concurring:
I concur but take exception to the language in the majority opoinion which states: “This sworn affidavit must be taken as true on motion for summary judgment.” The Court cites State v. Conrad (1982), Mont., 643 P.2d 239, 39 St.Rep. 680. The Conrad case holds that an affidavit must be taken as true where filed in support of an information and where probable cause is sought to thereby be established. This is well-accepted law but has no application here. In Conrad the affidavit allows the case to go forward where here, under the majority holding, the affidavit ends the litigation.
In this case plaintiff supports a motion for summary judgment with an affidavit. The affidavit, if unrefuted, may form the basis for granting summary judgment. However, it need not be accepted by the trial court as true. The trial court could find that the document was not credible.
The result here does not change. There is no conflict in the evidence producing a genuine issue of fact. Given this record the plaintiff is entitled to summary judgment.