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03/09/76 WHALEN v. BENNETT

March 9, 1976

WHALEN
v.
BENNETT



Appeal from Oakland, Farrell E. Roberts, J.

D. E. Holbrook, Jr., P. J., and D. E. Holbrook and T. M. Burns, JJ.

SYLLABUS BY THE COURT

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

Complaint by John F. Whalen and Jean L. Whalen against Verna L. Bennett and another party who was later dropped, seeking specific performance of a contract or damages in the ...


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