L & W Wholesale, Inc. v. Gore
| Decision Date | 15 May 1991 |
| Docket Number | No. 1677,1677 |
| Citation | 305 S.C. 250,407 S.E.2d 658 |
| Parties | L & W WHOLESALE, INC., Respondent, v. Eugene GORE, d/b/a Gore's Corvette World and Ray Dininny of which Eugene Gore is, Appellant. . Heard |
| Court | South Carolina Court of Appeals |
Kenneth E. Sowell, Greenville, for appellant.
Joseph M. Pracht, Greenwood and Robert C. Wilson, Greenville, for respondent.
L & W Wholesale, Inc., (L & W), sued Eugene Gore to recover for goods sold. L & W moved for summary judgment on August 29, 1989. Gore filed an opposing affidavit dated September 27, 1989. The summary judgment motion was denied. L & W then filed an amended complaint adding an additional defendant, Ray Dininny, and alleging Gore and Dininny acted as partners in the purchase of some of the goods. On November 16, 1989, L & W filed a second motion for summary judgment. The trial court granted summary judgment against Gore in the amount of $3,877.50. The subsequent written order awarded an additional $1,639.82 in interest and $50.00 in costs. Gore appeals.
The principal issue on appeal is whether or not the trial court erred in granting summary judgment to L & W in view of the September 1989 affidavit and Gore's deposition testimony.
L & W's amended complaint alleged it sold shirts and jackets to Gore and Dininny. Gore denied purchasing the disputed goods or authorizing any other person to purchase the goods for him. He alleged he had introduced L & W to Dininny and Dininny may have purchased the disputed goods from L & W in his individual capacity.
L & W's affidavit states Gore came to its place of business and bought goods costing $2,365.50. The affidavit also states that on another occasion Gore purchased goods by telephone from L & W valued at $1,512.00 and sent Dininny to pick up the goods.
The September 1989 affidavit of Gore (in response to the first motion for summary judgment) acknowledged he previously purchased goods from L & W, but asserted he paid for the goods immediately upon receipt. Gore further stated that, on information and belief, Dininny purchased goods from L & W individually, but he had no involvement in such purchases and he had paid for all goods purchased from L & W.
In his deposition, Gore stated he didn't know whether he purchased the shirts and jackets indicated in the complaint without going back and researching his records. He stated he had traded for some shirts and intended to introduce invoices of the trades as evidence at trial. He stated he never purchased anything on credit from L & W. When questioned whether he received the jackets reflected on the invoice dated March 5, 1985, he repeatedly replied "if it's the last transaction, absolutely not." He stated his last transaction with L & W was in "January or February, somewhere along there."
At the hearing on the second motion for summary judgment, the court refused to accept Gore's September 1989 affidavit because it was filed prior to the second motion for summary judgment. The court's order stated:
The defendant, Eugene Gore was deposed and stated on page six of his deposition that he had no memory as to whether he received the goods under litigation ... The defendant, Eugene Gore failed to issue any rebuttal affidavits to plaintiff's affidavit of date November 16, 1989. I find that there is no material issue raised by defendant and determine there is no factual issue....
Gore first argues the court erred in not considering his September affidavit which was part of the file. He argues the affidavit was as correct and as complete a defense to the motion in the amended action as it was to the first motion. L & W argues no error in the exclusion of the affidavit. It further argues that because Gore did not specifically deny receiving the goods, the affidavit, if considered, would add no evidentiary support to the record.
"In ruling on a motion for summary judgment, the evidence and the inferences which can be drawn therefrom should be viewed in the light most favorable to the nonmoving party."...
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