This is аn appeal from an order granting summary judgment to certain of the respondents. The appellants, B.W. and Suzanne Klippel, sued the individual respondents (respondents) on the basis the respondents had previously employed John Watkins as their personal agent to institute a civil suit аgainst the Klippels. The respondents in the instant action were stockholders of two corporations which sued the Klip-pels in the federal court; they were not parties to that suit.
The dispositive issue in this appeal is whether the Klippels made a sufficient response to the motions for summary judgment so as to avoid the entry of summary judgment against them.
The respondents filed affidavits in support of their motions for summary judgment. The affidavits denied John Watkins acted as their personal agent in the prior action. John Watkins also submitted an affidаvit denying he acted as the personal agent for the respondents.
At the hearing on the motion, the Klippels attempted to introduce portions of a deposition of John Watkins taken in the federal suit. The respondents objected to the introduction of the depositiоn as “inappropriate and impermissible.” The trial
The Klippels assert the trial court erred in not considering the deposition testimony of Watkins because the court failed to understand their case was based upon agency principles, not the theory of piercing the сorporate veil. They state in their brief they did not allege or submit evidence to pierce the corporate veil. In their brief, the rеspondents recognize agency was an issue but assert summary judgment was proper because the Klippels failed to present a genuine issue of material fact on the question of agency.
Under Rule 56, SCRCP, when a party makes a motion for summary judgment and supports it by affidavits the аdverse party may not rest on the allegations of his pleadings but must respond by affidavits or other evidence demonstrating a genuine issue of material fact. Sheppard v. Kimbrough,
The primary argument by the respondents against the admission of the deposition wаs they were not parties to the federal court case and did not have an opportunity to cross-examine Watkins. This is technically сorrect. However, the affidavits submitted by the respondents in this litigation also were not subject to cross-examination by the Klippels. We seе no distinction between this deposition statement and the submission by the Klippels of a counter-affidavit of Watkins in which he contradicted his othеr affidavit. The deposition submitted by the Klippels apparently met the personal knowledge requirement of Rule 56(e) and should have beеn considered. See Hoover v. Switlik Parachute Co., 663 F. (2d) 964 (9th Cir. 1981) (depositions were equivalent of affidavits); see also 73 Am. Jur. (2d) Summary Judgment Section 32 (1974 and Supp.) (deposition may be held to constitute a sufficient affidavit in support of motion for summary judgment).
We elect, however, to sustain the trial court’s ruling on another ground. See Supreme Court Rule 4, Section 8 (apрellate court may sustain a trial court’s ruling on any ground appearing in the record).
Because the Klippels presented no other affidavits or depositions which may have corroborated Watkins’s purported claim of agency in his depositiоn, we hold as a matter of law the Klippels did not create a question of fact for trial.
Accordingly, the order of the trial court is affirmed.
Affirmed.
Notes
The Klippels contend the respondents prosecuted the federal suit in their individual capacities through their agent, Watkins. The respondents claim that as shareholders they simply authorized Watkins to bring the suit on behalf of the corporations.
While the parties stipulatеd in the Statement of the Case that the court “did not address the agency issue” we note the following finding from the order:
Plaintiffs have also assertеd that the mere fact that the Non-resident and Resident Defendants owned shares and voted them, that Watkins thereby became their agent.
It is of сourse well established that the officers and directors of a corporation are not the agents of the stockholders, and that thе stockholders are not chargeable with knowledge of the business transactions which it undertakes; that is to say, they have no duty as stockholdеrs to inquire into the nature of the business or to influence the management, and of course they have no reason to suppose that the management will cause the corporation to engage an [sic] ultra vires acts.
Id.
At best, Watkins was an agent of the corporations, not the agent of the Non-resident and Resident Defendants.
We are not bound by a stipulation in the Statement of the Case when the record reflects differently. See Ariail v. Ariail,295 S.C. 486 ,369 S.E. (2d) 146 (Ct. App. 1988).
The parties obviously disagree as to the meaning of this stipulation.
Currently located at Rule 220(c), SCACR, effective September 1,1990.