Section 4

Citation: Section 4
Parent Document: Solomon v. Birger, 477 N.E.2d 137 (1985)
Jurisdiction: Massachusetts (state)
Effective Date: 1985-04-22
Original Source: https://www.courtlistener.com/opinion/2048661/solomon-v-birger/ ↗

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[5] Although the code violation was brought to the court's attention, it does not appear that the plaintiffs ever specifically argued that the noncompliance with the code was a breach of an express warranty, except to the extent that such an argument was implicit in their contention that the defendants had not complied with the express and implied warranties during the period of negotiations and at the time of purchase. This, however, does not affect our resolution of this case. A judge hearing a summary judgment motion may consider the entire record properly before him, including parts not specifically referred to by either of the parties. See Higgenbotham v. Ochsner Foundation Hosp., 607 F.2d 653, 656-657 (5th Cir.1979), where the court noted that the counsel's failure to bring directly to the judge's attention a deposition filed in the record did not mean that the judge could properly ignore the deposition in ruling on a summary judgment motion. In short, rule 56 does not distinguish between material merely on file and that singled out by counsel for special attention. Contrast S. Kemble Fischer Realty Trust v. Board of Appeals of Concord, 9 Mass. App. Ct. 477, 478-479 & n. 2 (1980).

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