Urban Management Corp. v. Burns

• Citation: 427 So.2d 1310
• Decision Date: 22 February 1983
• Docket Number: No. 15203-CA,15203-CA
• Parties: URBAN MANAGEMENT CORP., Plaintiff-Appellee, v. Ellis L. BURNS, Jr., et al, Defendant-Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 1310

427 So.2d 1310

URBAN MANAGEMENT CORP., Plaintiff-Appellee, v. Ellis L. BURNS, Jr., et al, Defendant-Appellant.

No. 15203-CA.

Court of Appeal of Louisiana,

Second Circuit.

Feb. 22, 1983.

Rehearing Denied April 7, 1983.

Cook, Yancey, King & Galloway by Sidney B. Galloway, Shreveport, for plaintiff-appellee.

Schober, Clawson & Brabham by Russell O. Brabham, Shreveport, for defendant-appellant.

Before PRICE, JASPER E. JONES and NORRIS, JJ.

JASPER E. JONES, Judge.

This is an action for injunctive relief and specific performance of a contract to sell land. The parties are Urban Management Corporation, plaintiff, and Ellis Leon Burns, Jr., defendant. Burns appeals a judgment granting plaintiff's motion for summary judgment ordering specific performance of the contract and granting injunctive relief.

The portion of the judgment granting injunctive relief was stipulated to by the parties and appellant assigns no error directed at this portion of the judgment. Burns sets out six assignments of error on appeal, all related to the summary judgment. We do not consider those assignments because we find the issue of the propriety of summary judgment, though not raised by either party, dispositive of this appeal.

A motion for summary judgment should be granted if, and only if, the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. Thornhill v. Black, Sivalls & Bryson, Inc., 394 So.2d 1189 (La.1981), LSA-C.C.P. art. 966. The mover bears the burden of showing that there is no genuine issue of material fact. Thornhill.

Urban Management's motion for summary judgment asks that it be decided on the evidence previously adduced at a related rule for a preliminary injunction and is otherwise unsupported. The parties have entered into a stipulation in which they agree: 1) that there is no evidence which was not presented at the prior hearing on the preliminary injunction; 2) that there are "no material issues of fact in dispute"; and 3) that the motion for summary judgment should be decided on the "facts and evidence" before the court.

Testimony should neither be received nor considered, even with consent of counsel, to decide a motion for summary judgment. Hemphill v. Strain, 341 So.2d 1186 (La.App. 1st Cir.1976), writ refused, 343 So.2d 1072 (La.1977); Fisher v. Cash Grocery and Sales, 316 So.2d 872 (La.App. 3d Cir.1975); Landau v. Groves, 397 So.2d 866 (La.App. 4th Cir.1981); see Succession of Dubuisson v. Cook, 427 So.2d 1312 (La.App. 2d Cir.1983).

Summary judgment is not a substitute for a trial on the merits and weighing conflicting evidence or making evaluations of credibility has no place in determining a summary judgment. Dixie Buick, Inc. v. Lockett, 263 So.2d 56 (La.App. 4th Cir.1972); Lachney v. Employers Casualty Company, 281 So.2d 761 (La.App. 3d Cir.1973); Mecom v. Mobil Oil Corporation, 299 So.2d 380 (La.App. 3d Cir.1974); writ denied, 302 So.2d 308 (La.1974); Dougharty v. Calkraft Paper Company, 335 So.2d 772 (La.App. 3d Cir.1976); Gulf-Wandes Corporation v. Vinson Guard Service, Inc., 393 So.2d 207 (La.App. 1st Cir.1980), writ denied, 397 So.2d 1359 (La.1981).

The motion for summary judgment is improper insofar as it is based on the testimony at the prior hearing and the judgment is erroneous insofar as it is grounded on that testimony. Further, even were the motion...