Brasel v. Myers

229 N.W.2d 569, 89 S.D. 114, 1975 S.D. LEXIS 124

Opinions

DOYLE, Justice.

This case has been previously before us and was disposed of on a procedural basis. Brasel v. City of Pierre, 1973, S.D., 211 N.W.2d 846. Any facts set forth in our previous opinion will not. be reiterated herein. Pursuant to the remand of this court, the summary judgment heretofore entered by the trial court has been certified as being a final judgment of that court, and the judgment is now before us on this appeal.

Two questions are presented: (1) Should the trial court have granted Homer Myers’ and Jack Paul Myers’ (Myerses) motion for summary judgment or motion to dismiss, and (2) Was the City of Pierre entitled to summary judgment.

It should be first noted that Myerses had previously petitioned this court for an appeal from the intermediate order dated March 15, 1972, which appeal was denied by this court. Consequently, Myerses’ appeal is before this court under SDCL 15-6-56, which statute is identical to F.R. Civ.P. 56. Thus, absent a determination of this court, we look to the federal courts for guidance. The rule is stated in Wright &: Miller, Federal Practice and Procedure: Civil § 2715:

“A denial of summary judgment indicates that the moving party has failed to establish that there is no genuine issue as to any material fact and that he is entitled to a judgment as a matter of law; a trial therefore is necessary. As a result, the denial of a Rule 56 (SDCL 15-6-56) motion is an interlocutory order from which no appeal is available until the entry of judgment following the trial on the merits.”

Therefore, Myerses’ appeal is untimely until the matter has been tried on the merits.

Both Brasels and Myerses’ appeal from the summary judgment granted the City of Pierre dismissing the action as to the City. In Wilson v. Great Northern Railway Company, 1968, 83 S.D. 207, 157 N.W.2d 19, this court set forth the principles governing summary judgment which may be summarized as follows:

(1) The evidence must be viewed most favorably to the nonmoving party;

(2) The burden of proof is upon the movant to show clearly there is no genuine issue of material fact and that he is entitled to judgment as a matter of law;

(3) It was never intended to be used as a substitute for a trial by jury where any genuine issue of material fact exists;

(4) A surmise that a party will not prevail upon trial is not sufficient basis. to grant the motion on issues which are not shown to be sham, frivolous or so in- . substantial that it is obvious that it would be futile . to try them;

(5)Summary judgment is an extreme remedy and should be awarded only when the truth is clear, and reasonable doubts touching the existence of a genuine issue as to material fact should be resolved against the movant;

(6)Where, however, no genuine issue of fact exists, it is looked upon with favor and is particularly adapted to expose sham claims and defenses.

And as stated by Justice Hanson in his dissent:

“ ‘Thus, a summary judgment, like a directed verdict, is unwarranted unless the court is convinced from the proof that the jury could arrive at but one conclusion, and if it did otherwise the court would be compelled to render judgment n. o. v.’ ”

In applying the foregoing principles, this court cannot say on the pleadings, the city ordinance involved,

Footnotes

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* and the depositions taken that there is no genuine issue of material fact so that the movant is entitled to a judgment, as a matter of law, when the evidence must be viewed in a light most favorable to the other parties. It is apparent that one of the issues of material fact is: by whose authority, consent or acquiescence was the hole cut in the sidewalk? Under all the circumstances, was it negligence to allow a hole to be cut in the sidewalk? As yet, sufficient facts have not been developed so that the truth is clear. Thus, when such doubts arise, the motion must be resolved against the movant. We are of the opinion that the liability of the defendants is covered by the provisions of SDCL 9-46. It is the duty of the city to keep sidewalks in good repair. Strait v. City of Eureka, 17 S.D. 326, 96 N.W. 695; Gurney v. Rapid City, 74 S.D. 194, 50 N.W.2d 360; Rapid City v. First National Bank, 79 S.D. 38, 107 N.W.2d 693. Furthermore, Pierre City Ordinance No. 761 creates duties and obligations on the part of both the City and abutting property owner with reference to the sidewalks, which are the subject of this controversy. In our opinion these questions of fact must be resolved by a jury.

The Myerses’ motion for summary judgment is denied; the summary judgment in favor of the City of Pierre is hereby reversed and the cause remanded to the circuit court for trial on the merits.

DUNN, C. J., and WOLLMAN, J., concur. COLER, J., concurs specially. WINANS, J., deeming himself disqualified, did not participate.

A certified copy of City Ordinance No. 761 appears in the record and reads:

"ORDINANCE NO. 761

“AN ORDINANCE PROVIDING FOR THE PLANTING OF TREES WITHIN CERTAIN AREAS ON PIERRE STREET WITHIN THE CITY OF PIERRE.

Be it ordained by the City of Pierre, South Dakota:

Section 1. Persons owning or occupying lots or parcels of land abutting on Pierre Street, from the Viaduct to Missouri Avenue, shall be exempt from the provisions of Section 13.0602 and 13.0603 of Ordinance No. 645 in Revision of Ordinances.

Section 2. Owners or occupants desiring to plant trees within the exempt area hereinabove described may do so after first having the type of tree and the position of the tree, or trees, approved by the City Commission of the City of Pierre, and the trees must be planted, cared for, trimmed and replaced by said owners or occupants, and the said tree, or trees, must be placed, cared for and trimmed so as not to interfere in any way with the city street lighting system, or to interfere with an-y other utilities.”