concurring in the result.
In the earlier and now withdrawn opinion, a unanimous court reversed the summary judgment, noting in the opinion that “both waiver or mitigation could reasonably be inferred from the same undisputed evidence and it would be for the trier of fact and not the trial judge at summary judgment to make the decision as to waiver or mitigation.” On rehearing, the Court’s opinion, after observing that this was not a jury case, broadly amends the rules governing summary judgment with the declaration that “the parties, by their mutual motions ... effectively stipulated that there was no genuine issue of material fact which would preclude the court from entering judgment without trial,” and the further statement that “where the evidentiary facts are not disputed and the trial court rather than a jury will be the trier of fact, summary judgment is appropriate, despite the possibility of conflicting inferences because the court alone will be responsible for resolving the conflict between those inferences.”
This may be an amendment to the rule which will meet with favor, in regard to which it will be appropriate to hear from the trial bench and bar. For my part, I am open to persuasion, noting, however, that it may allow dispute of the question as to whether both sides have “effectively” stipulated when they have not actually stipulated. Attorneys know how to enter into valid and binding stipulations. A better rule, I think, and one upon which expression of further thought from the bench and bar is solicited, would be that in all cases in which cross-motions for summary judgment are made, the trial court is empowered to decide the case, even to the extent of determining some issue of fact, or inference therein, that appears to be in dispute. Such a rule would be the equivalent of the former procedure under code pleading and practice where both parties moved for a directed verdict at the close of a jury trial. As the older practitioners will remember, such mutual motions worked a dismissal of the jury, and any unresolved questions of fact were for the trial court’s determination.
As far as the instant case is concerned, it seems inappropriate that the litigants and their attorneys are now told, after the fact, of this new change in the rule and its applicability to their case. It would seem that the parties should have had some voice in the matter, and it would also seem that the Court might have been well advised to have had broader input before amending a rule which affects — not the courts — but the litigants and practitioners.
It also seems that, as applied to the instant case, the parties might not have been so quick to (1) waive jury trials, and (2) file cross-motions for summary judgment if forewarned that they were in essence “effectively” stipulating that the court could determine the inferences deducible from the presented evidence. Other parties henceforth are forewarned.
It appears to me that a sizable share of appellate litigation stems from summary judgment procedures, some undoubtedly in good faith and others appearing in the nature of stalling, file building or harassment. Many have been the cases erroneously decided at summary judgment wherein it appears that a trial on the merits would have encompassed less than a day. For many, many years the practice of law went well in Idaho without the benefit of summary *526judgment procedures. On the other hand, in the cases which are not appealed and which this Court does not review, summary judgment procedures may indeed serve a good purpose in efficiently resolving controversies.
It may very likely have been that had our earlier opinion stood intact, the trial court, as trier of fact, at a trial on the merits with live testimony might have come to the same conclusion which was arrived at in the summary judgment procedure. In that event then, those who strive for efficiency would be fortified in believing that the Court today has formulated a good amendment. Nevertheless, there is much to be said for the more thorough probing of witnesses that occurs when the court hears testimony live from the witnesses — which, while it may not alter concrete facts, can certainly influence inferences.
Touching briefly on the Court’s comparison of this case with Moss v. Mid-American Fire & Marine Insurance Co., 103 Idaho 298, 647 P.2d 754 (1982), initially I note it was in that case the Court first toyed with the rule it announces today, but its advocates did not command a majority. One of the Moss dissenters in authoring today’s majority opinion attempts to distinguish the two cases. The other Moss dissenter disavows the attempt. For my part, I concede an inability to fully comprehend the attempted distinction, leaving me unpersuaded that it was proper for the trial court in this case to draw inferences, but not so in Moss. As previously noted, if there is to be a change in the rule, I think it should come to us from the trial bar, the members of which are working under those rules on a daily basis.
The change in the rules announced today, as I understand it, is that the trial court on cross-motions for summary judgment may, when it believes no facts are in dispute, proceed to render a judgment just as though the parties had stipulated to a trial on the merits and submitted their case on a written record — which is something that certainly can be affirmatively done, and, in fact, has been done.1
I pause briefly to raise the additional proposition which I believe the majority should give further consideration and discussion, that this Court, on appeal from a district court decision entered on a cold record, is generally not bound by the lower court’s findings of fact or conclusions of law.
While it is at once seen in this case that the landlord, with an action pending, could have easily notified the financially embarrassed and struggling lessee in writing that the paying of monies would not alter the course of the lawsuit, the landlord was justified in taking a quiet stand on paragraph 16 of Article 34 of the lease, which provides that the “Landlord may accept such check or payment without prejudice to Landlord’s right to recover the balance of such rent or pursue any other remedy in this lease provided.” This provision appears to be more damaging to the lessee’s position than paragraph 1 of Article 34, which purports to require any waiver to be in a writing signed by the landlord. These two observations are made in accordance with the above principle that this Court can on a cold record draw its own inferences and conclusions. Hearst Corp. v. Keller, 100 Idaho 10, 592 P.2d 66 (1979); Fisher v. Bunker Hill Co., 96 Idaho 341, 528 P.2d 903 (1974); Thomas v. Stevens, 78 Idaho 266, 300 P,2d 811 (1956); Saccomano v. North Idaho Shingle Co., 73 Idaho 284, 252 P.2d 518 (1952).
Not at all comfortable in the manner in which this appeal is being decided, and seeing considerable merit in the view of She|>ard, J., that under the rule as it has boon the summary judgment was improper, without enthusiasm I concur in the result reached by the majority opinion.
. Iam reminded of a case in the first district in which the parties stipulated as to what they believed to be the facts, and both moved for summary judgment. The trial court denied both motions, declaring without specifying that there were facts in dispute. Whereupon the parties then stipulated that the case could be decided on the merits, neither offering any additional evidence or any additional stipulated facts. On that submission a decision was reached and judgment entered accordingly.