Starcher, Justice, concurring:
I entirely agree with the partially dissenting opinion's position that basing a breach of promise claim on simply reading a newspaper article would be such a far afield stretch as to be untenable _ at least under the facts of the instant case.
However, the majority opinion makes no such stretch. Rather, it is the dissent that has stretched _ not just into the outfield, but entirely outside the park _ by inexplicably failing to inspect the record, and then by wrongly accusing the majority of distorting that record.
The partially dissenting opinion accepts the circuit court's characterization of the record as showing that the sole basis for Ms. Tiernan's breach of promise claim was her reading of a newspaper article. The opinion then affirmatively ratifies that characterization of the record _ twice _ by stating that Ms. Tiernan made no claim that the [promise] was made directly with her or other nurses at a meeting[;] and that the newspaper article was the only piece of evidence presented by Ms. Tiernan to show [a promise].
Let us, by consulting the record, examine the accuracy of these two statements that are made by the partially dissenting opinion.
Pages 341-342 of the record, part of the Plaintiff's Response to Defendant's Memorandum Regarding Remanded Issues [before the lower court on the issue of summary judgment,] include the following language:
As the Court will note by reference to the Plaintiff's interrogatory answer provided therein, the Plaintiff clearly stated that the Defendant's representative, George Velianoff, told the Plaintiff and approximately 140 nurses and 35-40 administrative staff who also attended a meeting regarding the protested float policy that the nurses had every right to talk to newspaper reporters and that he would not retaliate if they chose to speak up.[Emphasis added.] (See footnote 1)
This assertion by Ms. Tiernan to the lower court, in response to CAMC's renewed motion for summary judgment, demonstrates that the statement in the partially dissenting opinion _ that Ms. Tiernan made no claim that the promise was made directly to her or other nurses at a meeting _ is one hundred percent wrong.
Also equally and entirely wrong is the statement in the partially dissenting opinion that there was no evidence of the promise being made to Ms. Tiernan, other than the newspaper article. To the contrary, Ms. Tiernan's sworn interrogatory answers were evidence, when submitted in response to a motion for summary judgment.
Therefore, in direct contradiction of the two statements made in the partially dissenting opinion, one can see that the record is crystal clear that Ms. Tiernan claimed before the lower court that she was at the meeting where the promises were allegedly made_ and that she backed up her claim with evidence. Suggesting that her claim merely comes from a newspaper article is simply incredible.
These facts, to reiterate, are simply, fully, and clearly shown in the record.
The only conceivable explanation for the partial dissent's error on this issue is that it accepted the truth of erroneous statements in the lower court's order (and in a CAMC brief) _ without actually examining the record to see if those statements were correct. It is natural that on occasion judicial opinions will make inaccurate statements because the opinion has accepted as reliable statements that are made in a brief or order. There is rarely time or need to check every statement in such summary documents against the original record; and in most cases, any such inaccuracies are not important.
But when one intends to directly accuse others on the Court of distorting the facts in the record, I believe that it behooves the accuser to check and see whether the record in fact supports the accusation. In the instant case, obviously, no such check was made, and the results speak for themselves.
To summarize: in responding to CAMC's motion for summary judgment, Ms. Tiernan asserted directly to the lower court, with supporting direct evidence, that she had been at the meeting where a promise was allegedly made. Consequently, the majority opinion is correct in holding that her claim on this issue raised material questions of fact.