rev. of Hudson v. Ins. Peerless 374 F.2d Note, (1951); Wash.L.Rev. (4th 1967)] Cir. where it clear appears ly comply failure with Rule inadvertent The most difficult lie 54 was determinations properly question credibility. an order would have been area The . raised had when been called the attention de- of the trial court. In order to not nied difficult un because verdict, A all inferences of fact rected eliminate proofs be drawn false claims blanket denials. proferred must says parties, In effect it us and in favor of both “Tell the movant you now have moving support what

party opposing motion.4 your position.” subject proof to The court should the burden of establish has claim, crossclaim, makes counterclaim an- allegations he are true examination, swer to expose alleged close its inapplicable defenses are basic structure or lack substance.6 facts of case.5 5. In 4. 6 faulty.” own case but also tive defenses at points more useful any 1964).] 1968) ; P.2d 602 1968); sue of important Mobil the entire burden 391 Alaska, Hall determine. jective 368 reasonable man. P.2d 381 National proof age el 1966) bills); 1962); Ancow 1967) (Alaska 1967) ; (Alaska 1967) (insurance policy); (contract); (Alaska 1961); (bank records); Mobil summary judgment, Moore, 56.15 2066-67; required Valdez, Anchorage, Ketchikan, and real estate litigants (Alaska P.2d 679 rigid generalization *5 Drilling Co., P.2d Stevenson, [See Semlek out in 6 Oil (settlement documents); but see (tax returns); Bertram Ransom Gilbertson Wilson v. Corp., Oil 1966); Wright Indemnity Co., n. 13 [1. 0] (Alaska than Federal Practice 214 at— Corp., to measure the 1970) Wilson v. Alaska-Canadian carry P.2d 1003 of his Gablick (Alaska 1968); eases certain Moore, P.2d 768 390 P.2d 782 434 P.2d 534 but see Morrison v. (Alaska (Alaska 1962) Port Valdez Co. v. proving Wilson v. [McKean such as cases where the court 369 1966); 445 P.2d 933 disprove v. Pollet, Haner, (Deed Harris, is documents)], may where P.2d City opponent. 2285: the v. National Bank P.2d substantially Professor types Federal Practice Inman Pollet, burden Wolfe, 1966). only prove that his of Trust (Alaska 1969) (Alaska 1968) Maier v. conduct of 362 P.2d 282 He has 498 documentary there is ob Pollet, Prior, apt conduct Hammond, Fairbanks, “Although P.2d 1015 56.04 Hobbs generally P.2d 909 469 affirma Hart (Alaska (Alaska actions, (Alaska (Alaska (Alaska seeking the is (utility Hobbs Moore oppo Hick proof pack Clyde P.2d City City City less [2] his a 6.Judge Beatty, Summary Judgment, 36 J. judgment mary of Bar tion. The basic consequences show Buie is or Judgment,” errors tive. 534 of his would a motion for a mary rules for let, supra. his nent’s factual 1962). ask cient. To base denial summary vert the claims made general their on both the movant and the P.2d 901 City upon provable Canadian mary judgment, pierce (1970), be taken before Ruie 2. Rule supporting dence. litigant present effectiveness of purpose have for article, (Alaska 1966); its face it is not its definition by judgment Judge is not positions. ignore case position Civil 1. Substantial issues, Fairbanks, Assn, A allegations. factual material on how evidence that judgment possible the facts avoiding should (Alaska 1963); mere pleadings problem suggestions It has no merit. Wilson An affidavit sworn facts Zack Summary judgment depends summary judgment. Buie “A competently proper, frustrate of not would W. placing satisfy summary are v. Ancow in the future is insuffi facts. The requiring courts: allegation by respondent in trial and he file Kansas Primer to determine plain advances Dos 368 P.2d most 56(f) the motion on such particularly with the rule. Isler by movant, If a motion operate properly a definite search of Angeles respondent meaning the use of sum- of a respondent to obtain them of the summary judg- Corp., but allege Judge or suffer v. may Gilbertson v. rules of evi Jensen, its avoid declaration respondent parties allegation get proof Summary following for sum- is made. B.Bev. informa- 434 P.2d opposing all facts whether common applica- Zack in of Civil Alaska- (Alaska destroy contro rely burden defeat must sum-' Pol 382 the genuine fact,7 issue as IV. MERITS material and that no issue of fact is raised proof offered party’s where one understanding such a to the it certain had transferred fact is evidence,8 based on inadmissible it which, turn, had sold bank is not correct as the application Inc.; the bill of that the list attached to parol evidence rule in this case.9 Braund, Inc., sale between the bank and The sale transactions between Glacier was identical the list of Construction and Matanuska Construction had transferred Braund, Inc., and between bank; neither list by were covered the terms of the Uniform property alleged to have been convert- 45.05.052, Commercial Code AS byed provides following with re- statement While Glacier contends it did not trans- gard to the admission of evidence: fer ownership disputed property respect Terms with to which con- Padgett the affidavits of firmatory memoranda of Mel Braund indicate that Frank White of agree, or which are set out in otherwise attorney Glacier and his were at a writing intended as a fi- meeting with officers of the bank when it expression nal of their agreed all the of Glacier respect terms included in the writ- yard the Palmer would be sold to ing, may„not be contradicted Braund, Inc. Braund contends that certain prior agreement contempo- portions of the bill of sale were intended agreement, raneous oral but be ex- to reflect this intention. plained supplemented response, Glacier asserts that evi- * * * * * * dence submitted in the and Braund (2) evidence of consistent addition- *6 affidavits would be inadmissible under the al terms unless the court finds the writ- parol vary evidence rule it would because ing was also a complete intended as the terms of an unambiguous contract be- exclusive terms the statement of the Therefore, tween the bank and Braund. agreement. argues that permits This section the introduction of proper competent because there was- no parol evidence sale transactions to ex- evidence a to establish plain supplement writing through the fact. terms, evidence of consistent additional un- legal writing While less the court finds the Glacier is correct in its was intend- ar- gument complete ed expression that as propriety granting the and exclusive sum- mary judgment depends finding the terms of the contract.10 absence of No support Rule 3. Plaintiff’s for a mo- 8. Twelve “L” v. In- Hundred Street prove tion for let every action, element of his cause of expressly disprove every affirma- Although authority there a conflict of tive defense of the answer. Defend- point, think we the view better prove ant’s either parol the evi Glacier can raise defense, disprove affirmative one though stranger dence rule even is a plain- or more elements essential between the bank and tiff’s case. Braund, Wigmore, Evidence, summary judg- Rule 4. A (3d 1940); 2446 at 4 Wil § 149-51 ed. ment is not a motion for a nonsuit liston, 647 at § Contracts 1154-1167 before trial. Corbin, (3d ed. Contracts (1950) ; summary judg- Am. & Sons Rule 5. A motion for Akamine Ltd. Security granted depends not be if it 50 Haw. will upon moving party. 2-202, 10. Uniform Commercial Code 3; Civ.R. 56(c). Schiavone Comment Michael Official participating in a con- Inc., parties per- ambiguity is the details of bank where ference at the testimony.

mit the worked out. double transaction were pa- Therefore, to exclude in order Inc., convincing Braund, present can If in concerning the testimony rol evidence con- two evidence in the sale additional terms clusion disputed tracts intended them to cover either agreements between avail- property, reformation would be then Inc., or the bank reflect the correct the documents to able to finding specific make the trial court must agreements of the true intended agreement was that the either factual evidence possible It is complete statement and exclusive that, intended contract,11 as a the contracts were will show terms complete and exclusive law, assert as terms the additional matter of- agree- agreed the terms of the of all that, they had been statement if ed were such ments, intent in was no there certainly have been upon, they question. transfer sale.12 In documents of cluded however, problem, findings, the su these of either of absence undisputed reveal facts con record does not perior admit evidence court must Only testimony issues. to these material finding made sistent terms.13 Neither settfe with of the bank can Therefore, as to officers evidence the court. certainty questions and es- Glacier, Inc., reasonable these Braun<j, the intention of Braund, Inc., is admissible, tablish whether Glacier or genu and a bank question of owner- concerning correct presented. ine issue of material fact opportu- requested an ship. trial court determines In the event the nity from the to take further Code, that, under the Commercial Uniform point. request introduced, this parol no can be plead- Under this state of the denied. inquiry. The Code does not end the error, ings, we hold the denial to remedy of preclude common law granting mistake,15 mutual reformation14 for premature. to be is not which the rule applicable.16 case is and remanded for This reversed proceedings conformity with this of Braund The evidence the affidavits opinion.17 pleadings, Padgett, together *7 indicates a forced from Glacier to BONEY, participating. J.,C. selling then latter Co., Sons, Securalloy 14. AS 45.05.006. 812 F. Ine. v. 801, Supp. (D.Conn.1970). 803 Williston, 15. Contracts 1547-1549 §§ (3d Restatement ed. 111-137 45.05.052(2). 11. AS (1932); Gablick Contracts Wolfe, 391, 2-202, Of Code Uniform Commercial 1970). 3; Crispin Dela ficial Comment Co. F.Supp. 574, (E. ware Steel 391, Wolfe, 469 P.2d 16. Gablick D.Pa.1968). Ketchikan, Stephenson (Alaska 1970); 496, Mills, Spruce con the term must 13. “To be inconsistent writing. negate a term of tradict or Inc., alleged Braund; in tlie fail- error lesser has a A term or condition filing permit Whirlpool Corp. ure of the court provable.” effect 395, Regis Leasing Corp., a third 29 A.D.2d case this Bank. Since Matanuska 337, Mc also See N.Y.S.2d superior for fur- Wilson, is returned 426 S.W.2d Down v. pass proceedings, we do ther (Mo.App.1968); Indus Hunt Foods & except to note that Doliner, claim tries, A.D.2d Inc. v. by the su- Crispin considered (1966); N.Y.S.2d cf. opinions perior F.Supp. line with the Co., Steel Co. 574, Delaware expressed herein. (E.D.Pa.1968).