The key word is "AT" the summary judgment hearing. They can use depositions excerpts or any documents obtained through written discovery or records deposions. Affidavits are also summary judgment evidence. The depositions, exhibits, and affidavits (if any) are submitted to the court with the motion. No additional oral testimony or additional evidence can be presented at the summary judgment hearing. All the hearing is for is to orally argue what you have set forth in your motion. You would normally go through some of the cases cited in the motion and argue to the Court why he should grant, or deny depending which side you're arguing, the summary judgment. The Court can only base its ruling on what it can decide "as a matter of law" based upon undisputed evidence before it. If any of the evidence is disputed, it creates a fact issue. If there is a fact issue, the court can't grant the summary judgment. Evidently, they thought they had their respective cases proven as a matter of law. Obviously, the Court didn't agree and there is some point of fact that was not established and has to be decided by the trier of fact, whether that be the Court or a jury, depending upon whether or not either of the parties have requested a jury.
Had HTDS prevailed in their motion, the case would have been over with as far as the ownership issue and the only thing left to try, I suppose since I haven't seen the pleadings, is damages caused by the acts of the other party. It would have been nice to just have to go over and try the damages issue knowing that you've already won what you really wanted, which is the rights to Tubercin.
Sometimes summary judgments pass the test, and sometimes they don't. I really haven't kept up with this case but as I recall skimming through the order it seemed the court had a question as to whether or not the deal was ever consumated and it appears that this is the fact issue that he denied the motion under.
JJ
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