Jung-Leonczynska v. Steup

CARDINE, Chief Justice,

specially concurring.

I agree with the majority that appellee’s affidavit is entirely conclusory and is insufficient to support his motion for summary judgment. The affidavit contains no factual statement of what occurred in the classroom nor any statement or description of duties and work for which he was employed. Our review in such a situation may not reach the confines of W.R.C.P. 56 at all.

W.R.C.P. 56 allows a party to move for summary judgment with or without supporting affidavits. W.R.C.P. 56(a) and (b). When a motion for summary judgment is based solely on the pleadings, it is functionally equivalent to a motion to dismiss for failure to state a claim under Rule 12(b)(6). Landmark, Inc. v. Stockmen’s Bank & Trust Company, 680 P.2d 471, 474 (Wyo. 1984). See 6 Moore’s Federal Practice, ¶ 56.11[2], p. 56-110 (2nd ed.1988). In other words, the question of whether to grant a motion in such a situation is whether the plaintiff has failed to state a claim upon which relief can be granted if the facts pled are deemed as admitted and viewed in a light most favorable to the plaintiff. Landmark, Inc., 680 P.2d at 475. See W.R.C.P. 12(b)(6).

The close nexus between the summary judgment motion and the motion to dismiss for failure to state a claim upon which relief can be granted is evident from our rules of civil procedure and our past decisions, i.e., a Rule 12(b)(6) motion will be converted to a motion for summary judgment when matters outside the pleadings are presented. W.R.C.P. 12(b); see Mostert v. CBL & Associates, 741 P.2d 1090, 1096-97 (Wyo.1987). The conversion, however, will not apply when a movant’s affidavits contain nothing outside the pleading. Sump v. City of Sheridan, 358 P.2d 637, 640 (Wyo.1961). In the instant case, mov-ant labeled his motion as a summary judgment. Regardless of how the motion is labeled, we should treat it as a Rule 12(b)(6) motion. Treated in this fashion, I agree that appellant’s complaint states a claim for relief.

I concur in the court’s disposition of the issues stated in I, II, and III. I am not prepared at this time, however, to adopt the Restatement of Torts as the law of this state for claims in civil assault and civil battery. I prefer that we await a factual presentation in an actual case before deciding those questions.