On this Facebook group for lawyers which recently kicked me out cuz my moniker is "similar" to another licensed attorney's name, people had the question come up - when is my response to a motion for summary judgment due? Is it "seven days before the day of the hearing" or "within seven days of the hearing"? Example: hearing is set March 27, 2010. Assume it's a Monday. So is the response due on March 20, 2010, or March 19, 2010 (in which case it'd fall on a Sunday, and you'd be entitled to the "weekend rule" in reverse, resulting in a true deadline of March 17, 2010).
The law seems to say it's the simpler version - where the response is due March 20, 2010.
A little summary judgment background
In the civil context, the Rules provide for a process known as summary judgment disposition, by which a party may move for a final judgment on any issue, including the underlying dispute between the parties. This summary judgment motion is appropriate where the defendant has "appeared or answered;" because otherwise, a party would move for default judgment. Tex. R. Civ. P. 166a(a).
Who can move for summary judgment? Any PARTY (i.e. plaintiff, cross-plaintiff, counter-plaintiff, declaratory movant, etc) who is also "seeking to recover upon a claim, counterclaim, cross-claim or to obtain a declaratory judgment." Id.
What can they move for? "All or any part" of the above-described vehicles for relief (claim, crossclaim, counter-claim, dec action).
When can they move? As said above, "at any time after the adverse party has appeared or answered." Id.
How do they move? "[W]ith or without supporting affidavits for summary judgment in his favor upon ALL or any part thereof." Id. In other words, if a claim has a lot of parts (like the elements of breach of contract typically is said comprise four parts - a valid contract, performance by plaintiff, breach by defendant, and damages caused to plaintiff by defendant's breach), you could "move for summary judgment" on each part. Typically, in the creditor-debtor relation, you will see a plaintiff move for summary judgment on the whole of their claim for relief, which is usually breach of contract, or account stated, or money had and received and the like.
When do they move? "[T]he motion [for summary judgment] and any supporting affidavits shall be filed and served at least twenty-one days before the time specified for hearing," [e]xcept on leave of court with notice to opposing counsel." Tex. R. Civ. P. 166a(c).
What is the defendant to do?
The person defending against a claim (defendant), counter-claim (counter-defendant), cross-claim (cross-defendant) or declaratory action (non-movant / defendant) is called the "non-movant" in a plaintiff's traditional motion for summary judgment. (Note, a defendant could move for summary judgment on his own defensive issues. Tex. R. Civ. P. 166a(b)). Okay, so what does the non-movant to a typical motion for summary judgment need to do?
One answer is nothing. You can wait and see if the movant's motion for summary judgment is supported at law under the requisites of Rule 166a. If it's not, you can show up to the summary judgment hearing and say "hey, judge, there's a defect in their motion; look, here, here and here." I see this a lot. However, it's bad practice, since the Supreme Court of Texas has said that "objections" to someone's motion for summary judgment need to be in writing: “Thus, both the reasons for the summary judgment and the objections to it must be in writing and before the trial judge at the hearing. . . .To permit "issues" to be presented orally would encourage parties to request that a court reporter record summary judgment hearings, a practice neither necessary nor appropriate to the purposes of such a hearing. Richards v. Allen, 402 S.W.2d 158, 161(Tex. 1966); rule 166-A(c).” City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 677 (Tex. 1979) (emphasis mine).
However, a lot of judges give respondents a pass and pretend that they don't consider oral objections raised by pro se defendants who show up, but it is 100% very difficult to purge your brain of oral complaints.
A wise respondent will cogently put these defects into writing. Note: the response does not put your defensive issues forward - you are just responding to the motion. In other words, you'r parrying / rebuffing / defending, not asserting your own issues.
So when is a response due? Comparing the 7-day notice rule with the 21-day notice rule.
That's the question that started this post. Is the response due within seven days of the summary judgment hearing set by the plaintiff, or seven days before the summary judgment hearing?
The Courts will tell you that it is the latter. I don't support this reading, but it appears to be the law, so I am reporting on my reading of the law. I have not seen a "hard ruling" on this issue upon challenge, only general factual observations from lower courts. I have seen a "hard ruling" on this issue in the context of the movant's deadline, not the respondent's deadline, from the Supreme Court of Texas.
The Rule is TRCP 166a(c). This Rule says that anyone who is responding to a motion for summary judgment must "file and serve opposing affidavits or other written response" "not later than seven days prior to the day of [the summary judgment] hearing," "[e]xcept on leave of court."
In other words, unless a court grants you permission, a respondent to a motion for summary judgment must have filed with the court and served the other side its responsive materials "not later than seven days prior to the [summary judgment] hearing." What is seven days prior to a summary judgment hearing?
If you read the courts' opinions, most of them seem to think that "not later than seven days prior to" is synonymous with "within seven days of" the summary judgment hearing. Of requires that you include the day of the hearing as part of your due date calculation. Prior may not require that interpretation, however, if it means "before." Compare the language used in the movant's deadline: "at least twenty-one days before the time specified for hearing." The answer seems to turn on an interpretation of the same "21-day notice rule," a topic some others and myself have explored. For grins, look at Rule 5, which says "on or before the day of" (ditto for Rule 99's requirement that the "on or before" language be used in a citation; same in Rule 143, which is more on point, since it uses a number of day for the reference of "on or before" - "on or before 20 days after notice") - seems like "on or before the day of" would have been used if it's what the Court meant when it promulgated its own Rules, no?
The Supreme Court seems to have disposed of all of these issues with its opinion in Lewis v. Blake, a surprisingly clear opinion. This is a 21-day notice rule case (i.e. the period of time required before a movant for summary judgment could get their motion heard for relief), however, and not a 7-day notice case.
In Lewis, three key dates were kicked around. June 21, 1991: the date the motion for summary judgment was mailed; July 15, 1991 (the date summary judgment heard); July 16, 1991 (the date the Court ruled summary judgment could have properly been heard).
Let's flip back the calendar. Counting June 21, 1991 and July 15, 1991 is 24 days. Counting July 16, 1991 is 25 days. What happened here? Why wasn't July 15, 1991 okay?
In Lewis, the plaintiffs mailed the motion. Under the Rules, mailed motions are given a "3-day" extension under Rule 21a. So the 21-day deadline becomes a 24-day deadline. The Court carefully read the Rule and found: "The phrase 'at least' in Rule 166a(c) means that no fewer than 24 days must intervene between the day the motion is mailed and the day of hearing; in other words, the hearing cannot be held before the 25th day after the day the motion is mailed. That day in this case was July 16." Lewis, 876 S.W.2d 314, 315 (Tex. 1994). This result is dictated by Rule 4, which requires that you not count the first day of the relevant period, but DO count the last day of the relevant period. “Applying Rule 4 to Rule 166a(c), the day of service is not to be included in computing the minimum 21-day notice for hearing, and the day of hearing is. ” Id. at 316. Let's look at our dates. June 21, 1991 is the first day, so don't count it. June 22, 2001 is thus the "first day" for purposes of period calculation; 24 days thence ends July 16, 1991.
So the Court has explicitly interpreted the phrase "at least twenty-one days before the time specified for hearing" as applying to the date of the hearing, and counting the day of the hearing for purposes of the calculation. I.e., the Court reads "before" as "of" - to include the date of the hearing in its calculation.
Okay? "At least before the date of the hearing" = "at least within the day of the hearing."
This thinking appears to apply to response deadlines, unfortunately. While the language in the response 7-day notice rule is slightly different from that in the motion's 21-day notice rule, this calculation technique looks like the law:
“Because the hearing was set for March 27, 2006, AMPS's response needed to be filed by March 20, 2006, but it was not filed until March 23, 2006, only four days before the re-scheduled date of the hearing.” A.M.P.S. v. E-One New York, No. 01-06-00607-CV (Tex. App.--Houston [1st Dist.] Apr. 10, 2008). March 27, 2006 was a Monday; not counting it for purposes of Rule 4 and working backwards to determine the "seven days prior" deadline, you get the Monday previous, March 20, 2006. This type of thinking is endemic to courts considering this issue. You're probably safe in most jurisdictions if this is how you calculate your response deadline. I fight these calculations, however.
Why fight, Cottle?
Rule 166a(c)'s 21-day notice language is different from that of the 7-day notice rule; the 7-day notice rule dictates that the responsive materials be filed prior to the day of the hearing; thus, the appropriate date to calculate would obviously not include the day of the hearing, but would begin with the day immediately preceding the hearing, and work backwards from there; if by working backwards, the deadline fell on a weekend or holiday, you'd get a Rule 4 extension accordingly. This seems like the necessary result under a plain reading of the Rule. Don't get me wrong; I get the other view on this issue - "not later than" is used to modify the "seventh day . . . prior to the day of the hearing" clause, and thus is seen in comportment with the Lewis reading which includes the day of the hearing; counting the day of the hearing, and under Rule 4, you get a 7-day period before the day of the hearing; if you file a response within that timeframe, you're out of luck, and need "leave of court" to do so. If you file before that seventh day, you're timely. My reading depends on what is being modified by "prior" - if "prior to the day of the hearing" means you must count your seven-day calculation as prior to the hearing, then this is your "first day" for calculation purposes, and you work backwards from there. So in the A.M.P.S. case, the hearing being set on March 27, 2006 would mean that you work backwards from March 26, 2006, the day "prior to the day of the hearing" and count your 7-day window from there; it would end on March 19, 2006, a Sunday, and thus you'd get until the preceding Friday, March 17, 2006, to file. I admit this is an abnormal construction but it just seems like the required result. I've fought about it but never had a ruling on the subject. I feel the weight of law is against me on it. Any ideas on how to parse this peculiar phrasing? Comments welcome.
Movant's burden: Provide notice of the motion for summary judgment "at least" 21 days "before the time specified for hearing." The Supreme Court of Texas has ruled that this must include the day of the hearing.
Respondent's burden: Provide notice of the response to the motion for summary judgment "not later than" 7 days "prior to the day of hearing." Courts (perhaps the Supreme Court, haven't found the opinion if so) have held that this must include the day of the hearing as well. I disagree with this reading but I do understand it. Have fun!