Lackey v. Mesa Petroleum Co. , 90 N.M. 65 ( 1976 )

OPINION

SUTIN, Judge.

Plaintiffs appeal from an adverse summary judgment granted all defendants, arising out of a claim for damages and an accounting from defendants based upon an oil and gas lease. We reverse.

A. Interrogatories signed and verified by Mesa’s attorney were not under oath and did not support its summary judgment.

Rule 33 of the Rules of Civil Procedure provides in part:

Any party may serve upon any adverse party written interrogatories to be answered by the party served or, if the party served is a * * * private corporation * * *, by any officer or agent, who shall furnish such information as is available to the party. * * * The interrogatories shall be answered separately and fully in writing under oath. The answers shall be signed by the person making them; * * *.

Plaintiff submitted extensive interrogatories to defendant Mesa Petroleum Company, a private corporation. Answers were signed and verified by an attorney of record in this case. The verification was made on information and belief “for the reason that the said Defendant does not have an officer or other agent available at this time for such purpose.”

Answers to interrogatories, based solely on information and belief, are not sufficient to assist Mesa in its claim for summary judgment. These answers must be made under oath. United States v. 58.16 Acres of Land, Etc., Clinton Cty., Ill., 66 F.R.D. 570 (D.Ill.1975).

An oath is an appeal by a person to God, to witness the truth of what he declares. Youngstown Steel Door Co. v. Kosydar, 33 Ohio App.2d 277, 294 N.E.2d 676 (1973); In Re Rice, 35 Ill.App.2d 79, 181 N.E.2d 742 (1962); Asher v. Sizemore, 261 S.W.2d 665 (Ky.1953); Miller v. Palo Alto Board of Supervisors, 248 Iowa 1132, 84 N.W.2d 38 (1957); 67 C.J.S. Oaths and Affirmations § 1 (1950); 58 Am.Jur.2d, Oath and Affirmation, § 1 (1971).

An attorney may answer interrogatories as an agent of a private corporation but verification must state that the attorney made answers to the interrogatories with personal knowledge that the answers were true and correct. Jones v. Goldstein, 41 F.R.D. 271 (D.Md.1966); Antgoulatos v. Honduran S. S. Norlandia, 139 F.Supp. 385 (D.Md.1956); Nagler v. Admiral Corporation, 167 F.Supp. 413 (D.N.Y.1958). In Nagler, the Court said verification on “knowledge, information and belief” leaves a party “with convenient avenues of evasion. It skillfully manages to avoid the requirement of distinguishing between matters stated on a party’s own knowledge and matters stated on information and belief. It also permits each [party] to avoid stating specifically under oath with respect to questions he claims to be unable to answer, that he does not have the information necessary to answer the question, and that the answers given reflect all the information available to him.” [167 F.Supp. at 415].

Mesa relies on 4A Moore’s Federal Practice § 33.07 (1975). This authority holds that an attorney may sign for a private corporation, but Moore’s does not discuss the verification by the attorney. Section 33.26, p. 33-143, states:

In 1946, the Rule was amended to make it clear that whatever officer or agent of the corporation is chosen to answer and verify interrogatories on behalf of a corporate party, he must “ * * * funish [sic] such information as is available to the party.” Thus a corporation’s answers must include facts and knowledge of its agents and any person under its control. [Emphasis added].

Bailey v. New England Mut. Life Ins. Co., 1 F.R.D. 494 (D.Cal.1940) says:

Rule 33 has a distinctive function separate and apart from the other rules, in the discovery of truth reposing in the mind of the defendant, bearing upon the issue in preparation for trial. It is peculiarly adopted to the use of parties in preparing for trial, in the interest of economy of time, for if admissions are made the fact is established, or if answers are adverse, and believed untrue, or the fact camouflaged in such a fashion as to becloud the truth, for use in cross-examination to clarify the answers, and uncover the truth. [Emphasis added] [1 F.R.D. at 495].

We hold that where an oath is required to verify answers to interrogatories by an officer or agent of a private corporation, the verification must state the truth of the answers. Mesa relies primarily upon its answers to plaintiffs’ interrogatories to support summary judgment. Its answers on information and belief are ineffective. In their absence, genuine issues of material fact exist.

B. The court’s order sustaining objections by Mesa to interrogatories of plaintiffs under Rule 33 is erroneous.

Plaintiffs submitted interrogatories to defendant Mesa on January 20, 1975. Mesa made objections to many of the interrogatories, but did not, pursuant to Rule 33, supra, “serve written objections thereto together with a notice of hearing the objections at the earliest practicable time.” [Emphasis added]. At least five days’ notice should be given as provided by Rule 6(d) of the Rules of Civil Procedure. In this instance, the record shows that no notice was ever given and no hearing was ever held. On December 1,1975, the day summary judgment was entered, the trial court entered an order that “Objections to Interrogatories previously filed by the Defendant, Mesa Petroleum Co., are well taken and therefore such interrogatories need not be answered.” Mesa submits that its inadvertent failure to serve a notice of hearing at the earliest practicable time did not constitute a waiver of their objections.

Rule 33 should be strictly adhered to. However, where the objector informs the objectee that he will try to arrange an agreeable date for a hearing on the objections, a “just” determination requires that the objections not be waived. Miller v. United States, 192 F.Supp. 218 (D.Del.1961). This ruling constitutes a technical failure to comply with the terms of Rule 33, resulting in no prejudice and apparently little delay. But where the objectee informs the objector of his failure to comply with the rule, and the objector ignores the warning for a substantial period of time, objections are overruled. Baldwin v. Liberty Mutual Fire Insurance Company, 33 F.R.D. 311 (D.Del.1963).

In the instant case, Mesa did not comply with the rule, and gave no notice to plaintiffs of an intention to comply. Over eleven months passed before the court, without a hearing, sustained the objections and on the same day entered summary judgment. Mesa’s failure to comply with the rule, and plaintiffs’ prejudice resulting therefrom, could require that Mesa’s objections to plaintiffs’ interrogatories be waived and overruled. We do not, however, declare that result. This matter rests within the discretion of the trial court after a hearing.

Mesa does not reach the essence of the rule — that a hearing is necessary because “The burden of persuasion is on the objecting party to show that the interrogatories should not be answered — that the information called for is privileged, not relevant, or in some other way not the proper subject of an interrogatory.” 4A Moore’s Federal Practice § 33.27, pp. 33-152, 153. We note that all objections made are insufficient. See, infra. If a hearing is held, it should be noted that the objections presently made should be overruled and proper objections should be made or answers given under oath.

Cardox Corp. v. Olin Mathieson Chemical Corp., 23 F.R.D. 27 (D.Ill.1958), says:

Rule 33 establishes a method of making objections, including provisions for notice and hearing thereon, and an orderly procedure for the disposition of the same. Above all, the Rule contemplates that all objections will first be submitted to the court for its consideration and decision. * * * The best interests of parties litigant and of the court are served if all parties are held to strict account in their compliance with established and orderly procedures. [23 F.R.D. at 31].

In the instant case, the trial court proceeded to a ruling without a hearing. This failure to grant plaintiffs a hearing on objections to interrogatories was erroneous.

C. The court’s order sustaining objections by Koch to plaintiffs’ interrogatories is erroneous.

Plaintiffs submitted extensive interrogatories to defendant Koch Oil Company. After hearing, the trial court sustained objections to numerous interrogatories.

In support of Koch’s motion in support of its defense that plaintiffs failed to state a claim for relief, Koch filed an affidavit of Frederick J. Hansen, house counsel for and assistant secretary of Koch Industries, Inc., parent of Koch Oil Company.

Plaintiffs’ interrogatories were directed to this affidavit.

Defendant Koch’s objections were stated as follows:

3. As to question No. 5(a), (b), (c), (d), (e), (k), they are oppressive, burdensome, ambiguous, not within the scope of the issue and not reasonably calculated to the discovery of admissible evidence; the affidavit was submitted only in connection with the Motion to Dismiss.

* * * * * *

6. As to question No. 8, it is beyond the scope of the ease and calls for an opinion and conclusion and Koch Oil Company is not a party to the lease, and is not proper discovery.

7. As to question No. 9(b), (c), (d), (e), (f) is beyond the scope of the case, calls for legal opinions and conclusions, is not calculated to proper discovery.

8. As to question No. 10, such is not a proper question under the Rules, calls for opinions and conclusions, and amounts to argumentation and is beyond the scope of the case as to this defendant.

These objections are not sufficient. Extensive authority is cited in support of the following statement made in 4A Moore’s Federal Practice § 33.27, pp. 33-151, 152:

General objections, such as the objection that the interrogatories will require the party to conduct research and compile data, or that they are unreasonably burdensome, oppressive, or vexatious, or that they seek information that is as easily available to the interrogating as to the interrogated party, or that they would cause annoyance, expense, and oppression to the objecting party without serving any purpose relevant to the action, or that they are duplicative of material already discovered through depositions, or that they are irrelevant and immaterial, pr that they call for opinions and conclusions, are insufficient.

The trial court did not state its reasons for sustaining defendant Koch’s objections to the above numbered interrogatories. The ruling of the court, therefore, was erroneous; Koch is required to answer the above numbered interrogatories.

D. Summary judgments granted are reversed.

Plaintiffs sued defendants for: breach of contract and for payment due under an oil and gas lease; for an accounting of production, taxes, costs and moneys received to date, and for an injunction from further defaults in payments; and in tort for compensatory and punitive damages arising from the wrongful, negligent and malicious acts of the three defendant oil companies.

(1) Defendant Mesa

In the absence of answers to interrogatories, we are left with the answer of Mesa. Defendant Mesa answered in admissions and denials with two affirmative defenses: (1) the complaint failed to state a claim upon which relief can be granted, and (2)plaintiffs are estopped by the express terms of the oil and gas lease. Based upon the pleadings, Mesa is not entitled to summary judgment under Rule 56(c). The burden was on Mesa to establish a prima facie case showing there was no genuine issue of material fact. It failed to do so.

(2) Defendant Koch

Defendant Koch answered in admissions and denials with three affirmative defenses: (1) the complaint fails to state a claim upon which relief may be granted; (2) the complaint violates Rule 8, Rules of Civil Procedure; (3) Koch Oil Company is holding moneys for the presumed account of the plaintiffs because of the failure of the plaintiffs to first sign Koch’s Division Order, a customary and established procedure in the oil and gas industry.

(a) First Defense

Koch filed an affidavit in support of its first defense, that of failure to state a claim, but its motion to dismiss was denied.

(b) Third Defense

In support of the third defense, Koch filed an affidavit by Hansen that plaintiffs’ attorney was previously supplied with accountings of all production from the lease purchased by Koch and supplied the latest accounting through the month of August, 1975; Hansen averred that further accountings will be delivered to plaintiffs or their attorney, and all sums held in suspense and accruing to plaintiffs will be promptly remitted in due course of business.

In response, plaintiffs filed an affidavit that stated:

10. We have never received any accounting that we could understand of what was produced, when it was produced, who produced it, what was our prorata share, who we were to receive it from, why we were to receive it, what oil was being produced, what gas was being produced, what other products were being produced, who the products were being sold to, for what price, what reports were being made to the State or other governmental agencies, what taxes were due, what taxes were being paid, etc.

.11. We have received a half a dozen or more forms from different sources that we have been asked to sign. Some of the forms merely have our name on them and a red “X” as the place to sign but no explanation as to why we should sign.

A genuine issue of fact exists, on the third affirmative defense, on the issue of an accounting.

(e) Summary Judgment

Based on the pleadings filed, genuine issues of material fact exist on the various claims of plaintiffs against Koch.

(3)Defendant Permian

For the reasons stated supra, genuine issues of material fact exist.

The summary judgments granted defendants are reversed.

E. Motions for summary judgment were adequate under Rule 7(b)(1).

Plaintiffs moved the trial court to strike and quash defendants’ motions for summary judgment because defendants failed to comply with Rule 7(b)(1) of the Rules of Civil Procedure. Plaintiffs claim this was error. We disagree. This rule reads:

An application to the court for an order shall be by motion which, unless made during a hearing or trial, shall be made in writing, shall state with particularity the grounds therefor, and shall set forth the relief or order sought. The requirement of writing is fulfilled if the motion is stated in a written notice of the hearing of the motion. [Emphasis added].

Summary judgment can be granted when “there is no genuine issue as to any material fact”. Rule 56(c) of the Rules of Civil Procedure. A motion for summary judgment, based upon Rule 56, which states that there is no genuine issue as to any material fact, does “state with particularity the grounds therefor”. United States v. Krasnov, 143 F.Supp. 184 (D.Pa.1956).

F. Plaintiffs’ complaint violates Rule 8(a) of the Rules of Civil Procedure.

Plaintiffs’ complaint violates Rule 8(a) of the Rules of Civil Procedure. It is suggested that an amended complaint be filed in accordance with Rule 15 of the Rules of Civil Procedure, and that it be in compliance with Rule 8(a).

Reversed.

IT IS SO ORDERED.

LOPEZ, J., concurs. HERNANDEZ, J., dissenting.