Ivan SHUN, doing business as Advertising Counselors of Arizona, Appellant,
HOSPITAL BENEFIT ASSOCIATION, a corporation, and Hospital Benefit Assurance, a corporation, Appellees.
Rehearing Denied Jan. 10, 1961.
[89 Ariz. 13] Snell & Wilmer, Phoenix, for appellant.
Rawlins, Davis, Christy, Kleinman & Burrus, Phoenix, for appellees.
The appeal is from a judgment for the defendants in an action for breach of an alleged contract of employment. Presentation of the claim to the trial court involved a plethora of pleadings, motions and orders, many of which are of no consequence in our disposition of the case and will therefore not be referred to.
The complaint stated three different claims: the first, for wages due between 1953 and 1956 under an express written contract; the second, alternatively to as first, for wages due on the basis of an oral agreement over that same time period; and the third, to recover for certain alleged underpayments of wages, beginning in 1947, and continuing to November 1951. The chronology of significant events thereafter is as follows: on June 13, 1957, in acting
on a motion of defendants for summary judgment, the court made this order:
'June 13, 1957
'Defendants' 'Second Motion for Summary Judgment' having been argued, submitted and taken under advisement, The Court finds that genuine issues and controversy exist as to whether plaintiff is entitled to recover for services performed between November 25, 1944, and October 31, 1951 (date new contract for services at the rate of $2000.00 became effective) and the amount due therefore.
'The Court further finds that there is no genuine issue as to amounts claimed by plaintiff for services performed from and after November 1, 1951, as such services were performed under agreement for the payment of compensation [89 Ariz. 14] at the rate of $2000.00 per month which agreement could be and was terminated upon notice and it appears that all compensation due up to date of termination has been paid;
'Therefore, It Is Ordered that the Second Motion for Summary Judgment be and is hereby denied subject to findings above named.'
This form of order and finding of fact is expressly authorized by our Rule of Civil Procedure 56(d), 16 A.R.S., which provides:
'56(d) Case not fully adjudicated on motion. If on motion under this Rule judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary the court at the hearing of the motion, by examining the pleadings and the evidence before it any by interrogating counsel, shall if practicable ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted. It shall thereupon make an order specifying the facts that appeal without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such further proceedings in the action as are just. Upon the trial of the action the facts so specified shall be deemed established, and the trial shall be conducted accordingly.'
On July 26, 1957, a second amended complaint was filed by leave of court, incorporating all of the essential allegations of the original. On August 26, 1957, the court ruled on defendants' motion to dismiss the amended complaint, in part as follows:
'The defendants' motions to dismiss the first and second causes of action of plaintiff's second amended complaint are granted upon the ground that there was no contract in force or effect on December 31, 1953, subject to breach as alleged in said causes of action, therefore neither cause states a claim upon which relief can be granted.'
On September 20, the first and second causes of action were dismissed in accordance with the ruling of August 26, and on November 15 judgment in favor of defendants was entered on those two causes of action. The parties on January 3, 1958, submitted the third cause of action for determination by the court on the merits without further ...