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Chambliss v. Stohler6/30/2003
find the Trial Court did not abuse its discretion in refusing to consider Dr. Cross's amended affidavit. To hold otherwise would allow a party opposing a motion for full summary judgment to defend against it piecemeal by first offering some small portion of its available proof in an attempt to establish the existence of the essential elements of his claim and asking the trial court if that is enough to defeat the motion. If the trial court answers, "no, it's not", the non-moving party then could add a little more of its available proof and ask the same question of the trial court yet again. If "no" still was the answer, the non-moving party could continue to add bits and pieces of its available proof in an attempt to establish the existence of the essential element of the claim. We believe such a process neither is appropriate under Rule 56 nor required or allowed by case law.
As the Trial Court properly granted summary judgment and properly denied Plaintiffs' motion to allow the filing of and consideration by the Trial Court of Dr. Cross's amended affidavit, we find no error by the Trial Court in its denial of Plaintiffs' Rule 59.04 motion to alter or amend the judgment. We, therefore, affirm.
Defendant also raised an additional issue. Our decision as to the issues raised by Plaintiffs makes it unnecessary to address Defendant's additional issue.
Conclusion
The judgment of the Trial Court is affirmed, and this cause is remanded to the Trial Court for such further proceedings as may be required, if any, consistent with this Opinion and for collection of the costs below. The costs on appeal are assessed against the Appellants, Gloria Jean Chambliss and Willie Chambliss, and their surety.
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