Monday, November 11, 2013

TRCP 166a - The Summary Judgment Rule in Texas State Courts


All motions for summary judgment in Texas courts (not federal courts, which have their own summary judgment rule under the federal rules of procedure) are governed by Rule 166a of the Texas Rules of Procedure; cited as Tex. R. Civ. P. 166a.

The lower-case letter 'a' next to the number 166 suggests the summary judgment rule is a subsection of Rule 166, but that is not so. The summary judgment rule is a separate rule, and a very important one at that. Rule 166 (sans 'a') deals with another pre-trial matter: PRETRIAL CONFERENCE. The reason for the counter-intuitive numbering was presumably to have the summary judgment rule appear in the proximity of other rules relating to pretrial procedure.

Rule 166a - Image of first two (sub) sections:
(a) for Claimant, and (b) for Defending Party
There are other instances were the lower-case 'a' denotes a separate rule, rather than a subsection of the rule with the same number that precedes it, e.g. the DWOP rule (Rule 165a) or the recusal rule (Rule 18a). Rule 165a addresses dismissal for want of prosecution while rule 165 covers abandonment of claims or defenses. Rule 18a governs recusals and disqualification of judges while Rule 18 deals with nonavailability of judge as a result of events such as death or resignation before expiration of the term of office.


Traditional motions are governed by subsection (c) of the summary judgment rule while no-evidence motions are addressed in subsection (i).  Based on the location within the Texas Rules of Civil Procedure, a motion for summary judgment may be titled a Motion for Summary Judgment under Rule 166a(c) or Rule 166a(i). But the title of a motion does not control; the substance does.  -- > Misnomered motions. Some attorneys even file motions for summary judgment without expressly saying under which subsection of the rule. Other invoke both subsections as grounds for summary judgment. Those motions are called hybrid motions or "combined" motions.


Rule 166a does not actually use the word TRADITIONAL to refer to this subtype of motion; nor does it make the distinction between plaintiff and defendant. Instead it uses the term "Claimant" and "Defending Party". The apparent reason for this is that there may be more parties than just the plaintiff and defendant, any of whom could file a summary judgment motion. After all, the rules are general and cover a wide and diverse spectrum of civil cases.

Rule 166a(i), the no-evidence rule, does use the term phrase "no evidence" and authorizes such a motion against anyone who has the burden of proof on a claim or a defense. The party that has the burden of proof has such burden on all of the essential elements (though that burden may be met on undisputed elements by judicial admission or stipulation); but a no-evidence motion may target just a single essential element. It need not attack all. Indeed, it may be counterproductive to do so because it will not be credible if there is no question that the plaintiff has some evidence, such as the contract that is actually attached to its pleadings.


The term "claimant" for purposes of traditional summary judgment motions is broader and encompasses third parties, cross-claimants, and defendants who assert a counterclaim. Correspondingly, a party may face claims from different types of opponents, not only from the plaintiff. A plaintiff becomes a defendant (counter-defendant) with respect to any counterclaim asserted by the original defendant, who thereby assumes the posture of counter-plaintiff. Cross-claims can also be asserted and third parties may be brought into a lawsuit, or may chose to get involved under the rule governing interventions, subject to being booted out as interlopers on motion of any party.

That said, the additional scenarios that justify the use of the broader terms in Rule 166a  rarely occur in debt collection cases involving unsecured bank debt.

The most common scenario in a debt collection case involving a consumer is one plaintiff (either the original creditor or a debtbuyer suing as assignee of the claim) and one defendant only.

The second most common scenario is that of a bank or debt buyer suing two defendants, typically spouses (sometimes former spouses by the time the debt suit is filed).

Going beyond consumer credit cases, another commonly seen type of collection action is one in which the creditor sues an individual and a business, either a corporation that is owned by the individual (or one for which the individual works) or a sole proprietorship (dba). There are many suits by American Express that are of this nature. -- > Amex debt suits on business credit card accounts.

If a corporation is a named party on the account, it will have to be named as a defendant because it is a separate legal entity (though corporate privileges may have been forfeited or suspended and/or alter ego  and other theories may provide a basis to hold a natural person such as owner or officers liable). If the business is a dba, the distinction between individual defendant and business will likely be of little or no significance (unless the nature of the debt, i.e. business debt vs consumer/household debt, becomes an issue for FDCPA counterclaim purposes). This is because a business conducted by an individual under an assumed name ("dba" for "doing business as") is not a separate legal entity under Texas law. -- > dba and sole proprietorship; -- > substitution of true name for assuming name in litigation.

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