The opinion
Badt, C. J.,
concurring:
Our brother Thompson feels that NRCP 56 (e) quoted in part in the prevailing opinion, is deprived of its mandatory character through the use of the clause “if appropriate.” The final sentence of the section reads as follows: “If [an adverse party] does not so respond, summary judgment, if appropriate, shall be entered against him.” He supports this by two articles from the Harvard Law Review. 1a There are apparently no cases directly in point upon the view taken either by the prevailing opinion or the dissenting opinion that follows.
The clause “if appropriate” may apply in a myriad of cases. To say that it means, “if the trial court in the exercise of its discretion finds the motion, or the remedy, or the rule, or the statute, or whatnot, appropriate,” is to stretch it beyond its clear connotation. The law review *351 article relied upon in the dissenting opinion clearly indicates that if the moving party has supported his motion for a summary judgment to the point of showing that the issue is sham, the mandatory language of NRCP 56 (e) becomes effective. It also indicates that when only a plausible case for the summary judgment appears and when it appears likely that more may come out upon a trial, the mandatory effect of the statute is not effective. The article further admits, “When the moving party has freshly demonstrated that his adversary’s past assertions are unsupported, the adversary may be concluded if he does nothing more.” The situations thus described appear in the present case by reason of the circumstances described in the prevailing opinion. It is seldom that a case closer to a showing that the issue is sham is presented. When such situation presents itself, I see no reason for prolonging the proceedings. Nor do I see any danger that in granting mandamus we are unduly extending the scope of that writ, but shall without doubt be consistent in denying mandamus which seeks to control discretionary action of the trial court.
We appreciate the persuasive effect of the article written by a reporter to the advisory committee on civil rules.