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Show MONDAY, AUGUST 5, 1974 INTERMOUNTAIN COMMERCIAL RECORD PAGE SIXTEEN in The Supreme Court of The State of Utah E. R. C&lliater, Jr. , A summary judgment is a harsh remedy and should be granted bnly if from the pleadings, evidence, admissions and reasonable inferences therefrom, when viewed in the light most favorable to the loser it is evident beyond reasonable possibility that if given a trial he could not produce evidence to sustain a judgment Chief Justice .... R. L. Tuckett, Justice HENRIOD. Justice: (Concurring) This leemi to be a case where a friend of a friend, to recover money paid on a purchase having a citric result, deigns to devilize his erstwhile com rade, - which plaintiff urges may be compensable. But the pleadings and the proof under the discovery process fail to show an issue of fact, triable under any principle of preponderance of or clear and convincing proof of fraud. By Justice Callister in the case of Controlled Receivables, Inc. v. Harman, et al. : and for this reason plaintiff's contentions must be considered in a light most to his advantage and all doubts" resolved in favor of permitting him to go to trial; and only if when the whole matter is so viewed, he could, nevertheless, establish no right to recovery, should the motion be . i Plaintiff says the case should be decided under the rules that: 1) the evidence should be viewed in a light favorable to the' plaintiff; because 2) a summary judgment is a harsh rule. This author wishes to state and emphasize that he does not ask or expect any concurrence to or advocacy by any of my colleagues to this pure dictum that as to 1) the rule enunciated by this court and elsewhere makes 3. Security Title Co. v. Payless Builders Supply, 17 Utah 2d 179, 407 P. 2d 141 (1965); Gillmor v. Carter, 15 Utah 2d 280, 391 P. 2d 426 (1964); Frederick May tc Co. v. Dunn, 13 Utah 2d 40, 368 P. 2d 266 (1962); Green v. Garn, 11 Utah 2d 375, 359 P. 2d 1050 (1961); Tanner v. Utah Poultry b Farmers Cooperative, 11 Utah 2d 353, 359 P. 2d 18 (1961); Bullock v. Deseret Dodge Truck Center, Inc.. 11 Utah 2d 1. 354 P. 2d 559 (I960); Bridge v. Backman, 10 Utah re Williams1 Estates, 10 Utah 2d 83, 348 P. 2d 683 (1960); Young v. Texas Co. . 8 Utah 2d 206, 331 P. 2d 1099 (1958). 4. Green v. Garn, 11 Utah 2d 375, 359 P. 2d 1050 (1961); Bullock v. Deseret Dodge Truck Center, Inc. , 11 Utah 2d 1, 354 P. 2d 559 (I960); Frederick May 2d 366. 353 P. 2d 909 (I960); In b Co. v. Dunn, 13 Utah 2d 40, 368 P. 2d 266 (1962). little logic since, if we must review the facts in a light more favorable to somebody or other, there must be an issue of fact that must be reviewed, and which, under a summary judgment contemplates no such issue since there is nothing to review because the pleadings and discovery process show this absence of a fact issue. It seems inconsistent under syllogistic reasoning that if there is no'genuine issue of fact there is nothing which a court should weigh, - because there is nothing to weigh - in a light more, or most, or less favorable to anyone; and as to 2) that a summary judgment is a harsh remedy, the simple answer is that if it is an unfair rule to put into the advertised simple rules of procedure to expedite matters, eliminate harsh rules and provide for the common defense, it should be abolished. All of this has led to ten volumes of Barron b Haltzoff and about the same number of Moore's Federal Practice that try to explain theee simple rules. The Field Code made much more sense. The summary judgment in this case gropingly seems to follow the old practice of special and general demurrers, - and under that practice and the "new" rules, the judgment in this case, makes pretty good judicial sense, - prompting me to concur in the opinion of the author of the main opinion. This, with a bit of tongue in cheek, since I concurred in some of the generalities cited in the main opinion anent "harshness" of summary judgments, - for which I am a supplicant for repentance. It is not a harsh rule, but perhaps a salutary one, if properly administered. The harshness of it simply lies in its occasional obvious abuse. so-call- granted. Justice McDonough in the case of Welchman, et al. v. Wood, et al. Summary judgment is a drastic remedy and the courts should be reluctant to deprive litigants of an opportunity to fully present their contentions upon a trial. It should be granted only when under the facts viewed in the light most favorable to the plaintiff he could not recover as a mattez I concur in affirming the judgment of dismissal. But because Similarly, in the case of King Bros. , Inc. v. Utah Dry Kiln Co. supported by a unanimous court, stated: The founding fathers were fully aware that access to the courts for the settlement of controversies is essential to the peace and good order of society. Section 11 of Article I, Utah Constitution states: Redress of injuries. Courts open All courts shall be open, and every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law, which shall be administered without denial or unnecessary delay; and no person shall be barred from prosecuting or defending before any tribunal in this State, by himself or counsel, any civil cause to which he is a party. The carrying out of this constitutional assurance requires that any person who has, or thinks he has, a right to protect or a wrong to rectify, be entitled to go to court and air his grievance and have the difficulty resolved by the peaceable processes of justice. It is for this reason that the authorities have so uniformly declared that summary judgments should be invoked with caution and restraint, and only when the court can conclude with assurance that even if the facts were proved as the party claims, the law would afford him no remedy. This court has in several unanimous decisions declared the law as stated above: By Justice Wade in the cate 0f Strand, et al. v. Mayne,' et al. :2 , this writer, , In other jurisdictions having the summary judgment rule the view that its to a harsh or severe remedy against the loser is practically amounts application . universal. 1. I do not question the value and usefulness of summary judgments to avoid extended and expensive trial proceedings when it clearly appears that even if a party proves all he contends, the law would afford him no relief, see Zampos v. U. S. Smelting, Ref. b Min. Co. (10 Cir. ), 206 F. 2d 171; Brandt v. Spring-vill- e Banking Co. , 10 Utah 2d 350, 353 P. 2d 460. 2. 14 Utah 2d 355, 384 P. 2d 396. 3. 17 Utah 2d 420, 413 P. 2d 807. 4. 9 Utah 2d 25. 337 P. 2d 410. 5. 13 Utah 2d 339. 374 P. 2d 254, 256. In the case of R. D. Reeder Lathing Co. v. Allen, 0 the Supreme Court of California stated: Such summary procedure is drastic and chould be used with caution so that it does not become a substitute for trial. This thesis is supported invariably by other California cases too numerous to burden this page with. 7 There is an abundance of authority from other jurisdictions to the same effect, which point out the essentiality of allowing a trial unless the matter is free from doubt, and which use the term "drastic remedy." In Pimock v. Hamilton, & the Colorado court said: j ... A summary judgment is a drastic remedy and is on a clear showing that there is no never warranted except genuine issue as to any material fact. agree with the comments made about summary judgment, I make these observations: The authorities that have spoken on this subject have quite uniformly declared that t.o summarily rule against a party and turn him out of court without an opportunity to present his contentions and evidence is, as is variously stated, a harsh, extreme, severe or drastic measure, as will be seen by the authorities cited below. It is true that on such a motion the court does not judge the weight or credibility of evidence. But it does and should look at the pleadings and representational documents in the light favorable to the party moved against; and if in so doing there is any basis in the facts as he claims them to be, upon which he would be entitled to prevail, he should be given the opportunity of attempting to so prove them at a trial; and in case of doubt, it should be resolved in favor of the accomplishment of that purpose. . From the standpoint of justice it is wise and desirable to adhere to a policy of being reluctant to turn a party out of court without a trial. It can justifiably be done only if the party could not in any event establish a right to recover. I dis- On a motion for summary judgment the trial court is called upon to rule whether, upon the basis of the pleadings, depositions, affidavits, answers and admissions (hereinafter called representational documents), there is any disputed material issue of fact, which if resolved against the moving party, would prevent him from prevailing. iA of law. ed CROCKETT, Justice: (Concurring, but dissenting in part) harsh measure, A motion for summary judgment is a The words "drastic remedy" are also used in numerous other jurisdictions. For the sake of brevity, we cite only one case for each: New Mexico: Zergerle v. Commonwealth Ins. Co. ofN.Y. , 60N.M. 380, 291 P. 2d 1099; Nevada: Pine v. Leavitt, 84 Nev. 507, 445 P. 2d 942; Florida: Seven-U- p Bottling Co. of Miami v. George Const. Corp. , App. , 166 So. 2d 155; Illinois: Brooks v. Dean Berenz Asphalt Co. , 83 111. App. 2d 258, 227 N.E. 2d 100; Kentucky: 416 S.W. 2d 355; Missouri: Pitman Mfg. Co. v. Centropolis Transfer Co. , 461 S.W. 2d 866; New York: Horn v. Ketchum. 225 N.Y.S. 2d 571; Rhode Island: Mill Factors Corp. v. L. S. Bldg. Supplies, Inc., 240 A. 2d 720, 103 R.I. 675; Texas: Howell v. Wilson, 323 S. W. 2d 61; Wisconsin: Seventeen Peachtree Corp. v. Miller, 41 Wis. 2d 410, 164 N. W. 2d 278. Seventy-Si- x Based on parallel reasoning, but in slightly different language, other jurisdictions refer to summary judgment as an "extreme remedy": Arkansas: Deltic Farm b Timber Co. v. Manning, .329 Ark. 264, 389 S.W. 2d 435; Georgia: Watkin-- v. Nationwide Mut. Fire Ins. Co., 113 Ga. App. 801, 149 S. E. 2d 749; Kansas: Morris v. Atchison, T. b S. F. Ry. Co., 198 Kan. 147, 422 P. 2d 920; Nebraska: Storz Brewing Co. v. Kuester, 178 Neb. 135, 132 N. W. 2d 341, 21 s A. L. R. 3d 476. Respected texts' oh the subject are also in accord with the idea that summary judgment is a drastic remedy. See 73 Am. Jur. 2d 722, which states: The practical result of applying the summary judgment remedy is to deprive the party against whom judgment is granted of a trial in the usual course, and consequently it is often pointed out that the remedy is a drastic one which should be used with great caution and only in those cases where the justice of its application is unusually clear. See also 8 A. L.R. 3d 1361. To the same effect is the treatment Rule 56, Holtzoff's Federal Practice and Procedure: . . . in. Volume 3 and since (summary judgment) provides a of Barron and some-wh- at drastic remedy it must be used with a due regard for its purposes, and a cautious observance of its requirements in order that no person will be deprived of a trial of disputed factual issues. At p. 103, Section 1231. " 6. 66 C.2d 373, 57 Cal.Rptr. 841. 425 P. 2d 75. 7. E. e. , Rowland v. Christian. 69 C. 2d 108. 70 Cal.Rntr 07., AAt I I I T3 JL 1J liU ci IU1, -- |