Rule 56. Summary judgment. - North Carolina Statutes

Rule 56. Summary judgment.

(a)        For claimant. – Aparty seeking to recover upon a claim, counterclaim, or crossclaim or to obtaina declaratory judgment may, at any time after the expiration of 30 days fromthe commencement of the action or after service of a motion for summaryjudgment by the adverse party, move with or without supporting affidavits for asummary judgment in his favor upon all or any part thereof.

(b)        For defendingparty. – A party against whom a claim, counterclaim, or crossclaim is assertedor a declaratory judgment is sought, may, at any time, move with or withoutsupporting affidavits for a summary judgment in his favor as to all or any partthereof.

(c)        Motion andproceedings thereon. – The motion shall be served at least 10 days before thetime fixed for the hearing. The adverse party may serve opposing affidavits atleast two days before the hearing. If the opposing affidavit is not served onthe other parties at least two days before the hearing on the motion, the courtmay continue the matter for a reasonable period to allow the responding partyto prepare a response, proceed with the matter without considering the untimelyserved affidavit, or take such other action as the ends of justice require. Forthe purpose of this two-day requirement only, service shall mean personaldelivery, facsimile transmission, or other means such that the party actuallyreceives the affidavit within the required time.

The judgment sought shall berendered forthwith if the pleadings, depositions, answers to interrogatories,and admissions on file, together with the affidavits, if any, show that thereis no genuine issue as to any material fact and that any party is entitled to ajudgment as a matter of law. A summary judgment, interlocutory in character, maybe rendered on the issue of liability alone although there is genuine issue asto the amount of damages. Summary judgment, when appropriate, may be renderedagainst the moving party.

(d)        Case not fullyadjudicated on motion. – If on motion under this rule judgment is not renderedupon the whole case or for all the relief asked and a trial is necessary, thecourt at the hearing of the motion, by examining the pleadings and the evidencebefore it and by interrogating counsel, shall if practicable ascertain whatmaterial facts exist without substantial controversy and what material factsare actually and in good faith controverted. It shall thereupon make an orderspecifying the facts that appear without substantial controversy, including theextent 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 thetrial of the action the facts so specified shall be deemed established.

(e)        Form of affidavits;further testimony; defense required. – Supporting and opposing affidavits shallbe made on personal knowledge, shall set forth such facts as would beadmissible in evidence, and shall show affirmatively that the affiant iscompetent to testify to the matters stated therein. Sworn or certified copiesof all papers or parts thereof referred to in an affidavit shall be attachedthereto or served therewith. The court may permit affidavits to be supplementedor opposed by depositions, answers to interrogatories, or further affidavits.When a motion for summary judgment is made and supported as provided in thisrule, an adverse party may not rest upon the mere allegations or denials of hispleading, but his response, by affidavits or as otherwise provided in thisrule, must set forth specific facts showing that there is a genuine issue fortrial. If he does not so respond, summary judgment, if appropriate, shall beentered against him.

(f)         When affidavitsare unavailable. – Should it appear from the affidavits of a party opposing themotion that he cannot for reasons stated present by affidavit facts essentialto justify his opposition, the court may refuse the application for judgment ormay order a continuance to permit affidavits to be obtained or depositions tobe taken or discovery to be had or may make such other order as is just.

(g)        Affidavits made inbad faith. – Should it appear to the satisfaction of the court at any time thatany of the affidavits presented pursuant to this rule are presented in badfaith or solely for the purpose of delay, the court shall forthwith order theparty employing them to pay to the other party the amount of the reasonableexpenses which the filing of the affidavits caused him to incur, includingreasonable attorney's fees. (1967,c. 954, s. 1; 2000-127, s. 6.)