
    W.B. CRAIN v. CLEVELAND LODGE 1532, ORDER OF MOOSE, INC.
    No. 07-58745.
    Supreme Court of Mississippi.
    Jan. 31, 1990.
    Rehearing Denied May 16, 1990.
    J. Murray Akers, Greenville, for appellant.
    Michael T. Lewis, Pauline Lewis, Luckett Law Firm, Clarksdale, for appellee.
    Before ROY NOBLE LEE, C.J., and PRATHER and SULLIVAN, JJ.
   PRATHER, Justice, for the Court.

The question raised by this appeal is whether the trial judge abused his discretion in denying the non-movant on a summary judgment motion the right to present live testimony on a subpoena duces tecum issued against an adverse and hostile witness. Holding that the litigant Crain was deprived of his opportunity to develop genuine fact issues, this Court reverses and remands for a new summary judgment hearing.

W.B. Crain, (Crain) the plaintiff below, brought this action against the Cleveland Lodge 1532, Order of Moose, Inc. (the Lodge) seeking damages for injuries he received at the hands of an unknown third party in the Lodge’s parking lot. The Lodge filed a motion for summary judgment, which was granted by the trial court. Crain now perfects his appeal to this Court, assigning as error the following:

(1) THE TRIAL COURT ERRED IN QUASHING SUBPOENAS ISSUED BY THE PLAINTIFF WHICH SOUGHT TO COMPEL THE ATTENDANCE AND TESTIMONY OF TWO MEMBERS OF THE MOOSE LODGE AT THE HEARING ON THE MOTION FOR SUMMARY JUDGMENT.
(2) THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF THE DEFENDANT MOOSE LODGE.

I.

Appellant Crain was a member of a musical group scheduled to perform at the Cleveland Moose Lodge on the evening of February 23, 1985. On the evening in question, Crain had set up the band’s equipment around 5:00 p.m. and then went to his mother’s house to eat dinner. He returned to the Lodge shortly before 9:00 p.m., the time the band was scheduled to perform.

Crain parked his car in the Lodge’s rear parking lot, facing the building. He testified at the deposition that attendance at the Lodge may have been heavier than usual, forcing him to park behind someone else’s car. The weather conditions had been rainy most of the afternoon, and it was drizzling when Crain arrived at the Lodge.

Crain also testified that there was only one small light in the parking lot, and it was located next to the building by the stage area. The door in question was the one Crain would normally have used to enter the building. His last clear memory of the evening of February 23 was getting out of the car and attempting to open the rear car door to retrieve his guitar. He was struck from behind on the head, rendering him unconscious. Crain’s next clear memory was waking up in a Greenville hospital some two to three weeks later. Due to the severity of the injuries he received, Crain recalled very little of what happened after he arrived at the Lodge’s parking lot. Crain testified at the deposition that the assailant had relieved him of $100.00 to $175.00 in cash money and a blue flight bag containing some of his personal effects.

During Crain’s deposition testimony, he was certain about the lack of lighting in the Lodge’s parking lot, and he also stated that he never saw the person who attacked him. He further stated that the lighting in the parking lot was improved after he was attacked.

As a result of the attack, Crain, who held a Masters Degree from the University of Mississippi, was permanently disabled, suffered a loss of sensation in his right hand and arm, and his speech was adversely affected. At the time of the attack, although Crain had held other jobs, his only source of income was the money he made from playing with the band. Following the incident, he had apparently been unable to hold another job.

Following an initial round of discovery by both parties, and the taking of Crain’s deposition by counsel for the Moose Lodge, the Lodge moved for summary judgment. Supporting affidavits from Bob Avery, the secretary of the Moose Lodge, who also answered the interrogatories on behalf of the Lodge, and Charles Mosley, a member of the Lodge and the Chief of Police for the City of Cleveland, were filed along with the Lodge’s motion for summary judgment.

Crain responded to the motion for summary judgment by filing a supporting affidavit from Tami C. Scrivner, the police chief for the City of Indianola, and monthly crime reports from the Cleveland Police Department for the previous sixty (60) months. In preparation for the summary judgment hearing, Crain also had issued subpoenas duces tecum for Mosley and Avery. The Lodge filed a motion to quash or modify the Avery subpoena only, and only with regard to certain documents that had been requested by Crain. Instead, on its own motion, the trial court issued an order announcing that no live testimony would be heard at the summary judgment hearing. The order quashed both subpoenas, without explanation. Following arguments on the motion, the trial court issued its ruling, granting the Lodge’s motion for summary judgment. Crain then perfected his appeal to this Court.

II.

DID THE TRIAL COURT ERR IN QUASHING SUBPOENAS ISSUED BY THE PLAINTIFF WHICH SOUGHT TO COMPEL THE ATTENDANCE AND TESTIMONY OF TWO MEMBERS OF THE MOOSE LODGE AT THE HEARING ON THE MOTION FOR SUMMARY JUDGMENT?

Under Crain’s first assignment of error, he claims that the trial court erred when, on its own motion, it quashed the subpoenas duces tecum issued for Avery and Mosley. This Court agrees.

Rule 56 of the Mississippi Rules of Civil Procedure governs summary judgment procedure in this state, and specifically, Section (e) addresses forms of evidence which may be presented at a summary judgment hearing:

(e) Form of Affidavits; Further Testimony; Defense Required.
Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matter stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits.

Nowhere in Rule 56(e) is the use of oral testimony at summary judgment hearings mentioned. However, Rule 43(e) of M.R. C.P. does discuss the use of oral testimony:

(e) Evidence on Motions. When a motion is based on facts not appearing of record the court may hear the matter on affidavits presented by the respective parties, but the court may direct that the matter be heard wholly or partly on oral testimony or depositions.

Even more pertinent to the discussion of whether to allow the use of oral testimony at a summary judgment hearing are the Comments following Rule 43:

Although oral testimony may be heard on a motion for summary judgment, the court need not allow this, and its authority to do so should be exercised with care. The purpose of summary judgment — i.e. giving a speedy adjudication in cases that present no genuine issue of fact — is defeated if the hearing on the motion becomes a preliminary trial. 9 Wright & Miller, supra § 2417.

Therefore, based on the language of the Comments following Rule 43, the use of oral testimony at summary judgment hearings is clearly allowable, although the option of doing so should be exercised with caution. Although great care should be used to avoid turning a summary judgment hearing into a mini-trial, there are other countervailing factors to be considered as well.

[I]t is precisely because oral testimony, with the attendant opportunity for cross-examination, is the mode of presentation that is thought most appropriate for use at trial that it also is the most trustworthy form of proof available for a Rule 56 hearing. Accordingly, oral testimony should be used when there is reason to believe that it will be of significant assistance to the court and is reasonably circumscribed in scope.

10A C. Wright, A. Miller and M.K. Kane, Federal Practice and Procedure § 2723 at 63 (1983).

Other legal commentators have noted with approval the practice of using oral testimony at summary judgment hearings, although once again not condoning its unlimited use. 6 J. Moore, W. Taggart, J. Wicker, Moore’s Federal Practice, § 56.11[1. — 6] at 56-101 and § 56.11[8] at 56-154 thru 156 (2d ed.1988). This Court has also specifically approved the practice of allowing oral testimony at summary judgment hearings. Cole v. Wiggins, 487 So.2d 203, 206 (Miss.1986). See also, Davis v. Davis, 508 So.2d 1062, 1063-64 (Miss.1987).

Other jurisdictions have also adopted the position adhered to by this Court in Cole, supra. See Occidental Realty v. General Insurance Company of America, 301 A.2d 66, 66 (D.C.1973); Daniels v. Paddock, 145 Mont. 207, 399 P.2d 740, 743 (1965); Summers v. American Reliable Insurance Company, 85 N.M. 224, 511 P.2d 550, 552 (1973); Singleton v. Stewart, 280 N.C. 460, 186 S.E.2d 400, 403 (1972); Dudley v. East Ridge Development Company, 694 P.2d 113, 114-15 (Wyo.1985). The most crucial fact in addressing this issue is that this Court has in the past approved the practice of allowing oral testimony at summary judgment hearings under the proper circumstances.

It is true that as an appellate court, this Court must give deference to the trial court’s decision to not allow oral testimony at the summary judgment hearing. Bourn v. Tomlinson Interest, Inc., 456 So.2d 747, 749 (Miss.1984). This Court will reverse the trial court’s decision “only where we are convinced that the trial judge abused his discretion.” Bourn, supra. However, balanced against this discretion of the trial judge is the policy behind Rule 56(e), which is to consider any evidence at a summary judgment hearing that would be admissible at trial. 10A C. Wright, A. Miller, M.K. Kane, Federal Practice and Procedure § 2738 at 474 (1983). Clearly, the oral testimony adduced at a summary judgment hearing would be admissible at trial.

In the case sub judice, it would have been a futile endeavor for Crain to attempt to procure affidavits from Avery and Mosley. Both men were members of the Moose Lodge, and as such would have been adverse witnesses to Crain. Additionally, live testimony offers certain advantages over both affidavits and depositions. Finally, any potential problems with notice were obviated by the fact that the subpoenas duces tecum were issued on July 13, 1987, a week before the summary judgment hearing was scheduled to be held.

Although summary judgment is a device by which nonmeritorious claims can be disposed of, this Court fails to see how the trial court’s actions have thus far produced such a result. Justice is only served when a fair opportunity is given a party to oppose a motion for summary judgment — indeed, case law from this Court mandates that “the party against whom the summary judgment has been sought should be given the benefit of every reasonable doubt.” Brown v. Credit Center, Inc., 444 So.2d 358, 362 (Miss.1983). Stated differently, a trial court is under an obligation to consider all pertinent evidence in a light most favorable to the nonmovant. Allison v. State Farm Fire & Cas. Co., 543 So.2d 661, 663 (Miss.1989); Sanford v. Federated Guaranty Insurance Co., 522 So.2d 214, 217 (Miss.1988).

Because the trial court, on its own motion, refused to allow Crain an opportunity to cross-examine two admittedly hostile witnesses at the summary judgment hearing, this Court must conclude that the summary judgment hearing in this case was deficient and did not allow Crain a full and fair opportunity to oppose the Lodge’s motion. The trial court was unable to consider all of the pertinent evidence in a light most favorable to Crain, the non-movant, because it did not in fact have all of the pertinent evidence before it. Therefore, this Court holds that the quashing of the subpoenas was an abuse of discretion and that the summary judgment hearing in this case did not allow Crain a full and fair opportunity to elicit testimony from the two witnesses before a decision was reached on the motion for summary judgment.

DID THE TRIAL COURT ERR IN GRANTING SUMMARY JUDGMENT IN FAVOR OF THE DEFENDANT MOOSE LODGE?

Based on the conclusion reached under the first assignment of error, this Court cannot fully address this crucial point. It necessarily follows that, before this Court can reach a just decision concerning the propriety of granting a motion for summary judgment, we should have all of the pertinent evidence before us.

In the case sub judice, the lower court prematurely granted the summary judgment motion. This Court cannot review the trial court’s decision on the summary judgment motion and does not address the issue of liability until all of the evidence is before the trial court. Therefore, this issue is not yet ripe for discussion.

REVERSED AND REMANDED FOR A REHEARING ON THE MOTION FOR SUMMARY JUDGMENT IN A MANNER CONSISTENT WITH THIS OPINION.

ROY NOBLE LEE, C.J., HAWKINS and DAN M. LEE, P.JJ., and SULLIVAN, J., concur.

ROBERTSON, ANDERSON, PITTMAN and BLASS, JJ., dissent.

ROBERTSON, Justice,

dissenting.

If Plaintiff W.B. Crain had not already had 249 days within which to obtain the depositions of Bob Avery, Secretary of the Moose Lodge, and Chief of Police Charles Mosley of the City of Cleveland, I would be far more sympathetic to his plight and to the view the Court takes this day. If Plaintiff had not had some seventy-six days from the date Defendant filed its motion for summary judgment within which to prepare and file his response — and another twenty-eight days before the hearing thereof — I would again be more sympathetic. Because I do not see how one can read the record in this case and conclude that Plaintiff was not given a fair opportunity to obtain discovery and to oppose Defendant’s motion for summary judgment, much less say that the Circuit Court abused its discretion in the premises, I dissent.

The details will flesh out my premises. On July 21, 1986, W.B. Crain filed his suit charging that he was assaulted in the parking lot of the Cleveland Moose Lodge on the evening of February 23, 1985. On August 7, 1986, the Circuit Court entered an order providing that all discovery authorized by the Mississippi Rules of Procedure be completed within ninety (90) days. See Rule 2.08, Miss.Unif.Cir.Ct. Rules. During this time Plaintiff obtained no discovery.

On October 10, 1986, the Circuit Court entered an order extending the discovery deadline to December 23, 1986. As this deadline approached, Plaintiff moved for an additional extension and the Circuit Court entered yet another order extending the discovery deadline, this time until March 23, 1987 — some 249 days from the date of the filing of the complaint.

During this discovery period — as twice extended — Defendant took the deposition of the Plaintiff, W.B. Crain. Insofar as the record reflects, Plaintiff took no depositions.

On April 7, 1987, reasonably believing that discovery was at an end and the pretrial record closed, Defendant moved for summary judgment. Plaintiff Crain promptly moved for sixty days within which to respond to the motion and for a further extension of discovery. Rule 56(f) provides that, when the non-moving party tenders such a motion, the court “may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such order as is just.” The former part of the motion was in effect granted, for the Circuit Court ordered Plaintiff’s response to be filed on June 22, 1987, some seventy-six days after the motion was filed. The Court refused, however, to reopen discovery. Since Plaintiff had already had eight months to take depositions or obtain discovery, I do not see how it may be said the Court’s order was not “just”.

At the eleventh hour, before the scheduled hearing on the motion for summary judgment, Plaintiff sought to subpoena two witnesses who had given affidavits for Defendant. It is apparent that Plaintiff sought to convert the summary judgment hearing into a mini trial.

Without question, the Circuit Court has the authority to allow or even require oral testimony at a hearing on a motion for summary judgment, see Rule 43(e), Miss.R. Civ.P., and where the Court takes this step, the day will be rare when we will consider that such an abuse of discretion that we will reverse. Cole v. Wiggins, 487 So.2d 203, 206 (Miss.1986). Whether such oral testimony shall be allowed at the hearing is a matter committed to the sound discretion of the trial court, and one of the background factors against which that discretion ought be exercised is whether the party against whom the motion has been made has had a reasonable opportunity to obtain via deposition or other means the evidence desired to be offered at the hearing. Where the trial court denies oral testimony at the summary judgment hearing, we may reverse only where we may articulate why there has been a substantial abuse of discretion. See Bourn v. Tomlinson Interests, Inc., 456 So.2d 747, 749 (Miss.1984).

The majority makes much of the Circuit Court’s decision to quash the subpoena duces tecum issued for Chief of Police Charles Mosley and Moose Lodge Secretary Avery. It is important to bear in mind exactly what those subpoenas would have required.

The subpoena to Chief Mosley had sought his production of all records of the Cleveland Police Department with respect to reports of criminal activity presumably in the area of the Moose Lodge for some five years. Attached as an exhibit to the subpoena is an itemization of incident reports which are far too numerous to count but which include 170 pages in the record. Such matters were arguably subject to discovery under Rule 26(b)(1), Miss.R.Civ.P. I do not doubt Plaintiffs prerogative — within the discovery period — to explore these matters. On the other hand, Plaintiffs subpoena to Chief Mosley is such that common sense suggests the Circuit Court would have been required to set aside several days, if not weeks, for the summary judgment hearing. The nature of the subpoena on its face is such that the Circuit Court was within its discretion in holding, in effect, that this is the sort of matter that should have been developed in discovery.

There is a related point. The Court suggests Chief of Police Mosley was not someone from whom Plaintiff could have obtained a counter-affidavit and, more particularly, that he would have been hostile by reason of the fact he was a member of the Moose Lodge which is the Defendant in this case. To be sure, Chief Mosley was a member of the Moose Lodge, but there is nothing in the record which supports the complaint that he would have been uncooperative with the Plaintiff. If a presumption is indulged, I think it should be to the effect that the Chief of Police will act fairly toward all parties. The fact that Plaintiff has the 170-odd pages of incident reports suggests somebody in the Cleveland Police Department was cooperating with him and makes all the more apparent that Plaintiff could have developed the points at issue during the more than eight months Plaintiff had for discovery.

In the end, this ease boils down to one in which Plaintiff and his attorney had full and fair opportunity to develop their pretrial case. In addition to the original ninety day discovery period, two liberal enlargements were granted. And when the motion for summary judgment was filed, Plaintiff sought and obtained seventy-six days within which to respond and another month in order to prepare for the hearing. The painful reality is that Plaintiff simply failed to take advantage of the time which was reasonably available to him to develop his case. Then at the last minute he issued subpoenas which suggested the likelihood of a hearing that would extend way beyond that time the court had set aside for the matter and, in practical effect, would have resulted in a mini trial on summary judgment. In this day when delay in litigation is one of the citizens’ principal complaints regarding the administration of justice', and where, as here, a plaintiff has been given more than full and fair opportunity to develop his case, I think it most unfortunate that we would hold the trial court has abused its discretion.

ANDERSON, PITTMAN and BLASS, JJ., join in this opinion. 
      
      . For a more thorough and lengthy discussion of the issue, including a listing of states which have adopted the rule and those which have not, see Annot. 53 A.L.R. 4th 527 (1987).
     
      
      . The Comments to Rule 56 of the M.R.C.P. specifically note that the rule is patterned after Federal Rule 56, and refer with approval to Wright, Miller, and Kane, supra.
      
     
      
      . "The affiant is not subject to cross-examination and his demeanor is not observable by the court." Moore, Taggart, and Wicker, supra at 56-155.
     
      
      . “While the deponent is subject to cross-examination his demeanor is not observable by the court." Id.
      
     
      
      . Id.
      
     
      
      
        . Of course, the trial court should be allowed to "reasonably circumscribe” the manner in which Crain examines the two witnesses, Wright, Miller, and Kane, supra, at 63.
     