(dissenting).
I dissent for all of the following reasons:
1. SUMMARY JUDGMENT WAS IMPROPER BECAUSE DEFENDANTS NEVER ESTABLISHED THAT THERE WERE NO DISPUTED ISSUES OF MATERIAL FACT
Defendants imply that plaintiffs’ response to the motion for summary judgment was deficient because plaintiffs did not file affidavits as provided for in SDCL 15-6-56(e).
Since the purpose of summary judgment is to pierce the allegations in the pleadings ... the claimant, as a practical matter almost always will file supporting affidavits. Moreover, whenever he does file affidavits, Rule 56(e) requires that the opposing party must do likewise or summary judgment, if appropriate, will be entered against him. Thus, the claimants’ decision on this matter in fact may dictate the character of the defending party’s response to the motion.
10A Wright, Miller & Kane, Federal Practice & Procedure § 2719, at 3 (1983).
Defendants presented no affidavits nor did they premise the allegation in their motion “that there is no genuine issue of material fact and these defendants are entitled to judgment as a matter of law” on any specific factual references.1 Neither defendants’ motion nor their brief contain any statement of undisputed facts or even a statement of material facts. Defendants moving papers refer to no depositions, no answers to interrogatories, nor to any of the facts established in the record. Defendants argue that the court need look no further than plaintiffs’ allegations and the Kanaly case to find that the contract as alleged by plaintiffs, if breached, was breached as a result of legislative action over which these defendants had no control. As stated in Federal Practice & Procedure, supra:
If the moving party’s proof is less convincing, as in cases where he relies on his own testimony or has exclusive knowledge of the transaction the burden of providing evidence may never shift to the opponent.
10A Wright, Miller & Kane, § 2727, at 143. In summary judgment, the burden of proof is on the moving party to show clearly that there was no genuine issue of material fact and that he is entitled to judgment as a matter of law. Hamaker v. Kenwel-Jackson Machine, Inc., 387 N.W.2d 515, 517 (S.D.1986).
Plaintiffs responded to defendant’s motion for summary judgment by delineating disputed issues of material fact. In asserting that the defendants were able to perform the contract obligations after passage of S.B. 221/1984, plaintiffs submitted that:
(1) location was a material term of the contract;
(2) money was available to support plaintiffs’ educational programs either at Springfield or other locations; Section IV of S.B. 221 mandated the plaintiffs be given the opportunity to complete their courses of study, Sec*275tion VIII appropriated money; Section VII provided for transfer of money to the defendants for purposes consistent with the legislation;
(3) USD/S was a branch of USD;
(4) the Board of Regents had entered an open-ended joint powers agreement with the Board of Charities and Corrections which allowed performance at the USD/S location (although this was not what plaintiffs prayed for) if defendants had wished;
(5) the legislature was not a sufficiently independent third party to allow an impossibility of performance defense;
(6) the defendants knew in July, 1983, that changes in the role and admission of USD/S were possible during the 1984 legislative session and that the defendants therefore assumed the risk of closure or failure of funding.
All of these factual assertions raised genuine issues of material fact as to defendants’ ability to perform their contract with students after passage of S.B. 221.
“The successful movant must show by evidence of appropriate evidentiary quality, that every state of facts is excluded except that which entitled him to relief.” Sword v. Fox, 317 F.Supp. 1055 (D.Va.1970), reversed on merits 446 F.2d 1091 (4th Cir.1971). “The burden on the nonmoving party is not a heavy one; he is simply required to show specific facts as opposed to general allegations that present a genuine issue worthy of trial.” 10A Wright, Miller & Kane, supra, § 2727, at 148.
2. SUMMARY JUDGMENT WAS IMPROPER BECAUSE DEFENDANTS RAISED ISSUES IN THEIR TRIAL COURT REPLY BRIEF PRECLUDING RESPONSE BY PLAINTIFFS
Students were under no obligation to presuppose that the trial court would go beyond the rules and consider issues not addressed in the initial summary motion.
The court may enter judgment on a ground not mentioned in the motion if the parties have had an adequate opportunity to argue and present evidence on that point and summary judgment is otherwise appropriate.
10A Wright, Miller & Kane, supra, § 2719, at 15.
The first time plaintiffs noticed that the trial court was considering issues raised in the reply brief was upon receipt of the memorandum opinion. Plaintiffs immediately moved for reconsideration and an opportunity to provide additional evidence, which motion the trial court denied. Students labeled this a game of “summary judgment by ambush.” However labeled, this practice does violence to the rules of procedure and unfairly keeps the plaintiffs from receiving the full and fair hearing to which they are entitled under the constitution of the State of South Dakota.2 This court should not approve such procedure.
3. SUMMARY JUDGMENT WAS IMPROPER BECAUSE THE TRIAL COURT WENT BEYOND THE AUTHORITY OF SDCL 15-6-56 AND MADE FINDINGS OF FACT IN ORDER TO GRANT SUMMARY JUDGMENT TO DEFENDANTS
When applying Rule 56(c) standard, the judge cannot summarily try the facts; his role is limited to applying the law to the facts that have been established by the litigants’ papers. Therefore, a party moving for summary judgment is not entitled to a judgment merely because the facts he offers seem more plausible than those tendered in opposition.... [I]f the evidence presented on the motion is subject to conflicting interpretations or reasonable men might differ as to its significance, summary judgment is improper.
10A Wright, Miller & Kane, supra, § 2525, at 104-109.
*276The trial court found (1) that a contract existed, (2) that it was only of one semester’s duration, (3) that defendants had capacity to contract for a longer term but didn’t, (4) that location was a material term of the contract, (5) that continued funding was a condition precedent to the contract, and (6) that defendants did not assume the risk of nonappropriation.
The trial court further summarily found that the legislature and the Board of Regents were independent parties, that defendants did not assume the risk of lack of funding, that the board provided all students with an opportunity and that USD/S courses were available at other schools. According to students, these are material factual findings which are highly disputed and are not supported by the record. The trial court does not have discretion under SDCL 15-6-56 to resolve disputed factual issues on a summary judgment motion. The trial court has only the power to determine whether such issues exist. Having identified such issues, summary judgment is precluded.
4. SUMMARY JUDGMENT WAS IMPROPER BECAUSE DEPOSITIONS OF MICHELLE TAPKEN, DAVID LORENZ AND JOSEPH McFAD-DEN ARE PART OF THE RECORD ON APPEAL AND THEIR TESTIMONY ESTABLISHES GENUINE ISSUES OF MATERIAL FACT
The depositions of these parties raise disputed issues of material fact. Whether they were filed and available for the trial court’s consideration is unclear from the record. However, the depositions were taken before the trial court made its decision and they are included in the certified record on appeal. See: SDCL 15-26A-53.
5. THE TRIAL COURT ERRED IN HOLDING THAT SENATE BILL 221/1984 MADE IT IMPOSSIBLE FOR DEFENDANTS TO PERFORM THEIR CONTRACT OBLIGATIONS TO PLAINTIFFS
S.B. 221 does not provide the defendants with an impossibility of performance defense because it contains no language that can be in any way construed to direct the Board of Regents to terminate the educational program in which the USD/S students were enrolled. In fact the converse is true. By the express language of Section IV of the act, the Board of Regents was directed to carry on the educational endeavors begun at USD/S to insure that each of the students enrolled in the program or courses of study could complete their course of instruction at other institutions of higher education, at post-secondary vocational schools, or at a combination thereof through articulation agreements. Moreover, the legislature appropriated money to support that directive and also included Section VIII of the act which allowed the transfer of monies among and between the various governing entities involved to effect the purposes of the act. Construing these facts in a light most favorable to the students, the holding of impossibility of performance cannot be sustained.
The trial court held “although USD/S is a branch of the University of South Dakota at Vermillion this does not mean that the board had the obligation to take all of the programs offered at Springfield and to continue them at the Vermillion campus.” The trial court cited no authority for this proposition. However, legal authority for the exact opposite conclusion was close at hand. Section IV, S.B. 221 provides, in part,
The Board of Regents and the Board of Vocational Education shall take all necessary steps to insure that all students presently enrolled at the University of South Dakota at Springfield shall have the opportunity to complete their courses of study in South Dakota at other public post-secondary schools, public higher education institutions or a combination thereof through articulation agreements. Board of Regents shall include a baccalaureate program of vocational education within at least one of the institutions under its control.
*2776. THE TRIAL COURT FURTHER ERRED IN HOLDING AS A MATTER OF LAW THAT THE CONTRACT BETWEEN PLAINTIFFS AND THE STATE WAS ONLY FOR ONE ACADEMIC TERM WHEN THAT ISSUE INVOLVED GENUINE DISPUTED ISSUES OF MATERIAL FACT
In support of the trial court’s decision, defendants urge the “disclaimer” in the USD/S catalog which states that the document is “not a contract nor an offer to contract.” Defendants claim because the catalog is “subject to change without notice” that any contractual obligation must simply be of one semester’s duration. Defendants further claim that “any contract to be performed was not to be performed within one year.” Students also rely upon the catalog. On page one of the USD/S catalog, it is stated that if a student chooses he can graduate under the terms and provisions of the catalog at the time he entered.
In Marquez v. University of Washington, 32 Wash.App. 302, 648 P.2d 94 (1982), cert. denied, 460 U.S. 1013, 103 S.Ct. 1253, 75 L.Ed.2d 482 (1983), the singular reference to academic aid contained in a prelaw handbook was definite enough to form a part of the student’s contract with the law school. 648 P.2d at 96. However, the court went on to say that while some elements of contract law are used and should be used in the analysis of the relationship between the student and the university, this does not mean that “contract law” must be rigidly applied in all its aspects, nor is it so applied where the contract analogy is extensively adopted. Id., quoting Lyons v. Salve Regina College, 565 F.2d 200, 202 (1st Cir.1977), cert. denied, 435 U.S. 971, 98 S.Ct. 1611, 56 L.Ed.2d 62 (1978), quoting with approval from Slaughter v. Brigham Young Univ., 514 F.2d 622, 626 (10th Cir.), cert. denied, 423 U.S. 898, 96 S.Ct. 202, 46 L.Ed.2d 131 (1975).
Under the Marquez rationale, both the students and defendants in the instant case raised genuine issues of material fact concerning the length of the contract and its terms. Although the Marquez court held that the construction of an implied contract between a student and university, and the legal effect of its terms presented law questions appropriate for summary disposition, 648 P.2d at 97, the existence of a contract, its nature and terms are questions of fact. Dahly Tool Co. v. Vermont Tap & Die Co., 561 F.Supp. 600 (D.Ill.1982); Martin Ice Cream Co. v. Chipwich, Inc., 554 F.Supp. 933 (D.N.Y.1983). The issue of the existence of an implied agreement is factual. Golden Plains Feedlot, Inc., v. Great Western Sugar Co., 588 F.Supp. 985 (D.S.D.1984). Therefore, this issue was inappropriate for summary disposal.
7. THE TRIAL COURT FURTHER ERRED IN HOLDING AS A MATTER OF LAW THAT DEFENDANTS WERE ENTITLED TO QUALIFIED GOOD FAITH IMMUNITY WHEN THAT ISSUE INVOLVED GENUINE DISPUTED ISSUES OF MATERIAL FACT
Students urge that they have made a showing that their rights were clearly established at the time in question and the granting of summary judgment on the issue of qualified good faith immunity was inappropriate. For these reasons and for all the reasons previously set forth in this dissent, especially the language of S.B. 221 which requires that the Board of Regents “shall take all necessary steps to insure that all students presently enrolled at the University of South Dakota at Springfield shall have the opportunity to complete their course of study in South Dakota ...,” I respectfully submit that qualified good faith immunity was not available to the Regents.
It is preposterous for the Regents to argue good faith immunity in light of S.B. 221 which dictated the exact opposite. The Bill mandates performance in the form of a comparable educational curriculum for the USD/S students. It does not mandate im*278munity. S.B. 221 requires performance — it does not provide either immunity or an impossibility of performance defense.
Accordingly, I would reverse and remand for a jury trial3 to determine whether the Regents performed in accordance with the mandate of this legislation.
. Defendants admit at page 35 of their brief that "these defendants’ answers to interrogatories ... are the only record evidence.” (emphasis in original).
. Art. VI., § 6, South Dakota Constitution provides in part:
“The right of trial by jury shall remain inviolate and shall extend to all cases at law without regard to the amount in controversy, ...”
. It is interesting to note that according to the Benchmark, (1985), the annual report of the South Dakota Unified Judicial System, a mere 95 civil jury trials were reported in 1985. This amounts to 2.7 per circuit court judge per year; 1.4 per county per year; and 1.8 per week in the State of South Dakota. Id. at 38-39, Tables 13 and 14. I respectfully submit that summary judgment has improperly replaced civil jury trials in this state despite the mandate of Art. VI., § 6, of the South Dakota Constitution cited supra.