In my last post, I addressed the significance of the burden in framing your response to a motion for summary judgment and in your appeal from an adverse summary judgment. In this post, I address getting your evidence in the record and keeping the other side’s out, amending your petition, and filing an appeal from an adverse summary judgment.
Did You Get That in the Record?
If you are the non-movant, your job is to point out the movant’s failure to follow the rules, get your evidence in the record and in admissible form, challenge the movant’s evidence, and get rulings. The last task is particularly important and can mean the difference between affirmance and reversal on appeal.
Get your evidence in the record and keep the other side’s out.
A movant in a traditional summary judgment or special appearance, must include all of her arguments and bases in her motion, and the evidence supporting her motion must be attached, in admissible form, and on file before the hearing. A movant cannot meet her burden simply based upon the allegations in the non-movant’s pleadings. Pleadings are not evidence, and the movant needs evidence to support her motion. Further, the movant cannot attach evidence to her reply to a response or file her supporting evidence after the hearing.
Appeals courts will reverse a trial court’s grant of summary judgment for a movant’s failure to strictly follow TRCP 166a. If the trial judge granted summary judgment despite the movant’s failure to follow the rule, do not despair! You can and should argue for reversal on appeal based on the movant’s failure to strictly adhere to the timing and evidence rules governing dispositive motions. Continue Reading