Summary Judgment

AuthorScott Brister (Ret.)/Dan S. Boyd
Chapter 36
Definitions: A motion for summary judgment (“MSJ”) requests the court to render judgment for the moving
party on the grounds that no genuine issue of material fact exists, and the law entitles movant to judgment. The
motion is based on extrinsic evidence. Any party may move for summary judgment.
A motion for partial summary judgment requests the court to adjudicate one or more, but less than all, claims
and defenses.
Scope of chapter: Rules and techniques applicable to moving for summary judgment or partial summary
judgment, opposing the motion, and pursuing successive motions and rehearings. Evidence requirements and
restrictions. Requirement that material facts be undisputed. Burdens on motion for movant and opponent. Filing
formalities. Oral argument. Motion to strike inadmissible evidence. Cross-motion for summary judgment.
Strategies and Tactics:
Both parties
Stick to material facts; don’t waste time and effort proving or refuting facts that are not material.
Scrutinize all evidence (your own and your opponent’s) for admissibility defects.
• Proffer just the pertinent excerpts from deposition transcripts, answers to interrogatories, and requests to
admit. Use affidavits to authenticate the excerpts.
Check local rules and judge’s individual requirements for summary judgment motions.
Move to strike inadmissible evidence the opposing party proffers.
Adhere to all time requirements.
Before deciding to move for summary judgment:
Complete sufficient investigation and discovery to have a complete grasp of all material facts.
Evaluate all evidence, pleadings, and substantive law governing claims and defenses.
Identify which facts are material.
Make sure material facts are incontrovertible, and the law entitles the moving party to judgment.
Evaluate possibility and consequences of provoking a cross-motion.
Hesitate to seek summary judgment based on a novel legal theory.
Support the motion with admissible and incontrovertible MSJ evidence establishing the material facts.
Proffer evidence that establishes the facts clearly. Avoid, for example, ambiguous interrogatory answers and
equivocal deposition testimony.
Support the motion with cogent and persuasive argument and authorities. Include the argument and authori-
ties in the motion, rather than filing a separate document. Remind the court it lacks discretion to deny a non-
controverted, legally meritorious summary judgment motion.
Comply with all service and filing requirements.
(Rev. 10, 4/13)
Scrutinize movant’s evidence, recitation of facts, and legal argument.
Proffer admissible MSJ evidence controverting material facts movant asserted. In opposition brief, spotlight
all genuine issues of material fact.
• Adhere strictly to all time requirements. If you need more time to develop evidence and file opposition
papers, request a continuance under TRCP 166a(g).
Move to strike inadmissible or non-MSJ evidence proffered by movant.
If warranted, cross-move for summary judgment, or partial summary judgment.
Statutes and rules: TRCP 166a.
Related topics: Motion Practice, Ch 16; Attacking the Pleadings, Ch 15; Discovery Disputes, Ch 32; Privileges,
Ch 25; Presuit Activities, Ch 2.
I. Overview
A. Basic Points
§36:01 Nature and Purpose
§36:02 Any Party May Move
§36:03 Pleadings Determine Scope of MSJ
B. Advantages
§36:08 Saves Time, Effort, and Expense of Trial
§36:09 Helps Get You Organized for Trial (if Trial Is Necessary)
§36:10 Forces Opponent to Reveal Evidence and Arguments
§36:11 Encourages Settlement
§36:12 Can Avoid Jury Prejudice
§36:13 Can Eliminate Claims, Defenses, Etc.
§36:14 Educates Judge for Trial
C. Disadvantages
§36:20 Expensive and Time Consuming
§36:21 Easily Defeated
§36:22 Uphill Battle
§36:23 Motion May Boomerang
§36:24 May Tip Your Hand
§36:25 Appellate Standard Favors Reversal
D. MSJ on the Pleadings
§36:30 With Chance to Amend
§36:31 COMPARE: Special Exception
§36:32 CAUTION: Waiver of Right to Amend
§36:33 If Defect Cannot Be Cured
§36:34 MSJ After Chance to Amend
E. Evidence Overview
§36:40 Evidence Required
§36:41 Two-Pronged Test
F. Strategies
§36:46 Revisit MSJ Throughout Pretrial Period
§36:47 Plan Discovery With Summary Judgment In Mind
§36:48 Know the Substantive Law
§36:49 Focus on Material Facts
II. Partial Judgments and Adjudications
A. Partial Summary Judgment
§36:54 Authority and Purpose
§36:55 Advantages
§36:56 Disadvantages
§36:57 When to Seek Partial Judgment
§36:58 “Liability Judgments”
§36:59 Procedure (Same as for Total MSJ)
§36:60 Effect of Granting Motion
§36:61 Finality of Partial Judgment
§36:62 Making a Partial Judgment Final
§36:63 Appeal After Severance
B. Designating Undisputed Facts
§36:68 Authority
§36:69 Purpose and Strategies
§36:70 Procedure
III. No-Evidence MSJ [TRCP 166a(i)]
A. Basic Points
§36:76 Authority
§36:77 COMPARE: Ordinary MSJ
§36:78 MSJ Burden Is on Non-Movant
§36:79 Challenge Must Be Specific
§36:80 Only After Adequate Time for Discovery
§36:81 What Is “Adequate Time”?
§36:82 Combined Ordinary and No-Evidence MSJ
§36:83 Court Must Grant Motion, Unless...
§36:84 Inferences Resolved in Favor of Non-Movant
§36:85 Do Not Attach Evidence, But...
B. Responding to No-Evidence MSJ
§36:88 Opposition Evidence Required
§36:89 The Response Document
§36:90 Need Not Marshal All Evidence, But...
§36:91 Burden of Proof
§36:92 Only “MSJ Evidence” Counts
§36:93 Objections and Exceptions
§36:94 Motion for Continuance
(Rev. 10, 4/13)

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