Rule 56. Summary Judgment
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(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 a 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 reasonable attorney's fees, and any offending party or attorney may be adjudged guilty of contempt.
Notes:
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.
Notes to 1986 Amendment:
This change [to Rule 56(c)] conforms the time for serving affidavits in opposition to a motion for summary judgment with the general standard in Rule 6(d).
Annotations Rule 56
56
Amend
"The trial court interlocutory orders are amendable." Johnston v. Bowen, 313 S.C. 61, 437 S.E.2d 45, 47 (1993).
Appeal
The denial of a motion for summary judgment is not directly appealable. In Re Estate of Brown, 424 S.C. 589, 600, 818 S.E.2d 770, 776 (Ct. App. 2018), reh'g denied (Oct. 10, 2018).
Rule 56(c), SCRCP, provides the circuit court shall grant summary judgment if "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." When the circuit court grants summary judgment on a question of law, we review the ruling de novo. When the circuit court grants summary judgment on a question of fact, we view "the evidence and all inferences which can reasonably be drawn therefrom ... in the light most favorable to the nonmoving party." "[T]he non-moving party must offer some evidence that a genuine issue of material fact exists as to each element of the claim." "[I]t is not sufficient for a party to create an inference that is not reasonable or an issue of fact that is not genuine." We must affirm summary judgment where the non-moving party "fails to ... establish the existence of an element essential to the party's case." Wright v. PRG Real Estate Mgmt., Inc., 413 S.C. 276, 279-80, 775 S.E.2d 399, 401 (Ct. App. 2015), reh'g denied (Aug. 20, 2015).
When reviewing a grant of summary judgment, an appellate court applies the same standard applied by the trial court pursuant to Rule 56(c), SCRCP. Grinnell Corp. v. Wood, 389 S.C. 350, 355, 698 S.E.2d 796, 798 (2010).
"An appellate court reviews the granting of summary judgment under the same standard applied by the trial court under Rule 56(c), SCRCP." Sea Cove Development, LLC v. Harbourside Community Bank, 387 S.C. 95, 101, 691 S.E.2d 158, 161 (2010).
The supreme court's recent decision in Olson v. Faculty House of Carolina, Inc., 354 S.C. 161, 580 S.E.2d 440 (2003), resolves the issue of the appealability of the denial of a motion for summary judgment. While in the past this court has, in its discretion, heard an appeal from the denial of summary judgment where there was another appealable issue before the court, that is no longer the rule in South Carolina. Olson expressly holds "the denial of a motion for summary judgment is not appealable, even after final judgment." In so holding, the supreme court expressly overruled cases that are inconsistent with this rule. Williamsburg Rural Water and Sewer Company v. Williamsburg County Water and Sewer Authority, 357 S.C. 251, 593 S.E.2d. 154 (Ct. App. 2003).
The denial of a motion for summary judgment is not directly appealable, even after final judgment. Fisher v. Stevens, 355 S.C. 290, 298, 584 S.E.2d 149, 154 (Ct. App. 2003).
In determining whether summary judgment is proper, this court must view all evidence in the light most favorable to the non-moving party. Summary judgment is appropriate when it is clear there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. In determining whether any triable issues of fact exist, the evidence and all inferences which can be reasonably drawn from the evidence must be viewed in the light most favorable to the nonmoving party. Silvester v. Spring Valley Country Club, 344 S.C. 280, 285, 543 S.E.2d 563, 566 (Ct. App. 2001).
The denial of a motion for summary judgment is not directly appealable because it does not finally determine anything about the case's merits. This is true even after a trial of the case on its merits." Davis v. Tripp, 338 S.C. 226, 525 S.E.2d 528 (Ct. App. 1999).
"[I]t is well settled that the denial of summary judgment is not directly appealable, nor is it appealable after final judgment." Silverman v. Campbell, 326 S.C. 208, 486 S.E.2d 1, 2 (1997).
"The denial of summary judgment is not directly appealable, since it decides nothing about the merits of the case, only that the case should proceed to trial." Osborne v. Allstate Insurance Co., 319 S.C. 479, 462 S.E.2d 291, 293 n.1 (Ct. App. 1995).
"Ordinarily, the denial of summary judgment is not directly appealable. However, 'an order that is not directly appealable will nonetheless be considered if there is an appealable issue before the Court and a ruling on the appeal will avoid unnecessary litigation.'" Johnson v. Paraplane Corp., 319 S.C. 247, 250-51, 460 S.E.2d 398, 400 (Ct. App. 1995).
"In reviewing a grant of summary judgment, the facts and all reasonable inferences must be viewed in a light most favorable to the non-moving party." Bankers Trust Co. v. Braten, 317 S.C. 547, 455 S.E.2d 199, 201 (Ct. App. 1995).
"On appeal from summary judgment, the reviewing court must consider the facts and inferences in the light most favorable to the nonmoving party. The judgment may be affirmed only if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of...
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