The opinion
ADAMS, Presiding Judge,
Dissenting:
¶ 1 I believe the majority incorrectly applies a Federal approach for summary adjudication despite significant differences between the Federal summary adjudication process and that required in Oklahoma in order to remain consistent with the right to jury trial guaranteed in Article 2, Section 19 of the Oklahoma Constitution. Kepler v. Strain, 1978 OK 52 , 579 P.2d 191 , upon which the majority relies for its conclusion that we should give special consideration to decisions of Federal Courts on summary adjudication, was decided prior to 1986, the year in which the United States Supreme Court significantly altered the legal landscape for summary adjudication process in Federal Courts by adopting a trilogy of cases which gave Federal trial judges an increased degree of discretion in ruling on motions for summary judgment. See Weldon v. Dunn, 1998 OK 80 , 962 P.2d 1273 , (Opala, J., dissenting).
¶2 The test adopted by the majority for determining a “sham fact” clearly, although disclaiming any intent to “weigh” the evidence, requires a judge to engage in a process for assessing the “quality” of the evidence when faced with a conflict between deposition testimony and a later-filed affidavit executed by the deponent. In my view, “quality” is just another way of saying “credibility.” In the Oklahoma summary adjudication process, the court does not weigh the evidence. Oliver v. Farmers Insurance Group of Companies, 1997 OK 71 , 941 P.2d 985 . This is a task for the jury.
¶ 3 Moreover, I do not think the conflict in this case is so stark as to justify a conclusion that there is an attempt to defraud the court. The critical fact in determining the decedent’s residence at.the time he was driving Barker’s car was his intent. Most of the questions in Plaintiffs deposition focused on her opinion and intent concerning the decedent’s living arrangement. Only one question addresses her view of where the decedent considered his residence to be located. 1 In her affidavit, Plaintiff made a distinction between her intent and the decedent’s intent, noting that she did not intend for him to live at Barker’s but also stating that he had told Plaintiff he was doing that.
¶ 4 The very concept of determining whether a fact issue is “genuine” or “sham” suggests a court deciding whether the fact conflict is “fake” or “made up.” That determination is nothing more or less than weighing the evidence of the fact and determining its credibility. In considering a motion for summary a judgment, an Oklahoma court faced with a conflict between an affidavit of a witness and the deposition testimony of that witness, may “not resolve the incongruity by choosing to accept one over the other.” Bundren v. Car Connection, Inc., 1998 OK CIV APP 119, ¶ 9 , 963 P.2d 634, 637 . I respectfully, dissent.
. In her deposition, Plaintiff responded, "Yes” to a question from State Farm’s attorney, "So you both at the time of his death considered that to be your residence.” She also answered, “Yes” when asked if that residence was "7116 N.W. 43rd.” That is not Barker's address.