The plaintiff moved for summary judgment in a breach of contract action and delivered an additional affidavit shortly before the hearing after the defendant had cross-examined the plaintiff’s initial affiant.
The defendant objected to the late affidavit and alternatively sought leave to file responding affidavit evidence.
The court held that Rule 39.02 of the Rules of Civil Procedure only restricts further affidavits from a party who conducted the cross-examination, which did not apply to the plaintiff.
However, the court exercised its discretion to grant the defendant leave to file a responding affidavit because the new affidavit addressed weaknesses revealed during cross-examination.
The plaintiff’s affidavit was admitted and the defendant was permitted to respond.
