Davis, J., dissenting:
Forster Indemnity Company, a corporation, and United States Fire
Insurance Company, a corporation
This case required the Court to determine whether summary judgment for Crum & Forster Indemnity Co. (hereinafter referred to as Crum) and against Mountain Lodge Association (hereinafter referred to as MLA) was appropriate. The majority opinion concluded that the trial court erred in granting summary judgment to Crum. For the reasons outlined below, I believe the trial court correctly granted summary judgment. Therefore, I dissent from the majority opinion.
That an Incomplete Record Was Before the Trial Court
Davis, J., dissenting:
The majority opinion concluded
that more information was required to determine Mr. Tyler's status with MLA.
In so concluding, the majority opinion has ignored a well-settled principal
of law concerning the burden on a party resisting summary judgment. The party
resisting summary judgment must produce sufficient evidence to establish a
dispute of a material issue of fact. In contrast to this principle, the reasoning
used by the majority opinion penalizes Crum for MLA's failure to present evidence
regarding the so-called whole contract between MLA and Mr. Tyler.
In fact, Crum had no duty or burden to present such evidence. Crum's burden was only
[to] point to the absence of evidence supporting the nonmoving party's case.
Latimer v. SmithKline & French Labs., 919 F.2d 301, 303 (5th Cir.1990).
If additional evidence existed regarding the relationship between MLA and
Mr. Tyler, it was the duty of MLA to produce that evidence. See Powderidge
Unit Owners Ass'n v. Highland Props., Ltd., 196 W. Va. 692, 699, 474 S.E.2d
872, 879 (1996) (To meet this burden, the nonmovant must identify specific
facts in the record and articulate the precise manner in which that evidence
supports its claims. As to material facts on which the nonmovant will bear
the burden at trial, the nonmovant must come forward with evidence which will
be sufficient to enable it to survive a motion for directed verdict at trial.
If the nonmoving party fails to meet this burden, the motion for summary judgment
must be granted.). Until the decision in the instant case, neither this
Court nor any court in the country had ever held that a party moving for summary
judgment be denied summary judgment based upon its adversary's failure to
present sufficient evidence to establish a dispute of a material issue of
1. MLA made no motion
to produce additional evidence. MLA neither argued on appeal nor
before the trial court that it needed more time to obtain evidence pursuant
to Rule 56(f) of the West Virginia Rules of Civil Procedure.
(See footnote 1) See Williams v. Precision Coil, Inc., 194 W. Va. 52, 62, 459 S.E.2d 329, 339 (1995)
(When a party does not avail himself of Rule 56(f), it is generally
not an abuse of discretion for a circuit court to rule on a motion for summary
(See footnote 2) If this had been done, then the majority
opinion would have a logical and legal basis for its decision.
(See footnote 3)
In syllabus point 1 of Powderidge, Justice Cleckley addressed
the procedure that may be used by a party needing additional time to marshal
evidence in opposition to summary judgment:
of a summary judgment motion requesting a continuance for further discovery
need not follow the exact letter of Rule 56(f) of the West Virginia Rules of
Civil Procedure in order to obtain it. When a departure from the rule occurs,
it should be made in written form and in a timely manner. The statement must
be made, if not by affidavit, in some authoritative manner by the party under
penalty of perjury or by written representations of counsel. At a minimum, the
party making an informal Rule 56(f) motion must satisfy four requirements. It
should (1) articulate some plausible basis for the party's belief that specified
discoverable material facts likely exist which have not yet become
accessible to the party; (2) demonstrate some realistic prospect that the material
facts can be obtained within a reasonable additional time period; (3) demonstrate
that the material facts will, if obtained, suffice to engender an issue both
genuine and material; and (4) demonstrate good cause for failure to have conducted
the discovery earlier.
See also Harbaugh v. Coffinbarger, 209 W. Va. 57, 543 S.E.2d 338 (2000) (per curiam) (affirming summary judgment where party failed to use Rule 56(f) to obtain additional evidence); Payne's Hardware & Bldg. Supply, Inc. v. Apple Valley Trading Co., 200 W. Va. 685, 490 S.E.2d 772 (1997) (per curiam) (same); Brewer v. Hospital Mgmt. Assocs., Inc., 202 W. Va. 163, 503 S.E.2d 17 (1998) (per curiam) (same); Pennington v. Bear, 200 W. Va. 154, 488 S.E.2d 429 (1997) (affirming summary judgment and trial court's denial of Rule 56(f) motion).
Even though MLA never asserted
it had additional evidence to present to preclude summary judgment, the majority
asserts that more evidence may exist regarding the contract between MLA and Mr. Tyler. This Court has previously
held that Rule 56 does not impose upon the circuit court a duty to sift
through the record in search of evidence to support a party's opposition to
summary judgment. Nor is it our duty to do so on appeal. Powderidge,
196 W. Va. at 700, 474 S.E.2d at 880. Assuming arguendo that such evidence
exists, Powderidge clearly establishes that summary judgment was still
One of the issues this Court
faced in Powderidge concerned the plaintiff's motion for reconsideration
of an order granting summary judgment to the defendant. We initially observed
the following regarding the plaintiff's motion for reconsideration:
The plaintiff's motion for reconsideration cites several crucial and important facts. Facts which, if properly documented and presented at the summary judgment proceeding, would have been sufficient to preclude the granting of the motion for summary judgment.
Powderidge, 196 W. Va. at 705, 474 S.E.2d at 885.
In the Powderidge motion
for reconsideration, reference was made to an affidavit that this Court found
created a disputed material issue of fact in the case. However, through apparent
error by the plaintiff, the actual affidavit was not attached to the motion
for reconsideration, and was never seen by the trial judge. The trial judge
therefore denied the motion for reconsideration. In spite of the known existence
of the affidavit, which was presented on appeal, this Court affirmed the denial
of the plaintiff's motion for reconsideration. We reasoned in Powderidge
Even if the circuit court would have reconsidered its summary judgment ruling, the motion filed by the plaintiff was not sufficient to permit a different outcome. Although the motion alleged new facts, the facts were never properly documented as required by Rule 56(e). The plaintiff's proffered affidavit of Mr. Bell was never tendered to the circuit court; only some of the salient points of the affidavit were restated in the motion's memorandum. When a party opposing summary judgment fails to comply with the formalities of Rule 56(e), a circuit court may choose to be lenient in the exercise of its discretion to deal with deficiency. However, discretionary leniency does not stretch so far that Rule 56(e) becomes meaningless. See Peterson v. United States, 694 F.2d 943, 945 (3rd Cir.1982) (failure to attach key documents to affidavit violated Rule 56(e)); Canada v. Blain's Helicopters, Inc., 831 F.2d 920, 925 (9th Cir.1987) (unauthenticated documents may not be relied upon to defeat a motion for summary judgment).
Powderidge, 196 W. Va. at 706-07, 474 S.E.2d at 886-887.
Powderidge is clear. If evidence sufficient to preclude summary judgment exists but is not properly presented to the trial court, summary judgment must be granted. In the instant proceeding, assuming that evidence of the majority's so-called whole contract exists, Powderidge nevertheless mandates the granting of summary judgment because such evidence was not properly tendered to the trial court. Therefore, I respectfully dissent from the majority decision in this case. I am authorized to state that Justice Maynard joins me in this dissenting opinion.