Dec 6, 2017

Motion for Summary Judgment

A Motion for Summary Judgment is a document filed with the Arizona court where the party is asking that the judge decide an issue—or the whole case—without the need for a trial. In order for a summary judgment to be granted by the court, the party filing the motion for summary judgment must demonstrate that there are “no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law.” This means that the undisputed facts presented in a particular case entitle one side to win because of the existing law relating to that issue.

When considering a Motion for Summary Judgment, the Arizona judges must view all “the evidence and all reasonable inferences in the light most favorable to the non-moving party.” Rowland v. Kellogg Brown and Root Inc. Per Arizona Rules of Civil Procedure 56(c), Only if the Arizona court makes a finding that no genuine issue of material fact exists can the moving party be granted a judgment as a matter of law. If issues of material fact exist then the Motion for Summary Judgment should be dismissed in its entirety.

Arizona courts are cautioned not to use summary judgment proceedings as a substitute for trials, the motion should be granted if the facts produced in support of the claim or defense have so little probative value, given the quantum of evidence required, that reasonable people could not agree with the conclusion advanced by the proponent of the claim or defense.

The burden of persuasion on the party seeking summary judgment is heavy and if there is any genuine issue as to a material factual issue is present, the motion should be denied.

So a summary judgment is provides an award to one party without a full trial. Additionally, the award can be for the full case or just a specific issue in dispute.

Statement of Facts and Affidavit
There are two documents filed in conjunction with the summary judgment itself; a statement of facts and affidavit of facts. The statement of facts lays out the facts as moving party sees them. In addition, to just stating the “facts”, they must also cite to specific documents that supports their statements.

Additionally, the moving party must file an affidavit where they swear under oath that each of the statements that make are true.

Why Did They File a Motion for Summary Judgment?
Just because the opposing party filed a Motion for Summary Judgment it doesn’t mean that you did something wrong or they have an extraordinarily strong case where the judge will enter judgment in their favor without even going to trial.

It is quite common for Motions for Summary Judgment to be filed in Arizona cases. In part they are filed because a judge can rule on just one aspect of the case. This will allow them to see if they can “chip at the edges” of our lawsuit and see if they can get anything dismissed at this time.

What Should you Do?
You must file a response to the Motion for Summary Judgment and explain to the Arizona judge why the case should move forward to trial. As part of the response a statement of facts and affidavit must also be filed. Similar to the opposing party's statement of facts you must cite a source for every statement you make to the court. Doing this can be incredibly tedious and time consuming. The response and accompanying documents must be filed within 30 days of receiving their Motion!

What If Motion for Summary Judgment is Granted?
If the motion is granted, the judgment on the issue or case is deemed to be a final judgment from which a party may appeal. An Arizona court of appeal can reverse the summary judgment and reinstate the claim in the Superior Court. However, this is rarely done and most summary judgments are upheld on appeal.

If you need the help of an Arizona real estate attorney call Clint Dunaway at 480-344-4035 or email me at cdunaway@davismiles.com. 

Dec 4, 2017

What is a Motion in Limine?

A motion in limine is a motion asking the judge to prevent certain pieces of evidence from being used during a trial.

What Does Motion in limine Mean?
Motion in limine is a Latin phrase that means "at the threshold". Hence if granted a Motion in limine will stop certain evidence "at the threshold" or even being let "in the door".

At What Point is a Motion in limine Filed?
In Arizona these Motions must typically be filed by a certain date established at an earlier time by the court. For instance, the judge may say, "all Motions in limine" must be filed by this certain date or you may not raise the argument at a later date.

What are the Factors Determined by the Judge?
Historically three elements must be met before a judge will grant the Motion in limine.

  1. When the evidence is not relevant to any of the issues at dispute in the current case.
  2. When evidence is extremely prejudicial to one party without helping the jury decide on the case in front of them.
  3. When admitting the evidence would violate a state or federal law or the rules of evidence. 

Dec 1, 2017

Requesting Formal Discovery in Law Suit


Requesting Formal Discovery from the Opposing Party

During a lawsuit each party has the opportunity to request formal “discovery” from the opposing party. These requests for discovery is accomplished by sending the opposing party three different “packets” requesting certain types of information.

I have included a copy of our initial drafts requesting information from the opposing party for your review and feedback. Pay particularly close attention to dates, names, and places to make sure that they are factually correct.

1.            Non-Uniform Interrogatories: Give us the opportunity to write our own questions for the opposing party. For example, we could ask the opposing party, “Explain in detail why you did not make the payments as agreed”.
2.            Request for Admissions: This allows us the opportunity to present statements to the opposing party in a way where they should respond in the affirmative. If they do not respond in the affirmative then they must provide an explanation of why they denied the statement. For example, we could write a statement, “Admit you did not pay back the money as agreed”. They are forced to “admit” the statement or deny it and then give a detailed explanation as to why they denied the statement.  
3.            Request for Documents: We are given the opportunity to request up to 10 different sets of documents from the opposing party.

In Arizona, the opposing party has 30 days--in the Arizona Superior Court or 40 days in the Justice Court--to produce the documents requested and their written responses.

Lastly, these packets are not exchanged with the Court. In fact, the Judge will never see this information unless a specific piece of information is formally introduced as evidence at trial. So don’t worry about impressing the judge, we are simply trying to gain useful information.

If you need help from a litigating lawyer in Tempe, Arizona then call me at 480-344-4035 or email to cdunaway@davismiles.com.