Several years ago, while working in the old civil district courthouse that now houses the 1st and 14th Courts of Appeal, I was reviewing motions and drafting memos for my judge. One motion for summary judgment (MSJ) had so many grammatical errors that it was incomprehensible. The run-on sentences, subject-verb agreement errors and improper punctuation made it impossible to follow the movant’s arguments. All motions should be coherent, particularly the MSJ.
The MSJ, which is essentially a paper trial, needs to be clear, unambiguous and persuasive. It can narrow issues, save time and resources, educate the parties as to each other’s strategies and familiarize the judge with the disputes at issue. Although it can dispose of the entire case or part of a matter, it cannot deprive a litigant with a viable suit of its right to trial by jury.
Black’s Law Dictionary defines the MSJ as: "A request that the court enter judgment without a trial because there is no genuine issue of material fact to be decided by a fact-finder — that is, because the evidence is legally insufficient to support a verdict in the nonmovant’s favor."
The MSJ should target the weakest points of a case; it may refer to any evidence to do this, such as deposition excerpts, affidavits, party admissions, contracts and discovery. All attached evidence should be accompanied by a declaration that it is a true and correct copy and is authenticated under Texas Rules of Civil Procedure 166a(f).
If the evidence is voluminous or contains 10 or more attachments, it probably should be categorized in an appendix under TRCP 166a(d). One word of caution: Too many exhibits can be distracting. However, in a no-evidence MSJ, there is usually no summary judgment evidence, as the name indicates.
Sometimes facts or arguments may overlap between several summary judgment grounds, so the attorney should incorporate these or reference relevant fact statements or other sections of related argument. Simply state in the first line of each paragraph something like, "The above paragraph is incorporated herein by reference."
If the movant would be entitled to attorney fees in connection with the MSJ, the motion should include that request.
The nonmovant should object to all errors in the summary judgment evidence or it waives them. Some objections include: hearsay, defects in affidavits, failure to lay predicate, lack of personal knowledge, conclusory statements, etc. New attorneys must familiarize themselves with the various objections when confronted with summary judgment evidence.
There are a few important deadlines to note. Under TRCP 166a(c), the MSJ must be filed 21 days before the oral hearing or submission date, and the nonmovant’s response is due at least seven days before the hearing or submission date. There is no deadline for a movant’s reply to a response. However, the local rules of some courts may dictate a time limit.
There are two types of MSJs; the traditional MSJ, governed by TRCP 166a(c), and the no-evidence MSJ, governed by TRCP 166a(i). I recommend filing them separately to avoid confusion. But attorneys can file them together as a hybrid motion, as long as they are delineated clearly. The heading should indicate whether it is a final or partial MSJ.
In a traditional MSJ, the burden of proof initially rests on the movant. If the nonmovant fails to respond, the trial court cannot grant summary judgment by default unless the movant has met its burden.
Once the movant has satisfied its burden, the burden shifts to the nonmovant to produce evidence contradicting the movant’s allegations. The nonmovant is not required to file a response, but failing to do so greatly limits the nonmovant’s arguments.
To defeat this motion, a nonmovant needs to produce evidence raising a fact issue or showing that no viable cause of action or defense exists. The traditional motion for summary judgment requires supporting evidence. The nonmovant must object to any defect in the motion and its attached evidence or it waives them.
A no-evidence summary judgment is essentially a pretrial directed verdict. Typically, a defendant will file a no-evidence MSJ because a party cannot file a no-evidence summary judgment motion on a claim or defense on which it bears the burden of proof. A movant can file a no-evidence MSJ only after the nonmovant has had adequate time for discovery.
"Adequate time" is subjective and depends on the facts of the case. The motion should state in the body that adequate time for discovery has passed. The motion also must show that "there is no evidence to support one or more specific elements of a claim or defense on which the nonmovant has the burden of proof at trial," under TRCP 166a(i). The nonmovant has the burden of proof in a no-evidence MSJ.
To challenge a no-evidence MSJ, the nonmovant must provide more than a scintilla of evidence to raise a fact issue on the challenged element. It should also identify any defects and present any other reasons why the judge should not grant summary judgment. The court may grant a no-evidence summary judgment by default if the nonmovant does not file a response and the motion shows sufficient grounds for a final summary judgment. Additionally, the nonmovant must object to any defect in the form or substance of the motion, or it waives them.
The MSJ is a unique tool when used properly. Every beginning litigator needs to have a firm grasp on how to approach it. Although the MSJ can be intimidating, it can be overcome with the right strategy, evidence, facts and arguments.