How Not to Respond to a Summary-Judgment Motion

Ziegler v. Origin Bank presents a waiver issue involving a summary-judgment response, arising from two problems:

1. Record. “The record shows that Hatter filed a response to Origin’s second traditional motion for summary judgment, arguing that there were genuine issues of material fact that precluded summary judgment and attaching evidence in support of his argument. The docket sheet reflects that Ziegler filed a “Motion to Adopt Response,” and the trial court’s order says the court considered “Defendant Robert Ziegler’s Motion to Adopt Walt Hatter’s Response.” However, the record on appeal does not contain Ziegler’s motion. As a result, we do not know the substance of that motion.”
2. Substance. “The trial court’s order granting Origin’s second motion for summary judgment states, in part, that the trial court considered Origin’s second traditional motion for summary judgment, Hatter’s response, “Defendant Robert Ziegler’s Motion to Adopt Walt Hatter’s Response,” Origin’s reply, and the parties’ supplemental letter briefing. The order also sustained Origin’s objections to Hatter’s letter brief, granted Origin’s second traditional motion for summary judgment, and awarded Origin damages against Hatter and Ziegler jointly and severally. However, the order does not grant Ziegler’s motion to adopt Hatter’s response. Rather, the order expressly states that “[a]ll relief not specifically granted herein is denied.”

No. 05-22-00160-CV (March 21, 2024) (mem. op.). Had the appellant simply filed a response that expressly incorporated the relevant response, the record would have been clearer on this point.