dissenting.
Because I would hold that Lilly’s affidavit was admissible and that it created a genuine issue of material fact as to whether Spectra Novae suffered damages for relocating the sewer line, I would hold that the trial court erred in granting Waker’s motion for summary judgment and would not reach the question of attorney fees.
Lilly said in his affidavit:
“Notwithstanding the assignment [of its rights under the contract with Waker], Spectra Novae remained ultimately liable to South Lake for any damages that might be incurred by South Lake as a result of Waker’s non-performance under the [contract]. If Waker is not held liable to Spectra Novae or South Lake, Spectra is liable to South Lake for the relocation costs advanced by South Lake as a result of Waker’s breach of contract.”
*62The majority agrees with the trial court that Lilly’s affidavit states a legal conclusion as to Spectra Novae’s liability without supportive factual allegations. The majority seems to believe that its result is dictated by the affidavit’s use of the word “liable,” which has an obvious legal connotation. In so doing, it has lost sight of the rule that, in determining whether an affidavit creates an issue of fact, it is our responsibility to view the record in the light most favorable to the non-moving party, here Spectra Novae. Martin v. Pacific Hospital Association, 101 Or App 37, 41, 788 P2d 1029. Our recent opinion in Jones v. General Motors Corp., 139 Or App 244, 911 P2d 1243 (1996), with regard to our review of summary judgments, has not altered that requirement. Although Lilly used the word “liable,” his affidavit can reasonably be viewed as describing, as a fact, how the two entities, Spectra Novae and South Lake, ultimately intended to bear responsibility for the costs of relocation. As indicated by Lilly in his deposition, quoted by the majority, he is not a lawyer, and presumably is not an expert in the legal ramifications of certain facts. Nonetheless, it is our obligation to view the affidavit most favorably to Spectra Novae for the purpose of this review, and, in doing so, I would hold that the affidavit can reasonably be viewed as stating a factual, rather than a legal, assertion.
As the parties agree, Spectra Novae conducted business with South Lake informally, without written documentation. Waker accepted and even acquiesced in that style of doing business. Having raised the fact of South Lake’s payment of relocation costs in its motion for summary judgment, Waker should not now be heard to object to Spectra Novae’s attempt to explain the significance of that payment as between the two entities. The affidavit, when viewed in the light most favorable to Spectra Novae, creates an issue of fact as to whether, despite South Lake’s payment of the relocation costs, Spectra Novae might ultimately bear responsibility for those costs and therefore be damaged by the alleged breach of contract. Accordingly, I dissent.