Dodging the Summary Judgment Bullet

June 19, 2018 § 3 Comments

Daren Froemel filed a will contest claiming that his mother, Mary Lou, lacked mental testamentary capacity when she made her will. The beneficiaries of the will filed a motion for summary judgment with affidavits of the subscribing witnesses and others attesting to her mental capacity. Daren responded in an answer that the discovery revealed Mary Lou had been hospitalized at the time for “altered mental status,” and that she had been prescribed and was taking 22 different medications, including morphine. He argued that those facts established a basis to deny summary judgment, but he did not file counter-affidavits. The chancellor granted summary judgment in favor of the beneficiaries, and Daren appealed.

In Estate of Froemel: Froemel v. Williams, et al., handed down May 8, 2018, the COA affirmed. Judge Lee penned the unanimous opinion:

¶13. Here, the beneficiaries offered the will, and it was admitted to probate. Thus, they established a prima facie case regarding Mary Lou’s testamentary capacity. Additionally, when the beneficiaries moved for summary judgment in response to Daren’s contest, they attached four affidavits of individuals that testified as to MaryLou’s mental capacity. At this point, Daren was required to respond to the summary judgment motion with some evidence to rebut the beneficiaries’ prima facie case to show a genuine issue for trial. Daren, however, filed an answer in response—and nothing more—in which he reiterated that Mary Lou had been hospitalized for altered mental status and had prescriptions for twenty-two medications. Following the reiteration of these two facts, Daren stated in his response, “Clearly, a genuine issue of material fact exists in regards to the decedent’s mental state.”

¶14. It is well settled that “[t]he existence of a genuine issue of material fact will preclude summary judgment.” Calvert v. Griggs, 992 So. 2d 627, 632 (¶11) (Miss. 2008). However, we note that “[a] fact is neither material nor genuinely contested . . . merely because one party proclaims it so.” Suddith v. Univ. of S. Miss., 977 So. 2d 1158, 1167 (¶10) (Miss. Ct. App. 2007). “The mere allegation or denial of material fact is insufficient to generate a triable issue of fact and avoid an adverse rendering of summary judgment.” Kaigler v. City of Bay St. Louis, 12 So. 3d 577, 583 (¶27) (Miss. Ct. App. 2009) (internal quotation marks omitted) (quoting Palmer v. Biloxi Reg’l Med. Ctr. Inc., 564 So. 2d 1346, 1356 (Miss. 1990)). “More specifically, the plaintiff may not rely solely upon the unsworn allegations in the pleadings, or arguments and assertions in briefs or legal memoranda.” Id.

¶15. In the instant case, Daren rested upon the mere allegations in his pleadings and summarily concluded there was a genuine issue of material fact. While Mary Lou’s hospitalization and prescriptions the month prior to the execution of her will may have been important facts in this case, there was no evidence of a genuine issue of material fact—namely, that Mary Lou lacked testamentary capacity as determined by the three relevant factors at the time she executed her will. Daren offered no testimony by affidavit, deposition, or otherwise regarding Mary Lou’s testamentary capacity. Our supreme court has offered the following in response to a nonmovant’s failure to appropriately respond to a summary judgment motion:

[W]e wish to make it clear that this Court intends to enforce Rule 56(e), which requires affidavits or other evidence establishing “a genuine issue for trial.” Miss. R. Civ. P. 56(e). Those who practice before our trial courts are well advised to respond to summary judgment motions with affidavits, deposition testimony, responses to discovery, and other evidence approved by Rule 56, allowing our trial judges a fair look at whether triable issues of material fact exist. As the rule specifically provides, parties may not simply rely on their pleadings . . . .

Franklin Collection Serv. Inc. v. Kyle, 955 So. 2d 284, 291 (¶24) (Miss. 2007).

¶16. Because the beneficiaries established a prima facie case that the will was valid—and specifically that Mary Lou possessed testamentary capacity at the time of its execution—and Daren failed to rebut the prima facie case with any summary-judgment evidence that there
was a genuine issue for trial, the trial court did not err in granting summary judgment.

Daren’s shortcoming in this case was to respond to the affidavits with mere assertions. Had he offered an affidavit with interrogatory answers and deposition excerpts attached, the outcome might have been different.

Still, were the requirements of Franklin actually satisfied here? Daren did cite to “discovery,” which we will assume here to include interrogatory responses and depositions, both of which must be sworn, and possibly responses to requests for admission. But are they a part of the record? Well, nowadays nobody files that stuff in the record. Merely referring to it without attaching excerpts supporting your position is like saying, “You’ll have to take my word for it, Judge.” Again, an affidavit with excerpts attached would likely have made a difference.

Another cause for pause is the language of R56 itself. R56(c) specifies that “The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” If any … I wonder what that means amidst all that other material the court is supposed to consider?

The moral of this story is to file one or more affidavits, even if all you are relying on is discovery material.

AN MRCP 56 CAUTION

March 14, 2012 § Leave a comment

The first thing you should do when confronted with a motion for summary judgment is to read the rule. I know, I know, you’re busy and it takes time, but for Pete’s sake, it might just save you some trouble and embarassment, and it might save your malpractice carrier some $$$.

In the COA case of Estate of Farr v. Wirick, decided February 21, 2112, the trial judge excluded from evidence two affidavits that were submitted on the day of hearing. The COA ruled that ” … the chancery court properly excluded the cerificates under [MRCP] Rule 56(c), which requires that affidavits in opposition to a motion for summary judgment must be served ‘prior to the day of the hearing’.”

You have at least ten days’ notice of a motion for summary judgment per MRCP 56(c), and you must file your counteraffidavits prior to the day of the hearing.

So what do you do if you can’t scrape together counteraffidvits in time? MRCP 56(f) allows the court to grant additional time to obtain them, or to grant a continuance to do additional discovery, or to “make such order as is just.” The court can also simply refuse the application for summary judgment.

You can also ask the judge, per MRCP 56(e) for leave to supplement your affidavits or to submit further affidavits.

And don’t overlook this crucial language at MRCP 56(e):

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him. [Emphasis added]

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