Appeal from Oakland, Farrell E. Roberts, J.
D. E. Holbrook, Jr., P. J., and D. E. Holbrook and T. M. Burns, JJ.
1. Judgment -- Summary Judgment -- Answer to Complaint -- Affirmative Defenses -- Exhibits -- Issues of Fact.
A defendant who answers a complaint and interrogatories by raising affirmative defenses and submitting exhibits in her behalf presents material issues of fact to be determined by a trial court and summary judgment may not be granted.
2. Judgment -- Summary Judgment -- Unliquidated Damages.
There can be no final judgment until damages are ascertained in a legal manner; therefore, where affidavits supporting a plaintiff's motion for summary judgment disclose that the claim is for unliquidated damages, the motion must be denied.
3. Judgment -- Summary Judgment -- State of Mind -- Scienter -- Dispute of Facts.
Summary judgment will hardly ever be appropriate in cases involving the state of mind of a party, such as the scienter requirement in fraud, because it is difficult to foreclose a genuine dispute over this factual question.
4. Judgment -- Default Judgment -- Failure to Appear -- Summary Judgment Hearings -- Appeal and Error.
Plaintiffs were not entitled to a general default judgment against a defendant who failed to appear at a hearing on a motion for summary judgment where they were not entitled to the summary judgment under the circumstances present.
5. Judgment -- Default Judgment -- Improper Notice of Hearings -- Due Process.
It is a denial of due process to allow a default judgment to stand against a defendant who appeared at the time and place specified in a notice of hearing on a motion for summary judgment and who was unaware that the proceeding had been transferred to another courtroom.
The opinion of the court was delivered by: Holbrook
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