A Practitioner's Guide to Summary Judgment Part 1

JurisdictionKansas,United States
CitationVol. 67 No. 12 Pg. 36
Publication year1998
Kansas Bar Journals
Volume 67.

67 J. Kan. Bar Assn. December, 36 (1998). A PRACTITIONER'S GUIDE TO SUMMARY JUDGMENT PART 1

Journal of the Kansas Bar Association
December, 1998


Part 1

Robert W. Parnacott [FNa1]

Copyright (c) 1998 by the Kansas Bar Association; Robert W. Parnacott

Summary judgment practice has a rhythm of its own. ... The movant must put the ball in play, averring an "absence of evidence to support the nonmoving party's case." The burden then shifts to the nonmovant to establish the existence of at least one fact issue which is both "genuine" and "material." [FN1]

*37 Introduction

You represent a party involved in civil litigation: it may be a tort claim, a contract matter, a declaratory action, even a domestic matter. Your client may be the plaintiff or the defendant. There are evidentiary materials outside the pleadings available that you believe cannot be controverted and that would require a court to enter judgment in favor of your client. Your first thought is probably: "Should I move for summary judgment?" Your next thought is "How do I do it?" If, on the other hand, you are on the receiving end of a motion for summary judgment, the question is "How do I defend against it?"

This article will provide a practical guide to moving for and defending against summary judgment. The article has been separated into two parts. Part I will review the basics of summary judgment practice. Part II will address tips and traps in summary judgment practice and discuss appellate review of summary judgment issues. Part II will also address sundry other matters related to summary judgment. The article will refer to the relevant statutes, federal and state court rules and caselaw regarding summary judgment from preparation to appeal. Practitioners should also be aware of any local court rules, [FN2] or standing judge's orders, [FN3] regarding summary judgment practice.

The Kansas summary judgment statute [FN4] and its federal counterpart [FN5] are identical and federal court decisions may be cited as persuasive authority in arguing summary judgment matters in Kansas state district and appellate courts. [FN6] This is not necessarily a two-way street, however: citation of state summary judgment reported decisions in federal court, in one case, was described as "interesting." [FN7] Summary judgment practice in Kansas state and federal courts diverge only slightly in application of related statutes, court rules and judicial principles. This article will note areas of divergence relevant to the discussion. For simplicity's sake, this article will generally cite to K.S.A. 1997 Supp. 60-256, although the provision cited to will be found in both that statute and in Fed. R. Civ. P. 56.

The history of summary judgment has been traced to 19th century England. [FN8] Although part of the federal code of civil procedure since 1937 and the Kansas code since 1963 the use of summary judgment was made easier following a trio of cases decided by the U.S. Supreme Court in 1986. [FN9] Although those cases mark an important turning point in the development of summary judgment practice, summary judgment cases decided before that date that have not been overruled, either expressly or by implication, may still be cited as competent authority. [FN10] One reason the older cases are still viable is that the text of the statute has not changed significantly since 1963. The Kansas statute, for example, has only undergone minor amendments since its adoption. [FN11]

Courts are often of two minds regarding summary judgment, on one hand recognizing that it is "'a most utilitarian device, designed to complete the overall scheme for making pretrial procedures effective in bringing about, if possible, an expeditious disposition of litigation without needless waste of time in trial formality"' [FN12] and "a valuable tool for terminating a lawsuit when its outcome is foreordained. ..." [FN13] To the contrary, however, courts also note: " s ummary judgment forecloses access of a litigant to the trier of facts, which many in our society consider to be their 'day in court."' [FN14] Practitioners will find themselves arguing either proposition, depending on whether they are moving for or defending against summary judgment. And, where cross-motions for summary judgment are filed, counsel may find themselves arguing in favor of and in opposition to both propositions.

One of the primary purposes of summary judgment is to eliminate claims or defenses not supported in fact. [FN15] It has also been said that the object of summary judgment is "to discover whether one side has no real support for its version of the facts." [FN16] This is done by allowing the movant to "'pierce the allegation of facts in his opponent's pleadings by affidavits and discovery."' [FN17] The overriding goal, however, when viewed in light of the pre-trial provisions of the code of civil procedure, is to expedite the handling of cases that should not require a trial for a fair and just resolution.

Page 38

The criterion for summary judgment is whether "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." [FN18] Courts often find varying ways to restate this key principle of summary judgment practice but " r egardless of how refined or sophisticated the courts attempt to state the summary judgment rule, they always return to the language of the statute itself (K.S.A. 60-256)- there must remain no genuine issue as to any material fact." [FN19]

What constitutes a "genuine issue of material fact" will be discussed later in this article. Before that discussion occurs, some groundwork should be laid. Basic summary judgment practice involves the following filings:

1) A motion for summary judgment;

2) A memorandum or brief in support of the motion;

3) A notice of hearing, if one is to be requested; and

4) A response to the motion for summary judgment.

Although disliked by judges generally, replies and surreplies may also be used by the parties in moving for or opposing summary judgment. The memorandum, the response and any replies or surreplies will usually include attachments of evidentiary materials such as: portions of depositions, documents or affidavits, etc., to support the statements of facts. If there are objections to affidavits or other evidentiary materials, a motion to strike may be necessary to raise the objection and preserve the issue for appeal.

Partial and complete summary judgment

Judgment may be granted in whole or in part. [FN20] Even if the court finds summary judgment is inappropriate, it can determine, upon examination of the evidence adduced and "by interrogating counsel," what material facts are controverted. [FN21] The court may then issue an order stating what facts are not in substantial controversy, including the amount of damages presented. [FN22] These facts are then "deemed established" for the purposes of ensuing proceedings. [FN23]

Summary judgment rulings are interlocutory in nature and can be modified before final judgment. [FN24] A court may also grant a motion for summary judgment previously denied if new evidence has been developed, a change in the existing law has occurred or even on grounds previously raised where the court has changed its opinion. Also, if summary judgment is granted in state court, followed by a removal to federal court, the federal court is not bound by the state court's ruling. [FN25]

Timing - When can a motion be filed

The stage of the proceedings does not necessarily determine the propriety of summary judgment being rendered. The criteria is whether or not at the particular stage at which summary judgment is sought it is shown conclusively that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. [FN26]

Having said that, there are some timing requirements to be considered. Also the fact that you can move for summary judgment does not necessarily mean that you should move for summary judgment at that time. Part II of this article will address timing from a tactical standpoint, i.e. at what point should you move for summary judgment.

By the parties

A party defending against a claim, counterclaim or cross-claim, or against a declaratory judgment action may move for summary judgment at any time. [FN27] It should be noted that filing a motion for summary judgment before filing an answer may not toll the time to file a responsive pleading. [FN28] Instead, to be safe a motion for enlargement of time to file the required responsive pleading could be made pursuant to K.S.A. 1997 Supp. 60-206(b) or Fed. R. Civ. P. 6(b). Persons asserting a claim or seeking declaratory judgment must wait until at least 20 days after commencement of the action. [FN29] This 20-day requirement does not apply if the adverse party has already filed a motion for summary judgment. [FN30]

By the court

Trial courts have inherent authority to issue summary judgment sua sponte once facts outside the pleadings are developed. For instance, if the defendant moves for summary judgment, if there are undisputed facts, but the plaintiff is actually the party due judgment as a matter of law, then the court may award the plaintiff summary judgment. [FN31] Sua sponte summary judgment is appropriate as long as the party opposing summary judgment is given notice and the opportunity to come forward with evidence to show a genuine issue of material fact exists. [FN32] Sua sponte summary judgments have been affirmed where the defendant confessed judgment for the amount owed. [FN33] However, reversal of the grant of *40 summary judgment was entered on appeal, where the...

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