Biondo v. General Motors Corp.

• Decision Date: 06 April 1967
• Docket Number: No. 1,CA-CIV,1
• Citation: 5 Ariz.App. 286,425 P.2d 856
• Parties: John BIONDO and Constance Biondo, husband and wife, Appellants, v. GENERAL MOTORS CORPORATION, a Delaware corporation and Courtesy Chevrolet, an Arizona corporation, Appellees. 339.
• Court: Arizona Court of Appeals

Page 856

425 P.2d 856

5 Ariz.App. 286

John BIONDO and Constance Biondo, husband and wife, Appellants, v. GENERAL MOTORS CORPORATION, a Delaware corporation and Courtesy Chevrolet, an Arizona corporation, Appellees.

No. 1 CA-CIV 339.

Court of Appeals of Arizona.

April 6, 1967.

Rehearing Denied May 1, 1967.

Review Denied May 23, 1967.

Alan Philip Bayham and Raymond Huffsteter, Phoenix, for appellants.

Snell & Wilmer, by Roger W. Perry, Arthur P. Greenfield, Phoenix, for appellee, General Motors Corp.

Gust, Rosenfeld & Divelbess, by Richard A. Segal, Phoenix, for appellee, Courtesy Chevrolet.

STEVENS, Judge.

The plaintiffs are the appellants. The defendants are the appellees, and will be referred to as General Motors and as Courtesy. General Motors and Courtesy filed separate motions for summary judgment. Both motions were granted and judgments were entered pursuant thereto. This appeal followed. The record discloses an insufficient presentation of issues and a consequent abandonment of the appeal in relation to the judgment in favor of Courtesy. We will limit our consideration of the issues presented in relation to the judgment in favor of General Motors '* * * with a new car warranty issued by defendant, General Motors Corporation, and Courtesy Chevrolet who warranted same as being free of defects and as being in first class condition, usable and serviceable in every respect.'

The basic question before us is whether it was error to grant a defendant's motion for summary judgment when the moving party offered no affidavits or exhibits in support of the motion, but relied upon a claimed failure of the plaintiffs to establish facts which would warrant a trial. The complaint filed by the plaintiffs was not verified and General Motors placed all material allegations in issue. The complaint alleged that on 31 October 1961, the plaintiffs purchased a used Chevrolet from Courtesy and that the car was sold,

It is further alleged that the car was defective and that the defendants '* * * knew or should have known from an inspection of same' that it was defective. The complaint set forth that while Mrs. Biondo was driving the car in a careful manner on 1 May 1962, 'the car suddenly and without warning went out of control and turned over because the rear axle of said automobile snapped and punctured the right, rear tire of said automobile.' They sought recovery from both defendants based upon the asserted 'negligence, carelessness, and breach of warranty of the defendants'.

The complaint was filed on 14 October 1963. General Motors submitted three sets of interrogatories, the first being submitted on 24 October 1963 and the second on 21 April 1965. General Motors took the deposition of each of the plaintiffs on 21 May 1965 and the deposition was followed by the third set of interrogatories filed on 6 June 1965. The only effort of the plaintiffs in the field of discovery was by their request for admissions addressed to General Motors under date of 15 June 1965. General Motors did not admit any of the matters set forth in the request.

On 22 July 1965, General Motors filed its motion for summary judgment which was argued and taken under advisement of 9 September. In the meantime, the trial court issued its order setting the date of the pretrial conference for 20 September. Preparatory to the pretrial conference, the plaintiffs filed their pretrial memorandum wherein they set forth in part:

'IV LIST OF AND DESCRIPTION OF EXHIBITS PLAINTIFF EXPECTS TO USE AT TIME OF TRIAL.

(a) Warranty;

(b) Advertisements,

(d) Salvage of Automobile'

The pretrial was held as scheduled and on 29 September the trial court entered its minute entry order as follows:

'This matter having been under advisement on the motion of the defendant General Motors Corporation and the Court having considered the same and further the Court having conducted a Pre-trial at which counsel for plaintiffs and General Motors were present, and it appearing that the plaintiffs have no new or additional evidence to present other than that which is already presented in the depositions and answers to interrogatories; the Court finds that there is no genuine issue of fact and that taking all the facts most favorable to the plaintiffs they do not support a claim for relief either under negligence or a warranty theory, now therefore,

It is Ordered that the motion of the defendant General Motors Corporation for summary judgment is granted.

In view of the foregoing disposition, no formal Pre-trial Order will be prepared in this cause.'

A formal written judgment in favor of General Motors followed.

Apparently the time for Courtesy to answer was continued by agreement of counsel and the first appearance of Courtesy was the filing of its motion for summary judgment on 3 November 1965. Courtesy did not participate in, and was not noticed to participate in, any proceedings, discovery It is a well established rule in the appellate consideration of the review of a judgment sustaining a motion for summary judgment that 'the record must be viewed in the light most favorable to the party opposing the motion for summary judgment'. Sarti v. Udall, 91 Ariz. 24, 369 P.2d 92 (1962). Another well established rule in considering the review of a judgment of this nature is that '(a) summary judgment should not be granted when there is an issue of fact, nor where there is the slightest doubt as to the facts'. Lujan v. MacMurtrie, 94 Ariz. 273, 383 P.2d 187 (1963).

motions or the pretrial conference prior to this date. The Courtesy motion for summary judgment was granted and judgment was entered. A timely notice of appeal was filed in relation to the judgments in favor of both of the defendants and we have heretofore stated our disposition of the appeal as to the judgment in favor of Courtesy.

In our opinion it is appropriate to first review the procedural rules applicable to this case. Arizona adopted its Rules of Civil Procedure effective 1 January 1940. The Arizona Rules follow the Federal Rules with minor changes designed to meet Arizona requirements. Many of our rules bear the same numbers as do the Federal Rules. The Rules have been amended from time to time to keep pace with changes in the Federal Rules. The Arizona Rules are found in Volume 16 of the Arizona Revised Statutes and afford many trial preparation and discovery devices. Many of these are inexpensive in relation to the outlay of money though they may be time consuming for the attorney. The decisions of the Arizona Supreme Court in relation to the use of discovery devices have not been restrictive.

Rule 26, and succeeding rules, relate to depositions. Parties and witnesses may be deposed. Depositions can be taken by the use of oral examination or by written interrogatories. Where a deposition is taken by oral examination, the same need not be transcribed and filed unless it is to be used in the trial.

Rule 33 authorizes the use of written interrogatories addressed to parties as distinguished from Rule 26 depositions by the use of written interrogatories. Rule 33 interrogatories may be used in addition to depositions.

Rule 34 relates to the procedure whereby parties may inspect physical objects and may inspect and copy papers.

Rule 36 permits written requests addressed to parties to the action seeking admissions of fact and the genuineness of documents.

Rule 56 is the rule relating to summary judgments. This rule is quoted in part:

'56(b) For defending party. A party against whom a claim, * * § asserted * * * may * * * move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof.'

'56(c) Motion and proceedings thereon. * * * The judgment sought shall be rendered forthwith if the pleadings, deposition, answers to interrogatories, and admission on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact that the moving party is entitled to a judgment as a matter of law. * * *'

'56(e) Form of affidavits; further testimony; defense required. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. * * * The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this Rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by '56(f) When affidavits are unavailable. Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.'

affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.'

Rule 16 relates to pretrial conferences and is quoted in part as follows:

'Rule 16. Pre-trial procedure; formulating issues

'16(a) Formulating issues. In any action, the court may in its discretion direct the attorneys for the parties to appear before it for a conference to consider:

'3. The possibility of obtaining admissions of fact and of documents which will avoid unnecessary proof;

'16(b) Disposition of motions; overruling by setting trial. No civil action shall be heard on its merits until all motions are disposed of, but the setting of an action for trial shall be deemed an overruling of all motions pending.'

The foregoing rule is supplemented by Rule 6 of the Uniform Rules of Practice, 17 A.R.S....