Vol. 8, No. 6, Pg. 29. No Spittin,' No Cussin' and No Summary Judgment: Rethinking Motion Practice.

• Author: By Susan Taylor Wall

South Carolina Lawyer

1997.

Vol. 8, No. 6, Pg. 29.

No Spittin,' No Cussin' and No Summary Judgment: Rethinking Motion Practice

29"NO SPITTIN,' NO CUSSIN' AND NO SUMMARY JUDGMENT:" RETHINKING MOTION PRACTICEBy Susan Taylor WallA sign prominently displayed in in a rural Alabama courthouse reads "No Spittin,' No Cussin' and No Summary Judgment." The admonition might equally apply to trial courts in South Carolina. Although most lawyers will refrain from spitting and cussing without the need of a written injunction, many trial judges are reluctant to seriously entertain motions for summary judgment.

More than 10 years ago, the U.S. Supreme Court discussed at length the importance of summary judgment motions in securing the "just, speedy and inexpensive determination of every action." In Celotex Corp. v. Catrett, 477 U.S. 317 (1986), the Court reminded the bench that Rule 56 mandates the entry of summary judgment in certain circumstances. Where a party fails to prove an essential element of its claim, there can be no genuine issue as to any material fact and the court must grant summary judgment.

"Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex at 322.

The South Carolina Rules of Civil Procedure, Rule 56(c), in pertinent part include identical language to that of the Federal Rule. The Rule clearly sets forth the mandatory dispositive nature of an appropriate summary judgment motion. The Rule provides that summary judgment "shall be rendered forthwith" where there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law.

The South Carolina Supreme Court has reminded the bench on numerous occasions that summary judgment is not only appropriate but also mandatory under certain circumstances. Trico Surveying, Inc. v. Godley Auction Co., 314 S.C. 542, 431 S.E.2d 565 (1993). A motion for summary judgment shall be granted "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...