Templin v. Mountain Bell Telephone Co. ( 1982 )

SUTIN, Judge

(dissenting in part and concurring in part).

I dissent on reversal of the partial summary judgment. I concur in the result on reversal of summary judgment.

A. Partial summary judgment on punitive damages must be affirmed.

A discussion of this point requires the dexterity of Houdini and the wisdom of Solomon. It is essential to avoid an erroneous innovation in the law of summary judgment.

On August 14, 1980, plaintiff filed a verified claim for damages. The complaint was verified on information and belief and does not constitute an affidavit. Rekart v. Safeway Stores, Inc., 81 N.M. 491, 468 P.2d 892 (Ct.App.1970). Plaintiff also sought judgment for punitive damages.

On February 10, 1981, defendant filed a motion for partial summary judgment on plaintiffs claim for punitive damages. Two affidavits were filed in support of the motion.

On February 17, 1981, plaintiff filed a response. It stated that plaintiff would produce the following evidence:

1. The verified complaint and the admissions contained in the answer of defendant.

2. The interrogatories of plaintiff [there were no answers].

3. Seven depositions listed by name and “Those additional depositions taken between time of the filing of this response and the time of the hearing." [Emphasis added.]

Defendant’s Answer Brief states:

The motion was granted at the close of the hearing on February 23, 1981, and on April 20, 1981, the Partial Summary Judgment was entered.

If a record was made on February 23, 1981, the day before the trial began, neither party requested it. We must assume that something took place before the day of trial, and the court sustained defendant’s motion for partial summary judgment.

The majority opinion states:

Before trial, the district judge granted summary judgment in favor of Mountain Bell on the issue of punitive damages.

This ruling is established by the fact that punitive damage was not submitted to the jury. Plaintiff requested three jury instructions on punitive damages which were refused. The court instructed the jury on liquidated damages. The issue of punitive damages was not before the jury.

Nevertheless, the majority opinion quoted extensively from testimony given at the trial to reverse the partial summary judgment. It states:

This testimony indicates that there is a material issue of fact whether Mountain Bell, through its policies and tariffs, authorized the actions of its Alamogordo employees in this matter. The summary judgment on punitive damages is reversed.

No authority is cited for the proposition that testimony given at trial can be used to reverse a partial summary judgment granted before trial. No authority can be cited because it would efface the meaning of summary judgment.

Inasmuch as the record, if any, which took place on February 23, 1981, is not before us, we do not know whether plaintiff produced any evidence. But if we assume that plaintiff produced the items specified in the response, plaintiff failed in the burden of establishing a genuine issue of material fact.

The partial summary judgment should be affirmed.

B. The trial court erred in granting summary judgment after a mistrial.

When the jury could not reach a verdict, the trial court declared a mistrial. Although it does not appear of record, defendant states in its Answer Brief:

On March 6, 1981, Mountain Bell filed a Motion for a Directed Verdict.

A motion for summary judgment was not made. Nevertheless on May 1, 1981, the trial court granted summary judgment. This is another erroneous innovation of trial procedure.

The majority opinion states:

We note that the trial judge’s grant of the summary judgment * * * was unusual in that it occurred after a trial and jury deliberation. However, it was not improper for the trial judge, as long as the district court retained jurisdiction * * to determine that there were no genuine issues as to any material fact and to grant summary judgment.

The trial court only found “that the Motion for Summary Judgment [which motion was not made] should be granted.” Summary judgment was granted on evidence produced at trial.

Because a district court has jurisdiction of a case does not mean that the court can avoid reversible error. Jurisdiction is the power to hear and determine a cause. When a mistrial was declared, jurisdiction remained at rest until called into action by someone. It cannot by its own action institute a proceeding sua sponte. Rutherford v. Buhler, 89 N.M. 594, 555 P.2d 715 (Ct.App.1976). Without a motion for summary judgment before the court, it lacks jurisdiction to dismiss plaintiff’s complaint with prejudice for no reason at all.

Grooms v. Zander, 246 S.C. 512, 144 S.E.2d 909, 910 (1965) said:

A mistrial is the equivalent of no trial and leaves the cause pending in the circuit court. When the trial of the case was thus terminated, the status of the litigation and of the parties became the same as though no trial had taken place. * * *

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The cause simply remained on the calendar for trial before another judge and jury on such evidence as the parties might then have available and see fit to present.

The motion for a directed verdict could not be granted after the termination of the trial for the obvious reason that there was no jury to which an instruction for the defendant could have been given. Therefore, the request that defendant’s rights under the motion be preserved was nugatory.

As a general principle, when a mistrial is granted, the whole proceedings are vitiated. Ferino v. Palmer, 133 Conn. 463, 52 A.2d 433 (1947). There is no legal distinction between a “mistrial” and a “new trial.” Meyer v. State, 372 S.W.2d 764 (Tex.Civ.App.1963).

The plaintiff is entitled to a new trial. Upon this basis, the summary judgment granted defendant must be reversed.