Skip to content

RULE 56. SUMMARY JUDGMENT

July 25, 2011

RULE 56.01: 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 thirty (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 the party’s favor upon all or any part thereof.

RULE 56.02: 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 the party’s favor as to all or any part thereof.

RULE 56.03: SPECIFYING MATERIAL FACTS.

In order to assist the Court in ascertaining whether there are any material facts in dispute, any motion for summary judgment made pursuant to Rule 56 of the Tennessee Rules of Civil Procedure shall be accompanied by a separate concise statement of the material facts as to which the moving party contends there is no genuine issue for trial. Each fact shall be set forth in a separate, numbered paragraph. Each fact shall be supported by a specific citation to the record.

Any party opposing the motion for summary judgment must, not later than five days before the hearing, serve and file a response to each fact set forth by the movant either (i) agreeing that the fact is undisputed, (ii) agreeing that the fact is undispusted for purposes of ruling on the motion for summary judgment only, or (iii) demonstrating that the fact is disputed. Each disputed fact must be supported by specific citation to the record. Such response shall be filed with the papers in opposition to the motion for summary judgment.

In addition, the non-movant’s response may contain a concise statement of any additional facts that the non-movant contends are material and as to which the non-movant contends there exists a genuine issue to be tried. Each such disputed fact shall be set forth in a separate, numbered paragraph with specific citations to the record supporting the contention that such fact is in dispute.

If the non-moving party has asserted additional facts, the moving party shall be allowed to respond to these additional facts by filing a reply statement in the same manner and form as specified above. [As amended by order entered January 28, 2000, effective July 1, 2000.]

RULE 56.04: MOTION AND PROCEEDINGS THEREON.

The motion shall be served at least thirty (30) days before the time fixed for the hearing. The adverse party may serve and file opposing affidavits not later than five days before the hearing. Subject to the moving party’s compliance with Rule 56.03, 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. The trial court shall state the legal grounds upon which the court denies or grants the motion, which shall be included in the order reflecting the court’s ruling. 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.[As amended by order entered January 26, 1999, effective July 1, 1999; and by order entered January 31, 2002, effective July 1, 2002.]

RULE 56.05: 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 shall 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.

RULE 56.06: FORM OF AFFIDAVITS — FURTHER TESTIMONY — DEFENSE REQUIRED.

Supporting and opposing affidavits shall be made on personal knowledge, 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 the adverse party’s pleading, but his or her 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 the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party. Expert opinion affidavits shall be governed by Tennessee Rule of Evidence 703.

RULE 56.07: WHEN AFFIDAVITS ARE UNAVAILABLE.

Should it appear from the affidavits of a party opposing the motion that such party cannot for reasons stated present by affidavit facts essential to justify the 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 other order as is just.

RULE 56.08: 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 the other party to incur, including reasonable attorney’s fees, and any offending party or attorney may be adjudged guilty of contempt. [Amended by order effective July 1, 1993; and by order effective July 1, 1997.]

Advisory Commission Comments.

The Committee deems the adoption of the provisions of this Rule to be one of the most important and desirable additions to Tennessee procedure contained in the Rules of Civil Procedure. Previously there has been no procedure for disposition of a case in the trial courts without an actual trial on the merits if the case could not be disposed of on demurrer or plea in abatement. A majority of the states have adopted procedures similar to those contained in this Rule, which follows the Federal Rule. The Committee considers this Rule to be a substantial step forward to the end that litigation may be accelerated, insubstantial issues removed, and trial confined only to genuine issues.

The time periods contained herein differ from those contained in the Federal Rule. The Committee felt that the 30-day period was more realistic and also more uniform with the other Rules.

Previously the term “Summary Judgment” was known in Tennessee procedure only in connection with the provisions of Tenn. Code Ann. § 25-3-101 et seq., dealing with summary remedies against certain public officers and with actions by sureties. Rule 56 in no way repeals the provisions of these statutes.

Advisory Commission Comments [1993]. The last sentence of Rule 56.05 [now 56.06] changes the result of Omni Aviation v. Perry, 807 S.W.2d 276 (Tenn. App. 1990), which held that facts supporting an expert’s opinion must have a “foundation in the record.” Tennessee Rule of Evidence 703 permits expert opinions based on facts outside the record if reasonably relied upon by such experts and if trustworthy.

Advisory Commission Comments [1997]. New Rule 56.03 tracks the language of a local federal rule of the Middle District of Tennessee. The Commission believes it will not only assist the Court in focusing on the crucial portions of the record, but it will cause lawyers to ascertain whether there is “a genuine issue as to any material fact.”

Advisory Commission Comments [1999]. 56.04: The second sentence of Rule 56.04 was amended to require opposing affidavits to be served five days, not one day, before motion day. It was thought that counsel could be better prepared for oral argument with the new deadline.

Advisory Commission Comments [2000]. The amendment requires service and filing of a non-movant’s response five days before the motion hearing. This change corresponds to the advance filing requirement for opposing affidavits.

Advisory Commission Comments [2002]. Rule 56.04 is amended to require on request that grounds be stated for granting a motion for summary judgment. In contrast with findings and conclusions under Rule 52.01, however, the statement of grounds need not be elaborate.

Advisory Commission Comments [2007]. Previously Rule 56.04 required a trial judge “upon request” to state the legal grounds for granting summary judgment. The amendment extends that principle to a denial of summary judgment. The amendment also deletes the words “upon request.”

RULE 56.08: 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 the other party to incur, including reasonable attorney’s fees, and any offending party or attorney may be adjudged guilty of contempt. [Amended by order effective July 1, 1993; and by order effective July 1, 1997.]

Advisory Commission Comments.

The Committee deems the adoption of the provisions of this Rule to be one of the most important and desirable additions to Tennesseeprocedure contained in the Rules of Civil Procedure. Previously there has been no procedure for disposition of a case in the trial courts without an actual trial on the merits if the case could not be disposed of on demurrer or plea in abatement. A majority of the states have adopted procedures similar to those contained in this Rule, which follows the Federal Rule. The Committee considers this Rule to be a substantial step forward to the end that litigation may be accelerated, insubstantial issues removed, and trial confined only to genuine issues.

The time periods contained herein differ from those contained in the Federal Rule. The Committee felt that the 30-day period was more realistic and also more uniform with the other Rules.

Previously the term “Summary Judgment” was known in Tennessee procedure only in connection with the provisions of Tenn. Code Ann. § 25-3-101 et seq., dealing with summary remedies against certain public officers and with actions by sureties. Rule 56 in no way repeals the provisions of these statutes.

Advisory Commission Comments [1993]. The last sentence of Rule 56.05 [now 56.06] changes the result of Omni Aviation v. Perry, 807 S.W.2d 276 (Tenn. App. 1990), which held that facts supporting an expert’s opinion must have a “foundation in the record.” Tennessee Rule of Evidence 703 permits expert opinions based on facts outside the record if reasonably relied upon by such experts and if trustworthy.

Advisory Commission Comments [1997]. New Rule 56.03 tracks the language of a local federal rule of the Middle District of Tennessee. The Commission believes it will not only assist the Court in focusing on the crucial portions of the record, but it will cause lawyers to ascertain whether there is “a genuine issue as to any material fact.”

Advisory Commission Comments [1999]. 56.04: The second sentence of Rule 56.04 was amended to require opposing affidavits to be served five days, not one day, before motion day. It was thought that counsel could be better prepared for oral argument with the new deadline.

Advisory Commission Comments [2000]. The amendment requires service and filing of a non-movant’s response five days before the motion hearing. This change corresponds to the advance filing requirement for opposing affidavits.

Advisory Commission Comments [2002]. Rule 56.04 is amended to require on request that grounds be stated for granting a motion for summary judgment. In contrast with findings and conclusions under Rule 52.01, however, the statement of grounds need not be elaborate.

Advisory Commission Comments [2007]. Previously Rule 56.04 required a trial judge “upon request” to state the legal grounds for granting summary judgment. The amendment extends that principle to a denial of summary judgment. The amendment also deletes the words “upon request.”

Advertisements
Leave a Comment

Don't be shy! Leave a Reply!

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: