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."

Back To top

Back To top