Case Summary: George P. Dedes v. Bobby W. Strickland, No. 23568 (Sup. Ct. S.C. Feb. 10, 1992)

Factual and Procedural Background

This appeal arises from a mortgage foreclosure action in which respondent George P. Dedes moved for summary judgment against appellant Bobby W. Strickland. Respondent's Notice and Motion for Summary Judgment were filed and served April 13, 1989. The motion was set for hearing before Judge David H. Maring on May 8, 1989; notice of that hearing was mailed on May 3 or 4, 1989.

At the May 8, 1989 hearing counsel for all parties appeared but appellant was not present. Appellant's counsel asserted that the mailed notice was received by him on May 6, 1989, and contended the late notice prevented timely submission of opposing affidavits and attendance by the appellant; counsel also asserted the record was incomplete because interrogatories propounded April 19, 1989 had not been answered.

Counsel for appellant moved for a continuance to permit submission of affidavits and presence of the appellant. Judge Maring granted a continuance to May 12, 1989 but ruled appellant was barred from submitting affidavits, other documents, or testimony because the time for filing opposing affidavits had expired on May 8, 1989.

Judge Maring later rescheduled the hearing to May 29, 1989 before Judge Walter J. Bristow. Maring's rescheduling order noted appellant's objection and indicated reliance on the April 13 notice as adequate; the order also contained a finding that respondent would be materially prejudiced if the appellant were permitted to interpose opposing material. Judge Bristow heard the motion on May 29 and granted summary judgment for respondent. A motion for new trial or amendment of judgment by appellant was denied. The appellant appealed; the Supreme Court of South Carolina reversed and remanded.

Legal Issues Presented

1. Whether the appellant received timely notice of the hearing on respondent's motion for summary judgment in compliance with Rule 6(d) of the South Carolina Rules of Civil Procedure.
2. Whether the circuit court erred by barring the appellant from submitting opposing affidavits, documents, or testimony in response to the motion for summary judgment.

Arguments of the Parties

Appellant's Arguments

• The mailed notice of the May 8, 1989 hearing (sent May 3 or 4 and received May 6) was not timely under Rule 6(d), depriving appellant of the opportunity to timely submit opposing affidavits and to have the appellant present at the hearing.
• The record was incomplete because interrogatories propounded April 19, 1989 had not yet been answered when the court barred submission of opposing materials.
• Accordingly, appellant contended the court should not have proceeded to grant summary judgment or barred the submission of opposing affidavits.

Respondent's Position (as reflected in the record)

• The opinion does not set out a detailed argument by respondent, but the record and Maring's rescheduling order indicate reliance upon service of the Notice of Motion and Motion dated April 13, 1989 as constituting adequate notice of the hearing date.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court analyzed the notice and timing requirements under Rule 6, SCRCP. It quoted Rule 6(d), which requires that a written motion (other than one heard ex parte) and notice of its hearing be served not later than ten days before the time specified for the hearing, and provides that affidavits supporting motions must be served with the motion while opposing affidavits may be served not later than two days before the hearing unless the court permits otherwise. The court also cited Rule 6(e), which adds five days to prescribed periods when service is made by mail.

The court construed Rule 6(d) to require that specific notice of the day certain fixed for the hearing be furnished not later than ten days before the hearing unless applicable exceptions apply. It found as undisputed fact that notice for the May 8 hearing was mailed no earlier than May 3, 1989—well within ten days of the scheduled date. Although the actual hearing did not occur until May 29, 1989, Judge Maring's order precluded the appellant from submitting opposing material after May 8, 1989. At that time the interrogatories served April 19, 1989 remained unanswered and the time for responding had not yet expired.

The court concluded that under Rule 6(d) the appellant did not receive timely notice of the motion hearing, that the appellant was wrongfully denied the opportunity to submit opposing affidavits, documents, or testimony, and that those action(s) prejudiced the appellant's rights. On that basis the court reversed and remanded the circuit court's grant of summary judgment.

Holding and Implications

REVERSED and REMANDED.

Holding: The Supreme Court of South Carolina held the appellant did not receive timely notice of the hearing as required by Rule 6(d), SCRCP, and was improperly barred from submitting opposing affidavits and other materials; these actions prejudiced the appellant and required reversal of the summary judgment and remand for further proceedings.

Implications: The direct effect is reversal of the circuit court's summary judgment and a remand for further proceedings consistent with the court's ruling on notice and the opportunity to submit opposing materials. The opinion does not articulate broader precedent beyond its interpretation and application of Rule 6(d) to the facts of this case.