SUMMARY JUDGMENTS IN TEXAS

1 SUMMARY JUDGMENTS IN TEXAS . DAVID F. JOHNSON, Fort Worth Winstead PC. State Bar of TEXAS CIVIL APPELLATE PRACTICE 101. September 4, 2019. Austin CHAPTER 4. DAVID FOWLER JOHNSON. 300 Throckmorton, Suite 1700. Fort Worth, TEXAS 76102. (817) 420-8223. BOARD CERTIFICATIONS: *Board Certified Civil Appellate Law, Civil Trial Law, and Personal Injury Trial Law TEXAS Board of Legal Specialization AWARDS AND HONORS: * Named One of Tarrant County's Top Attorneys by Fort Worth's 360 West Magazine in 2017- 2019. * Named as a Best Lawyer in America in 2013-2019. * Named by Fort Worth TEXAS Magazine as One of Tarrant County's Best Lawyers in 2004-2019.

2 * Named by TEXAS Monthly as a Super Lawyer in 2013-2019. * Named by TEXAS Monthly as a TEXAS Rising Star in 2004, 2006-2012. * Named One of Fort Worth Business Press's Power Attorney in 2014. * Named One of D Magazine's Best Lawyers Under 40 in Dallas in 2004, 2006, 2007. * Named One of D Magazine's Best Lawyers in Dallas for appellate law in 2008-2010. * Named One of Fort Worth Business Press's Forty Under Forty in 2003. * Named Top Author in 2016 and 2019 in JD Supra's 2017 Readers' Choice Awards CURRENT LEGAL EMPLOYMENT: *Managing Shareholder of Winstead PC's Fort Worth Office -Civil Appellate and Trial Practice EDUCATION: Baylor University School Of Law, Waco, TEXAS , Juris Doctor, Magna Cum Laude, 1997.

3 Baylor University, Waco, TEXAS , in Accounting, 1994. ARTICLES AND CLE MATERIALS: David has published over twenty (20) law review articles on topics including experts, SUMMARY JUDGMENTS , charge practice, preservation of error, voir dire, and other topics. David's articles have been cited as authority by federal courts, the TEXAS Supreme Court, the TEXAS courts of appeals located in Waco, Texarkana, Tyler, Beaumont, and Houston, and cited by McDonald and Carlson in their TEXAS Civil Practice treatise and William V. Dorsaneo in the TEXAS Litigation Guide and in the Baylor Law Review, South TEXAS Law Review, and the Tennessee Law Review.

4 David has presented and/or prepared written materials for over hundred and fifty (150) continuing legal education courses. SUMMARY JUDGMENTS in TEXAS Chapter 4. TABLE OF CONTENTS. I. INTRODUCTION .. 1. II. SUMMARY JUDGMENT GROUNDS .. 1. A. Traditional Motion For SUMMARY Judgment .. 1. B. No-Evidence Motion for SUMMARY Judgment .. 3. C. Pleadings To Support Ground For SUMMARY Judgment .. 5. D. Newly Plead Claims .. 5. III. SUMMARY JUDGMENT RESPONSE .. 6. IV. SUMMARY JUDGMENT REPLY .. 7. V. MOTION FOR NEW 7. VI. TRIAL COURT'S STANDARD OF REVIEW .. 8. A. Traditional SUMMARY Judgment .. 8. B. No-Evidence Motion.

5 10. 1. Historical Standard .. 10. 2. City of Keller's Reasonable Juror 11. C. Scope of Review For SUMMARY Judgment 12. 1. Scope of Review For Traditional Motions for SUMMARY 12. 2. Scope of Review For No-Evidence Motion for SUMMARY Judgment .. 13. VII. TIMING ISSUES REGARDING MOTION, RESPONSE, REPLY AND HEARING .. 16. VIII. DISCOVERY AFTER INTERLOCUTORY SUMMARY 19. IX. PRESERVATION OF ERROR .. 19. A. Preserving Error On Grounds Asserted In Denied SUMMARY Judgment Motion .. 19. B. Preserving Error Regarding Objections to SUMMARY Judgment Evidence .. 19. C. Preserving Error Regarding Objections To The Non-Disclosure of Experts.

6 21. D. Preserving Error Regarding Adequate Time for Discovery .. 22. E. Preserve Complaint Regarding Opponent's Failure to Produce Evidence in Discovery .. 23. F. Preserve Complaint Regarding Notice of Hearing .. 23. G. Preserving Right To Correct Defects In Evidence .. 23. X. FINALITY OF SUMMARY JUDGMENT ORDERS .. 24. A. Mafrige v. Ross, 866 590 (Tex. 1993).. 24. B. Reversal of 25. C. Challenging Interlocutory SUMMARY JUDGMENTS .. 28. XI. STANDARDS OF APPELLATE REVIEW .. 28. A. Order Of Review .. 28. B. Traditional SUMMARY Judgment .. 28. C. No-Evidence SUMMARY Judgment .. 28. D. Harmless Error Standard.

7 30. E. Standards of Review Over Adequate Time For Discovery, Evidence Objections, And Motions For Continuance .. 30. XII. APPEAL OF DENIAL OF SUMMARY JUDGMENT MOTION .. 31. XIII. MANDAMUS OF RULINGS ON SUMMARY JUDGMENT 32. XIV. STANDARD FOR CHALLENGING A DEFAULT SUMMARY JUDGMENT .. 36. i SUMMARY JUDGMENTS in TEXAS Chapter 4. XV. SUMMARY JUDGMENT RECORD .. 36. XVI. ADVERSE EFFECTS FROM MOTIONS, RESPONSES, OR EVIDENCE MISSING FROM THE. RECORD .. 37. A. Historically .. 37. B. Currently .. 37. XVII. ADVERSE EFFECTS DUE TO APPELLATE BRIEFING INADEQUACIES .. 39. A. Duty To Appeal 39. B. Appellate Court May Not Sua Sponte Raise Grounds To Reverse But Must Liberally Construe Briefs.

8 39. C. Specific JUDGMENTS Versus General JUDGMENTS .. 40. 1. General Definitions .. 40. 2. A Party Should Look to the Actual Order Granting SUMMARY Judgment .. 40. D. Specific 40. 1. If The Trial Court Grants The SUMMARY Judgment Motion On A Ground That Is Not In The Motion, The Appellant Should Object To The Trial Court Doing So.. 40. 2. Appellate Courts May Affirm On Any Ground In Motion .. 41. E. General JUDGMENTS .. 43. 1. Specific Points of Error Versus General Points of Error .. 43. 2. Specific Points of Error .. 43. 3. General Points of 44. 4. Criticism of General Points of Error .. 47. 5. How to Raise and Brief a Proper Point of Error.

9 47. F. Appellee's Duty To File 47. XVIII. CONCLUSION .. 48. ii SUMMARY JUDGMENTS in TEXAS Chapter 4. SUMMARY JUDGMENTS IN TEXAS . I. INTRODUCTION. SUMMARY judgment motions are common place in almost any civil suit in TEXAS . Whether seeking dismissal of the entire case or seeking the dismissal of some (but not all) claims or defenses, parties routinely file motions for SUMMARY judgment. Therefore, almost all attorneys will eventually find themselves asking an appellate court to either affirm or reverse a SUMMARY judgment. When in that position, an attorney needs to be aware of a multitude of issues that can drastically affect the fate of the SUMMARY judgment.

10 This article attempts to address some of the common issues that arise in SUMMARY judgment practice. II. SUMMARY JUDGMENT GROUNDS. A SUMMARY judgment appeal will stand or fall on two main components: 1) the grounds asserted in the motion;. and 2) whether the evidence was sufficient to create a fact issue in reference to the grounds. Science Spectrum v. Martinez, 941 910 (Tex. 1997). Accordingly, whether the grounds were properly asserted and what grounds were asserted are very important factors in appealing a SUMMARY judgment. Id. A. Traditional Motion For SUMMARY Judgment The movant must expressly state the specific grounds for SUMMARY judgment in the motion.