Revive Your Dead Motions and Defend a Favorable Judgment With a Proper Appeal

By July 10, 2017July 9th, 2019Appellate Practice

While relatively short, a recent Third Court of Appeals memorandum decision is rife with lessons for attorneys defending favorable summary judgments made on superseded motions. The dispute in Larivee v. Louis meant to center on tenant-landlord issues concerning a carpet’s condition. Unfortunately, especially for the appellant, the case’s procedural posture forced the Third Court to focus on superseded or “dead” motions and preserving appellate grounds. The opinion, however, provides lessons that can benefit other attorneys experiencing similar circumstances.

The Cates Effect

Before jumping into the lessons, some background is in order. The Third Court began its analysis by highlighting that the complained-about judgment specifically granted relief on a “dead” no-evidence motion. The motion was “dead” because the moving party had filed an amended motion seeking both no-evidence and traditional summary judgment. The amended motion had, therefore, already superseded the original motion when the trial court issued summary judgment on the original no-evidence motion. The Third Court then considered whether the rule contained in Cincinnati Life Insurance Co. v. Cates would apply, allowing the Court to potentially examine whether the grounds in the live motion would still support summary judgment. The appellant, however, had relied solely on the live motion’s no-evidence grounds and did not preserve the traditional summary judgment grounds. The appellant also seemed to misapprehend the summary-judgment standards of review. Because the no-evidence grounds would not support the judgment, the Third Court reversed the judgment and remanded the case.

Reviving the Dead Motion

The lessons here abound. First, if attorneys want to potentially avoid these situations altogether, they should assist the trial court in drafting an order that clearly refers to the live motion when granting summary judgment. Second, the rule in Cates seems alive and well in the Third and some of its sister appellate courts. So, when defending the summary-judgment order on appeal, preserve and argue the grounds made in both the live and the superseded motions. Use Cates to your advantage and argue that resolving the points untouched upon by the trial court promotes judicial economy. Lastly, utilize and apply the proper summary-judgment standards of review when defending these orders. By doing so, you should be able to functionally revive a “dead” motion and preserve a favorable judgment without returning to the trial court.

Image courtesy of Flickr by Simon.