Young v. Thomas

OPINION

BUETTNER, Judge:

In this action for breach of contract and fraud, Appellant Don Young (Young) seeks review of the trial court’s order granting summary judgment for Appellee Ron Thomas (Thomas). The appeal is filed without briefing pursuant to the accelerated procedure under Rule 1.203, Rules of Appellate Procedure in Civil Cases, 12 O.S.Supp.1995, Ch. 15, App. 2.

Young initiated this action November 14, 1995 claiming Thomas breached an agreement to repair Young’s truck. Young alleged Thomas had told him the repair work would cost between $700.00 and $900.00. Instead Thomas asked for $1,600.40 even though the work was never fully completed; Thomas had not returned the truck; and Thomas had given notice of his intention, to sell the truck without Young’s consent.

In his answer, Thomas denied he had provided Young the $700.00-$900.00 estimate. He further alleged that he had completed the agreed work, that Young had never tendered payment for the repairs, and that the truck had been sold in accordance with statute after Young had been given notice. The record reflects the sale was held on August 29, 1995, and that in the absence of other bidders, Thomas purchased the truck for the amount of repairs and storage he claimed was due.

In the pretrial order Young alleged fraud, in addition to breach of contract, as a ground for recovery. The trial court granted summary judgment in favor of Thomas without specifying its reasoning. The court subsequently granted Thomas’ Motion to Assess Attorney Fees. On appeal, Young’s single contention alleging error in granting Thomas’ motion for summary judgment is that “many facts were in substantial controversy,” and “[t]he trial court erred in granting attorney fees to the Defendant.”

Summary judgment is appropriate where it appears there is no substantial controversy as to any material fact, and that a party is entitled to judgment as a matter of law. First State Bank v. Diamond Plastics, 891 P.2d 1262, 1266 (Okla.1995).

Thomas’ motion for summary judgment included his affidavit which states that Young brought a pickup to him in January 1995; the repairs were worth $1,660.40; he stored the truck until August 1995 at which time he started Title 42 foreclosure proceedings; the storage cost was $1,880.00; and he purchased the truck at the foreclosure sale for $3,578.40. While the motion also contains a statement dated February 23, 1995 for $1,660.40, the affidavit does not say that the statement was ever given to Young. In addition, the Notice of Sale attached to the motion indicates notice was given to Glen Rabe Motors, but there is no indication that notice was given to Young. Finally, the motion contained a letter dated August 23, 1995 from Young’s attorney. The letter indicated Young was aware of the impending foreclosure sale August 29, 1995, objected to the sale and requested an itemized statement of repairs and any demand for payment previously provided to Young.

Young’s response to Thomas’ motion for summary judgment includes Young’s affidavit stating that Young owned the truck and that when he took the truck to Thomas, Thomas gave him a repair estimate of about $700.00. The affidavit also stated that the repair work was never completed; that Young never received a bill for the repair work; and that Thomas sold the truck pursuant to a lien statute without providing proper notice to Young.

Young also attached an extract from his deposition in which he testified that he did not purchase the truck until April 1995, and that he went by the shop in late July or early August and the truck was sitting by the fence unrepaired.

An extract of Thomas’ deposition, attached to Young’s response, indicates that the truck repairs were not completed in April 1995 because Thomas was still waiting on a grille and bumper. Thomas did not submit a bill to Young at that time, nor did he call Young to advise him that the bill was due and Thomas was going to foreclose on his lien.

Where one party moves for summary judgment and sets forth evidence which shows no controversy as to material facts, the burden of proof shifts to the opposing party to present evidence which would justify trial on the issue. American Nat’l. Bank & Trust Co. of Shawnee v. Clarke & Van Wagner, 692 P.2d 61 (Okla.App.1984). Young met that burden.

The evidentiary materials demonstrate substantial controversy as to material facts. These include the terms of the repair contract, whether Thomas or Young breached the repair contract, and whether Thomas fraudulently utilized the procedures in 42 O.S.1991 § 91 to foreclose his garagemen’s lien.

The trial court erred in granting summary judgment for Thomas when there were material issues of fact remaining in controversy. The trial court’s judgment is reversed and this matter is remanded to the trial court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

JOPLIN, J., concurs. HANSEN, P.J., dissents with separate opinion.