dissenting:
Summary judgment is a drastic remedy that should not be granted unless it is clear that the non-moving party is not entitled to recover under any circumstances. Because the majority has approved a grant of summary judgment in the face of genuine issues of fact, I must dissent.
The majority’s first error occurs from its assumption that Frank Finkbeiner was the Trustee fór IEC. Contrary to the majority’s conclusion, the record does not reveal that Finkbeiner, as Trustee for IEC, agreed to furnish the reclamation bond. See Majority Opinion, at 842. See pages 843-44 infra for discussion of relationship of contracting parties. The July 23, 1975 agreement between John Hargis, Dewitt Sadler, and Frank Finkbeiner was the only document in which the reclamation bond was discussed. However, the agreement *843did not mention that Frank Finkbeiner was a Trustee for either IEC or Mercantile.1
The majority also concluded that Mercantile did not produce “a scintilla of evidence to substantiate its claim that Finkbeiner acted as its agent or had any rights to the collateral deposit.” Majority Opinion, at 842. I disagree. There is evidence in the record that IEC was never the owner of the collateral deposit funds. Finkbeiner’s affidavit,2 the assignment from Finkbeiner to Mercantile,3 and the Disclaimer of Interest executed by Finkbeiner,4 all raise genuine issues of fact regarding the ownership of the collateral deposit fund and whether Finkbeiner was the owner of the fund when he made the assignment to Mercantile.
The record is not sufficient to determine the true owner of the collateral deposit funds. Because Fidelity required a $50,000 deposit before it would issue the reclamation bond, Mercantile Bank deposited $50,-000 with the First National Bank of Miami so that a letter of credit securing the obligation could issue. Fidelity drew on that letter of credit and received the $50,000. There is not an iota of evidence in the record to demonstrate that IEC, who did not participate in obtaining the funds to secure the letter of credit, had any right or title to the funds.5 This is a genuine issue of fact which can only be resolved by further development of the record.
Finkbeiner was the leasee of the Crab-tree coal mining strip in Hopkins County, Kentucky. In the agreement, he sublet the *844lease to IEC and was to receive royalties from the coal mined by IEC. IEC was to be the operator. It is obvious from the agreement that the trustee had the lease, equipment, and capital to provide for acquisition of other equipment in which the trustee would have a security interest, and that IEC was supposed to have the operating know-how. This blend, if successful, would have provided royalties on coal to be shared by the parties, dealing at arm’s length.
The majority errs in assuming that Finkbeiner’s $50,000 was a capital contribution or loan to IEC. Finkbeiner agreed to furnish a bond running to the State of Kentucky, a commitment he fulfilled. When the collateral was no longer needed to guarantee the bond, the fund reverted to Finkbeiner, as trustee. This is supported by other portions of the agreement which establish that Finkbeiner had a security interest in the stock of IEC to guarantee IEC’s contractual commitments. Thus, it cannot be concluded, as did the district court and the majority, that Finkbeiner was trustee for IEC.
Summary judgment is a useful device, however, if it is not used with caution, it inevitably leads to drastic results. See Murrell v. Bennett, 615 F.2d 306, 309 (5th Cir.1980). Mercantile’s burden in responding to the summary judgment motion was to offer significant probative evidence that tended to support its complaint. See Pan-Islamic Trade Corp. v. Exxon, 632 F.2d 539, 554 (5th Cir.1980), cert. denied, 454 U.S. 927, 102 S.Ct. 427, 70 L.Ed.2d 236. (1981). Mercantile met its burden. Because this case should have been remanded to the district court for further development of the record, I must dissent.
. The agreement, which was signed by the parties and by Frank Finkbeiner as Trustee, provided in pertinent part:
This AGREEMENT ... by and between INTERNATIONAL ENERGY CORPORATION ... JOHN B. HARGIS, JR., DELL B. HARGIS and DEWITT F. SADLER, hereinafter referred to as "Stockholders” and FRANK G. FINKBEINER, TRUSTEE, hereinafter referred to as "Trustee.”
[T]he parties hereto agree as follows:
1. Assistance By "Trustee”. To assist in the commencement of strip mining operations on said Crabtree Lease, the "Trustee” hereby agrees to make available to the “Corporation” goods and cash, the total value of which altogether will not exceed Two Hundred Thousand Dollars____
Additionally, "Trustee” will furnish a Reclamation Bond as required by the Department of Reclamation, Commonwealth of Kentucky, said bond to be in the amount of ... ($50,-000.00), which will cover the initial fifty (50) acres of land to be permitted for strip mining operations.
. See Majority Opinion, at 840 (substance of Finkbeiner’s affidavit).
. The October 17, 1979 document, between Finkbeiner as Trustee and Assignor and Mercantile as Assignee, provided in part:
[IEC] never had any ownership or possession of the funds used as collateral for the issuance of the ... Reclamation Bond, and that the funds being held as collateral ... never comprised an asset of said [IEC] nor has [IEC] ever claimed ownership of said collateral. Mercantile ... actually funded $50,000.00 in cash which is being held by Fidelity ... as security for said Reclamation Bond, which funds, or any part thereof remaining, are the property of ... Mercantile.
. The Disclaimer of Interest provided in part: The only interest claimed by Frank G. Finkbeiner, Trustee, in and to the subject matter of this lawsuit (i.e., a $50,000.00 surety bond issued by Fidelity and Deposit Company of Maryland) was on behalf of Mercantile Bank and Trust Co., Ltd., (In Liquidation), the beneficial owner of the collateral deposited with said Fidelity and Deposit Company of Maryland.
Mercantile Bank and Trust Co., Ltd., (In Liquidation), is the plaintiff in this lawsuit, and is seeking to recover the collateral owned by it and placed in the hands of or for the benefit of defendant Fidelity and Deposit Company of Maryland.
Frank G. Finkbeiner, Trustee, has no interest in the outcome of this litigation, since his interest in and to the collateral was solely for the benefit of Plaintiff (Mercantile).
. The sole purpose of the letter of credit was to enable IEC to obtain the bond that had to run to the State of Kentucky. Obviously, IEC had to apply to Fidelity for the bond and thus executed the collateral agreement with Fidelity discussed on page 9 of the majority opinion. In saying that it was furnishing the $50,000 letter of credit to Fidelity as collateral for the bond, IEC could not vest title to the letter of credit in itself. The majority gives too much significance to this document and fails to consider the contract in which Finkbeiner agreed to put up the $50,000 for the bond. That he did so through Mercantile is shown by his affidavit, and is not controverted by the government.