Any issue of fact must be determined by the court or jury at a trial and should not be determined by the court on a motion for summary judgment. Flanders v. Kochenberger, 118 Colo. 104, 193 P.2d 281; Hatfield v. Barnes, 115 Colo. 30, 168 P.2d 552. Returning now to a review of the court's findings, we note in passing that there were statements in defendant's affidavit, if uncontradicted, to support them. An examination, however, of the deposition and counter-affidavit of the plaintiff discloses several areas which raise doubts in our minds as to the absence of a genuine factual issue.
We have previously recognized that "[a]ny issue of [material] fact must be determined by the court or jury at a trial and should not be determined by the court on a motion for summary judgment." Primock v. Hamilton, 168 Colo. 524, 528, 452 P.2d 375, 378 (1969) (relying on Flanders v. Kochenberger, 118 Colo. 104, 193 P.2d 281 (1948), and Hatfield v. Barnes, 115 Colo. 30, 168 P.2d 552 (1946)); see Morlan, 127 Colo. at 10, 252 P.2d at 100 (quoting Michel v. Meier, 8 F.R.D. 464, 471) ("`In passing upon a motion for summary judgment, it is no part of the court's function to decide issues of fact but solely to determine whether there is an issue of fact to be tried.'"). "A material fact is simply a fact that will affect the outcome of the case."
Summary judgment is a drastic remedy and should be granted only where the evidential and legal prerequisites are clearly established. E.g., McKinley Construction Co. v. Dozier, 175 Colo. 397, 487 P.2d 1335 (1971); Primock v. Hamilton, 168 Colo. 524, 452 P.2d 375 (1969); Flanders v. Kochenberger, 118 Colo. 104, 193 P.2d 281 (1944); Hatfield v. Barnes, 115 Colo. 30, 168 P.2d 552 (1946). Having due regard for these stringent standards of review and after careful consideration of the record before us, we reject defendants' contentions.
We cannot say that the trial judge abused his discretion under the circumstances of this case. See, Palmer Park Gardens, Inc. v. Potter, 162 Colo. 178, 425 P.2d 268; Flanders v. Kochenberger, 118 Colo. 104, 193 P.2d 281; Fedderson v. Goode, 112 Colo. 38, 145 P.2d 981. The judgment is affirmed.
We have many times held, and again reiterate that a summary judgment is a drastic remedy, never warranted except in the complete absence of any genuine issue of material fact. All doubts with respect thereto must be resolved against the mover. Hatfield v. Barnes, 115 Colo. 30, 168 P.2d 552; Tamblyn v. Denver, 118 Colo. 191, 194 P.2d 299; Flanders v. Kochenberger, 118 Colo. 104, 193 P.2d 281; Holter v. Cozad, 124 Colo. 428, 238 P.2d 190. (2) It requires no strained mental exercise to reach the conclusion that each of plaintiff's alleged claims, if proved, states a claim upon which relief may be granted, and that none is vulnerable to a motion to dismiss.
The intent and purpose of the rule is that, where the facts are undisputed, or so certain as not to be subject to dispute, the court is in position to determine the issue strictly as a matter of law. It is properly to be exercised only where the facts are clear and undisputed, leaving as the sole duty of the court the determination of the correct legal principles applicable thereto. Parrish v. De Remer, 117 Colo. 256, 273, 274, 187 P.2d 597, 606; Smith v. Mills, 123 Colo. 11, 15, 225 P.2d 483, 485; see, also, Flanders v. Kochenberger, 118 Colo. 104, 111, 112, 193 Pac. 281, 285; Tamblyn v. City and County of Denver, 118 Colo. 191, 193, 194, 194 P.2d 299, 300. * * *."
The intent and purpose of the rule is that, where the facts are undisputed, or so certain as not to be subject to dispute, the court is in position to determine the issue strictly as a matter of law. It is properly to be exercised only where the facts are clear and undisputed, leaving as the sole duty of the court the determination of the correct legal principles applicable thereto. Parrish v. De Remer, 117 Colo. 256, 273, 274, 187 P.2d 597; 606 Smith v. Mills, 123 Colo. 11, 15, 225 P.2d 483, 485; see also, Flanders v. Kochenberger, 118 Colo. 104, 111, 112 193 Pac. 281, 285; Tamblyn v. City and County of Denver, 118 Colo. 191, 193, 194, 194 P.2d 299, 300. * * * * * *
The intent and purpose of the rule is that, where the facts are undisputed, or so certain as not to be subject to dispute, the court is in position to determine the issue strictly as a matter of law. It is properly to be exercised only where the facts are clear and undisputed, leaving as the sole duty of the court the determination of the correct legal principles applicable thereto. Parrish v. De Remer, 117 Colo. 256, 273, 274, 187 P.2d 597, 606; Smith v. Mills, 123 Colo. 11, 15, 225 P.2d 483, 485; see, also, Flanders v. Kochenberger, 118 Colo. 104, 111, 112, 193 Pac. 281, 285; Tamblyn v. City and County of Denver, 118 Colo. 191, 193, 194, 194 P.2d 299, 300. "In passing upon a motion for summary judgment, it is not part of the court's function to decide issues of fact but solely to determine whether there is an issue of fact to be tried." citing cases. Michel v. Meier, 8 Fed. Rules Dec. 464, 471. And, "A motion for summary judgment should be denied if under the evidence reasonable men might reach different conclusions.
We are not concerned with S.L. '45, chapter 125, where, inter alia, Park county is reclassified as a county of the fifth class and sections 41 and 68, chapter 66, '35 C.S.A., are repealed, for the reason that act was passed subsequent to the period involved in this litigation. Flanders v. Kochenberger, 118 Colo. 104, 193 P.2d 281, is founded upon the 1945 Act. That case is therefore not pertinent to the situation here; also for the further reason that in that case we held there were issues of fact raised by the pleadings that could not be disposed of by a summary judgment.
" We have held that "any doubt as to the existence of such an issue must be resolved against the moving party." Flanders v. Kochenberger, 118 Colo. 104, 193 P.2d 281; that, "Summary judgment is a drastic remedy and is never warranted except on clear showing that there is no genuine issue as to any material fact." Hatfield v. Barnes, 115 Colo. 30, 168 P.2d 552, 553; Widman v. Ashcraft, 117 Colo. 373, 188 P.2d 889; that, "On the hearing of a motion for a summary judgment, the material allegations of the complaint must be accepted as true even in the face of denials in the answer.