(dissenting).
I disagree with reversal and favor remand for the trial court to make findings of fact and conclusions of law. I hope this will happen anyway.
On August 12, 1971, the case came on for trial. Defendant desired to be heard on its motion for summary judgment. It requested that the court reserve ruling on the motion until after plaintiff testified. After some discussion, defendant’s attorney stated that “rather than delay the matter any more I would just as soon proceed now and if the Court wants to hear supplemental testimony of Mr. Huerta in relation to all the other depositions, including his, and permit me to cross-examine, I am ready to proceed.” The case proceeded to trial. Plaintiff testified.
On March 20, 1972, seven months later, the trial court entered an order granting defendant’s “motion for summary judgment” without stating any reasons therefor, and dismissed plaintiff’s complaint with prejudice. Rule 56(c) [§ 21 — 1— 1(56) (c), N.M.S.A.1953 (Repl.Vol. 4)] was not followed. It -was in effect a final j ndgment.
I agree with defendant’s argument that “. . ., if all parties desire to and do turn the summary judgment hearing into a court trial, they cannot be heard to object. In that event the court should make findings of fact and conclusions of law in accordance with Rule 52.” 6 Moore’s Fedei-al Practice, § 56.11(8), pp. 2206, 2207. No such findings or conclusions were made. Because of the confusion in the record, no waiver occurred. The trial court did not find or state in its judgment that no genuine issue of any material fact was presented and that the defendant was entitled to judgment as a matter of law. Under the circumstances of this case, the plaintiff was entitled to know upon what grounds the order was entered to properly present a controversial issue to this court. Even under summary judgment proceedings, the trial court may, if it desires, furnish a statement of its reasons, including such findings of fact and conclusions of law as might be appropriate. Wilson v. Albuquerque Board of Realtors, 81 N.M. 657, 472 P.2d 371 (1970) ; the trial court is not required to do so. Garrett v. Nissen Corporation, 84 N.M. 16, 498 P.2d 1359 (1972). It should also be pointed out that Rule 52(B) [§ 21-1-1(52) (B), N.M.S.A.1953 (Repl.Vol. 4)] specifically provides that “Findings of fact and conclusions of law are unnecessary in decisions on motions under Rules . . . 56 . . . ”
The parties agreed to and did try the case on its merits based upon depositions on file and the testimony of plaintiff. The parties should not be allowed to blow the case wide open and let confusion rule the roost.
This cause should be remanded to the trial court to vacate the judgment below and proceed with Rule 52(B), supra, Findings of Fact, and thereafter render judgment from which an appeal lies. Section 21-1-1(54), N.M.S.A.1953 (Repl.Vol. 4).