Second Bites At The Apple: Appellate Issues in Dispositive Motions

All litigators file or respond to dispositive motions, including motions for summary judgment. Dispositive motions are an opportunity for trial attorneys to implement their trial strategy, using the facts in our cases to gain a tactical advantage, whether by eliminating claims or defenses, educating the judge, or poisoning the well. But dispositive motions also require litigators to consider their appellate strategy and to draft and argue motions and responses so that they are in the best position possible on appeal.

If (1) you are a trial attorney who responded to a summary judgment, (2) you lost; (3) your client wants to appeal the trial court’s ruling; and (4) you have limited experience filing appeals, I wrote this post, and the next, for you.

Your appellate strategy can be as simple as answering three questions: (1) Whose burden was it? (2) Is the necessary evidence in the record and in admissible form? (3) How do I actually file an appeal from an adverse summary judgment? This post will address the first question. The next post will address the others.

            Burden, Burden, Who’s Got the Burden?

You know this rule: the movant bears the burden of proving she is entitled to judgment in a traditional motion for summary judgment.[1] Once the movant meets her burden –demonstrates her entitlement to the relief sought –the burden switches to the non-movant to prove a defense or the existence of a fact issue, precluding summary judgment.

However, you can appeal an adverse summary judgment by simply arguing that the movant or non-movant did not meet her burden.[2] Your first appellate point should address the movant’s failure to meet her burden of proof. Your brief should identify the elements at issue in the motion, and the movant’s proof or lack thereof. Your entire brief can simply analyze the elements and the offered proof through the prism of the movant’s failure to meet her burden.

If you are appealing from a summary judgment that you did not respond to in the trial court, you can argue that the movant failed to meet her burden because her evidence was legally insufficient. And you can make this argument for the first time on appeal.[3]  Although the better practice is to raise this ground in the trial court, mistakes happen. Fortunately, legally insufficient evidence requires reversal of a summary judgment, regardless whether you raised it in the trial court.

In summary, your appellate brief can be as simple as a single point demonstrating the other side’s failure to meet its burden. It may be the only appellate point you need.

My next installment in this series will address getting your evidence in and keeping the other side’s out, amending your petition, and filing an appeal from an adverse summary judgment.

[1] Tex. R. Civ. P. 166a

[2] Tempest Broad. Corp. v. Imlay, 150 S.W.3d 861, 870 (Tex. App.—Houston [14th Dist.] 2004, no pet.); Hoke v. The Campbell Group, LLC, No. 13-14-00215-CV, 2016 WL 1633076 (Tex. App. – 2016, no pet. h.)(mem. op.); Wooley v. Schaffer, 447 S.W.3d 71, 76 (Tex. App.–Houston [14th Dist.] 2014, pet. denied).

[3] City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979).