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Swenson v. Raumin8/18/1998
lly Swenson's loss of consortium claim. Judgment was entered dismissing the Swensons' actions.
[ ] The trial court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. Peter Swenson's appeal is timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const. art. VI, § 6, and N.D.C.C. § 28-27-01.
II.
[ ] The sole issue on appeal is whether the trial court erred in granting summary judgment dismissal of Peter Swenson's claim for rescission and damages.
A.
[ ] Summary judgment is a procedure for the prompt and expeditious disposition of a controversy without trial if either litigant is entitled to judgment as a matter of law, if no dispute exists as to either the material facts or the inferences to be drawn from undisputed facts, or if resolving factual disputes would not alter the results. Perry Center, Inc. v. Heitkamp, 1998 ND 78, 12, 576 N.W.2d 505. On appeal, we review the evidence in the light most favorable to the party opposing the summary judgment motion. Freed v. Unruh, 1998 ND 34, 6, 575 N.W.2d 433.
[ ] In considering a motion for summary judgment, a court may examine the pleadings, depositions, admissions, affidavits, interrogatories, and inferences to be drawn from that evidence to determine whether summary judgment is appropriate. Matter of Estate of Otto, 494 N.W.2d 169, 171 (N.D. 1992). Although the party seeking summary judgment has the burden to clearly demonstrate there is no genuine issue of material fact, the court must also consider the substantive standard of proof at trial when ruling on a summary judgment motion. State Bank of Kenmare v. Lindberg, 471 N.W.2d 470, 474-75 (N.D. 1991). The party resisting the motion may not simply rely upon the pleadings or upon unsupported, conclusory allegations, but must present competent admissible evidence by affidavit or other comparable means which raises an issue of material fact and must, if appropriate, draw the court's attention to relevant evidence in the record raising an issue of material fact. Kummer v. City of Fargo, 516 N.W.2d 294, 297 (N.D. 1994). Summary judgment is proper against a party who fails to make a showing sufficient to establish the existence of an element essential to the party's case and on which that party will bear the burden of proof at trial. Matter of Estate of Stanton, 472 N.W.2d 741, 746 (N.D. 1991).
B.
[ ] In this case, the Raumin Brothers supported their summary judgment motion with an affidavit, signed by their attorney, attesting to the "facts in connection with said cause of action." The facts attested to are the date of Peter Swenson's injury , the date Peter Swenson signed the release, the date the Swensons brought this lawsuit, and the nature of the relief they sought.
[ ] We have often noted an affidavit of counsel in support of or resistance to a motion for summary judgment made on information and belief does not comply with N.D.R.Civ.P. 56(e) because an attorney's hearsay affidavit is not a substitute for the personal knowledge of a party. See, e.g., Hummel v. Mid Dakota Clinic, P.C., 526 N.W.2d 704, 708 (N.D. 1995). Nevertheless, the erroneous presentation of an affidavit that does not meet Rule 56(e) standards does not require reversal of the summary judgment if other evidence in the record supports summary judgment. See Luithle v. Taverna, 214 N.W.2d 117, 124 (N.D. 1973).
[ ] The information recited in the attorney's affidavit appeared in court records. The complaint and the settlement agreement were in the record, and the date of and information about Peter Swenson's major surgery appear in his answers to interrogatories, also filed with the
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