In Order to Be Granted Summary Judgment on a Claim, a Party Must File a Motion

In Chancery Court litigation, when I’m the movant on a motion for summary judgment, I sometimes describe my potential outcomes as “Win” or “Not Win.”

In short, I’m either going to win my case on summary grounds or not, but, as the moving party, I’m not going to lose the case, unless the other side files their own “counter” motion seeking summary judgment.

The Tennessee Court of Appeals issued an opinion yesterday that confirms this, at Adrian Lynn McWilliams, et. al. v. Brenda Vaughn, et. al. (No. E2017-01942-COA-R3-CV,  Tenn. Ct. App. Jan. 23, 2019).

In that opinion, the Court wrote that, when faced with cross-motions for summary judgment, “a court must rule independently on each motion and determine, with regard to each motion, whether disputes of material fact with regard to that motion exist.” Savage v. City of Memphis, 464 S.W.3d 326, 332 (Tenn. Ct. App. 2015) (citing CAO Holdings, Inc. v. Trost, 333 S.W.3d 73, 82 (Tenn. 2010)). Further, “the denial of one party’s motion for summary judgment does not necessarily imply that the other party’s motion should be granted.” Id. Rather, when considering cross-motions for summary judgment, the court must determine whether each party is “independently entitled to summary judgment.” Id.

To be clear, where one party’s motion for summary judgment is denied does not necessarily mean that the other party is entitled to prevail, even if they filed their own motion. Id. That’s because there are all kinds of factors that go into whether to grant or deny a summary judgment motion.

But, the Court went on to note, where the other side doesn’t file a competing motion, that other, non-moving party is definitely not entitled to an award of summary judgment. Id. In order to be granted summary judgment, you have to be a “moving” party.

So, in the end, keep this opinion handy when you’re preparing for a summary judgment hearing, where the opposing party doesn’t file its own motion. There, it’s a “Win/Not Win” situation for you.


New Court of Appeals Opinion Reminds Litigants to Plead Facts by Affidavit under Rule 56.06

Disclaimer: I read a lot of appellate opinions that might be, but aren’t always, relevant to something I’m working on. Sometimes, I’ll find a blurb on an issue of law that’s useful.

And, then, as you’ve seen before, I’ll post that blurb here, for my later use. (And, I guess, yours.)

I’ve just read yesterday’s opinion in Bank of America v. Calvin Dee Aycock, issued by the Tennessee Court of Appeals on a detainer action that followed an eviction. The pro se defendants lost in Shelby County General Sessions Court, and then appealed the possessory judgment to Circuit Court. The bank filed a Motion for Summary Judgment under Rule 56.

Ultimately, the Court noted the lee-way that pro se litigants get in proceedings, but the Court found their responses to the bank’s properly supported motion to be deficiency. In short, the defendants didn’t specify and demonstrate material facts in opposition to the bank’s motion.

The Court wrote that:

When a properly supported motion for summary judgment is made, “the nonmoving party ‘may not rest upon the mere allegations or denials of [its] pleading,’ but must respond, and by affidavits or one of the other means provided in [Rule 56 of the Tennessee Rules of Civil Procedure], ‘set forth specific facts’ at the summary judgment stage ‘showing that there is a genuine issue for trial.’” [Rye v. Women’s Care Center of Memphis, MPLLC, 477 S.W.3d 235, 265 (Tenn. 2015)] (quoting Tenn. R. Civ. P. 56.06). Summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Tenn. R. Civ. P. 56.04.

That’s the blurb.

When you oppose a Rule 56 motion for summary judgment, you have limited options in response to the moving party’s facts, under Tenn. R. Civ. P. 56.03. One of those is to “demonstrate that the fact is disputed.” Under Rule 56.06, that means you have to provide those facts via affidavit or some other admissible testimony.

The Cure for a B.S. Answer is the Power of a Motion for Summary Judgment

“All litigants have the right to defend themselves,” I tell my clients when I’ve received a B.S. Answer to a Complaint I’ve filed. As you know, I usually represent banks and other creditors, and, frankly, there are not many defenses to the lawsuits I generally file.

I generally have to prove: (1) the Defendant signed the Note; (2) the Plaintiff loaned money; (3) the Defendant didn’t pay the money back; and (4) how much wasn’t paid back.

Sometimes, the defendant calls and simply concedes judgment and, instead, focuses on the real issue at stake (setting a reasonable and “livable” repayment schedule). One of the results of a generally improving economy, however, is that a defendant may not have enough money to repay the debt, but they’ve got enough money to put up a little bit of fight.

In most cases, this involves “delay” tactics. In the Answer, the defendant will raise no real factual or legal defense, but they’ll deny everything, demanding that the plaintiff “prove” the facts.

That’s when I file a Motion for Summary Judgment under Tennessee Rule of Civil Procedure 56, which is a Motion that tells the Court that: (1) the material facts are not disputed (or cannot be disputed); and (2) on those undisputed facts, the plaintiff is entitled to judgment as a matter of law.

In response, a defendant’s broad denial of all facts will not win. Instead, Rule 56.03 says that a defendant must “demonstrate” that an important fact is disputed. If a fact is disputed, the defendant must support the denial with a specific citation to an affidavit or a deposition.   A general denial isn’t enough.

This focus on the need to “demonstrate” that relevant facts are disputed was discussed recently in Discover Bank Issuer of Discover Card v. Layton Howell, III,  No. M2013-00485-COA-R3-CV  (Tenn. Crt. Apps. Nov. 8, 2013).

Keep this case in your tool-box for the next time that a defendant tries to delay the inevitable without concrete facts.