Summary Judgment Standard - Passages and Samples

SUMMARY JUDGMENT STANDARD - PASSAGES AND SAMPLES

PRO – Support of Motion for Summary Judgment (Movant)

Basic Standard

“A moving party is entitled to summary judgment if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.” Md. Arms v. Connell, 2010 WI 64, ¶20, 326 Wis. 2d 300, 786 N.W.2d 15.

“The judgment sought shall be rendered 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.”

Wis. Stat. § 802.08(2) (2013-14) (emphasis added).

Evidence needed

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

Wis. Stat. § 802.08(3) (2013-14).

The summary judgment standard “mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be no genuine issue as to any material fact, since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. The moving party is entitled to a judgment as a matter of law because the nonmoving party has failed to make a sufficient showing on an essential element of [his or] her case with respect to which [he or] she has the burden of proof.” Kenefick v. Hitchcock, 187 Wis. 2d 218, 227, 522 N.W.2d 261 (Ct. App. 1994) (alteration in original) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)).

Material Facts

“A material fact is such fact that would influence the outcome of the controversy.” Cent. Corp. v. Research Prods. Corp., 2004 WI 76 ¶19, 272 Wis.2d 561, 573, 681 N.W. 2d 178.

“The ‘mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.’” Baxter v. DNR, 165 Wis. 2d 298, 312, 477 N.W.2d 648 (Ct. App. 1991) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, (1986)).

“‘[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment,’ so long as there is no disputed fact that is material to the claim or defense made.” Butler v. Advanced Drainage Sys., 2006 WI 102, ¶18, 294 Wis. 2d 397, 717 N.W.2d 760.

Genuine Issue

“A factual issue is ‘genuine’ if the evidence is such that reasonable jurors could return a verdict for the nonmoving party.” Kenefick v. Hitchcock, 187 Wis. 2d 218, 224, 522 N.W.2d 261 (Ct. App. 1994).

“A factual issue is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Camacho v. Trimble Irrevocable Trust, 2008 WI App 112, ¶3, 313 Wis. 2d 272, 756 N.W.2d 596.

Sample Paragraph

Summary judgment must be granted when there is no genuine issue of material fact, and only legal issues remain. Wis. Stat. § 802.08(2) (2013-14). The opposing party “must set forth specific facts showing that there is a genuine issue for trial.” Wis. Stat. § 802.08(3). “The ‘mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.’” Baxter v. DNR, 165 Wis. 2d 298, 312, 477 N.W.2d 648 (Ct. App. 1991) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, (1986)). A genuine issue must be “such that reasonable jurors could return a verdict for the nonmoving party.” Kenefick v. Hitchcock, 187 Wis. 2d 218, 224, 522 N.W.2d 261 (Ct. App. 1994). Without a genuine issue of material fact, the “judgment sought shall be rendered.” Wis. Stat. § 802.08(2).

CON – Opposition to Motion for Summary Judgment (Non-movant)

Basic Standard

“Summary judgment may be granted only if no genuine issue of material fact is in dispute.” Admanco, Inc. v. 700 Stanton Drive, LLC, 2010 WI 76, ¶28, 326 Wis. 2d 586, 786 N.W.2d 759

“Summary judgment is only appropriate if there are no genuine issues of material fact, and the moving party, having established a prima facie case, is entitled to judgment as a matter of law.” AccuWeb, Inc. v. Foley & Lardner, 2008 WI 24, ¶16, 308 Wis. 2d 258, 746 N.W.2d 447.

“[W]e examine the moving party's submissions to determine whether they constitute a prima facie case for summary judgment.If they do, then we examine the opposing party's submissions to determine whether there are material facts in dispute that entitle the opposing party to a trial.”Palisades Collection LLC v. Kalal, 2010 WI App 38, ¶9, 324 Wis. 2d 180, 781 N.W.2d 503.

Wis. Stat. § 802.08(2) (2013-14) (emphasis added).

Burden on Moving Party

“[B]ecause the effect of granting the motion is to deprive the other party of a trial, the burden is on the movant to establish there are no material facts in dispute. In the event affidavits or other of the moving party's documents, viewed in a light most favorable to the party opposing the motion, do not with clarity establish the absence of any factual dispute on a material matter, the motion must be denied.” Delmore v. Am. Family Mut.Ins. Co., 118 Wis.2d 510, 512-13, 348 N.W.2d 151 (1984).

“The burden is on the moving party to prove that there are no genuine issues of material fact.” Cent. Corp. v. Research Prods. Corp., 2004 WI 76 ¶19, 272 Wis. 2d 561, 681 N.W.2d 178.

“On summary judgment the burden is on the moving party to establish the absence of a genuine, that is, disputed, issue as to any material fact. On summary judgment the court does not decide a genuineissue of materialfact; it decides whether there is a genuine issue. A summary judgment should not be granted unless the moving party demonstrates a right to a judgment with such clarity as to leave no room for controversy. Some courts have said that summary judgment must be denied unless the moving party demonstrates his entitlement to it beyond a reasonable doubt.” Kraemer Bros., Inc. v. United States Fire Ins. Co., 89 Wis. 2d 555, 565-66, 278 N.W.2d 857 (1979).

Err on Non-movant Side

“The circuit court should not grant summary judgment ‘unless the moving party demonstrates a right to a judgment with such clarity as to leave no room for controversy.’” Konneker v. Romano, 2010 WI 65, ¶22, 326 Wis. 2d 268, 785 N.W.2d 432 (quoting Grams v. Boss, 97 Wis. 2d 332, 338, 294 N.W.2d 473 (1980)).

“If there is a factual dispute, the case must be tried and the facts determined by a judge or jury.”

Delmore v. Am. Family Mut.Ins. Co., 118 Wis.2d 510, 512, 348 N.W.2d 151 (1984).

“[S]ummary judgment is a drastic remedy and should not be granted unless the material facts are not in dispute, no competing inferences can arise, and the law that resolves the issue is clear.” Lecus v. Am. Mut.Ins. Co., 81 Wis. 2d 183, 189, 260 N.W.2d 241 (1977).

As plaintiff - “Summary judgment should not be granted, ‘unless the facts presented conclusively show that the plaintiff's action has no merit and cannot be maintained.’” Smaxwell v. Bayard, 2004 WI 101, ¶12, 274 Wis. 2d 278, 682 N.W.2d 923 (quoting Goelz v. City of Milwaukee, 10 Wis. 2d 491, 495, 103 N.W.2d 551 (1960)).

“If there is any reasonable doubt regarding whether there exists a genuine issue of material fact, that doubt must be resolved in favor of the nonmoving party.” Novell v. Migliaccio, 2008 WI 44, ¶23, 309 Wis. 2d 132, 749 N.W.2d 544.

“Because here, competing reasonable inferences can be drawn from the undisputed facts, summary judgment is not proper.” Schmidt v. N. States Power Co., 2007 WI 136, ¶51, 305 Wis. 2d 538, 742 N.W.2d 294.

“Any reasonable doubts as to the existence of a factual issue must be resolved against the moving party.” Maynard v. Port Publ’ng, Inc., 98 Wis. 2d 555, 563, 297 N.W.2d 500 (1980).

Light Most Favorable to Non-movant

“The affidavits and other proof submitted by the parties are viewed in a light most favorable to the opposing party.” L.L.N. v. Clauder, 209 Wis. 2d 674, 684, 563 N.W.2d 434 (1997).

“The inferences to be drawn from the underlying facts contained in the moving party's material should be viewed in the light most favorable to the party opposing the motion, and doubts as to the existence of a genuine issue of material fact are resolved against the moving party.” Lambrecht v. Kaczmarczyk (In re Estate of Kaczmarczyk), 2001 WI 25, ¶23, 241 Wis. 2d 804, 623 N.W.2d 751.

Sample Paragraph

Summary judgment is only appropriate if there is “no genuine issue as to any material fact.” Wis. Stat. § 802.08(2) (2013-14). The burden is on the moving party to show that there is an “absence of any factual dispute on a material matter.” Delmore v. Am. Family Mut.Ins. Co., 118 Wis. 2d 510, 512, 348 N.W.2d 151 (1984). The evidence must be viewed in the light most favorable to the non-moving party, and any doubts “must be resolved in favor of the nonmoving party.” Novell v. Migliaccio, 2008 WI 44, ¶23, 309 Wis. 2d 132, 749 N.W.2d 544. The moving party must “demonstrate[] a right to a judgment with such clarity as to leave no room for controversy.” Konneker v. Romano, 2010 WI 65, ¶22, 326 Wis. 2d 268, 785 N.W.2d 432 (quoting Grams v. Boss, 97 Wis. 2d 332, 338, 294 N.W.2d 473 (1980)).

Recent Samples from Briefs in Opposition to SJ:

Summary judgment is appropriate when there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Wis. Stat. § 802.08(2)(2013-14).

The court first examines the pleadings to determine whether the plaintiff has stated a claim. The next step is to examine whether the summary judgment submissions establish that the moving party is entitled to judgment as a matter of law. The court examines the plaintiff’s submissions to determine whether it has established a prima facie case for summary judgment. Only if the plaintiff has made a prima facie case does the court examine the defendant’s submission to determine if there is a genuine issue of fact. Palisades Collection LLC v. Kalal, 2010 WI App 38, ¶9, 324 Wis. 2d 180, 781 N.W.2d 503.

If the moving party establishes a prima facie case for summary judgment, the burden is on the moving party to establish the absence of a genuine disputed issue as to any material fact. Kraemer Bros., Inc. v. United States Fire Ins. Co., 89 Wis. 2d 555, 565, 278 N.W.2d 857 (1979). The court must view the evidence, or the inferences therefrom, in the light most favorable to the party opposing the motion. Kraemer Bros., 89 Wis. 2d at 567. A summary judgment should not be granted unless the moving party demonstrates a right to a judgment with such clarity as to leave no room for controversy. Id. at 566. Any reasonable doubt as to the existence of a factual issue must be resolved against the moving party. Maynard v. Port Publ’ng, Inc., 98 Wis. 2d 555, 563, 297 N.W.2d 500 (1980).

Sample 2

Summary judgment is appropriate when there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Wis. Stat. § 802.08(2) (2013-14).

Affidavits in support of or in opposition to a motion for summary judgment shall be made on personal knowledge and shall set forth such evidentiary facts as would be admissible in evidence.Wis. Stat. § 802.08(3). On summary judgment, the party submitting the affidavit need not submit sufficient evidence to conclusively demonstrate the admissibility of the evidence it relies on in the affidavit. That party need only make a prima facie showing that the evidence would be admissible at trial. If the admissibility is challenged, the court must then determine whether the evidence would be admissible at trial. Palisades Collection LLC, 2010 WI App 38, ¶9.

NEUTRAL – Statement of Standards

Wis. Stat. § 802.08(2) (2013-14).

Judge does not have discretion in granting or denying summary judgment - “In view of the changed language of the summary judgment rule, we can, as a general proposition, no longer accord the trial court wide latitude in deciding to grant or deny summary judgment.” Wright v. Hasley, 86 Wis. 2d 572, 578, 273 N.W.2d 319 (1979).

The “court must make two determinations: First, whether there is a dispute as to a material fact, and, second, whether the law is clear.” Delmore v. Am. Family Mut.Ins. Co., 118 Wis.2d 510, 512, 348 N.W.2d 151 (1984).

“The affidavits and other proof submitted by the parties are viewed in a light most favorable to the opposing party.” L.L.N. v. Clauder, 209 Wis. 2d 674, 684, 563 N.W.2d 434 (1997).

“The burden is on the moving party to prove that there are no genuine issues of material fact. An issue of fact is genuine if a reasonable jury could find for the nonmoving party. A material fact is such fact that would influence the outcome of the controversy.” Cent. Corp. v. Research Prods. Corp., 2004 WI 76 ¶19, 272 Wis.2d 561, 681 N.W.2d 178.

4-step process for appellate courts in analyzing summary judgment: “Every decision on a motion for summary judgment begins with a review of the complaint to determine whether, on its face, it states a claim for relief. If it does, we examine the answer to see if issues of fact or law have been joined. After we have concluded that the complaint and answer are sufficient to join issue, we examine the moving party's affidavits to determine whether they establish a prima facie case for summary judgment. When they do so, we review the opposing party's affidavits to determine whether there are any material facts in dispute, or inferences from undisputed material facts, that would entitle the opposing party to a trial. Butler v. Advanced Drainage Sys., 2006 WI 102, ¶18, 294 Wis. 2d 397, 717 N.W.2d 760 (citations omitted).

“The court takes evidentiary facts in the record as true if not contradicted by opposing proof.” Lambrecht v. Kaczmarczyk (In re Estate of Kaczmarczyk), 2001 WI 25, ¶23, 241 Wis. 2d 804, 623 N.W.2d 751.

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