Opinion
No. 85-393
Decided May 12, 1986
1. Judgments — Summary Judgment — Findings of Fact Trial court exceeded its authority on a motion for summary judgment by making findings of fact. RSA 491:8-a.
2. Judgments — Summary Judgment — Issue of Material Fact Trial court's authority on motion for summary judgment is limited to determining whether a genuine issue of material fact requiring a formal trial exists.
3. Judgments — Summary Judgment — Issue of Material Fact Summary judgment for plaintiff was reversed, since there was no basis to sustain the order, where the trial court erroneously made findings of fact and did not find that there was no genuine issue of material fact.
Winer, Pillsbury and Bennett, of Nashua (Peter G. Webb on the brief and orally), for the plaintiff.
Devine, Millimet, Stahl Branch P.A., of Manchester (Robert C. Dewhirst on the brief and orally), for the defendant.
MEMORANDUM OPINION
[1, 2] On plaintiff's motion for summary judgment under RSA 491:8-a, the Superior Court (Bean, J.) made findings of fact and noted a "possible material mistake" of fact by the parties. Such findings of fact exceeded the trial court's authority on motion for summary judgment which is limited to determining whether a "genuine issue of material fact requiring a formal trial" exists. Arsenault v. Willis, 117 N.H. 980, 983, 380 A.2d 264, 266 (1977). Moreover, the "possible" factual issue, if genuine, was itself sufficient to preclude summary judgment. Since the trial court did not find that there was no genuine issue of material fact, the order of summary judgment was erroneous.
We note that 20 of the defendant's response states that there are "no genuine issues as to any relevant facts." (Emphasis in original.) It is clear, however, that the defendant judged relevance by a legal theory that the trial court rejected.
There being no basis to sustain the order, the summary judgment for the plaintiff must be reversed.
Reversed.