Motion for Summary Judgment The Keys to Success

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

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 opponent’s cause of action

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

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

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

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.

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

When Defendant is Movant  Defendant can either negate one essential element of plaintiff’s 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

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

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

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

AND…  Both parties may concede that the material facts are undisputed, but argue that the other party’s legal position is incorrect

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

 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

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

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

So, how do I respond?  Reasons for opposing a motion for summary judgment also must be in writing  The non-movant’s failure to respond does not automatically entitle the movant to summary judgment UNLESS

 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

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

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…

 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

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

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

–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

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

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

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

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 someone’s head and contradict what they say they think or know. Witness must present concrete information.

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 – we’ve got the motion – then what??

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:

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)

 The affidavit contains conflicting statements which preclude summary judgment

Beware of Sanctions  If an affidavit is made in bad faith, the court may impose sanctions against the offending party or attorney

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)

 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

Required Parts of the Deposition  Cover  List of Parties and Counsel  Court Reporter’s Verification