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.
Further, objections to evidence are critical in dispositive motion practice, especially on appeal. Do not ignore or abuse them. If the movant relies on evidence that is inadmissible, object! Conversely, although it may be tempting to “kitchen-sink” objections, in reality, you will not have sufficient time to argue ten or fifteen objections to the movant’s evidence, and you will dilute the effectiveness of your strongest ones.
Identify the most important objections; take your time developing them in your written submission, and double-down on the one or two objections with the biggest impact. And if your objections are overruled, your well-developed objections will transition nicely into your argument on appeal. You can win your appeal of a summary judgment with a rifle shot at the movant’s evidence.
Finally, get your evidence in the record. Any affidavits must be on file seven days before the hearing or submission date. Any documents must be authenticated, and if you are using documents and other discovery materials, reference TRCP 193.7. Make sure the certificates for any deposition transcripts are signed and you cited the testimony correctly and specifically. You would be surprised how many lawyers attach incomplete deposition transcripts and fail to cite the referenced testimony.
Amend your petition if necessary.
If you decide to amend your petition in response to the movant’s motion for summary judgment, do it at least seven days before the hearing on the motion, or you will need to request leave of court to amend. A summary judgment is considered a “trial” under TRCP 63. If you don’t get leave to amend, your amended petition may not be considered on appeal.
Get a ruling.
Hearings on dispositive motions can be long, with ample opportunity to miss or forget important details. One of those details is ensuring that rulings on evidentiary issues get in the record. Successful appeals of dispositive motions can and do hinge on whether a litigant obtained an evidentiary ruling. An appeals court cannot review a point you have not preserved. And you preserve evidentiary points by getting a ruling. Although the urge to run from the courtroom after losing is strong, do not leave the hearing without getting a ruling on your objections.
Where Do I Go From Here?
You gave it your best shot, but you lost. You have a couple of choices. If you are considering whether to appeal an order granting a dispositive motion, you can file a post-judgment motion to extend the appellate timeline, or you can simply proceed with filing an appeal. Filing a motion to reconsider or motion for new trial following the granting of a summary judgment will extend the appellate deadline for filing the appeal from 30 days to 90 days after the judgment was signed.
If you decide to appeal, file your notice of appeal in the trial court. The Texas Rules of Appellate Procedure provide all of the information necessary for each step of your appeal, in chronological order.
When filing your next response to a dispositive motion, focus on your facts and your trial strategy. But remember to prepare for that second bite!
Image courtesy of Flickr by Quinn Dombrowski.