Motion for Partial Summary Judgment in Texas

What Is a Motion for Partial Summary Judgment?

Background

“A partial summary judgment is a decision on the merits and becomes final upon the disposition of the other issues in the case.” (Ginn v. NCI Building Systems, Inc. (2015) 472 S.W.3d 802, 826 citing Newco Drilling Co. v. Weyand (1998) 960 S.W.2d 654, 656.)

A trial court's dismissal of a plaintiffs' case for want of prosecution following the rendition of the partial summary judgment results in a dismissal with prejudice of those issues already adjudicated in the partial summary judgment and a dismissal without prejudice of those issues not covered in the partial summary judgment. (Newco Drilling Co., supra, 960 S.W.2d at 656.)

Because a partial summary judgment that the trial court does not vacate is made final and appealable upon signing of a dismissal for want of prosecution, the court of appeals errs [where it fails] to review the merits of the trial court's grant of the defendants' summary judgment. (Id., citing Mossler v. Shields (1991) 818 S.W.2d 752, 754 [stating “[I]t is well established that a dismissal with prejudice functions as a final determination on the merits.”); see also Pan Am. Petroleum Corp. v. Texas Pac. Coal Oil Co. (1959) 159 Tex. 550, 324 S.W.2d 200, 201 [stating “[A] party against whom . . . an interlocutory summary judgment has been rendered will have his right of appeal when . . . the same is merged in a final judgment disposing of the whole case.”)

How to Structure the Motion

“The motion for summary judgment shall state the specific ground therefor. Except on leave of court, with notice to opposing counsel, the motion and any supporting affidavits shall be filed and served at least twenty-one days before the time specified for hearing. (International Ins v. Herman G West (1983) 649 S.W.2d 824, 825 citing Tex.R.Civ.P. 166-A(c).)

Arguments and Burdens of Proof

The movant for traditional summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. (Humphries v. Humphries (2011) 349 S.W.3d 817, 821 citing Tex.R. Civ. P. 166a(c); Nixon v. Mr. Property Mgmt. Co. (1985) 690 S.W.2d 546, 548.)

When the movant seeks summary judgment on a claim in which the nonmovant bears the burden of proof, the movant must either negate at least one essential element of the nonmovant's cause of action or prove all essential elements of an affirmative defense. (See Randall's Food Mkts., Inc. v. Johnson (1995) 891 S.W.2d 640, 644.)

When the movant seeks summary judgment on a claim in which the movant bears the burden of proof, the movant must prove all essential elements of the claim. (Winchek v. Am. Express Travel Related Servs. Co. (2007) 232 S.W.3d 197, 201.)

Response

“Except on leave of court, the adverse party, not later than seven days prior to the day of hearing may file and serve opposing affidavits or other written response. No oral testimony shall be received at the hearing.” (International Ins v. Herman G West (1983) 649 S.W.2d 824, 825 citing Tex.R.Civ.P. 166-A(c).)

After a party has been served with notice of a motion for [partial] summary judgment in one term of court the motion may be heard at the later term without service of another notice. All that is required is reasonable notice of the hearing thereon. (International Ins v. Herman G West (1983) 649 S.W.2d 824, 825 citing Thurman v. Fatherree (1959) 325 S.W.2d 183 (actual notice of 8 days to adverse party held sufficient).)

Arguments and Proofs

Once the movant has established a right to summary judgment, the burden of proof shifts to the nonmovant to respond to the motion and present to the trial court any issues that would preclude summary judgment. (See City of Houston v. Clear Creek Basin Auth. (1979) 589 S.W.2d 671, 678–79 (Tex.1979).

Severance After Partial Summary Judgment

A summary judgment which does not dispose of all the issues of a case is interlocutory and not appealable unless the trial court has severed that part of the case. (Hubbard Office World, Inc. v. Jay (1979) 580 S.W.2d 55; Clabaugh v. City of Tyler, 531 S.W.2d 152.)

When a severance is granted, as in this case, the judgment in the severed portion of the case is final for purposes of appellate jurisdiction. However, the order of severance may be set aside on appeal, thereby rendering the order granting the partial summary judgment interlocutory and nonappealable. (Schieffer v. Patterson (1968) 433 S.W.2d 418; Pierce v. Reynolds (1959) 160 Tex. 198, 329 S.W.2d 76.) The partial summary judgment may be appealed when, but not before, it is merged into a final judgment disposing of the whole case. (Rutherford v. Whataburger, Inc. (1980) 601 S.W.2d 441; Clabaugh v. City of Tyler, 531 S.W.2d at 155.)

Tex.R.Civ.P. 41 provides that “any claim against a party may be severed and proceeded with separately.” The trial judge is given broad discretion in ordering a severance, and his order will not be overruled unless he has abused his discretion. Although a severance is sometimes ordered merely to expedite appellate review of a partial summary judgment, that reason alone is not grounds to find an abuse of discretion if the claim is properly severable. (See Cherokee Water Co. v. Forderhause (1982) 641 S.W.2d 522, 526.)

Grounds for Severance

A claim is properly severable if:

the controversy involves more than one cause of action,
the severed claim is one that would be the proper subject of a lawsuit if independently asserted, and
the severed claim does not involve the same facts and issues.

(Saxer v. Nash Phillips-Copus re (1984) 678 S.W.2d 736, 739 citing Straughan v. Houston Citizens Bank Trust (1979) 580 S.W.2d 29.)

The Court’s Decision

In Hyundai Motor Co. v. Alvarado, the issue was whether a partial summary judgment survives a nonsuit. (Hyundai Motor Co. v. Alvarado (1995) 892 S.W.2d 853, 854.) the court held that “when a defendant obtains a partial summary judgment on certain of the plaintiffs' causes of action and the plaintiff thereafter moves for a nonsuit as to the whole case, that nonsuit results in a dismissal with prejudice as to the issues decided in the partial summary judgment.” (Id.)

Appeal of Partial Summary Judgment

“Summary judgment, unlike a judgment signed after a trial on the merits, is presumed to dispose of only those issues expressly presented, not all issues in the case. A summary judgment that fails to dispose expressly of all parties and issues in the pending suit is interlocutory and not appealable unless a severance of that phase of the case is ordered by the trial court; in the absence of an order of severance, the party against whom an interlocutory summary judgment has been rendered has his right of appeal when and not before such partial summary judgment is merged in a final judgment disposing of all parties and issues.” (City of Beaumont v. Guillory (1988) 751 S.W.2d 491, 492 citing Teer v. Duddlesten (1984) 664 S.W.2d 702, 704.)

Documents for Motion for Partial Summary Judgment in Texas

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ELIZABETH ORTEGA vs. STEVEN BARRETT, et al document preview

DEF REPLY IN SUPPORT OF NO EVIDENCE MOTION FOR PARTIAL SUMMARY JUDGMENT - …

3 pages