Effective September 1, 1997, the Texas Supreme Court adopted TEX. R. CIV. P. 166a(i), which reads as follows:
This amendment to Rule 166a authorizes a motion for summary judgment to be filed based on the contention that (1) there has been an adequate opportunity for discovery and (2) there is no evidence to support one or more elements of the adverse party's claim(s) or defense(s).
The Good
This rule change is good news for the summary judgment movant because, unlike Rule 166a(c), the movant is not required to prove that there is no genuine issue as to any material fact. Instead, Rule 166a(i) shifts the burden to the nonmovant to produce evidence establishing a genuine issue of material fact. If the nonmovant fails to produce such evidence, the court must grant the motion for summary judgment.
Texas Supreme Court Chief Justice Thomas R. Phillips, in the October 1997
issue of the Texas Bar Journal, assures us that "the burden
will never shift to the non-movant to establish a fact issue until there
has been an adequate opportunity for discovery, which ordinarily will not
occur until after the close of any court-ordered discovery period."
(emphasis added).1
The Bad
Despite Chief Justice Phillips' assurances, and the Court's comment to the rule that "ordinarily a motion under paragraph (i) would be permitted after the [discovery] period but not before," the ambiguous language of the rule itself leaves a trial judge with no objective standard for determining whether there has been an "adequate time for discovery." This, in all likelihood, will lead to a barrage of premature motions under Rule 166a(i) by defense counsel, which no doubt will be countered by a strategy of early, all-encompassing discovery by plaintiffs' attorneys. These tactics will require trial courts to spend even more time on their least favorite chore of resolving pretrial discovery-related matters.
The hardships that may be created by Rule 166a(i) will not rest solely on
the backs of trial courts, as appellate courts are likely to see their fair
share of these motions on appeal. And let us not forget the client, the
one who bears the burden of paying for it all because the attorney either
(a) feels obligated to file a no-evidence summary judgment motion as part
of a standard defense tactic, or (b) feels obligated to conduct widespread
discovery at an unprecedented rate to defeat a Rule 166a(i) motion and to
avoid being at the mercy of a subjective opinion about whether there has
been adequate time for discovery.
The Uncertainty
The uncertainty of Rule 166a(i) is the effect it will have on summary judgment rulings in the future. The First Court of Appeals demonstrated this uncertainty in Pena v. Phan Son Van2, which preceded the effective date of Rule 166a(i) by eleven days. The trial court granted summary judgment for the defendant, and the court of appeals reversed. In the opinion, Justice Michol O'Connor speculated about the likelihood that the court of appeals would have affirmed the trial court's ruling had this been a no-evidence motion for summary judgment filed after September 1, 1997.
Pena stems from the brutal sexual assault and murder of Elizabeth
Pena, 16, and Jennifer Ertman, 14, by six gang members (five of whom were
minors at the time), when the girls happened upon the gang's initiation
ceremony late one night. The plaintiffs allege the defendant, Phan Son Van,
Individually and d/b/a P-One Food Store, was negligent in selling alcohol
to the gang members because they were minors or were visibly intoxicated
at the time. The defendant moved for summary judgment on the ground that
his conduct did not proximately cause the assault and murder of the girls
because "the assailants' criminal actions were an unforeseeable, superseding
cause as a matter of law."3 As support for this
argument, the defendant offered summary judgment evidence of the indictments
and judgments of conviction against the gang members. The plaintiffs responded
that such evidence was insufficient to meet the defendant's burden of proving
an unforeseeable, superseding criminal act and the court of appeals agreed.
Justice O'Connor observed:
To use the words from Texas Supreme Court Justice Rose Spector's dissenting opinion on the final approval of revisions to Rule 166a(i), the greatest uncertainty of the no-evidence summary judgment rule is that it "creates a serious risk that meritorious lawsuits will be summarily dismissed."5 It remains to be seen how the Courts of Appeal and the Texas Supreme Court interpret this new rule and whether Justice Spector's concerns are proven true.
Endnotes
1. 60 Tex. Bar J. 862 (October 1997).
2. Pena v. Phan Son Van, No. 01-96-00688-CV (Tex. App. - Houston [1st Dist.] 1997, n.w.h.) (not yet reported).
3. Id., at 78.
4. Id., at 7716 and 21.
5. Final Approval of Revisions to Tex. Rules of Civ. Proc., Misc. Docket No. 97-9134 (Tex. 1997) (not yet reported); 60 Tex. Bar J. 873 (October 1997).
Paula Christie Cohen, CLAS, received her bachelor of science degree in political science from the University of Houston and is a legal assistant with the law firm of Moerer & Burton, L.L.P. She is a certified legal assistant specialist (litigation) through NALA, is board certified in civil trial law by the Texas Board of Legal Specialization, and is a "Houston Professional Legal Assistant," having met the criteria for such designation by the Houston Legal Assistants Association. She is a member of the Houston Legal Assistants Association, NALA, and the Legal Assistants Division of the State Bar of Texas.