Rule 56(F) Motion In West Virginia
West Virginia Court recognized the indispensable role of the Rule 56(f) motion of Crain v. Lightner, 178 W. Va. 765, 364 S.E.2d 778 (1987):
Where a party is unable to resist a motion for summary judgment because of an inadequate opportunity to conduct discovery, that party should file an affidavit pursuant to W.Va.R.Civ.P. 56(f) and obtain a ruling thereon by the trial court.
Such affidavit and ruling thereon, or other evidence that the question of a premature summary judgment motion was presented to and decided by the trial court, must be included in the appellate record to preserve the error for review by this Court.
In Powderidge Unit Owners Ass'n v. Highland Properties, Ltd., 196 W. Va. 692, 699, 474 S.E.2d 872, 879 (1996), this Court stated that "Rule 56 does not impose upon the circuit court a duty to sift through the record in search of evidence to support a party's opposition to summary judgment.
Nor is it our duty to do so on appeal." 196 W. Va. at 700, 474 S.E.2d at 880. In permitting a party opposing summary judgment some degree of latitude in complying with the mandates of Rule 56(f), this Court explained as follows in Powderidge:
An opponent of a summary judgment motion requesting a continuance for further discovery need not follow the exact letter of Rule 56(f) of the West Virginia Rules of Civil Procedure in order to obtain it.
When a departure from the rule occurs, it should be made in written form and in a timely manner. the statement must be made, if not by affidavit, in some authoritative manner by the party under penalty of perjury or by written representations of counsel.
At a minimum, the party making an informal Rule 56(f) motion must satisfy four requirements.
(1) articulate some plausible basis for the party's belief that specified "discoverable" material facts likely exist which have not yet become accessible to the party;
(2) demonstrate some realistic prospect that the material facts can be obtained within a reasonable additional time period;
(3) demonstrate that the material facts will, if obtained, suffice to engender an issue both genuine and material; and (4) demonstrate good cause for failure to have conducted the discovery earlier. 196 W. Va. at 695, 474 S.E.2d at 875.
In Payne's Hardware & Building Supply, Inc. v. Apple Valley Trading Co., 200 W. Va. 685, 490 S.E.2d 772 (1997), we considered the effects of failure to seek relief through Rule 56(f) and determined that the lower court had not abused its discretion in denying a motion to reconsider its grant of summary judgment, where parties opposing summary judgment failed to file counter-affidavits and did not avail themselves of procedures concisely articulated in Rule 56(f) for requesting additional time for discovery. Apple Valley Trading Co., 200 W. Va. at 690-91, 490 S.E.2d at 777-78;
see also Harrison v. Davis, 197 W. Va. 651, 478 S.E.2d 104 (1996).