613 S.W.3d 338
Tex. App.2020Background
- This is a concurring opinion (denying en banc reconsideration) in an appeal from a Collin County summary-judgment ruling; the case had been reversed twice previously by the Texas Supreme Court and remanded.
- The defendant moved for summary judgment on both traditional and no-evidence grounds; the trial-court order recited consideration of “all of the evidence.”
- Appellee (Steak N Shake) argued the nonmovant (B.C.) failed to “direct” the trial court to evidence the defendant filed with its traditional-motion materials, and therefore that evidence could not be considered in a no-evidence challenge.
- The panel considered the full summary-judgment record (including evidence filed by the movant); appellee criticized the panel for acting as a “surrogate advocate.”
- Justice Schenck’s concurrence rejects the notion that the nonmovant must re‑produce or explicitly “direct” the trial court to evidence already in the summary-judgment record, endorses treating summary judgment as a single proceeding with a single record, and defends appellate judges’ duty to read the record and apply controlling law to the issues presented.
Issues
| Issue | Plaintiff's Argument (B.C.) | Defendant's Argument (Steak N Shake) | Held |
|---|---|---|---|
| Whether a nonmovant must “direct” the trial court to evidence produced by the movant for that evidence to be considered against a no-evidence motion | The trial court may consider evidence in the record showing a fact issue; no separate re‑production should be required | Nonmovant must specifically point the trial court to evidence filed by movant when resisting a no-evidence motion | Court (concurring): No. Rule 166a authorizes a single proceeding/record; evidence in the summary-judgment file may be considered without the nonmovant separately “producing” it |
| Whether summary-judgment review should be parsed by the rule subparagraph invoked (traditional vs. no-evidence) | The issues are the substance presented below; sequencing may favor addressing no-evidence first but record is single | Review should be limited to the evidence “produced” for that specific subparagraph | Court: Rejects parsing by subparagraph; rule 166a(c) contemplates one proceeding and one judgment tied to issues presented, not separate records |
| Whether an appellate court becomes a "surrogate advocate" by examining the full record or raising/using arguments not precisely briefed | Appellant relied on the record to show a fact issue and urged review of the record | Appellee criticizes the panel for looking beyond parties' briefs and thus abandoning neutrality | Court: Appellate courts may and should read the record and applicable law to resolve issues presented; doing so is not illicit advocacy so long as courts avoid raising issues not presented or making unnecessary new law |
| Whether appellate courts must refuse to raise waiver or seek supplemental briefing when briefing omits arguments necessary to resolve the single issue | Appellant need only present the complaint adequately below; courts should allow cure of briefing defects where appropriate | Defendant urges enforcement of waiver where briefing omitted grounds supporting judgment | Court: Courts may raise waiver sua sponte, and should permit supplementation when needed to decide the merits, but have discretion to affirm if further briefing would be futile |
Key Cases Cited
- Malooly Brothers, Inc. v. Napier, 461 S.W.2d 119 (Tex. 1970) (establishes presumption trial courts consider the record and applicable law)
- Merriam v. XTO Energy, 407 S.W.3d 244 (Tex. 2013) (review of summary judgment proceeds issue-by-issue and courts may render the judgment trial court should have rendered)
- State v. Ninety Thousand Two Hundred Thirty–Five Dollars & No Cents in U.S. Currency, 390 S.W.3d 289 (Tex. 2013) (assumes trial courts consider available issues and evidence absent limitation)
- St. Johns Missionary Baptist Church v. Flakes, 595 S.W.3d 211 (Tex. 2020) (authorizes curing briefing defects via supplemental briefing and liberal construction of rules)
- TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913 (Tex. 1991) (trial-court docket-management and sanction principles)
- Greene v. Farmers Ins. Exch., 446 S.W.3d 761 (Tex. 2014) (parties may pursue new arguments on appeal if they relate to issues presented below)
- Regan v. Carducci, 714 F.2d 171 (D.C. Cir. 1983) (appellate courts may supplement counsel’s contentions through their own research)
- Kamen v. Kemper Fin. Servs. Inc., 500 U.S. 90 (1991) (courts may consider arguments and authorities not identified by counsel when resolving presented issues)