Motion for Summary Response Deadline XXX

Motion for Summary Response Deadline Texas requests that a court rules on a case even if the case hasn’t been to trial. The benefit of Summary Judgments is that they save clients a ton of money, especially in civil litigation outside of family law cases. In the family law arena in Texas, their usage is fairly restricted to parentage cases where one party disputes which father belongs to the child. In these cases, a motion for summary judgement is brought to have the court order or “declare” that the father is, indeed, the father. This usually occur after a DNA test of both the child and the father. These motions are rarely contested; however, it does happen on occasion. Usually, if DNA is disputed by the mother, she has to get someone else declared the father.  If the father is disputing the DNA, he probably has something mentally wrong with him or a serious need to try to avoid child support at all costs. The opportunity to lodge a motion arises when there is “no genuine issue of material fact.” What this means is that there is no real basis for the parties to disagree on what the facts in the case are. In civil litigation cases, this isn’t always true, which means that one party does dispute the facts.

When that happens, the moving party usually tries to claim that the fact that the responding party is disputing isn’t “material.” Once the triggering point is met, then the moving party is entitled to “judgment as a matter of law.” Which usually means that they should win. Moving back to family law cases, we would see such motions when paternity has been established, and we want the court to order Mr. X is the father. Outside of those limited circumstances, motions for summary judgments are fairly rare in family law cases.

A motion for summary judgment in Texas

A case can be disposed of prior to trial when there is no evidence for the claims alleged or when there is no issue of material fact, and the movant is entitled to judgement as a matter of law. When a case is disposed for either of those reasons, it is called a summary judgment. Governed by TRCP 166a, there are two types, the traditional summary judgment and the no evidence summary judgment. Tex. R. Civ. P. 166a.

According to the Texas Supreme Court, a motion for summary judgment is appropriate if reasonable people agree with the conclusion based on the evidence of the case. The court also advised appellate courts not to “disregard the evidence supporting the motion,” also adding that “although a reviewing court must consider all the summary judgment evidence on file, in some cases that review will effectively be restricted to the evidence contrary to the motion.” City of Keller v. Wilson, 168 S.W.3d 816, 824-8

How to structure a motion for summary judgment

            Rule 166a (c ) concerns motion and proceedings thereon. It provides that the motion for summary judgment shall state the specific grounds thereof. Further, that except on leave of court, with notice to opposing counsel, the motion and any supporting affidavits shall be filed and served at least 21 days before the time specified for hearing. Except on leave of court, the adverse party, not later than seven days prior to the day of hearing may file and serve opposing affidavits or other written response. Also, no oral testimony shall be received at the hearing.

The provision also provides that a judgement for summary judgment shall be rendered if the deposition transcripts, interrogatory answers, and other discovery responses references or set forth in the motion or response. Further, the admissions, pleadings, stipulations and affidavits of the parties, and authenticated or certified public record should be filed in time for the hearing.

Rule 166a (d) concerns appendices, references and other use of discovery not otherwise on file. It provides that the discovery products that are not on file with clerk can be used as evidence for the motion of summary judgment. These documents should also be served on all the parties along with the statement of intent to utilize the specified discovery as proof for summary judgment.

The motion of summary judgment

Since a motion for summary judgment is essentially a trial on paper, what is written and how it is written is crucial to its success. Summary judgments are more likely to win if they tell a compelling, persuasive story and include a clear analysis of the facts supporting that story.

In addition to good, evidence-based story-telling, the summary judgment motion should also include a succinct title and introduction, which should address whether or not the party is filing a Traditional Summary Judgment as a plaintiff (Rule 166a(a)) or as a defendant (Rule 166a(b)); what kind of summary judgment is requested, Traditional, No Evidence, or a combination of both; and whether the party is seeking a partial or final summary judgment.

The title and introduction should be followed by the legal and factual grounds for each claim in the case. The motion must also include arguments and authorities to support each claim. Finally, sufficient evidence to support each claim is essential to the success of the summary judgment.

The time frame applicable to a motion of summary judgment

According to Rule 166a, a motion for summary judgment should be filed and served no less than 21 days before the hearing. Any response to the motion for summary judgment is due no less than 7 days before the hearing. A party may file a reply to a response, but there is no set time limit for doing so. If the claim is strong and evidence solid, and if the defendant fails to provide evidence to refute the plaintiff’s claims, the motion may be granted as long as “adequate time for discovery” has been provided.

Rulings and judgments applicable to motion for summary judgment

            Once the hearing has occurred or, if there is no oral hearing, once submissions are made, the court may rule on the motion. No specific timeframe for the ruling exists; a judge could make a ruling on the day of the hearing or submission, or the judge may never actually make a ruling. C/S Sols., Inc. v. Energy Maint. Servs. Grp., LLC, 274 S.W.3d 299, 308

 

Filing an appeal is not possible without the judge’s order constituting a final judgment. The Texas Supreme Court therefore suggests language which, while not mandatory, clarifies whether or not a judgment is final and can therefore be appealed by a litigant: “This Judgment finally disposes of all parties and all claims and is appealable.” In re Daredia, 317 S.W.3d 247, 248 (Tex. 2010) (per curiam) (quoting Lehmann v. Har-Con Corp., 39 S.W.3d 191, 206 (Tex. 2001)); see infra Part 1.V.

Filing a motion for summary judgment is a complex undertaking. Hiring a lawyer who is knowledgeable about the nuances of summary judgments as well as the nuts and bolts of its proceedings can help a litigant avoid the many pitfalls inherent in summary judgment practice.

No-evidence motion for summary judgments in Texas

A motion for summary judgment is an invaluable tool for quickly and summarily disposing of cases that have no fact issues for a jury to resolve. In Texas state court, there are two types of motions for summary judgment: (1) a traditional motion for summary judgment, and (2) a no-evidence motion for summary judgment. A traditional motion argues that the non-movant cannot recover on a claim as a matter of law. A no-evidence motion for summary judgment argues that the non-movant has “no evidence” to support one or more of the elements of a claim.

A no-evidence motion for summary judgment is a particularly cost-effective tool for litigants. The movant generally only needs to challenge specific elements of a claim and state that the non-movant has no evidence of these elements. No-evidence motions are typically shorter, and therefore more cost-effective to prepare, than traditional motions because they do not typically require extensive legal analysis.

However, determining whether a no-evidence motion is appropriate for a particular case is not necessarily straightforward. There is currently a split in Texas’s fourteen appellate courts on whether a party may move for a no-evidence summary judgment on questions of law. There are also many recognized permutations on the extent to which a litigant may move on elements that involve questions of law. Knowing where courts stand on this issue is important for determining whether a no-evidence motion is appropriate for any particular case.

Courts have generally fallen into two categories on whether no-evidence motions may raise issues of law. The first group holds, as a bright-line rule, that no-evidence motions may never raise questions of law for a court to resolve. The second group essentially rejects the first group’s bright-line rule—those questions of law can never be properly addressed in a no-evidence motion for summary judgment—but does not necessarily have a uniform rule or bright-line rule of its own. Rather, the second group approaches the issue on a more case-by-case analysis.

Courts which hold that a no-evidence motion may never address a question of law

 

 

The following courts of appeals have adopted a bright-line rule that a no-evidence motion for summary judgment may never rest on questions of law:

• Fifth Court of Appeals (Dallas);
• Second Court of Appeals (Fort Worth);
• Twelfth Court of Appeals (Tyler); and
• Thirteenth Court of Appeals (Corpus Christi).

Interestingly, each of these courts—in ultimately concluding that questions of law are inappropriate for no-evidence motions for summary judgment—have applied this bright-line rule to a variety of different questions of law. The rationale for these courts’ bright-line rule is stated in McCracken. There, the court explains that Rule 166a(i) of the Texas Rules of Civil Procedure, which authorizes no-evidence motions for summary judgment, “presupposes” that a no-evidence motion challenges only those elements for which a non-movant must produce evidence. McCracken, 2014 WL 4937997 at *8. The court explains that, under the rule’s plain language, a no-evidence motion “must be based on an alleged lack of evidence, and its refutation must be based on the existence of evidence.”

While these courts have adopted a bright-line rule, enforcing that rule in a bright-line manner does not always happen. For example, in Patino, the Dallas Court of Appeals affirmed a trial court’s granting of a no-evidence motion that challenged the duty element of a plaintiff’s claim, a question that is typically a matter of law. In Patino v. Complete Tire, Inc., 158 S.W.3d 655, 660 (Tex. App.—Dallas 2005, pet. denied), the court did not address whether it was appropriate for the no-evidence motion for summary judgment to challenge the duty element.  Rather, the court simply noted that the plaintiff had failed to provide evidence of the standard of care, along with other essential elements, in affirming the trial court’s ruling.

Ultimately, even when faced with a wide variety of legal questions raised in no-evidence motions for summary judgment, the Fifth, Second, Twelfth, and Thirteenth Courts of Appeals hold that no-evidence motions for summary judgment may never challenge questions of law.

Courts that reject a bright-line rule on whether no-evidence motions for summary judgment may rest on questions of law

The following courts have uniformly rejected the bright-line rule in Dallas, Fort Worth, Corpus Christi, and Tyler—without necessarily uniformly adopting a bright-line test of their own:

• First Court of Appeals (Houston);
• Third Court of Appeals (Austin);
• Eighth Court of Appeals (El Paso);
• Ninth Court of Appeals (Beaumont);
• Eleventh Court of Appeals (Eastland); and
• Fourteenth Court of Appeals (Houston).

Importantly, not all of these courts have expressly endorsed whether a no-evidence motion for summary judgment may rest on questions of law. Rather, these courts roughly fall into two categories: those that affirm the practice of a no-evidence motion for summary judgment moving on a question of law, without identifying the issue; and those that address the issue and expressly discuss the circumstances under which a movant may use no-evidence motions to raise questions of law.

Courts that approve of no-evidence motions for summary judgment on questions of law without identifying the issue

The Beaumont, Houston First, and Houston Fourteenth Courts of Appeal have affirmed no-evidence summary judgments on questions of law, but in each case, they did not expressly address the issue or explain the rationale for their holdings.

The Brookshire Katy Drainage District opinion was subsequently criticized in a dissent from a denial of a motion for rehearing for its failure to address whether, or the extent to which, no-evidence motions for summary judgment may challenge questions of law.

References

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