# Lavoie v. Safecare Health Service, Inc. > Wyoming Supreme Court · October 2, 1992 · 840 P.2d 239 URL: https://www.frixlaw.com/law-library/cases/9632742 ## Case - **Full name:** Philip H. LAVOIE and Marilyn Lavoie, Husband and Wife, D/B/A Daisy Laundry, Appellants (Plaintiffs), v. SAFECARE HEALTH SERVICE, INC., a Washington Corporation, D/B/A Lander Valley Regional Medical Center, Appellee (Defendant) - **Court:** Wyoming Supreme Court - **Decided:** October 2, 1992 - **Citations:** 840 P.2d 239; 1992 Wyo. LEXIS 139; 1992 WL 247280 - **Precedential status:** Published - **Opinion:** Dissent by Thomas - **Judges:** MacY, Thomas, Cardine, Urbigkit, Golden - **Cited by:** 32 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9632742 ## How later opinions describe it (automated extraction) - finding appellant's reliance on representations from a bank board member about a loan was unreasonable as a matter of law - noting that fraud requires proof of actual intent - applying 90 promissory estoppel principles ## Opinion text THOMAS, Justice, dissenting. I, too, must dissent from the holding of the majority that the summary judgment in *253 this case should be affirmed. I agree with much of what is said in the separate dissent of Justice Urbigkit, but I acknowledge that the issue of apparent authority may not be one of material fact if the Lavoies are foreclosed by the statute of frauds or other legal theories. Furthermore, I do not see the theory of part performance in the same light as Justice Urbigkit. For these reasons, I do not join in Justice Urbigkit’s opinion. Instead, my concern is with the disposition of the theory of promissory es-toppel. In my view, the majority has treated a question of fact as a question of law and has applied the standard for reviewing a judgment notwithstanding a verdict to justify the summary judgment. I do note, with respect to apparent authority, a contradiction on page 12 of the slip opinion, where the majority first says that the comptroller generally has no authority to contract on behalf of the corporation, but then includes the comptroller among the corporate officers with such authority pursuant to Wyoming statutes. Actually the statutes make the issue depend upon the corporate bylaws and the authority of an officer described in the bylaws who can assign the duties of others. The record in this case does not foreclose Oc-kinga’s authority to contract, and there are ample indications of his apparent authority. The thrust of the majority opinion is that there is no genuine issue of material fact with respect to the reliance element of promissory estoppel because that is a question of law. As I analyze the majority opinion, the first fallacy presented in resolving the case is contained in that thesis. I don't agree. Whether the Lavoies reasonably relied upon the conduct of Ockinga and other representatives of Safecare is a question of fact, not of law. I am satisfied that, as is generally true of subjective factors, the reasonableness of the conduct of a party is a question for the trier of fact to resolve. The majority attaches no significance to the various ways in which Lavoie said he had relied upon the conduct of Safecare and its representatives. Instead, the majority says he could not have relied upon that conduct because, as a matter of law, it was not reasonable for him to rely upon such conduct. I am inclined to relate this situation very directly to our case of Inter-Mountain Threading, Inc. v. Baker Hughes Tubular Services, Inc., 812 P.2d 555 (Wyo.1991). The majority rely substantially on that case, but it is important to recall that there we were reviewing an order granting a judgment notwithstanding a verdict. Therein lies the second fallacy; the majority treats this case like one in which a directed verdict should be granted in affirming the summary judgment. In Western Surety Co. v. Town of Evansville, 675 P.2d 258, 264 (Wyo.1984), we adopted the following language quoted in Hughes v. American Jawa, Ltd., 529 F.2d 21, 25 (8th Cir.1976): It is only where it is perfectly clear that there are no issues in the case that a summary judgment is proper. Even in cases where the judge is of opinion that he will have to direct a verdict for one party or the other on the issues that have been raised, he should ordinarily hear the evidence and direct the verdict rather than attempt to try the case in advance on a motion for summary judgment, which was never intended to enable parties to evade jury trials or have the judge weigh evidence in advance of its being presented. Pierce v. Ford Motor Co., 190 F.2d 910, 915 (4th Cir), cert. denied, 342 U.S. 887 , 72 S.Ct. 178 , 96 L.Ed. 666 (1951); accord, Williams v. Chick, 373 F.2d 330, 331 (8th Cir.1967). 1 I am satisfied that, at least subliminally, the majority was sensitive to this rule, but still it substituted the standard for reviewing a judgment notwithstanding the verdict into this summary judgment case. That *254 standard is summarized in Inter-Mountain, 812 P.2d at 558 -59: When this appellate court is faced with a JNOV question, we undertake a full review of the record without deference to the views of the trial court. Cody v. Atkins, 658 P.2d 59, 61-62 (Wyo.1983). In determining whether a JNOV motion should be granted, we consider “whether the evidence is such that without weighing the credibility of the witnesses, or otherwise considering the weight of the evidence, there can be but one conclusion reasonable persons could have reached * * *’ Erickson v. Magill, 713 P.2d 1182, 1186 (Wyo.1986). In our review we consider the evidence favorable to the nonmoving party, giving it all reasonable inferences. Carey v. Jackson, 603 P.2d 868, 877 (Wyo.1979). A court should cautiously and sparingly grant JNOV motions. Erickson, 713 P.2d at 1186 . Read carefully, it is apparent the majority is saying that reasonable persons could reach only one conclusion from the facts incorporated in this record. That is not the standard for summary judgment review, however, where we look only for issues of fact, not resolutions. In order to avoid that hurdle, the majority has described the question of reasonable reliance as one of law rather than acknowledging it is a question of fact as to which there is a genuine issue in this instance. I would hold that there is a genuine issue of material fact in this case with respect to the elements of promissory estoppel as articulated in Inter-Mountain. I would, therefore, reverse the summary judgment in favor of Safecare, and I would remand the case for trial on that theory, as pleaded by the Lavoies. . In Cody v. Atkins, 658 P.2d 59, 61 (Wyo.1983), we quoted from Town of Jackson v. Shaw, 569 P.2d 1246, 1250 (Wyo.1977), to reaffirm the standard for reviewing a directed verdict, and went on to hold that "[t]he test then for granting a J.N.O.V. is virtually the same as that employed in determining whether a motion for directed verdict should be granted or denied.” Cody, 658 P.2d at 62 . --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9632742. Public record. Not legal advice.