Motion for Summary Judgment

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Motion for Summary Judgment

• The Keys to Success

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How does this work?

• Summary judgments are governed by Rule 166(a) of
  the Texas Rules of Civil Procedure
• Summary judgments provide a means of disposing of
  cases involving unmeritorious claims or untenable
  defenses without trial

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When is summary judgment proper?

• Summary judgment is proper when the movant is
  able to prove as a matter of law, all the
  elements of his or her cause of action
• Or disprove at least one element of the
  opponents cause of action

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When is a movant entitled to summary judgment?

• If there is no genuine issue as to any material
  fact and the movant is entitled to summary
  judgment as a matter of law
• In other words if the facts are undisputed, or
  if you can conclusively prove your version of
  the facts, then you can obtain summary judgment
  if you show the court you win under the law as
  applied to those facts

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What is a material fact?

• A fact is considered material for summary
  judgment purposes, if the proof of the fact would
  have the effect of establishing or refuting one
  of the essential elements of a claim or a defense

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Beware the burden of proof is on the movant

• Movant has the burden of establishing his
  entitlement to summary judgment by conclusively
  proving all elements of the cause of action or
  defense as a matter of law

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WHAT???

• What this means is that if you, as the plaintiff,
  moved for summary judgment on your negligence
  claim, you would have to prove all of the
  elements of negligence duty, breach, cause,
  harm.

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Then what?

• All inferences must be taken in favor of the
  party opposing the motion
• That means- all conclusions drawn from
  evidentiary materials are viewed in the light
  most favorable to the party opposing the motion

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When Defendant is Movant

• Defendant can either negate one essential element
  of plaintiffs claim or
• Prove an affirmative defense, in which case
  plaintiff must prove every element of such
  affirmative defense or
• Prove that the plaintiff has no cause of action
  as a matter of law

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BUT see Rule 1669a (i) TRCP

• Rule 166a(i) allows a party to move for summary
  judgment on the ground that there is no evidence
  of one or more essential elements of a claim or
  defense on which an adverse party would have the
  burden of proof at trial
• The judge must grant the motion unless the
  respondent produces summary judgment evidence
  raising a genuine issue of material fact

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This is a no evidence motion for summary judgment

• In a no-evidence motion, the movant cannot simply
  make a conclusory assertion that the opposing
  party has no evidence
• Instead, movant must identify the specific issue
  or issues on which it claims the non-movant has
  no supporting evidence and demonstrate the
  absence of such evidence

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Summary Judgment Must Be Denied If-----

• Under evidence, reasonable persons might reach
  different conclusions from the facts
• Summary judgment is proper only where there is no
  substantial dispute as to any material fact, and
  reasonable persons would not draw conflicting
  conclusions from the material facts

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AND

• Both parties may concede that the material facts
  are undisputed, but argue that the other partys
  legal position is incorrect

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So, what is the procedure for a motion for
summary judgment?

• A plaintiff may file a motion for summary
  judgment any time after the defendant answers the
  lawsuit
• A defendant may file for summary judgment prior
  to answering the lawsuit

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• There is no required format, but the motion
  itself must expressly present the grounds for
  summary judgment
• The grounds cannot be urged in a separate brief,
  although a supporting brief containing legal
  authorities may be filed along with the motion
• BE SAFE, INCORPORATE THE ARGUMENT INTO THE
  MOTION

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Hearing on the Motion for Summary Judgment

• No oral testimony can be presented at the
  hearing. ONLY arguments of counsel are allowed
• The court may not weigh evidence at a summary
  judgment hearing. It can only review the
  evidence to determine whether there is a factual
  dispute

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Notice of Hearing

• TRCP 166a(c) requires notice of hearing
• The notice should contain a certificate of
  service or -
• Be made part of the motion of summary judgment
  which must be certified also

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So, how do I respond?

• Reasons for opposing a motion for summary
  judgment also must be in writing
• The non-movants failure to respond does not
  automatically entitle the movant to summary
  judgment UNLESS

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• The movant files a no evidence motion under
  TRCP 166(i)
• In that case, the burden is on the non-moving
  party to make a showing sufficient to establish
  the existence of each element essential to its
  case

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• A plaintiff/non-movant can defeat summary
  judgment by presenting evidence that creates a
  fact question on those elements of plaintiffs
  case that the defendant attacks
• UNLESS the defendant files a no-evidence
  motion in which case, the plaintiff must respond
  as just explained above.

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What evidence do I need?

• The motion itself and the response are not proper
  summary judgment proof
• Evidence to support the motion must be admissible
  in court
• Any document on file is proper summary judgment
  evidence if

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• The document is referred to or incorporated in
  the motion and is otherwise admissible under the
  rules of evidence
• If not already on file, the document must be
  attached to the motion or response

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Affidavit

• Affidavits are a common source of summary
  judgment proof
• Usually used to show the court there are or are
  not facts in issue
• Conversely, if there is only a question of law
  before the court, affidavits are not necessary

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Competent Witness

• Affidavit must affirmatively show it is made by a
  person who is competent to testify-TRCP 166a(f)
• Competence relates to witnesses qualifications
  to testify does witness have the education,
  experience or other requirement for having
  knowledge of the situation in question
• The witness must be over the age of eighteen and
  of sound mind

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• Affidavits must be based on personal knowledge
  and the facts sought to be proved must be
  admissible in evidence at a conventional trial
• The affidavit must set forth facts and not legal
  conclusions

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More affidavit info -

• Affidavits must not say that the affiant
  believes something or that something is true
  to the best of my knowledge WITNESS HAS TO KNOW
  what he is attesting to
• The affidavit also sets forth facts that show how
  the affiant is competent to testify

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Just a little more

• The facts sworn to in an affidavit must be direct
  and unequivocal
• It is okay to state in the affidavit that an
  event occurred on or about a certain day

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What about the interested witness?

• An interested witness may make an affidavit in
  support of a motion for summary judgment if
• The affidavit is clear, positive and direct
• It is otherwise credible and free from
  contradictions and inconsistencies and
• It could have been readily controverted

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Readily controverted?

• For example, self-serving statements of
  interested parties in an affidavit about what
  they knew or intended are not readily
  controverted and will not support a motion for
  summary judgment. In other words, you cannot get
  into someones head and contradict what they say
  they think or know. Witness must present
  concrete information.

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What about the attorney as affiant?

• The attorney representing one of the parties in
  the case should not make the affidavit since the
  affidavit must be based on personal knowledge
• OK weve got the motion then what??

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What does the non-movant to oppose the affidavit
testimony?

• File a counter-affidavit to create fact issues
  that preclude summary judgment
• Object to the affidavit on the following grounds

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Objections by Non-Movant

• The affidavit states legal conclusions
• The affidavit contains an unsubstantiated opinion
• The affidavit is based only on information and
  belief and not on personal knowledge
• The affidavit is based on hearsay (out of court
  statement offered for the truth of the matter
  asserted)(he said, she said statements)

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• The affidavit contains conflicting statements
  which preclude summary judgment

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Beware of Sanctions

• If an affidavit is made in bad faith, the court
  may impose sanctions against the offending party
  or attorney

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Use of Discovery in MSJ

• Discovery used to support a motion for summary
  judgment must be attached to the motion if it is
  not already on file with the court
• To rely on discovery that is filed with the
  court, simply refer to it in the motion or
  response
• (Lindsey Dep. at p.14, lines 6-12) or
• (Lindsey Dep. at p. 14, lines 6-12, Ex.A)

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• Because, in Texas, depositions are not filed with
  the court, the deposition excerpt that you want
  to use must be attached to the motion as an
  exhibit and the motion must refer to such excerpt
  or
• You may type the lines into the body of the
  motion for summary judgment but not too many

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Required Parts of the Deposition

• Cover
• List of Parties and Counsel
• Court Reporters Verification