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NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports.  Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
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SUPREME COURT OF THE UNITED STATES
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No. 91-1043
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PROFESSIONAL REAL ESTATE INVESTORS, INC.,
et al., PETITIONERS v. COLUMBIA PICTURES
INDUSTRIES, INC., et al.
on writ of certiorari to the united states court
of appeals for the ninth circuit
[May 3, 1993]

  Justice Thomas delivered the opinion of the Court.
  This case requires us to define the -sham- exception to
the doctrine of antitrust immunity first identified in
Eastern R. Presidents Conference v. Noerr Motor Freight,
Inc., 365 U. S. 127 (1961), as that doctrine applies in the
litigation context.  Under the sham exception, activity
-ostensibly directed toward influencing governmental
action- does not qualify for Noerr immunity if it -is a
mere sham to cover . . . an attempt to interfere directly
with the business relationships of a competitor.-  Id., at
144.  We hold that litigation cannot be deprived of immu-
nity as a sham unless the litigation is objectively baseless.
The Court of Appeals for the Ninth Circuit refused to
characterize as sham a lawsuit that the antitrust defen-
dant admittedly had probable cause to institute.  We
affirm.
                            I
  Petitioners Professional Real Estate Investors, Inc., and
Kenneth F. Irwin (collectively, PRE) operated La Mancha
Private Club and Villas, a resort hotel in Palm Springs,
California.  Having installed videodisc players in the
resort's hotel rooms and assembled a library of more than
200 motion picture titles, PRE rented videodiscs to guests

for in-room viewing.  PRE also sought to develop a market
for the sale of videodisc players to other hotels wishing
to offer in-room viewing of prerecorded material.  Respon-
dents, Columbia Pictures Industries, Inc., and seven other
major motion picture studios (collectively, Columbia), held
copyrights to the motion pictures recorded on the video-
discs that PRE purchased.  Columbia also licensed the
transmission of copyrighted motion pictures to hotel rooms
through a wired cable system called Spectradyne.  PRE
therefore competed with Columbia not only for the viewing
market at La Mancha but also for the broader market for
in-room entertainment services in hotels.
  In 1983, Columbia sued PRE for alleged copyright
infringement through the rental of videodiscs for viewing
in hotel rooms.  PRE counterclaimed, charging Columbia
with violations of 1 and 2 of the Sherman Act, 26 Stat.
209, as amended, 15 U. S. C. 1-2, and various state-
law infractions.  In particular, PRE alleged that Colum-
bia's copyright action was a mere sham that cloaked
underlying acts of monopolization and conspiracy to
restrain trade.
  The parties filed cross-motions for summary judgment
on Columbia's copyright claim and postponed further
discovery on PRE's antitrust counterclaims.  Columbia did
not dispute that PRE could freely sell or lease lawfully
purchased videodiscs under the Copyright Act's -first sale-
doctrine, see 17 U. S. C. 109(a), and PRE conceded that
the playing of videodiscs constituted -performance- of
motion pictures, see 17 U. S. C. 101 (1988 ed. and Supp.
III).  As a result, summary judgment depended solely on
whether rental of videodiscs for in-room viewing infringed
Columbia's exclusive right to -perform the copyrighted
work[s] publicly.-  106(4).  Ruling that such rental did
not constitute public performance, the District Court
entered summary judgment for PRE.  228 USPQ 743 (CD
Cal. 1986).  The Court of Appeals affirmed on the grounds
that a hotel room was not a -public place- and that PRE
did not -transmit or otherwise communicate- Columbia's
motion pictures.  866 F. 2d 278 (CA9 1989).  See 17
U. S. C. 101 (1988 ed. and Supp. III).
  On remand, Columbia sought summary judgment on
PRE's antitrust claims, arguing that the original copyright
infringement action was no sham and was therefore
entitled to immunity under Eastern R. Presidents Confer-
ence v. Noerr Motor Freight, Inc., supra.  Reasoning that
the infringement action -was clearly a legitimate effort
and therefore not a sham,- 1990-1 Trade Cases -68,971,
p. 63,243 (CD Cal. 1990), the District Court granted the
motion:
-It was clear from the manner in which the case was
presented that [Columbia was] seeking and expecting
a favorable judgment.  Although I decided against
[Columbia], the case was far from easy to resolve, and
it was evident from the opinion affirming my order
that the Court of Appeals had trouble with it as well.
I find that there was probable cause for bringing the
action, regardless of whether the issue was considered
a question of fact or of law.-  Ibid.
The court then denied PRE's request for further discovery
on Columbia's intent in bringing the copyright action and
dismissed PRE's state-law counterclaims without prejudice.
  The Court of Appeals affirmed.  944 F. 2d 1525 (CA9
1991).  After rejecting PRE's other allegations of anticom-
petitive conduct, see id., at 1528-1529, the court focused
on PRE's contention that the copyright action was indeed
sham and that Columbia could not claim Noerr immunity.
The Court of Appeals characterized -sham- litigation as
one of two types of -abuse of . . . judicial processes-:
either -`misrepresentations . . . in the adjudicatory pro-
cess'- or the pursuit of -`a pattern of baseless, repetitive
claims'- instituted -`without probable cause, and regard-
less of the merits.'-  Id., at 1529 (quoting California
Motor Transport Co. v. Trucking Unlimited, 404 U. S. 508,
513, 512 (1972)).  PRE neither -allege[d] that the [copy-
right] lawsuit involved misrepresentations- nor -chal-
lenge[d] the district court's finding that the infringement
action was brought with probable cause, i.e., that the suit
was not baseless.-  944 F. 2d, at 1530.  Rather, PRE
opposed summary judgment solely by arguing that -the
copyright infringement lawsuit [was] a sham because
[Columbia] did not honestly believe that the infringement
claim was meritorious.-  Ibid.
  The Court of Appeals rejected PRE's contention that
-subjective intent in bringing the suit was a question of
fact precluding entry of summary judgment.-  Ibid.
Instead, the court reasoned that the existence of probable
cause -preclude[d] the application of the sham exception
as a matter of law- because -a suit brought with probable
cause does not fall within the sham exception to the
Noerr-Pennington doctrine.-  Id., at 1531, 1532.  Finally,
the court observed that PRE's failure to show that -the
copyright infringement action was baseless- rendered
irrelevant any -evidence of [Columbia's] subjective intent.-
Id., at 1533.  It accordingly rejected PRE's request for
further discovery on Columbia's intent.
  The courts of appeals have defined -sham- in inconsist-
ent and contradictory ways.  We once observed that
-sham- might become -no more than a label courts could
apply to activity they deem unworthy of antitrust immu-
nity.-  Allied Tube & Conduit Corp. v. Indian Head, Inc.,
486 U. S. 492, 508, n. 10 (1988).  The array of definitions
adopted by lower courts demonstrates that this observa-
tion was prescient.
                           II
  PRE contends that -the Ninth Circuit erred in holding
that an antitrust plaintiff must, as a threshold prerequi-
site . . . , establish that a sham lawsuit is baseless as a
matter of law.-  Brief for Petitioners 14.  It invites us to
adopt an approach under which either -indifference to . . .
outcome,- ibid., or failure to prove that a petition for
redress of grievances -would . . . have been brought but
for [a] predatory motive,- Tr. of Oral Arg. 10, would
expose a defendant to antitrust liability under the sham
exception.  We decline PRE's invitation.
  Those who petition government for redress are generally
immune from antitrust liability.  We first recognized in
Eastern R. Presidents Conference v. Noerr Motor Freight,
Inc., 365 U. S. 127 (1961), that -the Sherman Act does not
prohibit . . . persons from associating together in an
attempt to persuade the legislature or the executive to
take particular action with respect to a law that would
produce a restraint or a monopoly.-  Id., at 136.  Accord,
Mine Workers v. Pennington, 381 U. S. 657, 669 (1965).
In light of the government's -power to act in [its] repre-
sentative capacity- and -to take actions . . . that operate
to restrain trade,- we reasoned that the Sherman Act does
not punish -political activity- through which -the people
. . . freely inform the government of their wishes.-  Noerr,
365 U. S., at 137.  Nor did we -impute to Congress an
intent to invade- the First Amendment right to petition.
Id., at 138.
  Noerr, however, withheld immunity from -sham- activi-
ties because -application of the Sherman Act would be
justified- when petitioning activity, -ostensibly directed
toward influencing governmental action, is a mere sham
to cover . . . an attempt to interfere directly with the
business relationships of a competitor.-  Id., at 144.  In
Noerr itself, we found that a publicity campaign by
railroads seeking legislation harmful to truckers was no
sham in that the -effort to influence legislation- was -not
only genuine but also highly successful.-  Ibid.
  In California Motor Transport Co. v. Trucking Unlim-
ited, 404 U. S. 508 (1972), we elaborated on Noerr in two
relevant respects.  First, we extended Noerr to -the
approach of citizens . . . to administrative agencies . . .
and to courts.-  404 U. S., at 510.  Second, we held that
the complaint showed a sham not entitled to immunity
when it contained allegations that one group of highway
carriers -sought to bar . . . competitors from meaningful
access to adjudicatory tribunals and so to usurp that
decisionmaking process- by -institut[ing] . . . proceedings
and actions . . . with or without probable cause, and
regardless of the merits of the cases.-  Id., at 512 (inter-
nal quotation marks omitted).  We left unresolved the
question presented by this case-whether litigation may
be sham merely because a subjective expectation of
success does not motivate the litigant.  We now answer
this question in the negative and hold that an objectively
reasonable effort to litigate cannot be sham regardless of
subjective intent.
  Our original formulation of antitrust petitioning immun-
ity required that unprotected activity lack objective
reasonableness.  Noerr rejected the contention that an
attempt -to influence the passage and enforcement of
laws- might lose immunity merely because the lobbyists'
-sole purpose . . . was to destroy [their] competitors.-  365
U. S., at 138.  Nor were we persuaded by a showing that
a publicity campaign -was intended to and did in fact
injure [competitors] in their relationships with the public
and with their customers,- since such -direct injury- was
merely -an incidental effect of the . . . campaign to
influence governmental action.-  Id., at 143.  We reasoned
that -[t]he right of the people to inform their representa-
tives in government of their desires with respect to the
passage or enforcement of laws cannot properly be made
to depend upon their intent in doing so.-  Id., at 139.  In
short, -Noerr shields from the Sherman Act a concerted
effort to influence public officials regardless of intent or
purpose.-  Pennington, 381 U. S., at 670.
  Nothing in California Motor Transport retreated from
these principles.  Indeed, we recognized that recourse to
agencies and courts should not be condemned as sham
until a reviewing court has -discern[ed] and draw[n]- the
-difficult line- separating objectively reasonable claims
from -a pattern of baseless, repetitive claims . . . which
leads the factfinder to conclude that the administrative
and judicial processes have been abused.-  404 U. S., at
513.  Our recognition of a sham in that case signifies that
the institution of legal proceedings -without probable
cause- will give rise to a sham if such activity effectively
-bar[s] . . . competitors from meaningful access to adjudi-
catory tribunals and so . . . usurp[s] th[e] decisionmaking
process.-  Id., at 512.
  Since California Motor Transport, we have consistently
assumed that the sham exception contains an indispens-
able objective component.  We have described a sham as
-evidenced by repetitive lawsuits carrying the hallmark of
insubstantial claims.-  Otter Tail Power Co. v. United
States, 410 U. S. 366, 380 (1973) (emphasis added).  We
regard as sham -private action that is not genuinely
aimed at procuring favorable government action,- as
opposed to -a valid effort to influence government action.-
Allied Tube & Conduit Corp. v. Indian Head, Inc., 486
U. S. 492, 500, n. 4 (1988).  And we have explicitly
observed that a successful -effort to influence governmen-
tal action . . . certainly cannot be characterized as a
sham.-  Id., at 502.  See also Vendo Co. v. Lektro-Vend
Corp., 433 U. S. 623, 645 (1977) (Blackmun, J., concur-
ring in result) (describing a successful lawsuit as a
-genuine attemp[t] to use the . . . adjudicative process
legitimately- rather than -`a pattern of baseless, repetitive
claims'-).  Whether applying Noerr as an antitrust doc-
trine or invoking it in other contexts, we have repeatedly
reaffirmed that evidence of anticompetitive intent or
purpose alone cannot transform otherwise legitimate
activity into a sham.  See, e.g., FTC v. Superior Court
Trial Lawyers Assn., 493 U. S. 411, 424 (1990); NAACP
v. Claiborne Hardware Co., 458 U. S. 886, 913-914 (1982).
Cf. Vendo, supra, at 635-636, n. 6, 639, n. 9 (plurality
opinion of Rehnquist, J.); id., at 644, n., 645 (Blackmun,
J., concurring in result).  Indeed, by analogy to Noerr's
sham exception, we held that even an -improperly moti-
vated- lawsuit may not be enjoined under the National
Labor Relations Act as an unfair labor practice unless
such litigation is -baseless.-  Bill Johnson's Restaurants,
Inc. v. NLRB, 461 U. S. 731, 743-744 (1983).  Our
decisions therefore establish that the legality of objectively
reasonable petitioning -directed toward obtaining govern-
mental action- is -not at all affected by any anticompeti-
tive purpose [the actor] may have had.-  Noerr, 365 U. S.,
at 140, quoted in Pennington, supra, at 669.
  Our most recent applications of Noerr immunity further
demonstrate that neither Noerr immunity nor its sham
exception turns on subjective intent alone.  In Allied Tube,
486 U. S., at 503, and FTC v. Trial Lawyers, supra, at
424, 427, and n. 11, we refused to let antitrust defendants
immunize otherwise unlawful restraints of trade by
pleading a subjective intent to seek favorable legislation
or to influence governmental action.  Cf. National Colle-
giate Athletic Assn. v. Board of Regents of Univ. of Okla.,
468 U. S. 85, 101, n. 23 (1984) (-[G]ood motives will not
validate an otherwise anticompetitive practice-).  In
Columbia v. Omni Outdoor Advertising, Inc., 499 U. S. ___
(1991), we similarly held that challenges to allegedly sham
petitioning activity must be resolved according to objective
criteria.  We dispelled the notion that an antitrust plain-
tiff could prove a sham merely by showing that its com-
petitor's -purposes were to delay [the plaintiff's] entry into
the market and even to deny it a meaningful access to the
appropriate  . . . administrative and legislative fora.-  Id.,
at ___ (slip op., at 15) (internal quotation marks omitted).
We reasoned that such inimical intent -may render the
manner of lobbying improper or even unlawful, but does
not necessarily render it a `sham.'-  Ibid.  Accord, id., at
___ (Stevens, J., dissenting).
  In sum, fidelity to precedent compels us to reject a
purely subjective definition of -sham.-  The sham excep-
tion so construed would undermine, if not vitiate, Noerr.
And despite whatever -superficial certainty- it might
provide, a subjective standard would utterly fail to supply
-real `intelligible guidance.'-  Allied Tube, supra, at 508,
n. 10.
                           III
  We now outline a two-part definition of -sham- litiga-
tion.  First, the lawsuit must be objectively baseless in the
sense that no reasonable litigant could realistically expect
success on the merits.  If an objective litigant could
conclude that the suit is reasonably calculated to elicit a
favorable outcome, the suit is immunized under Noerr,
and an antitrust claim premised on the sham exception
must fail.  Only if challenged litigation is objectively
meritless may a court examine the litigant's subjective
motivation.  Under this second part of our definition of
sham, the court should focus on whether the baseless
lawsuit conceals -an attempt to interfere directly with the
business relationships of a competitor,- Noerr, supra, at
144 (emphasis added), through the -use [of] the govern-
mental process-as opposed to the outcome of that pro-
cess-as an anticompetitive weapon,- Omni, 499 U. S., at
___ (slip op., at 14) (emphasis in original).  This two-
tiered process requires the plaintiff to disprove the chal-
lenged lawsuit's legal viability before the court will
entertain evidence of the suit's economic viability.  Of
course, even a plaintiff who defeats the defendant's claim
to Noerr immunity by demonstrating both the objective
and the subjective components of a sham must still prove
a substantive antitrust violation.  Proof of a sham merely
deprives the defendant of immunity; it does not relieve the
plaintiff of the obligation to establish all other elements
of his claim.
  Some of the apparent confusion over the meaning of
-sham- may stem from our use of the word -genuine- to
denote the opposite of -sham.-  See Omni, supra, at ___;
Allied Tube, supra, at 500, n. 4; Noerr, supra, at 144;
Vendo Co. v. Lektro-Vend Corp., supra, at 645 (Blackmun,
J., concurring in result).  The word -genuine- has both
objective and subjective connotations.  On one hand,
-genuine- means -actually having the reputed or apparent
qualities or character.-  Webster's Third New International
Dictionary 948 (1986).  -Genuine- in this sense governs
Federal Rule of Civil Procedure 56, under which a -genu-
ine issue- is one -that properly can be resolved only by
a finder of fact because [it] may reasonably be resolved in
favor of either party.-  Anderson v. Liberty Lobby, Inc.,
477 U. S. 242, 250 (1986) (emphasis added).  On the other
hand, -genuine- also means -sincerely and honestly felt
or experienced.-  Webster's Dictionary, supra, at 948.  To
be sham, therefore, litigation must fail to be -genuine- in
both senses of the word.

                           IV
  We conclude that the Court of Appeals properly affirmed
summary judgment for Columbia on PRE's antitrust
counterclaim.  Under the objective prong of the sham
exception, the Court of Appeals correctly held that sham
litigation must constitute the pursuit of claims so baseless
that no reasonable litigant could realistically expect to
secure favorable relief.  See 944 F. 2d, at 1529.
  The existence of probable cause to institute legal
proceedings precludes a finding that an antitrust defen-
dant has engaged in sham litigation.  The notion of
probable cause, as understood and applied in the common-
law tort of wrongful civil proceedings, requires the
plaintiff to prove that the defendant lacked probable cause
to institute an unsuccessful civil lawsuit and that the
defendant pressed the action for an improper, malicious
purpose.  Stewart v. Sonneborn, 98 U. S. 187, 194 (1879);
Wyatt v. Cole, 504 U. S. ___, ___ (1992) (Rehnquist, C. J.,
dissenting); T. Cooley, Law of Torts *181.  Cf. Wheeler v.
Nesbitt, 24 How. 544, 549-550 (1861) (related tort for
malicious prosecution of criminal charges).  Probable cause
to institute civil proceedings requires no more than a
-reasonabl[e] belie[f] that there is a chance that [a] claim
may be held valid upon adjudication- (internal quotation
marks omitted).  Hubbard v. Beatty & Hyde, Inc., 343
Mass. 258, 262, 178 N. E. 2d 485, 488 (1961); Restate-
ment (Second) of Torts 675, Comment e, pp. 454-455
(1977).  Because the absence of probable cause is an
essential element of the tort, the existence of probable
cause is an absolute defense.  See Crescent City Live Stock
Co. v. Butchers' Union Slaughter-House Co., 120 U. S. 144,
149 (1887); Wheeler, supra, at 551; Liberty Loan Corp. of
Gadsden v. Mizell, 410 So. 2d 45, 48 (Ala. 1982).  Just as
evidence of anticompetitive intent cannot affect the
objective prong of Noerr's sham exception, a showing of
malice alone will neither entitle the wrongful civil pro-
ceedings plaintiff to prevail nor permit the factfinder to
infer the absence of probable cause.  Stewart, supra, at
194; Wheeler, supra, at 551; 2 C. Addison, Law of Torts
1, -853, pp. 67-68 (1876); T. Cooley, supra, at *184.
When a court has found that an antitrust defendant
claiming Noerr immunity had probable cause to sue, that
finding compels the conclusion that a reasonable litigant
in the defendant's position could realistically expect
success on the merits of the challenged lawsuit.  Under
our decision today, therefore, a proper probable cause
determination irrefutably demonstrates that an antitrust
plaintiff has not proved the objective prong of the sham
exception and that the defendant is accordingly entitled
to Noerr immunity.
  The District Court and the Court of Appeals correctly
found that Columbia had probable cause to sue PRE for
copyright infringement.  Where, as here, there is no
dispute over the predicate facts of the underlying legal
proceeding, a court may decide probable cause as a matter
of law.  Crescent, supra, at 149; Stewart, supra, at 194;
Nelson v. Miller, 227 Kan. 271, 277, 607 P. 2d 438, 444
(1980); Stone v. Crocker, 41 Mass. 81, 84-85 (1831); J.
Bishop, Commentaries on Non-Contract Law 240, p. 96
(1889).  See also Director General v. Kastenbaum, 263
U. S. 25, 28 (1923) (-The question is not whether [the
defendant] thought the facts to constitute probable cause,
but whether the court thinks they did-).  Columbia
enjoyed the -exclusive righ[t] . . . to perform [its] copy-
righted- motion pictures -publicly.-  17 U. S. C. 106(4).
Regardless of whether it intended any monopolistic or
predatory use, Columbia acquired this statutory right for
motion pictures as -original- audiovisual -works of author-
ship fixed- in a -tangible medium of expression.-
102(a)(6).  Indeed, to condition a copyright upon a
demonstrated lack of anticompetitive intent would upset
the notion of copyright as a -limited grant- of -monopoly
privileges- intended simultaneously -to motivate the
creative activity of authors- and -to give the public
appropriate access to their work product.-  Sony Corp. of
America v. Universal City Studios, Inc., 464 U. S. 417,
429 (1984).
  When the District Court entered summary judgment for
PRE on Columbia's copyright claim in 1986, it was by no
means clear whether PRE's videodisc rental activities
intruded on Columbia's copyrights.  At that time, the
Third Circuit and a District Court within the Third
Circuit had held that the rental of video cassettes for
viewing in on-site, private screening rooms infringed on
the copyright owner's right of public performance.  Colum-
bia Pictures Industries, Inc. v. Redd Horne, Inc., 749 F. 2d
154 (1984); Columbia Pictures Industries, Inc. v. Aveco,
Inc., 612 F. Supp. 315 (MD Pa. 1985), aff'd, 800 F. 2d 59
(CA3 1986).  Although the District Court and the Ninth
Circuit distinguished these decisions by reasoning that
hotel rooms offered a degree of privacy more akin to the
home than to a video rental store, see 228 USPQ, at 746;
866 F. 2d, at 280-281, copyright scholars criticized both
the reasoning and the outcome of the Ninth Circuit's
decision, see 1 P. Goldstein, Copyright: Principles, Law
and Practice 5.7.2.2, pp. 616-619 (1989); 2 M. Nimmer
& D. Nimmer, Nimmer on Copyright 8.14[C][3], pp.
8-168 to 8-173 (1992).  The Seventh Circuit expressly
-decline[d] to follow- the Ninth Circuit and adopted
instead the Third Circuit's definition of a -public place.-
Video Views, Inc. v. Studio 21, Ltd., 925 F. 2d 1010, 1020,
cert. denied, 502 U. S. ___ (1991).  In light of the unset-
tled condition of the law, Columbia plainly had probable
cause to sue.
  Any reasonable copyright owner in Columbia's position
could have believed that it had some chance of winning
an infringement suit against PRE.  Even though it did not
survive PRE's motion for summary judgment, Columbia's
copyright action was arguably -warranted by existing law-
or at the very least was based on an objectively -good
faith argument for the extension, modification, or reversal
of existing law.-  Fed. Rule Civ. Proc. 11.  By the time
the Ninth Circuit had reviewed all claims in this litiga-
tion, it became apparent that Columbia might have won
its copyright suit in either the Third or the Seventh
Circuit.  Even in the absence of supporting authority,
Columbia would have been entitled to press a novel
copyright claim as long as a similarly situated reasonable
litigant could have perceived some likelihood of success.
A court could reasonably conclude that Columbia's in-
fringement action was an objectively plausible effort to
enforce rights.  Accordingly, we conclude that PRE failed
to establish the objective prong of Noerr's sham exception.
  Finally, the Court of Appeals properly refused PRE's
request for further discovery on the economic circumstanc-
es of the underlying copyright litigation.  As we have
held, PRE could not pierce Columbia's Noerr immunity
without proof that Columbia's infringement action was
objectively baseless or frivolous.  Thus, the District Court
had no occasion to inquire whether Columbia was indiffer-
ent to the outcome on the merits of the copyright suit,
whether any damages for infringement would be too low
to justify Columbia's investment in the suit, or whether
Columbia had decided to sue primarily for the benefit of
collateral injuries inflicted through the use of legal
process.  Contra, Grip-Pak, Inc. v. Illinois Tool Works,
Inc., 694 F. 2d 466, 472 (CA7 1982), cert. denied, 461
U. S. 958 (1983).  Such matters concern Columbia's
economic motivations in bringing suit, which were ren-
dered irrelevant by the objective legal reasonableness of
the litigation.  The existence of probable cause eliminated
any -genuine issue as to any material fact,- Fed. Rule Civ.
Proc. 56(c), and summary judgment properly issued.
  We affirm the judgment of the Court of Appeals.

                                            So ordered.