Guerassio v. American Bankers Corp.
| Decision Date | 12 November 1964 |
| Docket Number | No. 29,29 |
| Parties | Catherine GUERASSIO et al. v. AMERICAN BANKERS CORPORATION. |
| Court | Maryland Court of Appeals |
Argued by Morgan L. Amaimo, Baltimore (R. Lewis Bainder, Baltimore, on the brief), for appellants.
Argued by Paul Walter, Baltimore, for appellee.
Before HENDERSON, C. J., and PRESCOTT, MARBURY, SYBERT and OPPENHEIMER, JJ.
The appellants, Catherine Guerassio and Charles Biondo, were interested in the operation of a restaurant in Baltimore known as the Palmer House. Although, from the record before us, the facts are meager concerning the transaction, it appears that appellants were desirous of obtaining certain restaurant equipment. This equipment consisting of a freezer, tables and chairs was supplied by the Herman A. Levy Company in Baltimore, and through a financial arrangement with the appellee, American Bankers Corporation, was leased by it to the appellant Guerassio. The equipment lease, dated August 16, 1963, provided for monthly rental payments to be paid by Mrs. Guerassio beginning on the 10th day of each month following the date of the lease. Biondo, the other appellant, executed and delivered to appellee a written lease guaranty under which he guaranteed the performance by Mrs. Guerassio of the lease. The equipment was delivered to the location indicated in the lease and the appellant Biondo executed a written acknowledgment and acceptance of delivery of the items of equipment.
The lease was for two years and the payments were in the amount of $92.67. A clause in the lease provided that the entire unpaid amount of monthly payments would become due in case of default. The appellant Guerassio defaulted and on October 4, 1963, the appellee filed its declaration to which was attached the lease as Exhibit A, for recovery of the full amount provided in the lease, motion for summary judgment, statement of account, affidavit in support of motion for summary judgment, and notice to plead. Both appellants filed their answer to plaintiff's motion for summary judgment, general issue pleas in assumpsit, and affidavit in support of pleas and in opposition to plaintiff's motion for summary judgment. On December 19, 1963, appellee filed its request for hearing on its motion for summary judgment, and on February 3, 1964, filed its supplemental affidavit in support of plaintiff's motion for summary judgment. On February 4, 1964, after hearing in open court, the appellee's motion for summary judgment was granted and judgment was made absolute in favor of the appellee in the amount of $2297.66, with interest from date, and costs, against both appellants. This appeal followed.
The appellants contend that the pleadings and affidavits on file showed that the appellee was not entitled to a summary judgment because: (a) there was a genuine dispute as to material facts in that the items of merchandise leased by the appellee to the appellants as per contract were at variance with the items of merchandise which the appellants contracted to lease from the appellee, and (b) there was no valuable consideration passing from the appellants to the appellees at the time of the execution of the contract.
Appellee's pleadings and affidavits set out prima facie the elements necessary to entitle it to a summary judgment as a matter of law. Thereupon, appellants were required either to discredit appellee's averments as untrue or to specify evidence which would give rise to a triable issue of material fact. Appellants' pleadings and affidavits do not discredit appellee's averments as untrue. The only issue, therefore, is whether appellants have specified some opposing evidence which would raise a triable issue of material fact. Such evidence must be indicated to the court in the form of an affidavit of deposition in support of the answer to the motion stating a fact or facts which would negative the appellee's right to a summary judgment. Maryland Rule 610 a 3; Molesworth v. Schmidt, 196 Md. 15, 20, 75 A.2d 100. Appellants' answer to plaintiff's motion for summary judgment was merely a naked assertion that there is a genuine dispute between the parties as to the material facts of the matter. In addition, the appellants filed only the general issue plea in assumpsit and nothing further. We find the 'Answer' and the 'Pleas' do not show in detail and with precision that there was a genuine issue of material fact and are, therefore, insufficient to raise such issue and ineffectual to prevent a summary judgment. Mullan Contracting Co. v. International Business Machines Corp., 220 Md. 248, 151 A.2d 906; Frush v. Brooks, 204 Md. 315, 104 A.2d 624.
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