Early Robertson, Jr. - Page 5

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               Respondent answered the amended petition and thereafter, on            
          September 24, 2003, filed the subject motion for summary                    
          judgment.  A hearing was held on October 20, 2003, and the motion           
          was taken under advisement.                                                 
               Rule 121(a) allows a party to move “for a summary                      
          adjudication in the moving party’s favor upon all or any part of            
          the legal issues in controversy.”  Rule 121(b) directs that a               
          decision on such a motion shall be rendered “if the pleadings,              
          answers to interrogatories, depositions, admissions, and any                
          other acceptable materials, together with the affidavits, if any,           
          show that there is no genuine issue as to any material fact and             
          that a decision may be rendered as a matter of law.”                        
               The moving party bears the burden of demonstrating that no             
          genuine issue of material fact exists and that he or she is                 
          entitled to judgment as a matter of law.  Sundstrand Corp. v.               
          Commissioner, 98 T.C. 518, 520 (1992), affd. 17 F.3d 965 (7th               
          Cir. 1994).  Facts are viewed in the light most favorable to the            
          nonmoving party.  Id.  However, where a motion for summary                  
          judgment has been properly made and supported by the moving                 
          party, the opposing party may not rest upon mere allegations or             
          denials contained in that party’s pleadings but must by                     
          affidavits or otherwise set forth specific facts showing that               
          there is a genuine issue for trial.  Rule 121(d).                           

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