Spencer v. Miller, 19514

• Citation: 192 S.E.2d 863,259 S.C. 453
• Decision Date: 13 November 1972
• Docket Number: No. 19514,19514
• Parties: C. W. F. SPENCER, Jr., Respondent, v. Ernest W. MILLER, Appellant.
• Court: United States State Supreme Court of South Carolina

Page 863

192 S.E.2d 863

259 S.C. 453

C. W. F. SPENCER, Jr., Respondent, v. Ernest W. MILLER, Appellant.

No. 19514.

Supreme Court of South Carolina.

Nov. 13, 1972.

Brooks Goldsmith, Lancaster, for appellant.

W. L. Ferguson, Rock Hill, for respondent.

LITTLEJOHN, Justice.

The question we decide on this appeal is whether any triable issue of fact was presented to the circuit judge. He granted summary judgment to the plaintiff. Defendant appeals.

Mr. Spencer's complaint alleges that Mr. Miller, the defendant, became indebted to him in the sum of $3,071.00 as the result of services rendered by plaintiff 'at request of Defendant . . . necessary to erection and financing of his Post Office building, all as shown by verified itemized statements of account hereto attached and made a part hereof.' Defendant admits in his answer that plaintiff, as attorney, performed certain services for him, but denies 'that the amount claimed by the Plaintiff represents reasonable compensation for the services performed by the Plaintiff or that the amount of compensation, as alleged by the Plaintiff, was the amount agreed upon.'

The statement of account involved adjustments not in dispute. The heart of the controversy centers upon the question of what amount plaintiff should be paid for a title search and certification used by defendant to procure a mortgage loan of $625,000.00.

Plaintiff filed a notice of motion for summary judgment and an affidavit in support of the motion. Defendant answered the motion for summary judgment and filed his affidavit. In defendant's answer to the motion, he denies that any amount was ever agreed upon. The judge found no genuine issue of fact remained and granted summary judgment in the amount of $3,071.00 for the plaintiff.

The granting of a summary judgment must necessarily be founded on Circuit Court Rule 44, which states in part:

'The judgment sought shall be rendered forthwith if the pleadings and depositions, together with the affidavits, if any, show 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.'

Our Court has had little opportunity to interpret this three-year-old rule, but did say in Elmwood Cemetery Ass'n v. S. C. Tax Comm., 255 S.C. 457, 179 S.E.2d 609 (1971), that statements of ultimate facts and conclusions are not enough in an affidavit. 'Rule 44 contemplates an evidentiary affidavit. The mere reassertion in affidavit form of the general allegations of the complaint does not diminish or lessen the issues involved in the case.'

The federal courts have produced many helpful guilding precedents in the application of their rule, which is similar to ours. Fed.Rules Civ.Pro., Rule 56(c), 28 U.S.C.A.

As a general rule:

'The function of the summary judgment is to avoid a useless trial; and a trial is not only no useless but absolutely necessary where there is a genuine issue as to any material fact.

'In a ruling on a motion for summary judgment the court's function is to determine whether such a genuine issue exists, not to resolve any existing factual issues; to deny summary judgment where there is a genuine issue as to any material fact; and to grant summary judgment, if at all, where there is no such issue and on the substantive law the movant is entitled to judgment.' 6 J. Moore, Federal Practice 56.15(1), at 2281 (2d ed. 1953).

It is the duty of the court, on a motion for summary judgment, not to try issues of fact, but only determine whether there are genuine issues of fact to be tried; and, once having found that triable issues exist, must leave those issues for determination at a trial. The problem besetting courts lies in deciding what is or what is not a 'genuine issue as to any material fact.'

On a motion for summary judgment, the inferences to be drawn from the underlying facts contained in the record must be viewed in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 82 S.Ct 993, 8 L.Ed.2d 176 (1962). It is also demanded that the ruling be made on the record the parties have actually presented, not on one potentially possible. Madeirense Do Brasil, S/A v. Stulman-Emrick Lumber Co., 147 F.2d 399 (2d Cir. 1945). It is further recognized that the 'papers supporting the movant are closely scrutinized, whereas the opponent's are indulgently treated.' Bohn Aluminum & Brass Corp. v. Storm King Corp., 303 F.2d 425 (6th Cir. 1962).

'Where only one inference could reasonably be drawn from the undisputed evidentiary facts, then summary judgment would be proper.' Empire Electronics Co. v. United States, 311 F.2d 175 (2d Cir. 1962).

It has been said, and it is quite true, that 'no magical formula can be offered to determine the existence of a genuine issue of material fact.' 6 J. Moore, Supra, at 2286. The guiding principles enunciated hereinabove can only be aids in a problem of judging.

In the light of these principles, we look at the pleadings and the supporting affidavits. From both the defendant's and plaintiff's affidavits, it is apparent that the only point in dispute concerns the...