Re-Arguing the MSJ on a Motion to Settle Journal Entry Inbox x
I have a case where trial court granted overruled Defendant’s motion for summary judgment and ruled for me on a matter of law nobody argued. Defendant refused to sign the order and then responded to my motion to settle with a lengthy brief arguing the court had no authority to decide the legal issue without a “counter” motion having been filed. Did the court go wrong?
Answer: There is some authority that the court can grant summary judgment to the non-moving party. See: Kannady v. City of Kiowa, 590 F.3d 1161, 1171 (10th Cir. 2010): Weight of authority is court can grant SJ to non-moving party so long as adequate notice of issue is given to moving party, citing cases. See also: Dickeson v. Quarberg, 844 F.2d 1435, 1444 (10th Cir. 1988). As for the lengthy response, My guess is that the court will consider Defendant's submittal as a Motion for New Trial or Motion to Reconsider. You recall, of course, Judge Alley's famous piece suggesting courts really don't (and shouldn't) like such motions. 62 O.B.J. No. 2, 1/12/91: Alley, Judge Wayne E., Notice to Oklahoma Lawyers: (Cites other authorities that MtoReconsider are not looked upon w/favor.
I don't know whether it's in this piece but he once wrote something like "A motion to reconsider should be titled ‘Motion for the Court to declare it was stupid.’"
Posted on Mon, December 3, 2012
by Travis Law Office filed under