Black v. Black

THIS OPINION HAS NO
PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY
PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

Jacob W. Black,
Jr., Appellant,

v.

William E.
Black, William Lee Black, James B. Black, and Clayton E. Black, Respondents.

Appeal From Lexington County

 J. C. Nicholson, Jr., Circuit Court Judge

Unpublished Opinion No. 2011-UP-118

Submitted March 1, 2011 – Filed March 23, 2011   

AFFIRMED

Matthew P. Turner, of Laurens, for Appellant.

S. Jahue Moore, of West Columbia, for Respondents.

PER CURIAM: Jacob W. Black, Jr. appeals the trial court's grant of
summary judgment in favor of William E. Black, William Lee Black, James B.
Black, and Clayton E. Black, arguing the trial court erred in granting summary
judgment based on the statute of limitations where the trial court disregarded
two affidavits under the sham affidavit rule.  We affirm[1] pursuant to Rule 220(b)(1), SCACR and the following authorities:  S.C. Code
Ann. § 15-3-530(1) (2005) (stating the statute of limitations for an action
upon a contract, obligation, or liability is three years); Rule 56(c), SCRCP
(The trial court should grant summary judgment "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"); Cothran v. Brown, 357 S.C. 210, 218, 592 S.E.2d 629,
633 (2004) ("[A] court may disregard a subsequent affidavit as a
'sham,' that is, as not creating an issue of fact for purposes of summary
judgment, by submitting the subsequent affidavit to contradict that party's own
prior sworn statement."); Id. ("In distinguishing between a
sham affidavit and a correcting or clarifying affidavit, the following
considerations provide guidance: (1) whether an explanation is offered for the
statements that contradict prior sworn statements; (2) the importance to the
litigation of the fact about which there is a contradiction; (3) whether the
nonmovant had access to this fact prior to the previous sworn testimony; (4)
the frequency and degree of variation between statements in the previous sworn
testimony and statements made in the later affidavit concerning this fact; (5)
whether the previous sworn testimony indicates the witness was confused at the
time; (6) when, in relation to summary judgment, the second affidavit is
submitted.").[2]

AFFIRMED.

GEATHERS
and LOCKEMY, JJ., and CURETON, A.J.   

[1] We decide this case without oral argument pursuant to
Rule 215, SCACR.

[2] Because we find the affidavits are a sham, the Record
on Appeal clearly indicates the action was filed outside of the three year
statute of limitations.