Liberty Leasing Co. v. Hillsum Sales Corporation, 23760.

Decision Date21 July 1967
Docket NumberNo. 23760.,23760.
Citation380 F.2d 1013
CourtU.S. Court of Appeals — Fifth Circuit

Sidney J. Berger, Miami, Fla., William N. Weaver, Jr., Epstein, Manilow & Sachnoff, Chicago, Ill., Barry L. Kroll, Chicago, Ill., of counsel, for appellant.

Richard L. Lapidus, Miami, Fla., for appellee.

Before PHILLIPS,* THORNBERRY and DYER, Circuit Judges.

DYER, Circuit Judge:

Hillsum Sales Corporation, seller of stamp vending machines, had an agreement with Liberty Leasing Co. whereby Hillsum would solicit and procure leases for Liberty. In return, Liberty agreed to purchase the machines from Hillsum. Certain machines were delivered to Liberty by Hillsum but were not paid for. On December 9, 1965, Hillsum brought suit to recover the purchase price of the machines. Liberty, on January 5, 1966, filed a Motion to Quash asserting lack of jurisdiction over the person. On January 18, 1966, Hillsum filed a Motion for Summary Judgment supported by an affidavit and numerous exhibits. No response to this motion was filed; neither did Liberty present counter-affidavits or depositions.

A hearing was held on February 23 to consider both the Motion to Quash and the Motion for Summary Judgment. Liberty's counsel voluntarily withdrew the Motion to Quash and pleaded unpreparedness as to the Motion for Summary Judgment. The court denied Liberty's request for a continuance and entered a summary judgment in Hillsum's favor on the issue of liability. Nevertheless on February 28 Liberty filed an "Answer and Counterclaim" including general allegations of breach of contract. However no affidavits or other proof were filed.

On March 7 Hillsum filed another Motion for Summary Judgment, attaching business records to prove its claim for damages. Liberty, on March 8, filed a Petition for Rehearing alleging that the court, in entering the summary judgment on liability, had overlooked the deposition of one Grossman taken by Hillsum in connection with Liberty's motion to quash which Liberty contended raised a material issue of fact. Again, no support was offered. After a hearing the court, on March 30, granted a final summary judgment to Hillsum. The court, in its order, stated that it had considered Grossman's deposition and had "concluded that there was nothing in it * * * which created, or even indicated that there was a genuine issue of a material fact with respect to liability."

This appeal ensued. We are called upon to decide whether it was error to grant the summary judgment in light of the Grossman deposition and whether it was an abuse of discretion to deny the continuance. We answer both questions in the negative and affirm.

A summary judgment is to be granted only if the evidence before the court shows that there is "no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); Poller v. Columbia Broadcasting System, Inc., 1962, 368 U.S. 464, 82 S.Ct. 486, 7 L.Ed.2d 458. The burden is upon the moving party to establish that there is no genuine issue of fact, Kilfoyle v. Wright, 5 Cir. 1962, 300 F.2d 626, 629; Bragen v. Hudson County News Co., 3 Cir. 1960, 278 F.2d 615, 617, and the party opposing the motion should be given the benefit of every reasonable doubt, Heyward v. Public Housing Administration, 5 Cir. 1956, 238 F.2d 689, 696. However, rule 56 requires that the opposing party be diligent in countering a motion for summary judgment, Southern Rambler Sales, Inc. v. American Motors Corp., 5 Cir. 1967, 375 F.2d 932, and mere general allegations which do not reveal detailed and precise facts will not prevent the award of summary judgment, Fed.R.Civ.P. 56 (e), Robin Construction v. United States, 3 Cir., 1965, 345 F.2d 610, 613-614. The deposition1 relied upon by Liberty to show that the summary judgment should not have been granted, contains no statements that in any way approach the required specificity. No names, dates or locations are given, and the general assertions and legal conclusions which characterize the entire deposition do not give rise to a genuine issue of material fact. E. g. Dressler v. M/V Sandpiper, 2 Cir. 1964, 331 F.2d 130, 133.

Furthermore, under the 1963 amendments to Rule 56, when the court permits depositions to be used, they "shall be made on personal knowledge and shall set forth such facts as would be admissible in evidence * * *." Fed.R.Civ.P. 56(e). Several times during his deposition Grossman candidly admitted that he had no personal knowledge of the alleged misrepresentations and that he was testifying to what others had told him. His testimony comes squarely within the traditional hearsay rule to which Florida adheres, e. g., Findley v. State, 1936, 124 Fla. 447, 168 So. 544, and therefore runs counter to the...

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