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Rule 166a. Summary Judgment (1997)

TEXT

(a) For Claimant. A party seeking to recover upon a claim, counterclaim or cross-claim or to obtain a declaratory judgment may, at any time after the adverse party has appeared or answered, move with or without supporting affidavits for a summary judgment in his favor upon all or any part thereof. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to amount of damages.

(b) For Defending Party. A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof.

(c) Motion and Proceedings Thereon. The motion for summary judgment shall state the specific grounds therefor. Except on leave of court, with notice to opposing counsel, the motion and any supporting affidavits shall be filed and served at least twenty-one 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. No oral testimony shall be received at the hearing. The judgment sought shall be rendered forthwith if (i) the deposition transcripts, interrogatory answers, and other discovery responses referenced or set forth in the motion or response, and (ii) the pleadings, admissions, affidavits, stipulations of the parties, and authenticated or certified public records, if any, on file at the time of the hearing, or filed thereafter and before judgment with permission of the court, show that, except as to the amount of damages, there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law on the issues expressly set out in the motion or in an answer or any other response. Issues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal. A summary judgment may be based on uncontroverted testimonial evidence of an interested witness, or of an expert witness as to subject matter concerning which the trier of fact must be guided solely by the opinion testimony of experts, if the evidence is clear, positive and direct, otherwise credible and free from contradictions and inconsistencies, and could have been readily controverted.

(d) Appendices, References and Other Use of Discovery Not Otherwise on File. Discovery products not on file with the clerk may be used as summary judgment evidence if copies of the material, appendices containing the evidence, or a notice containing specific references to the discovery or specific references to other instruments, are filed and served on all parties together with a statement of intent to use the specified discovery as summary judgment proofs: (i) at least twenty-one days before the hearing if such proofs are to be used to support the summary judgment; or (ii) at least seven days before the hearing if such proofs are to be used to oppose the summary judgment.

(e) Case Not Fully Adjudicated on Motion. If summary judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary, the judge may at the hearing examine the pleadings and the evidence on file, interrogate counsel, ascertain what material fact issues exist and make an order specifying the facts that are estab­lished as a matter of law, and direct­ing such further proceedings in the action as are just.

(f) Form of Affidavits; Further Testimony. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be ad­missible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions or by further affidavits. Defects in the form of affidavits or attachments will not be grounds for reversal unless specifically pointed out by objec­tion by an opposing party with opportunity, but refusal, to amend.

(g) When Affidavits are Unavailable. Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depo­sitions to be taken or discovery to be had or may make such other order as is just.

(h) Affidavits Made in Bad Faith.Should it appear to the satisfaction of the court at any time that any of the affidavits presented pursuant to this rule are presented in bad faith or solely for the purpose of delay, the court shall forthwith order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused him to incur, including reasonable attorney's fees, and any offending party or attorney may be adjudged guilty of contempt.

(i) No-Evidence Motion. After adequate time for discovery, a party without presenting summary judgment evidence may 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 motion must state the elements as to which there is no evidence. The court must grant the motion unless the respondent produces summary judgment evi­dence raising a genuine issue of material fact.

Amended by order of Aug. 15, 1997, eff. Sept. 1, 1997.

Comment to 1997 change: This comment is intended to inform the construction and application of the rule. Paragraph (i) authorizes a motion for summary judgment based on the assertion that, after adequate opportunity for discovery, there is no evidence to support one or more specified elements of an adverse party's claim or defense. A discovery period set by pretrial order should be adequate opportunity for discovery unless there is a showing to the contrary, and ordinarily a motion under paragraph (i) would be permitted after the period but not before. The motion must be specific in challenging the evi­dentiary support for an element of a claim or defense; paragraph (i) does not authorize conclusory motions or general no-evidence challenges to an oppo­nent's case.

Paragraph (i) does not apply to ordinary motions for summary judgment under paragraphs (a) or (b), in which the movant must prove it is entitled to judgment by establishing each element of its own claim or defense as a matter of law. To defeat a motion made under paragraph (i), the respondent is not required to marshal its proof; its response need only point out evidence that raises a fact issue on the challenged elements. The existing rules continue to govern the general requirements of summary judgment practice. A motion under paragraph (i) is subject to sanctions provided by existing law (Tex. Civ. Prac. & Rem. Code §§ 9.001-­10.006) and rules (Tex. R. Civ. P. 13). The denial of a motion under paragraph (i) is no more reviewable by appeal or mandamus than the denial of a motion under paragraph (c).

Rule 166a - Notes and Comments amended by order of Aug. 15, 1997, eff. Sept. 1, 1997

Dissenting Opinions

JUSTICE SPECTOR, dissenting.

I agree with most of Justice Baker's dissent to the rule the Court adopts today. Although the Court has made some helpful modifications to the comment, it declines to incorporate the recommendations of its own advisory committee in the rule itself. I write separately, however, because, unlike Justice Baker, I do not agree with the basic concept underlying Rule 166a(i).

As this Court has previously noted, our existing summary judgment "pro­cedure eliminates patently unmeritori­ous cases while giving due regard for the right to a jury determination of disputed fact questions." Casso v. Brand, 776 S.W. 2d 551,557 (Tex. 1989). The Court's adoption of Rule 166a(i) effectively discards a well-developed body of summary judgment law that has been available to guide the bench and bar. Trial judges, who lack the resources available to their federal counterparts, will now be required to resolve many more pre-trial disputes without the benefit of that valuable precedent.

Furthermore, I anticipate that the no-evidence rule adopted today will also increase the need for extensive discovery, adding to already skyrocketing liti­gation costs. In my view, this runs counter to the rule's intended purpose.

Finally, the new rule creates a serious risk that meritorious lawsuits will be summarily dismissed. My eighteen years on the trial bench, as well as my experience on this Court, have left me convinced that truly frivolous cases are relatively rare and are readily disposed of under the existing rule. I do not believe that any marginal benefit of the new rule in these exceptional cases out­weighs the constitutional rights of aggrieved citizens to seek redress. See Tex. Const. art. I, § 15; art. V, § 10. Accordingly, I dissent.

JUSTICE BAKER, dissenting.

I agree with the basic concept of a no-evidence motion for summary judgment. However, I cannot agree with the rule that the Court adopts today. I am concerned that the Court ignores its own Supreme Court Advisory Committee's recommendations and promulgates a rule of its own choosing. In doing so, the Court eliminates the balance, fairness and safeguards the Committee's recom­mendations provide. Consequently, I respectfully dissent.

The Advisory Committee's Recommendations - The Court's Rule

The Supreme Court Advisory Committee consists of trial and appellate judges and seasoned practitioners on both sides of the docket - all appointed by this Court. After debate over a period of months, that committee made four substantive recommendations for the proposed no-evidence summary judgment rule to the Court. They are:

That a party may file a no-evidence summary judgment motion "(1) after expiration of an applicable discovery period, or (2) if there is no applicable discovery period, after a period set by the Court."

That a party filing a no-evidence summary judgment motion must file a "certificate that the movant's attorney has reviewed the discovery and that, in the attorney's opinion, the discovery reveals no evidence to support the specified elements."

That to raise a material fact issue, a respondent to a no-evidence summary judgment must produce "summary judgment evidence or discovery product or other material that can be reduced to summary judgment evidence."

That the rule provide for sanctions—so: "If a motion under this subdivision is denied, and the court finds that the motion did not have an objectively reasonable basis when it was filed, the court may award reasonable attorney's fees to the respondent for defending the motion."

The Court rejects these recommendations, and unwisely so, I believe.

Instead, the rule the Court promulgates provides that:

"After adequate time for discovery" a party may 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 trial court must grant the motion unless the respondent produces "summary judgment evidence" raising a genuine issue of material fact.

The rule the Court promulgates omits the Committee's recommended certificate of no-evidence and sanctions in the form of attorney's fees for defending a motion that had no objectively reasonable basis when filed.

When to File

I believe the Committee's recommendation, establishing a bright line test for the benefit of the bench and bar, is preferable to the discretionary lan­guage the Court adopts. The Committee's recommendation avoids the necessity to determine whether the respondent has had "an adequate time for discovery." The Committee's recommendation avoids the uncertainty that would result from the appellate courts' frequently unpredictable application of the abuse of discretion standard to a trial judge's determination of '"an adequate time for discovery."

The Committee's recommendation permits the trial court the opportunity to issue a pre-trial or other order setting a date after which a party could file a no­evidence motion for summary judgment. Such an order could be entered on a party's motion or a trial court's own initiative. If a respondent has not had adequate time for discovery the trial court could grant a continuance upon the particularized discovery needed to meet a no-evidence motion.

Summary judgment Proof

The Committee's recommendation is broader than the Court's promulgated language. The transcripts of the Com­mittee's meetings show that its membership was not in agreement about the definition of '"summary judgment evidence" in the context of responding to a no-evidence summary judgment motion. However, I agree with those Committee members that believe that '"summary judgment evidence" means all the materials specifically identified in Rule 166a(c) plus all other discovery products with probative value referred to in Rule 166a(d). See Tex. R. Civ. P. 166a(c), (d). The Committee's recommendation accomplishes that object while the Court's language does not.

Certificate of No-evidence

The Committee's recommendation provides for the movant's attorney to certify that all discovery has been reviewed and that in the attorney's opinion, the discovery reveals no evidence to support the specified elements of the claim or defense. The Court rejects that language. I believe the Committee's recommendation serves a salutary purpose.

The Committee's recommendation would act as a deterrent to abuse of the no-evidence summary judgment rule and curb the filing of frivolous no-evidence emotions. Given the costs of an appeal relative to the costs of a no-evidence motion, disincentives in the form of the Committee's recommended language should be included in Rule 166a(i). To do so would prevent a flood of no-evidence motions that would further burden our already overburdened trial and intermediate appellate courts. Neither our trial or intermediate appel­late courts have the discretion to refuse to consider frivolous matters, and nei­ther have the resources to handle a new deluge of any variety.

Sanctions

The Committee's recommendation provides the trial court the express authority to assess attorney's fees against the movant if, when denying a no-evidence motion, the trial court finds the motion had no objectively reasonable basis when filed. The Court rejects that language, and chooses to provide only in the comment that a Rule 166(i) motion is subject to sanctions provided by existing law and rules.

The Committee's recommended lan­guage is based upon an objective standard. Thus, the Committee's recommendation avoids the unwieldy burden facing trial judges of determining subjective intent in sanction motions hearing. The Committee's recommended language provides for the limited sanction of the respondent's reasonable attorney's fees for defending the motion, 1 rather than the broad array of sanctions available under "existing law and rules." Placing the sanction authortty and the sanction available in the Rule itself clearly establishes the standard that applies to the trial court's exercise of its discretion and the limits of the exercise of that discretion.

The Order and the Comment

The Court's Order of Final Approval of Rule 166a(i) states that the comment '"unlike other notes and comments to the rules is intended to inform the construction and application of the rule." The opening sentence of the comment makes that statement. I am the second junior justice on the Court, and therefore my institutional knowledge is necessarily limited. However, I am informed by justices senior to me that the quoted language has never been included in a comment to the Rules.

In my view, this unprecedented language in the comment does not correct what I believe is the fault of the rule the Court adopts. The Comment does not achieve the balance, fairness and safe­guards that would result from including the Committee's recommendations in the rule itself.

Conclusion

As stated, I am concerned about why the Court continues to use the Supreme Court Advisory Committee with the resultant expenditure of time, effort,s and money by its own appointed members, when all recent indications suggest the Court prefers to write its own rules without outside assistance. While I agree with the concept of a no-evidence summary judgment rule, for the reasons expressed, I do not agree with the specific rule the Court adopts today.

I dissent.

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1. I suggest that the Committee's recommendation does not go far enough. The trial court should also have the authority to order the unsuccessful movant to reimburse the respondent's actual reasonable and necessary costs incurred in defending the motion.