A Litigator's Guide to Summary Judgments
| Publication year | 1985 |
| Pages | 216 |
1985, February, Pg. 216. A Litigator's Guide to Summary Judgments
One of the most powerful litigation tools is a motion for summary judgment under Colorado Rules of Civil Procedure ("C.R.C.P.") Rule 56. It is also one of the most ignored and misused. Some attorneys say that such a motion is used only for the purposes of delay and to accumulate additional fees, and that the judges are "gun shy" in applying the rule. However, it may be that many attorneys do not properly prepare for such a motion and do not understand the purpose and procedures required. The purpose of this article is to provide useful and practical suggestions for the attorney who wants to use Rule 56 for its intended purpose.
A motion for summary judgment can be a powerful tool with many practical uses. The rule is designed to avoid an unnecessary trial.(fn1)
A trial is simply a means of determining and weighing facts and not a proceure to determine the applicable law. If the facts are not in dispute, there is no need for a trial.
Another practical function is to prevent unnecessary expense and delay at trial. This can be done by using the motion to delineate the issues in the case; resolve the undisputed facts; and identify the arguments to be relied upon in determining the applicable law. In fact, a partial summary judgment, which may be requested by a moving party, can determine a particular issue, sub-issue or controversy within a claim for relief, defense or group of claims or defenses relied upon by the parties. For example, in Terrell v. Walter E. Heller, Co.,(fn2) the court granted partial summary judgment as to liability on a note, but reserved its determination as to damages for a later hearing.
Furthermore, the preparation for and results derived from a motion for summary judgment may be useful in stimulating informed and realistic settlement negotiations. The only tool more helpful to settlement negotiations than a partial summary judgment as to a major issue is a complete resolution of all issues. Finally, a summary judgment may provide the best method of eliminating unmeritorious defenses imposed for the purpose of delay.(fn3)
C.R.C.P. Rules 56 and 121.1-15 govern the requirements for filing and prosecuting a motion for summary judgment. A plaintiff ("claimant") may only file a Rule 56 motion twenty or more days after the filing of a claim, unless a defendant has already filed such a motion. On the other hand, a defendant may file a motion at any time after the commencement of the case.(fn4) Attorneys should be careful to review applicable local rules, since they may preclude the filing of a Rule 56 motion during a certain time period prior to the scheduled trial date.(fn5)
The procedure for filing memorandum briefs is dictated by Rule 121.1-15. If a contested issue of law exists, the moving party shall file a memorandum brief reciting appropriate legal authority with the court (in duplicate) and with each of the opposing parties. The terms of the brief may be incorporated in the motion, but in either case must be filed at the same time as the motion. Once the motion has been filed, the opposing party has fifteen days in which to file a "response brief."(fn6)
At that point, the moving party is allowed an additional ten days from the service of a response brief to file a "reply brief." These time limits may be altered by the court.
When a party intends to file affidavits or other evidentiary materials in support of a motion or response, the time limits provided in C.R.C.P. Rules 6(d) and 56(c) apply. Rule 6(d) states that the affidavit shall be filed and served with the moving party's motion and brief. Rule 56(c) expressly states:
The opposing party may file and serve opposing affidavits within the time allowed for his response brief, unless the court orders some lesser or greater time.
In People in Interest of F.L.G.,(fn7) the court held that an affidavit submitted after a motion is granted cannot be considered. Therefore, either the required affidavits or a motion requesting an extension of time should be timely submitted, since the court is directed in Rule 56(c) to "render the judgment forthwith."
C.R.C.P. Rules 56(e) and (f) allow a court to grant permission to amend and supplement affidavits and to grant continuances in order to provide an opposing party additional discovery for the purpose of obtaining affidavits and other evidentiary materials. An affidavit also must be submitted showing the need for the requested continuance and for the continued discovery.
Rule 121.1-15 outlines the procedure to be followed in determining the motion. For example, the failure of a moving party to file a memorandum brief may result in the motion being deemed "abandoned" or denied. If possible, the determination is to be made based upon the briefs and evidentiary material alone. Although it is in the court's sole discretion to decide whether to hear oral argument or testimony, one purpose of the rule is to eliminate the need to take oral testimony.(fn8) If a motion is held to be frivolous, groundless or vexatious, or made in bad faith, the court may award attorneys' fees to the injured party.
C.R.C.P. Rule 12(c) states that if, on a motion for judgment on the pleadings, evidentiary matters outside of the pleadings are considered by the court, the court shall treat the Rule 12(c) motion as a motion for summary judgment and shall provide all parties a reasonable opportunity to present further evidentiary material as would be allowed under Rule 56. However, the failure of a court to so treat a Rule 12(c) motion may not be fatal.(fn9)
The necessary prerequisites for summary judgment are as follows:
1) There is no controversy or issue...
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