Motion for Summary
Judgment
The Keys to Success
How does this work?
 Summary judgments are governed by Rule
166(a) of the Texas Rules of Civil
Procedure
 Summary judgments provide a means of
disposing of cases involving unmeritorious
claims or untenable defenses without trial
When is summary judgment
proper?
 Summary judgment is proper when the
movant is able to prove as a matter of law,
all the elements of his or her cause of action
 Or – disprove at least one element of the
opponent’s cause of action
When is a movant entitled to
summary judgment?
 If there is no genuine issue as to any
material fact and the movant is entitled to
summary judgment as a matter of law
 In other words – if the facts are undisputed,
or if you can conclusively prove your
version of the facts, then you can obtain
summary judgment if you show the court
you win under the law as applied to those
facts
What is a material fact?
 A fact is considered “material” for summary
judgment purposes, if the proof of the fact
would have the effect of establishing or
refuting one of the essential elements of a
claim or a defense
Beware – the burden of proof is
on the movant
 Movant has the burden of establishing his
entitlement to summary judgment by
conclusively proving all elements of the
cause of action or defense as a matter of law
WHAT???
 What this means is that if you, as the
plaintiff, moved for summary judgment on
your negligence claim, you would have to
prove all of the elements of negligence;
duty, breach, cause, harm.
Then what?
 All inferences must be taken in favor of the
party opposing the motion
 That means- all conclusions drawn from
evidentiary materials are viewed in the light
most favorable to the party opposing the
motion
When Defendant is Movant
 Defendant can either negate one essential
element of plaintiff’s claim or
 Prove an affirmative defense, in which case
plaintiff must prove every element of such
affirmative defense or
 Prove that the plaintiff has no cause of
action as a matter of law
BUT – see Rule 1669a (i) TRCP
 Rule 166a(i) allows a party to move for summary
judgment on the ground that there is no evidence
of one or more essential elements of a claim or
defense on which an adverse party would have the
burden of proof at trial
 The judge must grant the motion unless the
respondent produces summary judgment evidence
raising a genuine issue of material fact
This is a no evidence motion for
summary judgment
 In a no-evidence motion, the movant cannot
simply make a conclusory assertion that the
opposing party has no evidence
 Instead, movant must identify the specific
issue or issues on which it claims the nonmovant has no supporting evidence and
demonstrate the absence of such evidence
Summary Judgment Must Be
Denied If---- Under evidence, reasonable persons might
reach different conclusions from the facts
 Summary judgment is proper only where
there is no substantial dispute as to any
material fact, and reasonable persons would
not draw conflicting conclusions from the
material facts
AND…
 Both parties may concede that the material
facts are undisputed, but argue that the other
party’s legal position is incorrect
So, what is the procedure for a
motion for summary judgment?
 A plaintiff may file a motion for summary
judgment any time after the defendant
answers the lawsuit
 A defendant may file for summary
judgment prior to answering the lawsuit
 There is no required format, but the motion
itself must expressly present the grounds for
summary judgment
 The grounds cannot be urged in a separate
brief, although a supporting brief containing
legal authorities may be filed along with the
motion
BE SAFE, INCORPORATE THE
ARGUMENT INTO THE MOTION
Hearing on the Motion for
Summary Judgment
 No oral testimony can be presented at the
hearing. ONLY arguments of counsel are
allowed
 The court may not weigh evidence at a
summary judgment hearing. It can only
review the evidence to determine whether
there is a factual dispute
Notice of Hearing
 TRCP 166a(c) requires notice of hearing
 The notice should contain a certificate of
service or  Be made part of the motion of summary
judgment which must be certified also
So, how do I respond?
 Reasons for opposing a motion for
summary judgment also must be in writing
 The non-movant’s failure to respond does
not automatically entitle the movant to
summary judgment UNLESS
 The movant files a “no evidence” motion
under TRCP 166(i)
 In that case, the burden is on the non-
moving party to make a showing sufficient
to establish the existence of each element
essential to its case
 A plaintiff/non-movant can defeat summary
judgment by presenting evidence that
creates a fact question on those elements of
plaintiff’s case that the defendant attacks
 UNLESS –the defendant files a “noevidence” motion in which case, the
plaintiff must respond as just explained
above….
What evidence do I need?
 The motion itself and the response are not
proper summary judgment proof
 Evidence to support the motion must be
admissible in court
 Any document on file is proper summary
judgment evidence if…
 The document is referred to or incorporated
in the motion and is otherwise admissible
under the rules of evidence
 If not already on file, the document must be
attached to the motion or response
Affidavit
 Affidavits are a common source of
summary judgment proof
 Usually used to show the court there are or
are not facts in issue
 Conversely, if there is only a question of
law before the court, affidavits are not
necessary
Competent Witness
 Affidavit must affirmatively show it is made by a
person who is competent to testify-TRCP 166a(f)
 Competence relates to witnesses “qualifications”
to testify –does witness have the education,
experience or other requirement for having
knowledge of the situation in question
 The witness must be over the age of eighteen and
of sound mind
– Affidavits must be based on personal
knowledge and the facts sought to be proved
must be admissible in evidence at a
conventional trial
– The affidavit must set forth facts and not legal
conclusions
More affidavit info  Affidavits must not say that the affiant
“believes” something or that something is
true “to the best of my knowledge”
WITNESS HAS TO KNOW what he is
attesting to…
 The affidavit also sets forth facts that show
how the affiant is competent to testify
Just a little more…
 The facts sworn to in an affidavit must be
direct and unequivocal
 It is okay to state in the affidavit that an
event occurred “on or about” a certain day
What about the interested
witness?
 An interested witness may make an affidavit
in support of a motion for summary
judgment if
– The affidavit is clear, positive and direct
– It is otherwise credible and free from
contradictions and inconsistencies; and
– It could have been readily controverted
Readily controverted?
 For example, self-serving statements of interested
parties in an affidavit about what they knew or
intended are not readily controverted and will not
support a motion for summary judgment. In other
words, you cannot get into someone’s head and
contradict what they say they think or know.
Witness must present concrete information.
What about the attorney as
affiant?
 The attorney representing one of the parties
in the case should not make the affidavit
since the affidavit must be based on
personal knowledge
 OK – we’ve got the motion – then what??
What does the non-movant to
oppose the affidavit testimony?
 File a counter-affidavit to create fact issues
that preclude summary judgment
 Object to the affidavit on the following
grounds:
Objections by Non-Movant
 The affidavit states legal conclusions
 The affidavit contains an unsubstantiated
opinion
 The affidavit is based only on information
and belief and not on personal knowledge
 The affidavit is based on hearsay (out of
court statement offered for the truth of the
matter asserted)(he said, she said
statements)
 The affidavit contains conflicting statements
which preclude summary judgment
Beware of Sanctions
 If an affidavit is made in bad faith, the court
may impose sanctions against the offending
party or attorney
Use of Discovery in MSJ
 Discovery used to support a motion for
summary judgment must be attached to the
motion if it is not already on file with the
court
 To rely on discovery that is filed with the
court, simply refer to it in the motion or
response
 (Lindsey Dep. at p.14, lines 6-12) or
 (Lindsey Dep. at p. 14, lines 6-12, Ex.A)
 Because, in Texas, depositions are not filed
with the court, the deposition excerpt that
you want to use must be attached to the
motion as an exhibit and the motion must
refer to such excerpt or
 You may type the lines into the body of the
motion for summary judgment – but not too
many
Required Parts of the Deposition
 Cover
 List of Parties and Counsel
 Court Reporter’s Verification