(concurring in result only):
Although I agree with the factual analysis, I would dispose of this appeal on a different basis. In my opinion, the procedural irregularities require reversal and would allow for a reconsideration of the original summary judgment motion filed by Trivelas, which was limited to whether or not the South Carolina Department of Transportation was negligent as a matter of law.
The motion was filed less than ten days before trial and was heard by the circuit judge in chambers on the eve of trial as a part of the pre-trial conference. Rule 56(c), SCRCP, requires a ten day notice to the opposing party, which allows time to *140prepare and file a proper response to the motion. Because the motion was heard in chambers without a court reporter, the nature of any procedural objection raised to the trial court is not available to us. SCDOT argues that it objected to hearing the motion, but Trivelas disputes this. The final written order does not address the timing of the motion, and no subsequent motion was made pursuant to Rule 59, SCRCP, asking the court to rule on any objection. Consequently, the record does not reflect that the trial judge ruled on the issue, and it is not preserved for our review. See Summersell v. S.C. Dep’t of Pub. Safety, 337 S.C. 19, 522 S.E.2d 144 (1999).
The order granting summary judgment recites that the trial judge considered not only deposition excerpts filed with the brief supporting the motion, but also “deposition testimonies as presented in the arguments of counsel.” As the attorneys stated in oral argument, they were apparently allowed to summarize the factual information contained within depositions which had not been filed with the court at the time the motion was considered. Not surprisingly, the parties now disagree as to what was and was not presented to the judge in the unrecorded hearing.
Following the hearing, SCDOT filed excerpts from the deposition of Trooper Lynn which contained statements by Mr. Trivelas implying he was inattentive prior to the impact. This is the testimony which the majority cites in its factual analysis. This testimony is contained in lines 14 though 23 of page 17 in Lynn’s deposition. Unfortunately, the order of summary judgment does not refer to these lines, although it does cite other lines contained on the same page of the deposition.
Trivelas contends he submitted the specific lines mentioned in the final order prior to the hearing, but not the entire page. SCDOT does not dispute this, but argues that the critical testimony was summarized during the arguments, and the entire page was then mailed to the clerk of court for inclusion in the record. Page 17 of Trooper Lynn’s deposition appears in our record on appeal, but Trivelas objects to its inclusion and has moved to strike it.
Trivelas asks us not to consider Trooper Lynn’s testimony as to Trivelas’s inattention prior to the collision because it was *141not filed at or prior to the hearing. However, this argument works both ways, and if applied, undermines the trial court’s decision because thé trial judge based his ruling in part upon Trivelas’ deposition testimony, which also was not filed with the court. According to the order, Trivelas testified in his deposition that another vehicle was in front of him and swerved into the adjoining lane at the last moment, leaving Trivelas with no time to react to the SCDOT truck and trailer. However, no part of Trivelas’ deposition is contained in the record or was filed with the court at the time of the hearing.
There is no valid basis upon which we can rule, other than to believe one attorney’s memory over that of another. The result of the procedural irregularities recited above underscores the importance of clearly marking, filing and establishing an accurate record of the information provided to the trial court for consideration in a motion for summary judgment. Arguments of counsel are not evidence, and absent stipulation, they do not provide a factual basis for summary judgment. See Rule 56(c), SCRCP (“The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”). Furthermore, we cannot base a factual review upon them. Cobb v. Benjamin, 325 S.C. 573, 581 n. 2, 482 S.E.2d 589, 593 n. 2 (Ct.App.1997) .(“[Wjhere there is no stipulation, a representation of fact by counsel in written briefs, memoranda or made during oral argument, may not be considered by the court where it is unsupported by the record.”). I would rule that it is an error of law to base a decision on “deposition testimonies as presented in the arguments of counsel,” as was done in this case, unless copies of the deposition testimony are properly filed in the record or the parties have stipulated to the facts. See Id.; Rule 56(c), SCRCP.1
*142For the foregoing reasons, I would reverse and remand for further proceedings, but would allow reconsideration of the motion made by Trivelas, following proper notice and opportunity to file affidavits and deposition testimony as allowed by the rule.
. Although Rule 56(f) provides that the court "may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such order as is just,” the court ruled at the hearing, and did not defer the decision pending the filing of depositions or other supplemental information. The written order was not prepared and filed until after the deposition excerpts were filed *142with the clerk, but the trial judge did not continue the hearing until they were received. Indeed, there is no indication he was ever aware they were filed or had an opportunity to consider them.