A summary judgment motion is a determination by the court concerning a case or aspect of a case made prior to trial that obviates the need for trial of the matter.166.1 A party seeking to recover upon a claim, counterclaim, cross-claim or declaratory judgment may at any time after the expiration of twenty days from the commencement of the action or after service of a motion for summary judgment by the adverse party move with or without supporting affidavits for a summary judgment in his or her favor upon all or any part thereof.167 A party against whom a claim, counterclaim, cross-claim or declaratory judgment is asserted may at any time move with or without supporting affidavits for a summary judgment in his or her favor as to all or any part thereof.168
The purpose of summary judgment is to provide a method by which issues of law involved in a case may be speedily brought before a trial court and disposed of without unnecessary delay. The disposition of litigation by motion for summary judgment is encouraged as it can result in a prompt, expeditious and economical ending of lawsuits.168.1
A motion for summary judgment may be useful as a means of establishing facts without the need to produce evidence at trial. When a party moves for summary judgment and the court concludes that the moving party is not entitled to summary judgment and the state of the record is such that the non-moving party clearly is entitled to such relief, the judge may grant final judgment in favor of the non-moving party.169 If the court determines that summary judgment is not warranted upon the whole case or for all the relief asked and a trial is necessary, the court, at the hearing on the motion, by examining the pleadings and evidence before it and by interrogating counsel, must ascertain to the extent practicable what material facts are substantially undisputed and what material facts are actually and in good faith controverted. The court must then make an order specifying the substantially undisputed facts, including the amount of damages or other relief where not substantially disputed, and directing such further proceedings in the action as are just. The facts identified as substantially undisputed are deemed established, and the trial will be conducted accordingly.170
In the Superior Court and the Court of Common Pleas, the rules stated above as to the timing of a motion for summary judgment do not prohibit the filing of such a motion by any party where, as a result of a pre-trial conference, in the opinion of the court the filing of such a motion is desirable.171
In the Family Court, because of the concern that litigants in that court are often unrepresented and, even when there is representation, summary judgment proceedings may delay resolution of litigation, motions for summary judgment may not be filed without first filing a motion requesting permission to file a motion for summary judgment and obtaining a court order allowing such a motion. If permission is granted, any motion for summary judgment must be accompanied by a stipulated set of facts executed by counsel or, where a party is unrepresented, by that party.172
The purpose of summary judgment is to avoid the delay and expense of a trial where the ultimate factfinder, whether judge or jury, has nothing to decide. 173 Summary judgment may be granted only where the record shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.174 If there are material factual disputes, that is, if the parties are in disagreement concerning the factual predicate for the legal principles they advance, summary judgment should not be granted.175 When presented with a motion for summary judgment, the trial judge must identify disputed factual issues whose resolution is necessary to decide the case, but he or she should not decide such issues.176 The judge who decides the summary judgment motion may not weigh qualitatively or quantitatively the evidence adduced on the summary judgment record. The test is not whether the judge considering summary judgment is skeptical that plaintiff will ultimately prevail.176.1 The court must accept all undisputed factual assertions made by either party177 and accept the non-movant’s version of any disputed facts.178 The court must view the evidence in the light most favorable to the non-movant and give the non-movant the benefit of all rational, favorable inferences.179
The moving party has the initial burden of demonstrating the absence of any issue of material fact, and any doubt will be resolved against that party.180 Once the moving party meets that burden, e.g., by offering evidence negating the adverse party’s pleadings, the burden shifts to the non-moving party to demonstrate by affidavits or other evidence that a genuine issue of material fact remains for trial.181 Further, where the non-movant will bear the burden of proof at trial, that party has the burden in responding to a motion for summary judgment of establishing the existence of some evidence supporting each element of that party’s case.182 If from the evidence produced there is a reasonable indication that a material fact is in dispute or if it appears desirable to inquire more thoroughly into the facts in order to clarify application of the law, summary judgment is not appropriate.182.1 If the matter depends to any material extent upon a determination of credibility, summary judgment is inappropriate.182.2
The non-movant may not avoid summary judgment merely by denying the factual allegations adduced by the movant183 or by relying on unverified allegations in the non-movant’s pleadings184 or assertions in the non-movant’s briefs.185 Further, as any affidavits submitted by either party must be made on personal knowledge, setting forth such facts as would be admissible in evidence and showing affirmatively that the affiant is competent to testify to the matters stated in the affidavits,186 any evidence which does not meet this standard will not be sufficient to establish a genuine issue of material fact.187 If the non-movant fails to provide sufficient evidence, summary judgment may be entered against that party.188 Where affidavits contain a mixture of admissible and inadmissible evidence, the court may elect to simply ignore the inadmissible portions, rather than to strike the affidavit or disregard it in its entirety.189
A party may not avoid summary judgment by claiming that the necessary evidence may be available for trial. A motion for summary judgment must be decided on the record presented, not that which hypothetically could be available in the future.190 However, the parties must be permitted a reasonable opportunity to discover and present all facts pertinent to the motion.191 Thus, if the non-movant demonstrates by affidavit to the court’s satisfaction that further evidence is available and necessary to meet the motion, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.192
The existence of cross motions for summary judgment does not act per se as a concession that there is an absence of factual issues. Rather, a party moving for summary judgment concedes the absence of a factual issue and the truth of the nonmoving party’s allegations only for purposes of its own motion, and does not waive its right to assert that there are disputed facts that preclude summary judgment in favor of the other party. Thus, the mere filing of a cross motion for summary judgment does not serve as a waiver of the movant’s right to assert the existence of a factual dispute as to the other party’s motion.192.1
166.1. Hercules, Inc. v. AIU Ins. Co., 784 A.2d 481, 500 (Del. 2001).
167. Ch. Ct. R. 56(a); Super. Ct. Civ. R. 56(a); Comm. Pls. Ct. Civ. R. 56(a).
168. Ch. Ct. R. 56(b); Super. Ct. Civ. R. 56(b); Comm. Pls. Ct. Civ. R. 56(b).
168.1. AeroGlobal Capital Management, LLC v. Cirrus Industries, Inc., 871 A.2d 428, 443 (Del. 2005); Davis v. University of Delaware, 240 A.2d 583, 584 (Del. 1968).
169. Stroud v. Grace, 606 A.2d 75, 81 (Del. 1992); Bank of Delaware v. Claymont Fire Co. No. 1, 528 A.2d 1196, 1199 (Del. 1987); Rosenmiller v. Bordes, 607 A.2d 465, 469 (Del. Ch. 1991).
170. Ch. Ct. R. 56(d); Super. Ct. Civ. R. 56(d); Comm. Pls. Ct. Civ. R. 56(d); Fam, Ct. Civ. R. 56(d).
171. Super. Ct. Civ. R. 56(bb); Comm. Pls. Ct. Civ. R. 56(bb).
172. Fam. Ct. Civ. R. 56(a).
173. Merrill v. Crothall-American, Inc., 606 A.2d 96, 99 (Del. 1992).
174. Ch. Ct. R. 56(c); Super. Ct. Civ. R. 56(e); Comm. Pls. Ct. Civ. R.56(c).
175. Merrill v. Crothall-American, Inc., 606 A.2d 96, 99 (Del. 1992).
176. Merrill v. Crothall-American, Inc., 606 A.2d 96, 99, (Del. 1992). See also Data General Corp. v. Digital Computer Controls, Inc., 297 A.2d 437, 439 (Del. 1972) (judge should not weigh the evidence and accept that which seems to have the greater weight, but should determine whether or not there is any evidence supporting a conclusion in favor of the non-moving party); Continental Oil Co. v. Pauley Petroleum, Inc., 251 A.2d 824, 826 (Del. 1969).
176.1. Cerberus Intern., Ltd. v. Apollo Management, L.P., 794 A.2d 1141, 1150 (Del. 2002).
177. Merrill v. Crothall-American, Inc., 606 A.2d 96, 99 (Del. 1992); McGee v. United States Fidelity & Guaranty Co., 391 A.2d 189, 192 (Del. 1978).
178. Merrill v. Crothall-American, Inc., 606 A.2d 96, 98 (Del. 1992).
179. Desert Equities, Inc. v. Morgan Stanley Leveraged Equity Fund II, L.P., 624 A.2d 1199, 1205 (Del. 1993); Merrill v. Crothail-American, Inc., 606 A.2d 96, 99-100 (Del. 1992); Baylis v. Wilmington Medical Center, Inc., 477 A.2d 1051, 1057 (Del. 1984).
180. Paul v. Deloitte & Touche, LLP, 974 A.2d 140, 145 (Del. 2009); Dambro v. Meyer, 974 A.2d 121, 138 (Del. 2009); Brown v. Ocean Drilling & Exploration Co., 403 A.2d 1114, 1115 (Del. 1979); Moore v. Sizemore, 405 A.2d 679, 681 (Del. 1979); Bradford, Inc. v. Travelers Indem. Co., 301 A.2d 519, 521-22 (Del. Super. 1972).
181. Paul v. Deloitte & Touche, LLP, 974 A.2d 140, 145 (Del. 2009); Dambro v. Meyer, 974 A.2d 121, 138 (Del. 2009); Grabowski v. Mangler, 956 A.2d 1217, 1220 (Del. 2008); Feinberg v. Makhson, 407 A.2d 201, 203 (Del. 1979); Martin v. Nealis Motors, Inc., 247 A.2d 831, 833 (Del. 1968); Tanzer v. International General Industries, Inc., 402 A.2d 382, 385 (Del. Ch. 1979); Suarez v. Wilmington Medical Center, Inc., 526 A.2d 574, 576 (Del. Super. 1987).
182. Burkhart v. Davies, 602 A.2d 56, 59-60 (Del. 1991), cert. denied, 112 S. Ct. 1946 (U.S. 1992); Hammond v. Colt Industries Operating Corp., 565 A.2d 558, 560 (Del. Super. 1989).
182.1. Doe v. Cahill, 884 A.2d 451, 463 (Del. 2005); AeroGlobal Capital Management, LLC v. Cirrus Industries, Inc., 871 A.2d 428, 444 (Del. 2005).
182.2. Cerberus Intern., Ltd. v. Apollo Management, L.P., 794 A.2d 1141, 1150 (Del. 2002).
183. Tanzer v. International General Industries, Inc., 402 A.2d 382, 385 (Del. Ch. 1979).
184. Ch. Ct. R. 56(e); Super. Ct. Civ. R. 56(e); Comm. Pls. Ct. Civ. R. 56(e); Martin v. Nealis Motors, Inc., 247 A.2d 831, 832 (Del. 1968).
185. Standard Acci. Ins. Co. v. Ponsell’s Drug Stores, Inc., 57 Del. 485, 202 A.2d 271, 276 (Del. 1964).
186. Ch. C7. R. 56(e); Super. Ct. Civ. R. 56(e); Comm. Pls. Ct. Civ. R. 56(e).
187. Jones v. Julian, 195 A.2d 388, 389 (Del. 1963); Lineberger v. Welsh, 290 A.2d 847, 849 (Del. Ch. 1972); Colish v. Brandywine Raceway Asso., 119 A.2d 887, 890 (Del. Super. 1955); Woodcock v. Udell, 97 A.2d 878, 883 (Del. Super. 1953).
188. Ch. Ct. R. 56(e); Super. Ct. Civ. R. 56(e); Comm. Pls. Ct. Civ. R. 56(e).
189. Loew’s Theatres, Inc. v. Commercial Credit Co., 243 A.2d 78, 79 (Del. Ch. 1968). If the court determines that the affidavits were presented in bad faith or solely for the purpose of delay, the court will order the party offering those affidavits to pay to the other party the amount of the reasonable expenses incurred by the opposing party as a result of the filing of the affidavits, including reasonable attorney’s fees, and any party or attorney may be adjudged guilty of contempt. Ch. Ct. R. 56(g); Super. Ct. Civ. R. 56(g); Comm. Pls. Ct. Civ. R. 56(g).
190. Rochester v. Katalan, 320 A.2d 704, 708 n.7 (Del. 1974); Martin v. Nealis Motors, Inc., 247 A.2d 831, 833 (Del. 1968); Camac v. Hall, 698 A.2d 394, 396 (Del. Super. 1996); Staats v. Lawrence, 576 A.2d 663, 665 (Del. Super. 1990), aff’d mem., 582 A.2d 936 (Del. Oct. 3, 1990); Suarez v. Wilmington Medical Center, Inc., 526 A.2d 574, 577 (Del. Super. 1987).
191. Mann v. Oppenheimer & Co., 517 A.2d 1056, 1060 (1986).
192. Ch. Ct. R. 56(l); Super. Ct. Civ. R. 56(1); Comm. Pls. Ct. Civ. R. 56(1). See also McGuire v. McCollum, 116 A.2d 897, 902 (Del. Super. 1956).
192.1. United Vanguard Fund, Inc. v. TakeCare, Inc., 693 A.2d 1076, 1079 (1997).
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