Let's assume that special exceptions one way or another don't apply in your case. Now, the purpose of a trial is to find facts, but sometimes a case does not require a trial. Civil causes of actions consist of elements, as do affirmative defenses. In ordinary language, one might call a proof problem with an element of the plaintiff's case a defense, but strictly speaking, an affirmative defense is something that, if true, even if every element of the plaintiff's case is true, would cause the plaintiff to lose the case.A good, but not completely exhaustive, list of affirmative defenses is at Texas Rule of Civil Procedure 94. A defendant has to plead affirmative defenses in the answer, and certain suspect defenses have to be sworn to in the answer. That rule is TRCP 93.
For right now, I'm not going to talk about partial summary judgments. Just keep in mind here that, as a general rule, you can't appeal a partial summary judgment until the whole case has been disposed of by final judgment. More about that in a future post.
That a case does not have to be tried can come up four ways:
- There is no dispute that a plaintiff's facts are as the plaintiff says, and there is no affirmative defense;
- There is no dispute as to all the elements of an affirmative defense of a case;
- One of the elements that a plaintiff needs to prove the case is demonstrably absolutely false; or
- Proof of one of the elements of the plaintiff's case absolutely cannot be established.
To preserve error in a summary judgment, first, make sure that you've done all your work with the special exceptions. You don't want to win a summary judgment only to have it overturned on appeal because the party resisting the summary judgment didn't get a right to replead, etc. Second, if you are fighting a motion for summary judgment, and it is unclear, you have a duty to file special exceptions on the motion. Now here's the best news of the post: in general, your written response to the motion to summary judgment is all the error preservation you need.
Also. be aware that summary judgments are relatively likely to be reversed on appeal. The standard of review for a summary judgment is de novo. Unlike trial judgments, summary judgments don't get a presumption that they are correct.