Liberty Leasing Co. v. Hillsum Sales Corporation, No. 23760.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtPHILLIPS, THORNBERRY and DYER, Circuit
Citation380 F.2d 1013
Decision Date21 July 1967
Docket NumberNo. 23760.
PartiesLIBERTY LEASING CO., Inc., Appellant, v. HILLSUM SALES CORPORATION, Appellee.

380 F.2d 1013 (1967)

LIBERTY LEASING CO., Inc., Appellant,
v.
HILLSUM SALES CORPORATION, Appellee.

No. 23760.

United States Court of Appeals Fifth Circuit.

July 21, 1967.


380 F.2d 1014

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...

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71 practice notes
  • Tyler v. Vickery, No. 74-3413
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • August 20, 1975
    ...Harvey v. Great Atlantic & Pacific Tea Co., 5 Cir. 1968, 388 F.2d 123, 124-25; Liberty Leasing Co. v. Hillsum Sales Corp., 5 Cir. 1967, 380 F.2d 1013, 1014-15. The inferences the nonmoving party seeks to draw, however, must be "reasonable," and it is in this respect that we find Dr. Dillard......
  • Christophersen v. Allied-Signal Corp., ALLIED-SIGNAL
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • August 15, 1991
    ...& n. 12 (depositions), Sec. 2738 at 470 & n. 7, 474 & n. 12 (affidavits) (2d ed. 1983). Cf. Liberty Leasing Co. v. Hillsum Sales Corp., 380 F.2d 1013, 1015 (5th Cir.1967) (upholding district court's decision to disregard deposition that contained inadmissible hearsay), cited in Samuels v. D......
  • Walton v. Alexander, No. 93-7313
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • May 19, 1994
    ...Nicholas Acoustics, Etc. v. H & M Const. Co., Inc., 695 F.2d 839, 844 (5th Cir.1983) (quoting Liberty Leasing Co. v. Hillsum Sales Corp., 380 F.2d 1013, 1051 (5th Cir.1967)). The court must then review all evidence bearing on those issues, viewing the facts and inferences in the light most ......
  • Roberts v. Samardvich, No. 3:93cv0760 AS.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • November 21, 1995
    ...850, 862 (7th Cir.1985), cert. denied, 475 U.S. 1107, 106 S.Ct. 1513, 89 L.Ed.2d 912 (1986); Liberty Leasing Co. v. Hillsum Sales Corp., 380 F.2d 1013, 1015 (5th Cir.1967) (deposition containing inadmissible hearsay properly disregarded); Amcast Indus. Corp. v. Detrex Corp., 779 F.Supp. 151......
  • Request a trial to view additional results
71 cases
  • Tyler v. Vickery, No. 74-3413
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • August 20, 1975
    ...Harvey v. Great Atlantic & Pacific Tea Co., 5 Cir. 1968, 388 F.2d 123, 124-25; Liberty Leasing Co. v. Hillsum Sales Corp., 5 Cir. 1967, 380 F.2d 1013, 1014-15. The inferences the nonmoving party seeks to draw, however, must be "reasonable," and it is in this respect that we find Dr. Dillard......
  • Christophersen v. Allied-Signal Corp., ALLIED-SIGNAL
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • August 15, 1991
    ...& n. 12 (depositions), Sec. 2738 at 470 & n. 7, 474 & n. 12 (affidavits) (2d ed. 1983). Cf. Liberty Leasing Co. v. Hillsum Sales Corp., 380 F.2d 1013, 1015 (5th Cir.1967) (upholding district court's decision to disregard deposition that contained inadmissible hearsay), cited in Samuels v. D......
  • Walton v. Alexander, No. 93-7313
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • May 19, 1994
    ...Nicholas Acoustics, Etc. v. H & M Const. Co., Inc., 695 F.2d 839, 844 (5th Cir.1983) (quoting Liberty Leasing Co. v. Hillsum Sales Corp., 380 F.2d 1013, 1051 (5th Cir.1967)). The court must then review all evidence bearing on those issues, viewing the facts and inferences in the light most ......
  • Roberts v. Samardvich, No. 3:93cv0760 AS.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • November 21, 1995
    ...850, 862 (7th Cir.1985), cert. denied, 475 U.S. 1107, 106 S.Ct. 1513, 89 L.Ed.2d 912 (1986); Liberty Leasing Co. v. Hillsum Sales Corp., 380 F.2d 1013, 1015 (5th Cir.1967) (deposition containing inadmissible hearsay properly disregarded); Amcast Indus. Corp. v. Detrex Corp., 779 F.Supp. 151......
  • Request a trial to view additional results

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