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Wednesday, May 18, 2016

Appeals -- summary judgment and evidence

When considering a summary judgment, the standard for review at the appeals level is "de novo" -- this is well established. However, what, if any, restrictions exist as to what evidence may be presented outside of what was originally show to the lower court. How "de novo" is de novo. It is worth a brief discussion on the point. Hanover Law recently filed a responsive brief on just this topic, and I expect the appeals court to issue a ruling in, uh, about three years. However, I thought I would share my research for others dealing with the same topic.

The standard for summary judgment is outlined in McFarland v. George Washington Univ., 935 A.2d 337 (D.C., 2007): This court reviews "the grant of a motion for summary judgment de novo." Joyner v. Sibley Memorial Hospital, 826 A.2d 362, 368 (D.C. 2003). "[T]o be entitled to summary judgment, [GW] must demonstrate that there is no genuine issue of material fact and that [it is] entitled to judgment as a matter of law." Colbert v. Georgetown University, 641 A.2d 469, 472 (D.C. 1994) (en banc) (citing Super. Ct. Civ. R. 56 (c)). Although we view the evidence in the light most favorable to the party opposing the motion, "[c]onclusory allegations by the nonmoving party are insufficient to establish a genuine issue of material fact or to defeat the entry of summary judgment." Hollins v. Federal National Mortgage Association, 760 A.2d 563, 570 (D.C. 2000) (citation omitted).

As a footnote, "conclusory allegations" are generally defined as those made by the party him/herself. You can't submit an affidavit purporting to be fact, when it contains only the statements of the party.

"Reviewing courts generally do not take judicial notice of evidence not presented to the trial court. Rather, normally when reviewing the correctness of a trial court’s judgment, an appellate court will consider only matters which were part of the record at the time the judgment was entered." Hahn v. Diaz-Barba, 125 Cal. Rptr. 3d 242 (Cal. Ct. App. 2011). This last one is critical, as it is as hard to find statements regarding evidentiary restrictions on lower Court's orders, in appeal decisions, as it is to pull hens teeth.

Do you have a question regarding appeals? We can help! We're experienced trial and appeal court litigators, and would be delighted to discuss your case. 1-800-579-9864 or

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
2751 Prosperity Ave, Ste 150
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.

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