THE STATE OF SOUTH CAROLINA
In The Court of Appeals
Pamelia Brown, Respondent,
Ashby Taylor and Sandra Taylor, Appellants.
Appeal From Charleston County
A. Victor Rawl, Circuit Court Judge
Unpublished Opinion No. 2003-UP-706
Submitted September 17, 2003 – Filed December 9, 2003
Robert H. Hood, Robert H. Hood, Jr., Johns C. Hayes, IV and Deborah H. Sheffield, all of Charleston, for Appellants.
Daniel Scott Slotchiver and Edward P. Guerard, both of Charleston, for Respondent.
PER CURIAM: Defendants Taylors appeal from an order granting summary judgment to Plaintiff Brown on the issue of liability for a dog bite, arguing that they did not have sufficient time to conduct discovery. We affirm.
This matter is a civil case about a dog bite. Defendants Dr. and Mrs. Taylor owned a dog named Charlie. The Taylors hosted a social event in their home on James Island in April 2001. During the party, Charlie, who had been outside in his kennel, somehow got free and started mingling with the guests. Plaintiff Pamelia Brown was in the kitchen and was “cooing” and “kissing” the dog. Shortly thereafter, Charlie bit her. The Taylors did not see the bite take place. But some other people were present, including Brown’s husband. Mrs. Taylor claimed that some of the eyewitnesses told her that Brown “fell” on the dog. However, Mrs. Taylor could not identify those witnesses by name. Mrs. Taylor also testified that Brown had “had plenty to drink.” Brown maintains that she simply “bent down to pet the dog” and that it attacked her “for no reason.”
Brown filed her negligence action in August 2002. The Taylors answered, denying the allegations and asserting numerous affirmative defenses, including sole and comparative negligence.
Brown then moved for summary judgment as to liability and punitive damages in October 2002. Brown also moved to dismiss the Taylor’s affirmative defenses. Following a hearing in November 2002, the trial court granted summary judgment in favor of Brown on the issue of liability. The court also dismissed the Taylors’ affirmative defenses but declined to grant summary judgment on the issue of punitive damages.
The Taylors are appealing. They contend that the trial court erred when it granted summary judgment to Brown because the Taylors had not had a “full and fair opportunity to complete discovery.”
The supreme court ruled in Baird v. Charleston County, 333 S.C. 519, 529, 511 S.E.2d, 74 (1999), that “summary judgment must not be granted until the opposing party has had a full and fair opportunity to complete discovery.” However, "[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 ... move ... for a summary judgment in his favor upon all or any part thereof." Rule 56(a), SCRCP.
Once a party has properly moved for summary judgment and has filed a supporting affidavit, the opposing party, if it wishes to have more time for discovery, is required under Rule 56(f), SCRCP, to file an opposing affidavit to explain why more time is necessary. Doe v. Batson, 345 SC 316, 321, 548 S.E.2d 854, 857 (2001).
Alternatively, a party opposing a summary judgment motion must demonstrate that further discovery would likely adduce facts relevant to the resolution of the case. See Robertson v. First Union Natl. Bank, 350 S.C. 339, 347-47, 565 S.E.2d 309, 313 (Ct. App. 2002); Dawkins v. Fields, 354 S.C. 58, 70, 580 S.E.2d 433, 439 (2003) (finding that summary judgment was proper where the non-moving party had “failed to present any ‘specific acts’ establishing a genuine issue for trial.”).
Here, the Taylors argue they did not have enough time to conduct discovery because they had not had a chance to depose Brown. Under normal circumstances, three months would be insufficient time for discovery if the non-moving party did not have access to the relevant information. But here the Taylors knew about Brown’s summary judgment motion in which Brown denied provoking Charlie. The Taylors’ attorney had received the insurance carrier’s file and had in his possession the statements of the relevant witnesses. (R.156). There were no surprises at the hearing. And yet, the Taylors produced no document in opposition to the motion and made no attempt at discovery. The Taylors certainly had sufficient time to do that. See Middleborough Horiz. Property Regime Council v. Montedison, S.p.A., 320 S.C. 470, 479, 465 S.E.2d 765, 771 (Ct. App. 1996) (sustaining a summary judgment in part because the defendants “advance[d] no good reason why four months was insufficient time … to develop documentation in opposition to the motion for summary judgment.”).
Huff, Stilwell, and Beatty, JJ., concur.