PEARL RIVER CTY. SUPERVISORS v. S. E. COLLECTIONS
1/1/1900
hat there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." MRCP 56 (1972). The power to grant summary judgment is not discretionary with the trial court and the above test must be met in all cases. National Screen Serv. Corp. v. Poster Exchange Inc., 305 F.2d 647 (5th. Cir. 1962); see also Wright & Miller, Federal Practice & Procedure 2728 (1983). A fact is "material" if it tends to resolve any of the issues that have been properly raised by the parties. Scott Paper Co. v. Adair Truck & Equipment Co., 542 F.2d 1257 (5th. Cir. 1976).
The county contests several material facts, i.e., that the prisoner was a county prisoner, indigent and unable to pay, that the prisoner was in need of hospitalization for the entire length of time, and that the charges were reasonable and customary, as well as others. These represent genuine issues of material facts. The summary judgment of the court below reflects direct or indirect factual findings by the trial court on these disputed issues. This is inappropriate under Rule 56. MRCP 56, Comment (1982).
Our review of the record reveals substantial deficiencies in the form of the affidavits of the movant for summary judgment. Affidavits, where used, should be on personal knowledge. MRCP 56(e). The affidavit filed by the plaintiff in support of his motion was not on personal knowledge. The burden is on the movant to establish (a) the facts necessary to support the judgment he seeks and (b) that there is no genuine issue of material fact. The movant has failed to shoulder this burden. So that the parties will understand our decision, our reversal is predicated on movant's inadequate showing. We note, however, that defendant's response is also deficient in that it is not verified. "Only sworn denials providing a credible basis therefor in evidentiary fact will suffice" to defeat a motion for summary judgment when properly supported. Brown v. Credit Center, Inc., 444 So. 2d 358, 364 (Miss. 1984).
This Court has interpretated the Summary Judgment Rule 56 in recent cases. Extensive discussion in Brown v. Credit
Center, Inc., 444 So. 2d 358 (Miss. 1984) sets forth procedural and evidentiary matters necessary to prevail on such a motion to which we refer the parties and the Court. See also: Pearl River County Board of Supervisors, L. K. Sones, G. W. Moody, E. M. Clark, Glenn Dossett And Hollis O. Mitchell v. South East Collections Agency, Inc. d/b/a South East Collections, (No. 55,146, decided October 31, 1984, but not yet reported); Dennis v. Searle, (No. 54,433, decided October 10, 1984, but not yet reported); Biggers v. Fox, (No. 54,404, decided September 26, 1984, but not yet reported); Holland v. Kennedy, (No. 54,340, decided August 22, 1984 but not yet reported.
The legal questions involved in this case necessarily require a full factual development. We do not address the second assignment of error for this reason. Therefore, the order of the court below granting summary judgment in favor of the appellee, Southeast Collections, Inc. is reversed, and this cause is remanded for trial.
REVERSED AND REMANDED.
PATTERSON, C.J., AND WALKER AND ROY NOBLE LEE, P. JJ., AND BOWLING, HAWKINS, DAN LEE, ROBERTSON, AND SULLIVAN, JJ., CONCUR.