SCRCP 56

(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.

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).