Omiya v. Castor

• Decision Date: 31 December 1987
• Docket Number: No. 86-462,86-462
• Citation: 536 A.2d 194,130 N.H. 234
• Parties: Newton OMIYA v. Daniel CASTOR.
• Court: New Hampshire Supreme Court

Page 194

536 A.2d 194

130 N.H. 234

Newton OMIYA v. Daniel CASTOR.

No. 86-462.

Supreme Court of New Hampshire.

Dec. 31, 1987.

Catalfo and McCarthy, Dover (Alfred Catalfo, Jr., on the brief, and John D. McCarthy orally), for plaintiff.

Wadleigh, Starr, Peters, Dunn & Chiesa, Manchester (Donald J. Perrault on the brief and orally), for defendant.

JOHNSON, Justice.

The plaintiff appeals the granting by the Trial Court (Gray, J.) of defendant's motion for summary judgment. The trial court's action was based on the conclusion that plaintiff's counter-affidavit, filed in opposition to defendant's motion for summary judgment, did not comply with RSA 491:8-a in that it did not show "specifically and clearly reasonable grounds for believing that contradictory evidence can be presented at a trial" and, further, did not contain "any contradictory evidence based on [the] personal knowledge" of the plaintiff. RSA 491:8-a, II. We reverse.

On November 5, 1983, the plaintiff, Newton Omiya, was a passenger in a car driven by his friend and co-worker Daniel Castor. Both men are residents of Hawaii and employees of the United States Navy who were temporarily assigned to work at the Portsmouth Naval Shipyard. Both parties were in a car which Omiya had rented and were proceeding south on the Spaulding Turnpike near the entrance to Pease Air Force Base when their car collided with a vehicle driven by Dora Young, which was proceeding north and which turned in front of the car being driven by Castor.

Omiya brought separate actions against Castor and Young, claiming negligence on the part of each driver. Castor moved for consolidation of the two cases, which was granted without objection by the Trial Court (Gray, J.) on July 30, 1985.

Castor submitted interrogatories to which Omiya responded. Upon receipt of Omiya's answers, Castor filed a motion for summary judgment on June 5, 1986, RSA 491:8-a, I, stating that Omiya's answers failed to contain any allegation of negligence against Castor. Omiya filed an answer to Castor's motion for summary judgment on June 6, 1986; however, Omiya did not file the requisite affidavit until July 18, 1986, after the thirty-day filing period specified in RSA 491:8-a, IV had passed. Over Castor's objection, Omiya was permitted by the trial court to file a late affidavit. The defendant has not appealed the trial court's decision to permit a late filing of the plaintiff's affidavit.

On August 25, 1986, a hearing was held on the motion for summary judgment. After hearing the arguments of counsel, the court granted defendant Castor's motion.

In timely fashion, Omiya filed a motion to reconsider the court's ruling. Castor objected to this motion, arguing that even with its attachments, it still failed to comply with the requirements of RSA 491:8-a. On October 15, 1986, this motion was denied. Plaintiff Omiya appeals.

Omiya argues that Castor's motion for summary judgment should not have been granted because Omiya's affidavit is "based upon personal knowledge of admissible facts," RSA 491:8-a, II, and shows the existence of a "genuine issue as to any material fact," RSA 491:8-a, III, namely, Daniel Castor's alleged failure to keep a proper lookout and to operate his vehicle at a safe rate of speed, in accordance with the requirements of RSA 491:8-a. We agree with the plaintiff.

Summary judgment is provided for in RSA 491:8-a. As interpreted by this Court, the summary judgment procedure exists primarily to expedite litigation by allowing the court to "pierce the pleadings and assess the proof ... in order to determine [whether] there is a genuine issue of material fact requiring a formal trial of the action." Community Oil Co. v. Welch, 105 N.H. 320, 321, 199 A.2d 107, 108 (1964) (quoting 6 Moore's Federal Practice § 56.01 (2d ed 1948)). It is "an excellent device to make possible the prompt disposition of controversies on their merits without a trial, if in essence there is no real dispute as to the salient facts or if only a question of law is involved." New Hampshire York Co. v. Titus Constr. Co., 107 N.H. 223, 224-25, 219 A.2d 708, 710 (1966) (quoting 3 Barron & Haltzoff, Federal Practice and Procedure § 1231, at 96 (Wright ed. 1958)). "[T]he very object of a motion for summary judgment is to separate what is formal or pretended in denial or averment from that which is genuine and substantial so that only the latter may subject a suitor to the burden of a trial." Nashua Trust Co. v. Sardonis, 101 N.H. 166, 168-69, 136 A.2d 332, 333 (1957) (quoting Richard v. Credit Suisse, 242 N.Y. 346, 350, 152 N.E. 110, 111 (1926)).

The party opposing a motion for summary judgment may file either an objection or his own motion for summary judgment, but in either case the opponent's filing must be supported by one or more affidavits or refer specifically to affidavits, pleadings, depositions, answers to interrogatories or admissions on file which establish the existence of a disputed issue of material fact. See Lortie v. Bois, 119 N.H. 72, 398 A.2d 540 (1979). While the moving party must file at least one affidavit based on the personal knowledge of a person who would be competent to testify at trial, the opposing party may file an affidavit which only shows reasonable and specific grounds for believing that evidence disputing the moving party's affidavits can be produced at trial. Id. However, the opposing party's response must do more than give notice of his objection to the motion or dispute the facts set forth in the moving party's affidavit. Johns-Manville Sales Corp. v. Barton, 118 N.H. 195, 385 A.2d 118 (1978); Amoskeag Savings Bank v. Patterson, 110 N.H. 261, 266 A.2d 116 (1970). It must set forth "specific facts showing the existence of a genuine issue for trial." Arsenault v. Willis, 117 N.H. 980, 983, 380 A.2d 264, 266 (1977); see also Proctor v. Bank of N.H., 123 N.H. 395, 464 A.2d 263 (1983). Mere denials or vague and general allegations of expected proof are not enough. Proctor v. Bank of N.H., 123 N.H. at 399, 464 A.2d at 265.

Omiya has satisfied these standards. Admittedly, his affidavit indicates that he believes Castor "had a green light," but he asserts, from reading Young's motor vehicle report of the accident, that she too claimed the right of way by virtue of a green light. In addition, Omiya's affidavit specifically refers to the pretrial statement of Dora Young, which blames Daniel Castor for the accident, claiming that Castor went through a red light, failed to take action to avoid the accident, was inattentive,...