Peter Smythe, P.C.

The sum­mary judg­ment motion usually pre­sents a moun­tain of a pro­blem for the busy trial law­yer. The motion is often filed towards the lat­ter half of the dis­co­very period and the trial law­yer must draft a res­ponse in addi­tion to his other duties of inter­vie­wing wit­nes­ses, taking depo­si­tions, atten­ding media­tions, and all of the various things that go in to pre­pa­ring a case for trial. The appe­llate court is the last thing on his mind. But it shouldn’t be.

If he fails to any objec­tions in his res­ponse to the movant’s motion or evi­dence, on appeal he’ll only be allo­wed to argue that the grounds pre­sen­ted for sum­mary judg­ment are insuf­fi­cient as a mat­ter of law to sup­port the sum­mary judg­ment. Road­side Sta­tions v. 7HBF, Ltd., 904 S.W.2d 927, 932 (Tex. App. — Fort Worth 1995, no writ). Con­se­quently, he must not only file a suf­fi­cient res­ponse, he must objec­ti­vely comb through the movant’s motion for any pos­si­ble objec­tions. Do the affi­da­vits con­tain facts that would other­wise be admis­si­ble at a con­ven­tio­nal trial? Has the movant ade­qua­tely and accu­ra­tely refe­ren­ced mate­rials that are already on file with the court? Is the evi­dence based on hearsay?

If there is objec­tio­na­ble mate­rial in the motion, the trial law­yer should do all he can to pre­serve his objec­tions on the record and this is where many law­yers fail. His objec­tions to for­mal defi­cien­cies in the sum­mary judg­ment proof should be in wri­ting or he risks wai­ver on appeal (subs­tan­tive defi­cien­cies can be rai­sed for the first time on appeal). And he should ask the court to make writ­ten rulings on the objec­tions. In seven courts of appeal in Texas, if he doesn’t secure a writ­ten ruling on his objec­tions, they are con­si­de­red wai­ved. See e.g., Ste­wart v. San­mina Tex. L.P., 156 S.W.3d 198, 206 – 07 (Tex. App. — Dallas 2005, no pet.).

(Part of a ten-​part series entit­led Trial Law­yers’ Top Ten Appe­llate Mis­ta­kes)

You might also like:

• Sun­dance Resour­ces: The Impor­tance of Pre­ser­ving Error in Sum­mary Judgment
• Rip­ped from the Head­li­nes: A Juris­dic­tio­nal Rewrite
• Trial Law­yers and Appe­llate Writing
• An Appe­llate Rew­rite — Sum­mary of Argument
• iTu­nes: The Best Adver­ti­sing for New Coun­sel on Appeal