Understanding the Role of Dispositive Motions – Part 6

Keith B. DunnaganToday, we continue with our series on litigation and we look at the use of dispositive motions. These motions are used to narrow the scope of trial or in the best of cases can be used to resolve a matter and eliminate the need for trial altogether.

As always, if you have any questions about your real estate, business, estate planning, or any other legal issue, please let us know by e-mailing me at kbdunnagan@bpelaw.com.

Also, remember that we do legal presentations for business and community organizations. If your group would like to schedule a presentation related to estate planning, please contact me to setup a date and time.


Understanding the Role of Dispositive Motions – Part 6

By Robert J. Enos, Esq.

Photo of gavel and scaleIn part 5 we examined the case management process of litigation and moving a case towards trial. Today we look at dispositive motions and they can be an effective tool to reduce the scope of a trial or end a case short of trial. A party to a lawsuit should evaluate whether a dispositive motion should be filed that could win the case without the time and expense of trial. A commonly used motion is the “Motion for Summary Judgement” (“MSJ”) and it’s derivative the Motion for Summary Adjudication (“MSA”).

A Motion for summary judgment when employed by a Plaintiff establishes that the defendant does not have any fact in support of any defense. When used by the defendant, the MSJ states that no disputed fact exists in support of at least one of the essential elements of the plaintiff’s case.

The most effective way to set up a case for and MSJ or MSA is to take the deposition of the opposing party and question them about the key facts they are asserting in support of their case. Once you establish there’s no factual disputes based on the testimony, only then can a motion for summary judgment be sought.

Sometimes summary judgment may not be rendered for all the relief that you have requested. If that is the case, an MSA is often used not to end the entire case, but to limit the scope of the case at trial. Often referred to as a partial summary judgment an MSA only deals with a particular claim or type of damage sought.

In the real estate context, a Motion for Summary Adjudication for an Interlocutory Order of Sale is a tool for forcing the partition of real property. Partition actions result from the frustrating scenario were multiple persons jointly own a single piece property but want to do different things with that property. Seen very frequently in situations where siblings inherit a property with one of them residing therein and refusing to sell. Another common situation is a property owned as a result of a poorly conceived partnership wherein one partner wants to sell and the other refuses. In this situation an interlocutory order forces the sale no matter what. This function frequently is the major turning point in your case. The partition order does not create a new title in real property but divides up the existing interests of the owners. If the court finds that the plaintiff is entitled to partition, it makes an interlocutory judgment determining the interests of the parties and ordering partition.

Another dispositive motion that could be filed by a defendant is a Motion to Expunge Lis Pendens. A lis pendens is an instrument a plaintiff records after a lawsuit has been filed in real property cases to alert the world that you better not touch this property because I should be the true owner. The Motion to Expunge is important because if successful the cloud on title is removed and thus the property could be sold. Most of all it is a preliminary finding by the court regarding the merits of the plaintiff’s case. This is important because it shows the plaintiff that their case lacks merit and they likely will lose at trial.

Not all cases are ripe for a dispositive motion. However, surprisingly even in complex business and real estate cases, skillful discovery techniques can isolate and confirm whether a critical fact exists or not. One is advised to always keep this tool ready should it become evident that a trial can be avoided or at a minimum the triable issues reduced.

The litigation attorneys at BPE Law Group have significant experience in complex business, real estate and estate administration litigation. The diverse experience allows BPE’s litigators to look at multiple approaches to a lawsuit to determine the best course of action for their clients. If you find yourself in need of litigation assistance you should retain competent counsel to assist. BPE Law would welcome the opportunity to serve.

The attorneys of BPE Law Group, PC. have been advising our clients on real estate, business and estate planning issues for over 20 years and have assisted numerous clients in business and real estate matters and have represented clients in hundreds of lawsuits and discovery is a critical component to success in litigation. If you have questions concerning legal matters, give us a call at (916) 966-2260 or e-mail Keith at kbdunnagan@bpelaw.com or Robert at rjenos@bpelaw.com. Our flat fee consult for new clients may get you the answers you need for the questions you have.

The information presented in this Article is not to be taken as legal advice. Every person’s situation is different. If you are facing a legal issue of any kind, get competent legal advice in your State immediately so that you can determine your best options.