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Reading is difficult. As a writer, I help the reader every way I can think of. As a reader, I work hard not to miss the big things in the middle of the road.

Sunday, January 11, 2015

So You Want to Appeal a Texas State Summary Judgment?

A trial is a determining of controverted facts and law. Usually both sides agree on the law, but don't generally agree on the facts. If the facts of a case are agreed, both sides can submit their view of the law to a judge, and the judge can issue a final judgment. (Why can't one of the sides get a jury?  Because a jury's job is to decide fact disputes. No fact disputes? Then no need for (and no right to) a jury.)
Let's say a lawsuit is filed Lawsuit A-- one side says that a factual dispute exists between the parties about one of the elements of a case  and the other side says that any factual disputes are not about any of the elements of the cause of action. That other side asks for the judge to rule that there are no factual disputes about any of the elements of the case, so that no factual determination is required, just a final decision on the law. If the judge grants the motion that there are no factual disputes in the case. The judge will enter a final judgment which one or the other parties may appeal. In Lawsuit B a judge may grant a summary judgment because a defense is proved as a matter of law such that no trial is needed. In Lawsuit C a state summary judgment that can be granted because-- after a reasonable time for discovery a side propounding a cause of a cause of action or a vital defense have not come up with more than a scintilla of evidence in favor of the element or defense..
There need not be oral hearings as to whether or not a summary judgment motion or similar motion should be granted.
As you recall, generally, judgments can not be appealed unless they are final.
Really good trial judges check the pleadings and interlocutory rulings and nonsuits of all parties and make sure not to close a trial file unless every issue for every party has been adjudged or dismissed. Judges often put in a judgment that they intend to be final and appealable "This is a final judgment," and "All relief not granted is denied." This last sentence is especially clever: any element of the litigation or any party in the litigation that might have been forgotten now has an appealable ruling!
You can imagine that frequently, the party that wanted the trial might want to object or a party to a law dispute may want to appeal the trial court's law ruling.
As in any non-interlocutory appeal, if the lower court's judgment is not final, the higher court lacks jurisdiction over the matter. If the higher court finds that it does not have jurisdiction over your matter then you case is on the fast track to Loserville.
Surprisingly, there is a line of authority that says that determining the finality of a judgment should not be a big deal. That, for example, if a lower court judgment is issued under circumstances that would make a reasonable outsider think that the judgment is supposed to be a final judgment-- that is, at the end of super-comprehensive, but not completely comprehensive, bench trial or jury trial, that even though it left out some early parties who dropped out of the case, though technically some of their causes of action were still pending, evidence of finality is close enough for government work. I know that I am not the only appellate lawyer to think that these cases make bad precedent. If it is not as clear as glass whether or not a court has jurisdiction, we lawyers cannot give reliable advice to our clients, and it opens appellate courts to the appearance of requiring absolute finality for disfavored parties and giving a pass to favored ones.
Practice tip one: if a proposed appeal comes to your desk less than 30 days after the judgment, do what the trial judge should have done in the first place: check the pleadings and interlocutory rulings and nonsuits of all parties and check whether every issue for every party has been adjudged or dismissed. If any have been left out, consider a motion for a trial on those issues or a motion to dismiss those issues, or even a motion for summary judgment. Consider this even if the judgment proposed to be appealed is old, even very old. Remember, generally, the appellate deadlines do not begin to run until there is a final judgment, and if a suitable judge or panel rule that the judgment is not final, the clock has not begun to run at all. 
 It is highly unlikely that any harmful error will be found nor any appellate relief granted unless the appellant made it clear in a timely written response to the motion for summary judgment what the error. If the motion for summary judgment is unclear, special exceptions must be filed to the motion. In response to the special exceptions for the motion, the judge may give the summary judgment movant a chance to replead.  Sometimes the movant repleads, and the respondent specially excepts to mistakes that were not fixed. A motion will generally be dismissed only if repeated efforts fail to produce understandable and reasonably complete motion points fail.

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