Chapter 56 Summary Judgment

• Library: South Carolina Civil Procedure (SCBar) (2020 Ed.)

Chapter 56 Summary Judgment Rule 56¹

(a) For Claimant. A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment may, at any time after the expiration of 30 days from the commencement of the action or after service of a motion for summary judgment by the adverse party, move with or without supporting affidavits for a summary judgment in his favor upon all or any part thereof.

(b) For Defending Party. A party against whom a claim, counterclaim or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof.

(c) Motions and Proceedings Thereon. The motion shall be served at least 10 days before the time fixed for the hearing. The adverse party may serve opposing affidavits not later than two days before the hearing. 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 judgment as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.

(d) Case Not Fully Adjudicated on Motion. If on motion under this rule judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary, the court at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel, shall if practicable ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted. It may thereupon make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such further proceedings in the action as are just. Upon the trial of the action the facts so specified shall be deemed established, and the trial shall be conducted accordingly.

(e) Form of Affidavits; Further Testimony; Defense Required. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

(f) When Affidavits Are Unavailable. Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or 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.

(g) Affidavits Made in Bad Faith. Should it appear to the satisfaction of the court at any time that any of the affidavits presented pursuant to this rule are presented in bad faith or solely for the purpose of delay, the court shall forthwith order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused him to incur, including reasonably attorney's fees, and any offending party or attorney may be adjudged guilty of contempt.

Note:

This is the language of Federal Rule 56. Present Circuit Court Rule 44, Summary Judgment, is substantially the same as the Federal Rule except for the following:

Rule 56(d) Case Not Fully Adjudicated on Motion, does not appear in the present Circuit Court Rule. This Rule makes the findings of uncontested facts discretionary with the court rather than mandatory; but is valuable in disposing of uncontested issues at trial.

Present Circuit Court Rule 44 has minor textual matters that do not appear in the Federal Rule. Paragraphs (a) and (b) of the Circuit Court Rule have the concluding phrase, "notice of motion shall state the grounds for the motion", which is rendered unnecessary by Rule 7(b). The second sentence of Rule 56(e) permits other relevant materials to be considered by the court, and is a needed addition.

Note to 1986 Amendment:

This change conforms the time for serving affidavits in opposition to a motion for summary judgment with the general standard in Rule 6(d).

A. Introduction

This rule is based on the Federal Rule 56 with a few modifications. Rule 56 permits the parties to go behind the formal pleadings and present the court a controlling question of law when evidence establishes that there is no material issue of fact. Summary judgment avoids the delay caused by unfounded claims, sham defenses, or the mere formal issues raised by the pleadings, and it avoids trial when the material facts are uncontested.²

Summary judgment is not a trial on the merits but a determination that there is no factual issue to present to the trier of fact, meaning that the case may be decided as a matter of law.³ Summary judgment expedites the disposition of those cases that do not require a fact finder.⁴ Consequently, as there are no issues of material fact requiring jury determination, summary judgment does not deny the non-moving party his right to a jury trial.⁵ There are admonitions in the case law that summary judgment should be invoked cautiously to avoid depriving a litigant of a right to a jury trial⁶ but opposing statements that summary judgment is proper when a verdict is not reasonably proper under the facts.⁷

Summary judgment is analogous to a motion for a directed verdict under Rule 50.⁸ Both motions assert that (1) the facts are uncontradicted; (2) only one conclusion can be drawn from them; and (3) under the uncontradicted facts, the movant is entitled to judgment as a matter of law.⁹

The major characteristic of a motion for summary judgment is that materials outside the pleadings are presented to and considered by the court. In contrast, a Rule 12(b)(6) motion for failure to state a cause of action and a Rule 12(c) motion for judgment on the pleadings challenge the legal sufficiency of the pleadings, so the court only examines the four corners of the pleadings. Going beyond the pleadings changes a motion directed to the pleadings into one for summary judgment.¹⁰ Both Rule 12(b)(6) and 12(c) provide that if "matters outside the pleadings are presented to and not excluded by the Court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56." The motion can be used to raise affirmative defenses such as the statute of limitations.¹¹ At the same time, motions that do not go to the merits are not appropriately classified as summary judgments.¹² For example, motions challenging personal and subject matter jurisdiction or venue are brought under the applicable provision of Rule 12 rather than under Rule 56.¹³

An order granting summary judgment is a decision on the merits of the case and is appealable even if only a partial summary judgment is granted.¹⁴ An order denying summary judgment is merely a determination that the case should proceed to trial.¹⁵ The denial of a motion for summary judgment is not immediately appealable, and it is not appealable after a final judgment is rendered.¹⁶ A court may hear a second motion for summary judgment, particularly when there is new evidence available.¹⁷ An appellate court reviewing the grant of a motion for summary judgment applies the same standard as the circuit court applied and views all ambiguities, conclusions, and inferences in the light most favorable to the non-moving party.¹⁸

Summary judgment interacts with other rules and statutes. A motion for summary judgment cuts off the plaintiff's right to dismiss the complaint without leave of court under Rule 41(a)(1)(I). In addition, a decision on a motion for summary judgment is a trial,¹⁹ and a defendant is entitled to have the motion heard in the appropriate venue. Thus, a motion to transfer the case to the correct venue must be granted before the motion for summary judgment is heard.²⁰

B. Timing and Notice of Motion for Summary Judgment

Summary judgment is available to plaintiffs and defendants. Rule 56(a) provides that a party seeking to recover on a claim may move for summary judgment thirty days after the action is commenced or any time after the opposing party makes the same motion. A defending party may move for summary judgment at any time under Rule 56(b). There is no requirement that the pleadings be closed, and a defendant may litigate an affirmative defense via a motion for summary judgment.²¹ Although there is nothing in Rule 12 on the matter, the federal commentators suggest that a motion for summary judgment may toll the time for a responsive pleading.²² The court has the discretion to delay the motion pending the close of the pleadings if that would be helpful.

Rule 56(c) requires ten days' notice of the hearing on the motion for summary judgment so that the opposing party may obtain affidavits in opposition to the motion. The notice problem often arises when a Rule 12(b)(6) motion is converted to one for summary judgment by the submission of materials...