Brown v. Taylor

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

Pamelia Brown,       
Respondent,

v.

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Unpublished Opinion No. 2003-UP-706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

AFFIRMED

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.

FACTS

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.”

ANALYSIS

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.”).

AFFIRMED.

Huff, Stilwell, and Beatty, JJ., concur.