Rule 166a Summary Judgment

(a)

(b) Definitions.

(1) A “traditional” motion for summary judgment is a motion that seeks to establish that no genuine issue of material fact exists as to a claim or defense and that the movant is entitled to judgment as a matter of law.

(2) A “no-evidence” motion for summary judgment is a motion that seeks to establish that there is no evidence of an essential element of a claim or defense on which the nonmovant would have the burden of proof at trial.

Motion.

(1) In General. A party may move for summary judgment on a claim or defense. A motion may combine both traditional and no-evidence motions.

(2) Contents.

(A) Title. A motion for summary judgment must be titled “Traditional Motion for Summary Judgment,” “No-Evidence Motion for Summary Judgment,” or “Combined Motion for Traditional and No-Evidence Summary Judgment.” An absent or incorrect title is not grounds for denying the motion.

(B) Hearing Request. If a movant requests an oral hearing on the motion, the request must appear in the title of the motion.

(3)

(C) Traditional Motion. A traditional motion must state the specific grounds in support of the motion and produce any evidence in support.

(D) No-Evidence Motion. A no-evidence motion must state the elements of the claim or defense as to which there is no evidence.

Time to File.

(A) Traditional Motion. Unless a deadline for filing is set by court order, a party may file a traditional motion at any time after the nonmovant has appeared or answered.

(B) No-Evidence Motion. A party may file a no-evidence motion after adequate time for discovery.

(c) Clerk and Court Duties Upon Filing. Upon the motion’s filing, the clerk must immediately call the motion to the court’s attention. The court must set the motion for an oral hearing or submission without an oral hearing according to the deadlines in this rule. The clerk must send notice to the parties of the submission or hearing date.

(d) Response.

(e)

(1) Time to File. Except on leave of court or agreement of the parties, the nonmovant must file a response within 21 days after the motion is filed.

(2) Contents. The nonmovant must produce any evidence in support of the response. If the nonmovant requests a hearing on the motion, the request must appear in the title of the response.

(3) When Evidence Unavailable. If the nonmovant needs additional time to secure evidence in support of the response, the nonmovant must file an affidavit or declaration specifying the reasons why the nonmovant cannot present facts essential to justify its opposition. The court may extend the time to file the response, deny the motion without prejudice to permit additional discovery, or issue another appropriate order.

Reply.

(1) Time to File. The movant may file a reply. Except on leave of court or agreement of the parties, the movant must file the reply within 7 days after the response is filed.

(2) Contents. A reply must not raise new or independent summary judgment grounds but may address a new or amended pleading filed after the motion if a ground initially asserted in the motion negates an element that is common to a claim or defense asserted in the new or amended pleading.

(f) Withdrawal. Any withdrawal of the motion must be filed and must identify the date the motion was filed.

(g) Hearing or Submission.

(1)

(h) Timing. A hearing or submission date must not be set within 35 days after the motion’s filing. Unless the motion is withdrawn, the court must set the motion for a hearing or submission within:

(A) 60 days after the motion’s filing; or

(B) 90 days after the motion’s filing:

(i) if the court’s docket so requires;

(ii) on a showing of good cause; or

(iii) if the movant agrees.

(2) Reset Permitted. The court may reset a hearing or submission date within the time frames specified in this rule.

(3) Proposed Order. The parties must each submit a proposed order before the hearing or submission date.

(4) No Oral Testimony. No oral testimony will be received at a hearing on a summary judgment motion.

(5) Docket. The court must record in the docket the date the motion was heard or submitted.

Standards.

(1) Grounds. No judgment will be granted except on the grounds stated under (b)(2)(C) and (b)(2)(D).

(2) Traditional Motion. The court must grant a traditional motion for summary judgment if the movant shows that, except as to the amount of damages, there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law on the issues expressly set out in the motion.

(3) No-Evidence Motion. The court must grant a no-evidence motion unless the respondent produces summary judgment evidence raising a genuine issue of material fact.

(4) Requested Relief Not Granted. If the court does not grant the relief requested by the motion, the court may ascertain what material fact issues exist, issue an order specifying the facts that are established as a matter of law, and direct any other appropriate proceedings.

(i) Ruling. The court must sign a written ruling on the motion, file it with the clerk, and provide the ruling to the parties within 90 days after the hearing or submission date.

(j) Evidence Produced.

(1) Types of Evidence. Evidence may include:

(A) deposition transcripts;

(B) an opposing party’s pleadings, interrogatory answers, admissions, and other discovery responses;

(C) affidavits and declarations;

(D) stipulations; and

(E) other authenticated evidence.

(2) Evidence Produced by Reference. Evidence may be produced by making a specific reference to it and where it may be found in the court’s file.

(3) Use of Discovery Not Otherwise on File. Discovery not on file may be used as summary judgment evidence if copies of the material, appendices containing the evidence, or a notice containing specific references to the discovery or specific references to other instruments are filed with a statement of intent to use the specified discovery as summary judgment evidence:

(4)

(A) at the time the motion is filed, if the evidence is to be used to support the summary judgment; or

(B) at the time the response is filed, if the evidence is to be used to oppose the summary judgment.

Form of Affidavit or Declaration; Further Testimony. An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify to the matters stated. A document referred to in an affidavit or declaration must be attached and either sworn or certified. The court may permit an affidavit or declaration to be supplemented or opposed by deposition or by another affidavit or declaration. Defects in the form of an affidavit or declaration or its attachments will not be grounds for reversal unless specifically pointed out by objection by an opposing party with opportunity, but refusal, to amend.

(5) Affidavit or Declaration Submitted in Bad Faith. If satisfied that an affidavit or declaration is submitted in bad faith or solely for delay, the court—after notice and a reasonable time to respond—may order the submitting party to pay the other party the reasonable expenses, including attorney’s fees, it incurred as a result. An offending party or attorney may also be held in contempt or subject to other appropriate sanctions.

(6) Late-Filed Evidence. The court may consider late-filed evidence if the court indicates its consideration in the record.