(concurring).
If any basis exists to support the trial court’s ruling for summary judgment, that ruling should be affirmed. Uken v. Sloat, 296 N.W.2d 540, 542 (S.D.1980). Accord: Blote v. First Federal Sav. & Loan Ass’n., 422 N.W.2d 834, 836 (S.D.1988).
An express contract results when the parties mutually express an intent to be bound by specific terms and conditions. Lang v. Burns, 77 S.D. 626, 630, 97 N.W.2d 863, 865 (1959). Accord: Sulzbach v. Town of Jefferson, 83 S.D. 156, 159, 155 N.W.2d 921, 923 (1968). Appellant seeks a jury trial based upon breach of contract. As the majority opinion points out, a determination of a valid express contract — being in existence — is a question of law to be determined by court and not by a jury. Mid-America Marketing Corp., at 799.
In appellant’s testimony, inter alia, page 16 of her deposition, she states: “I said my mother does not want me to have this done and [Dr. Witzke] took my hand and he looked at it and he said T can tell you right now no matter what it won’t be any worse than it is right now’ ”. Appellant further testified: “I said mother, no doctor in the world is going to do that (give a guarantee)
It is difficult to find, in law, a mutual expression of intent to be bound by specific terms and conditions, when one considers appellant’s own remarks. Not suggesting that the words would be magic, but there is no language such as “promise”, “guarantee”, or “warranty”. Somewhere, there must be an intent by these parties to achieve a particular result. This latter statement of mine can be traced back to a very early case in American law, Hawkins v. McGee, 84 N.H. 114, 146 A. 641 (1929). Hawkins is a hallmark case which one sees often quoted in the thread of this type of case.
Therefore, believing that she cannot rise to a more favorable version of the facts than she, herself, testified to, I respectfully join the majority opinion. Bunkers v. Mousel, 83 S.D. 45, 48, 154 N.W.2d 208, 209 (1967).