• Beth M. Johnson

Motions for Summary Judgment

The purpose of a summary judgment is to summarily end a case, or issue within a case, when there is no genuine issue of fact and all that remains is a question of law. G&H Towing Co. v. Magee, 347 S.W.3d 293, 296–97 (Tex. 2011). Summary judgments can be a useful tool in family law and can be highly effective for reducing the number of issues to be tried at final trial. For example, a divorce can be simplified by establishing the character of property through summary judgment before trial, or a claim alleging common law marriage can be thrown out on summary judgment if the petitioner cannot prove one of the three necessary elements. But see, Umana v. Rodriguez-Ramos, No. 05-20-00238-CV, 2021 WL 2525458, at *12 (Tex. App.—Dallas 2021, no pet) (mem. op.) (dismissal of informal marriage claim affirmed, but trial court erred in dismissing remaining torts regarding shared property). However, issues that are necessarily fact intensive—such as “best interest of the child” or a “just and right division”—are generally not well-suited for summary judgment. See e.g, Becka v. Becka, No. 05-19-00612-CV, 2020 WL 4047967, at *6 (Tex. App.—Dallas 2020, no pet.) (mem. op.) (value of husband’s business not proper for summary judgment).


When a party moves for traditional summary judgment, he “bears the burden to conclusively establish that [he] is entitled to judgment as a matter of law, notwithstanding the nonmovant's response or lack thereof.” B.C. v. Steak N Shake Operations, Inc., 598 S.W.3d 256, 258–59 n.12 (Tex. 2020), citing Tex. R. Civ. P. 166a(c); Rhône-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 222–23 (Tex. 1999) (“The nonmovant has no burden to respond to a summary judgment motion unless the movant conclusively establishes its cause of action or defense.”). To be entitled to a summary judgment, the moving party must conclusively establish that there are no genuine issues of material fact to be decided. Tex. R. Civ. P. 166a(c); M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000) (per curiam). A matter is conclusively established when “reasonable people could not differ in their conclusions....” City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005); see also Triton Oil & Gas Corp. v. Marine Contractors & Supply, Inc., 644 S.W.2d 443, 446 (Tex. 1982) (a matter is conclusively established if ordinary minds could not differ as to the conclusion to be drawn from the evidence).


If the moving party establishes that he is entitled to judgment as a matter of law, the burden then shifts to the non-movant to present countervailing evidence that raises a genuine issue of material fact on the moving party’s claims. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979).


A party can file a traditional motion for summary judgment, a motion for no-evidence summary judgment, or a hybrid motion that combines the two. Tex. R. Civ. P. 166a; Neely v. Wilson, 418 S.W.3d 52, 59 (Tex. 2013). When a hybrid motion is filed, trial courts typically consider the no-evidence grounds first, but they are not required to do so. See B.C. v. Steak N Shake Opers., Inc., 598 S.W.3d 256, 257 n.1 (Tex. 2020). A court cannot grant summary judgment sua sponte. Daniels v. Daniels, 45 S.W.3d 278, 282 (Tex. App.—Corpus Christi 2001, no pet.).


The non-movant is entitled to at least 21 days’ notice of the hearing and must file a response at least 7 days before the hearing, unless an exception is explicitly granted by the trial court. Tex. R. Civ. P. 166a.


Summary judgment evidence must be admissible under the rules of evidence. United Blood Servs. v. Longoria, 938 S.W.2d 29, 30 (Tex. 1997); Tex. R. Civ. P. 166a. So, as you are preparing your summary judgment evidence, do so in the same frame of mind as if you were preparing for trial. When drafting an affidavit in support of a motion for summary judgment (or a response), be on the lookout for all objections opposing counsel might make. See Tex. R. Civ. P. 166a(f). For example, the affidavit cannot include hearsay or conclusory statements; the affiant must have personal knowledge about the assertions in the affidavit; and the statements should have relevance to the legal issue presented. See Tex. R. Civ. P. 166a(f). The attached evidence must be authenticated by a sponsoring witness, just like at trial. See Tex. R. Civ. P. 166a. When responding to a motion for summary judgment that included a supporting affidavit, review the affidavit and raise every reasonable, specific objection to the affidavit before going further into your response. See Seim v. Allstate Tex. Lloyds, 551 S.W.3d 161, 166 (Tex. 2018).


Attorney’s fees can be granted in a summary judgment only if the attorney’s affidavit proving up fees is not controverted. See Guity v. C.C.I. Enter., 54 S.W.3d 526, 528 (Tex. App.—Houston [1st Dist.] 2001, no pet.). If the claim is controverted, a hearing on the amount and reasonableness of fees must be conducted.


All evidence supporting the motion or response must be included with the brief, whether a motion for summary judgment or a response to one. The Texas Rules of Civil Procedure expressly prohibit the introduction of oral testimony at a summary judgment hearing. See Tex. R. Civ. P. 166a(c). The motion must cite to specific evidence and explain how the evidence supports the movant’s claims. Ortiz v. Martinez, No. 04-20-00408-CV, 2021 WL 3174257, at *2 (Tex. App.—San Antonio 2021, no pet.) (mem. op.). “A trial court is not required to wade through the record to marshal a party’s proof.” Id. (quoting Hinojosa v. Koen, No. 04-18-00907-CV, 2019 WL 5773672, at *3 (Tex. App.—San Antonio 2019, pet. denied) (mem. op.)).


A failure to respond to a traditional motion for summary judgment is not evidence that the non-movant’s claims lack merit. Brann v. Guimaraes, No. 14-20-00023-CV, 2021 WL 4099651, at *2 (Tex. App.—Houston [14th Dist.] 2021, no pet.) (mem. op.).


While a court can take judicial notice of the fact that a document is in its file, it cannot take judicial notice of the facts asserted within that document. Brann, 2021 WL 4099651, at *3. Thus, while judicial notice may be proper to establish a timeline of when certain documents were filed, a party cannot rely on judicial notice to forego attaching evidence to a motion for summary judgment. See id. For example, it may be expedient to ask within a motion for summary judgment for the court to take judicial notice of the file to establish the date the suit was initiated and not have to attach the original petition for divorce, but if there is a reason to distinguish any claims in an amended petition versus the original petition, both may be required as attached exhibits. See id.


Only final judgments can be appealed. Thus, a denial of a summary judgment cannot be appealed because after the denial, the case remains ongoing with no final order to appeal. Additionally, mandamus is generally not available when the trial court denies a motion for summary judgment, no matter how meritorious the motion. In re United Servs. Auto. Ass’n, 307 S.W.3d 299, 314 (Tex. 2010).[1] However, mandamus is appropriate when the trial court refuses to rule (not simply fails to rule) on a timely submitted motion for summary judgment. See In re American Media Consol., 121 S.W.3d 70, 73 (Tex. App.—San Antonio 2003, orig. proceeding [mand. denied]).


Summary judgments are reviewed on appeal de novo. Cmty. Health Sys. Prof'l Servs. Corp. v. Hansen, 525 S.W.3d 671, 680 (Tex. 2017). If the trial court did not state the grounds for granting the motion for summary judgment, the appellate court will uphold the judgment if there are any grounds to support the judgment. Id. If the movant filed a hybrid motion, and the nonmovant failed to defeat a motion for no-evidence summary judgment, the appellate court will not review the grounds for traditional summary judgment. Id. at 680–81.


Summary judgments are highly technical, and the rules must be followed, but if done correctly, they can save your client a lot of money by reducing the contested issues in the case. Plus, removing unnecessary issues will allow you to focus on the presentation of the more complicated ones if the case goes to trial and improve your ability to present those issues well.

[1] Note that “generally” does not mean “always.”



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