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2011-UP-118 - 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Unpublished Opinion No. 2011-UP-118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.