Chapter 9 - § 9.1 SUMMARY JUDGMENTS, GENERALLY

• Jurisdiction: Colorado

§ 9.1 Summary Judgments, Generally

The mechanism and opportunity to have a claim decided by summary judgment is available under the Colorado Rules of Civil Procedure in order to avoid unnecessary trials.¹ When the undisputed facts allow a court to decide the rights of parties without the necessity and expense of a trial, summary judgment can be entered.

The prevailing party on a motion for summary judgment that terminates the case is entitled to an award of costs as if he or she had prevailed at trial. The granting of a summary judgment that disposes of the entire case is an appealable order, and the losing party does not have to file a motion for post-trial relief under C.R.C.P. 59 before it can appeal.² The granting of a motion for summary judgment is reviewable de novo by the appellate court.³ The denial of a motion for summary judgment is considered interlocutory, and is not an appealable order.⁴ Also, if the order granting a summary judgment does not fully adjudicate all the parties' rights at issue in the case, the order is not considered a final order for appeal purposes.⁵ Before a party can appeal an order granting a summary judgment that does not dispose of the entire case against all parties, the party must first secure express final judgment status under C.R.C.P. 54(b). On its own motion or the motion of a party, the court can designate an order as a final judgment by an express ruling that there is no just reason for delay.⁶ However, this designation is not ultimately binding on the appellate court.

§ 9.1.1 Determining Whether to File a Summary Judgment Motion

Deciding whether to file a motion for summary judgment involves considerations of both strategy and law, regardless of whether the attorney making the decision represents the plaintiff or the defendant. The attorney should analyze what claims, based on evidence disclosed, could be decided on a summary judgment motion. The advantage of disposing of even one claim against a defendant, or of a case-threatening affirmative defense for the plaintiff, may warrant filing a dispositive motion.

Before filing the motion, the attorney should consider calling his or her opponent to ascertain whether an agreement can be reached to voluntarily dismiss the claim or waive the affirmative defense that would be the subject of the motion.

Consider how the judge will react to the motion for summary judgment. Most judges do not appreciate motions being filed to "educate" them.

§ 9.1.2 Summary Judgment...