Brown v. Suburban Cadillac, Inc.

• Decision Date: 05 January 1971
• Docket Number: No. 195,195
• Citation: 272 A.2d 42,260 Md. 251
• Parties: Albert E. BROWN v. SUBURBAN CADILLAC, INC.
• Court: Maryland Court of Appeals

Page 251

260 Md. 251

272 A.2d 42

Albert E. BROWN v.SUBURBAN CADILLAC, INC.

No. 195.

Court of Appeals of Maryland.

Jan. 5, 1971.

On May 11, 1970, Suburban Cadillac filed a motion for summary judgment together with an affidavit in support of the motion.Maryland Rules 610 a 1 and 610 a 3.In its affidavit the company stated that:

1.Brown had commenced employment with Suburban Cadillac on or about July 24, 1969.

2.Brown had been fully advised of his rights, duties, and obligations regarding his purchase of the 1970 Cadillac under the Salesman Demonstrator Plan.

3.Upon terminating employment, Brown had again been advised of the contract, that demand for return of the automobile was made, and that Brown 'failed to relinquish same' in violation of the Salesman Demonstrator Plan, which was attached to the affidavit as Exhibit A.

Brown filed an opposition to the motion for summary judgment on May 19, 1970, and in his supporting affidavit stated that:

1.He had not been fully advised of his obligations regarding the purchase of the automobile.

2.He did not execute 'the power of attorney which was a necessary part of the Salesman Demonstrator Plan.'

3.He has not at all times failed to relinquish the vehicle in question.

A hearing on the motion for summary judgment was held before Judge Shure and he filed his opinion granting the motion and dismissing the case on May 26, 1970.We must decide in this appeal whether or not the granting of the appellee's motion for summary judgment was proper.

The purpose of a hearing on a motion for summary judgment at the trial level is not to try the case on its merits, but rather to decide whether any real dispute as to material facts exists.Lipscomb v. Hess, 255 Md. 109, 118, 257 A.2d 178(1969).If the pleadings, depositions, admissions, and affidavits (if any) show that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law, then summary judgment should be granted.Maryland Rule 610 d 1;Groves v. Alexander, 255 Md. 715, 719-721, 724, 259 A.2d 285(1969), cert. denied397 U.S. 1023, 90 S.Ct. 1263, 25 L.Ed.2d 532(1970);Lawless v. Merrick, 227 Md. 65, 69-70, 175 A.2d 27(1961).Conversely, if there is a genuine dispute as to any material fact, summary judgment would not properly be granted.Hilton v. Williams, 258 Md. 285, 289, 265 A.2d 746(1970);Tellez v. Canton R. R. Co., 212 Md. 423, 431, 129 A.2d 809(1957).Cf.Fenwick Motor Co. v. Fenwick, 258 Md. 134, 138, 265 A.2d 256(1970), and cases cited therein.

An appellate court, in reviewing a motion for summary judgment, should be concerned primarily with deciding whether or not a factual issue exists, and in this regard, all inferences should be resolved against the party making the motion.Hilton v. Williams, supra, 258 Md. at 288, 265 A.2d 746;Lipscomb v. Hess, supra, 255 Md. at 118, 257 A.2d 178;Lawless v. Merrick, supra, 227 Md. at 70, 175 A.2d 27.Be that as it may, when the moving party has set forth sufficient grounds for summary judgment, the party opposing the motion must show with some precision that there is a genuine dispute as to a material fact.Foreman v. Melrod, 257 Md. 435, 441, 263 A.2d 559(1970);Fishman Const. Co. v. Hansen, 238 Md. 418, 422-423, 209 A.2d 605(1965), and cases cited therein.And, the opposing party must make such a showing by facts which would be admissible in evidence.Maryland Rule 610 b;Foreman v. Melrod, supra;Fishman Construction Co. v. Hansen, supra;Strickler Engineering Corp. v. Seminar, Inc., 210 Md. 93, 100, 122 A.2d 563(1956).¹

In view of the rules thus stated and upon application of them to the facts revealed in the record, we are of the opinion that appellant's opposition to the motion for summary judgment was not sufficient to show any real dispute over a material fact and that the granting of the appellee's motion in the court below was proper.

Nowhere in his affidavit did Brown deny that he terminated his employment with Suburban Cadillac, that he had executed the Salesman Demonstrator Plan, or that demand had been made by Suburban Cadillac for return of the vehicle.The Salesman Demonstrator Plan, executed by the appellant, was in the record as an exhibit, and is complete, unambiguous, and regular on its face.Brown alleges generally that its provisions were not fully explained to him, but never alleges that he signed the contract under fraud, duress, or any similar condition that would render the agreement a nullity.Accordingly, he must be held to the terms of the written contract.McLain v. Pernell, 255 Md. 569, 572, 258 A.2d 416(1969), quoting fromGlass v. Doctors Hospital, 213 Md. 44, 57-58, 131 A.2d 254(1957).See also4 Williston on Contracts (3rd Ed.), §§ 631, 646;17 Am.Jur.2d, Contracts, § 260.

Appellant Brown refers to a 'power of attorney,' but does not produce such a document or state any particular facts which would support the allegations made concerning its existence.Maryland Rule 610 b provides that '(s)worn, or certified or photostatic copies of all material papers or parts thereof referred to in an affidavit shall be attached thereto or filed therewith or their absence satisfactorily explained.'(Emphasis supplied.)Similarly, Rule 610 d 2 provides that if it appears that an opposing party'for reasons stated' cannot present in his affidavit the fact essential to his opposition, the court may deny the motion for summary judgment, may permit depositions to be taken or discovery to be had, or 'may make such other order as justice may require.'A person who claims the existence of a document which is material to his opposition to a motion for summary judgment, but which document is not in his possession (the power of attorney in the case at bar), should explain in his affidavit why he cannot produce it, specifically stating his reasons, and thereby enlist the aid of ...