Chapter 30-1 The Traditional Motion for Summary Judgment

• Jurisdiction: United States

30-1 The Traditional Motion for Summary Judgment

This section discusses what is known as the traditional motion for summary judgment in Texas practice.

30-1:1 Timing of Motion and Response

Texas Rule of Civil Procedure 166a provides a time period within which motions for summary judgment may be made. A party seeking to recover on a claim, counterclaim, or crossclaim or to obtain a declaratory judgment may move for summary judgment at any time after the adverse party has appeared or answered.¹ A party against whom such a claim is asserted may move for summary judgment at any time.²

The motions and any supporting evidence must be filed at least 21 days before the hearing.³ The response, including any supporting evidence, is due at least seven days before the hearing.⁴ The rule provides that the nonmovant may file a late response with leave of court.⁵ Alternatively, a nonmovant may seek a continuance of the hearing date and file the response at least seven days before the new hearing date.⁶ While Rule 166a does not specify a time for the movant to file a reply to the response or object to the nonmovant's summary judgment evidence, both local rule practice and Tex. R. Civ. P. 21a suggest that the reply must be filed at least 3 days before the hearing. If the hearing is continued, notice of the next setting may be made based on reasonable notice rather than another 21 days, assuming the nonmovant had at least 21 days' notice of the initial setting.⁷ Reasonable notice generally means at least 7 days before the hearing, but less than 7 days may be sufficient.⁸ The Court has discretion to shorten the time limits.⁹

30-1:2 Burden of Persuasion

The summary judgment movant has the burden of persuasion at summary judgment.¹⁰ His burden is to persuade the court that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law.¹¹ The movant may establish either that there is no genuine issue of material fact as to an essential element of a claim on which the movant does not have the burden of proof or may conclusively establish each element of a claim on which he does have the burden of proof.

30-1:3 Movant's Burden of Pleading

Per Rule 166a(c), the motion for summary judgment must state the specific grounds for summary judgment. This requirement is a pleading burden at the summary judgment stage, and must be specific enough to put the nonmovant on notice of the grounds for the motion.¹²

The grounds must be stated in the motion.¹³ Where the motion states no grounds, the motion is legally insufficient as a matter of law and must be denied.¹⁴ Even if the supporting brief states the grounds for summary judgment, if the motion does not state the grounds, the motion must be denied.¹⁵

A motion that fails to state the grounds for summary judgment is insufficient as a matter of law and must be denied, even if the nonmovant does not object or except to this defect in the motion at the trial court.¹⁶

To complain on appeal, however, that the grounds in the motion are ambiguous or unclear, the nonmovant must except or object to the motion.¹⁷ The practical effect of a failure to object to grounds in the motion that are unclear or ambiguous "is that the non-movant loses his right to have the grounds for summary judgment narrowly focused, thereby running the risk of having an appellate court determine the grounds it believes were expressly presented in the summary judgment."¹⁸

A movant may seek summary judgment both on traditional and no evidence grounds in the same motion,¹⁹ but the movant must specify which grounds in the motion are traditional and which are no evidence. Otherwise, the motion fails to give fair notice of the grounds for summary judgment²⁰. In this type of hybrid motion, the Court will typically consider the no evidence portion of the motion first.²¹

30-1:4 Movant's Burden of Production

The movant bears the initial burden of production at summary judgment, but what this burden requires depends upon whether the movant would bear at trial the burden of proof on the claim or defense that is the subject of the motion.

If the movant bears the burden of proof at trial on the claim or defense, the movant must support his motion with evidence conclusively establishing every element of the claim or the affirmative defense.²² A rebuttable presumption may affect the burden of production at trial, but it does not affect the burden of production at summary judgment. As the Texas Supreme Court recently explained, "a presumption operates to establish a fact until rebutted . . . but not in summary judgment proceedings."²³ Thus, the movant must establish the fact with evidence in summary judgment proceedings, even though the movant may rely on the presumption to establish the fact (at least initially) at trial.

If the movant does not bear the burden of proof at trial on the claim or defense, he may satisfy his burden of production with evidence that affirmatively negates at least one essential element of the claim or defense.²⁴ Alternatively, where the movant does not bear the burden of proof at trial, he may use a no-evidence motion for summary judgment under Rule 166a(i), discussed in Section 2 of this chapter.²⁵

30-1:5 Effect of a Legally Insufficient Motion

Where the movant fails to carry either his burden of pleading or his burden of production, the motion is insufficient as a matter of law.²⁶ The nonmovant is not required to object to the legal insufficiency of the...