B.C., Appellant v. STEAK N SHAKE OPERATIONS, INC., Appellee
No. 05-14-00649-CV
Court of Appeals Fifth District of Texas at Dallas
November 2, 2020
Opinion by Justice Schenck
On Appeal from the 380th Judicial District Court, Collin County, Texas, Trial Court Cause No. 380-02686-2012
CONCURRING OPINION ON DENIAL OF APPELLEE‘S MOTION FOR RECONSIDERATION EN BANC
Opinion by Justice Schenck
Appellee‘s motion for reconsideration en banc faults the plaintiff below for her failure
I fully agree with the Court‘s decision to deny the motion for en banc reconsideration in this matter. I write separately because it illustrates a continuing and important misinterpretation of the roles of judges in the trial and appellate courts grounded in some earlier cases that should no longer be seen as controlling.
Background
The panel‘s decision in this case represents the Court‘s third attempt to reach a final judgment in this matter and comes on the heels of two earlier reversals by the supreme court. The first decision involved a purely legal question of whether the
The motion raises recurring and important contentions about appellate review and the role of appellate judges in conducting it. That problem arises, by necessity, from the framing of the issues and the arguments in the trial court. Accordingly, I will start there.
I. Trial Judges Are Answerable fоr the Record and the Law Before Them
The motion notes that plaintiff‘s counsel below failed to “direct” the trial judge‘s attention to the evidence submitted by the defendant in connection with its motion for traditional summary judgment, though on an issue that was also subject to a “no evidence” attack. Unspoken but essential to appellee‘s argument is the notion that trial courts in Texas are under-staffed and presumably unable to study the moving papers (or presumably the governing law) before rendering a judgment. While our trial courts generally lack the trained legal assistance that many (this author included) might think are essential to acquit themselves of the substantial task before them, we all go to war with the army we have.
If we were to presume that trial courts were not reading or otherwise familiarizing themselves with the motion papers to render an informed decision, why would we stop there? Should we not also assume that the court was not familiar with the applicable law unless one side directly cited it or, better still, provided a copy of the relevant statute or opinion? Would we then constrain our analysis on appeal to those same authorities, regardless of the actual state of the law?2 Our governing case law, dating back to Malooly Brothers, Inc. v. Napier, embraces the opposite, and appropriate, assumption that the trial courts, however staffed and supported, are aware
The motion urges a different assumption and cites language in earlier panel decisions from this Court that support it. However, those opinions trace back to the earliest panel decision in this case that has since been rеversed by the supreme court and remanded for this proceeding. I believe the supreme court‘s decisions in these cases should be treated as ending any argument that a party resisting a motion for summary judgment is obliged to “direct” the trial court to the summary judgment record. If one assumed that this language survived that vacatur, one would wonder how the error could have been deemed harmful by the supreme court or why remand would have been needed. See
Even assuming the supreme court‘s decisions in this case did not have that effeсt and left the question open for future debate, I believe the rules themselves foreclose the argument appellee advances here, as I detail below.
A. There Is Only One Summary Judgment and One Record Authorized By Rule 166a
The motion presses the argument that summary judgment proceedings in the trial court should be parsed and reviewed separately depending on the subparagraph of the summary judgment rule invoked.3 The record available to the trial and appellate court alike would thus be limited to the respectivе theories—“traditional” or “no evidence“—to which the movant directed the trial court‘s attention. Contra Attorney Gen. v. Duncan, 929 S.W.2d 567, 571 (Tex. App.—Fort Worth 1996, no writ). This argument appears to derive from the last sentence of rule 166a(i), authorizing “no evidence” motions, which directs that judgment must be rendered unless “the respondent [has] produce[d] . . . summary judgment evidence.” Reading the subparagraph in isolation, the fact that the summary judgment record already contains proof sufficient to defeat the motion would be of no moment, unless the respondent separately “produces” that evidеnce or copies and refiles it. There are several problems with this argument.
1. Evidence Need Not Be (Re)Produced By the Plaintiff to Be Counted
The motion faults the panel for considering summary judgment evidence filed by the defendant with its motion for “traditional” summary judgment because the nonmovant did not “direct” the trial court‘s attention to it. This argument (and the authority it invokes) necessarily implies that the plaintiff was required only to highlight the relevant summary judgment materials before they might be considered. Why would that be? No language in rule 166a(i) would allow the mere “directing” to suffice in the face of text supposedly isolating our gaze to who “produced” it, if that no evidence proceeding stands on its own. To resist a “no evidence” motion on the same issue developed in the “traditional” motion, the plaintiff would be required to refile, and hence, “produce it,” herself.
2. “Summary” Judgment Is Meant to be Just That, Summary—Not a Meandering Minefield of Empty Technicalities
The introduction of subparagraph (i)—the “no-evidence” motion—to the existing summary judgment rule, allows the defendant, “after adequate time for discovery,” to seek summary judgment on the lack of objective quality of the available proof. This burden-shifting refinement was made available, in addition to the traditional motion practice (by which the movant first establishes his or her entitlement as a matter of record), in order to streamline the process and reduce the costs associated with defending against claims that could not support a judgment. Nothing in any of these rules or their past construction would suggest that litigants were meant, instead, to engage in a game of procedural Twister, whereby they are actually conducting separate proceedings and seeking separate judgments on the same issues, or that the goal of simplifying the proceedings and reducing costs was intended to operate to the benefit of only one side of the docket.
Instead, rule 166a(c), focuses a singular “proceeding” pointing directly to the “grounds” on which relief is sought, regardless of the mechanism invoked to seek it. It likewise directs one judgment to be rendered summarily and in conformity with the “issues . . . expressly presented to the trial court” whether by “motion, answer or other response,” and without regard to which side presented it or how. Traditional and no evidence motions must, therefore, be targeted to the issues on which judgment is sought, and the prоceeding (and record) is singular.5 Id.
Subparagraph 166a(i) thus adds a procedural vehicle for testing the nonmovant‘s right to proceed to trial, but nothing in the rule or common sense would support the notion that there are two separate and distinct records or that the trial court might ignore in rendering a judgment to which the movant is not in fact entitled. If, as in this case, the summary judgment record, including the motion and attachments identified in the motion for traditional summary judgment, reflects that the movant is not entitled to judgment at all,6 no language in the rule purports to direct
B. Appellate Review of (Summary) Judgments
Our review in any case, and certainly of summary judgments, is also addressed to the “issues presented” by the parties below and on appeal.
1. We Review a Single Judgment and a Single Record
When a single party seeks summary judgment on both “no evidence” and “traditional” grounds, we generally begin with the no evidence theory because that ground, if sustained, makes further review unnecessary. Merriam, 407 S.W.3d at 248. Still, nothing in that sequencing would suggest that functionally distinct judgments, motions, or records are at work. Summary judgment proceedings and appeals alike move issue by issue. A party may move for no evidence relief on the alleged complete lack of proof pertaining to one element of a claim and traditional relief on a limitations bar to the same claim or counterclaim. Or, a party might requеst traditional and no evidence relief on the same claim raising the same issue—that the quality of the evidence is objectively deficient with the movant first being forced to show the evidentiary deficiency and entitlement to summary judgment on only the traditional motion. In that case, so long as the same claim is involved, we spare ourselves the step of determining whether the movant carried the initial burden on the traditional motion by simply examining the issue through the lens of the no evidence motion, as the nonmovant already carries the burdеn of establishing his entitlement to proceed to trial on the issue.
Of course, this begs the question of whether our review looks to the whole of the summary judgment record before the trial court as it relates, not to the subparagraph of rule 166a invoked, but to the “issues . . . expressly presented to the trial court” and whether by “motion, answer or other response.”
Appellee‘s first argument, of course, is that evidence relevant to an “issue” but submitted by the other party in connection with a traditional motion cannot be considered
We have long been told that, unless the trial court has specifically limited the basis for its decision, our review of summary judgments is to assume the trial court considered all the issues and evidence available. E.g., Merriam, 407 S.W.3d at 248 (citing State v. Ninety Thousand Two Hundred Thirty-Five Dollars & No Cents in U.S. Currency, 390 S.W.3d 289, 292 (Tex. 2013)). This default review standard would obviously sit awkwardly with the notion that we cannot (or should not) look at the record unless there is some specific indication the trial judge was looking at it. The fact that the trial court rendered summary judgment is surely an indication that the trial judgе thought some ground supported it. It is not, however, conclusive of the idea that all of them did.
2. Neither an Appellate Justice Nor a Trial Court Judge Becomes a “Surrogate Advocate” By Reading the Record or Applying the Governing Law to the Issues Raised by the Parties
Appellee faults the panel for looking to the record, in full, and without invitation from the plaintiff‘s (now appellant‘s) brief, abandoning its “neutrality” and taking on the role of “advocacy.”8 As a trial court reviews motions addressed to overlapping “issues,” we review a single judgment. We also have a single record. The motion seizes on broad language in still other of this Court‘s cases to make a more problematic assertion—that we cannot look to the record or the law that governs the issues presented without forfeiting our neutrality. That misunderstands our role and confuses what we are “not required to do,” on the one hand, with what we must not do, on the other. While it continues to be asserted in this motion and elsewhere, I believe that argument should have been laid to rest in St. Johns Missionary Baptist Church v. Flakes, 595 S.W.3d 211 (Tex. 2020).
Charges of judicial activism are more easily made thаn understood. No one would doubt that, on the one hand, with the exceptions of structural issues like subject matter jurisdiction, a judge reaching out to raise and decide an issue not raised by the parties, is exceeding his or her role. On the other hand, a judge resolving an issue raised by the party and only in accordance with the precise argument and legal authorities cited by the parties operates at grave risk, including creating new law unnecessarily and improperly. This case and its summary judgment posture illustrate the point perfectly.
II. What‘s the “Issue” on Summary Judgment?
Appellate courts in Tеxas and elsewhere have long distinguished between the legal arguments and authorities that drive the result and the issue or issues to which they
Suppose the plaintiff in such a case, now the appellant, forgot to address the fact of the filing of the traditional motion on appeal separately, but, pointing to the copious evidence marshaled in response to the no evidence motion, proved that a reasonable juror could return a favorable verdict on the same challenged elements from the traditional motion? Would we face the argument that the case is over under Malooly for failure to address a “ground” on which judgment was sought despite the single issue? I would hope not. In that case, there would be a single issue аnd the argument would likewise be singular (as it is in this case): the summary judgment evidence did not support the judgment that was entered. In such a single issue, single argument summary judgment, the notion that we might seize on waiver for failure to address the procedural vehicles to decide the case irrespective of the merits, in my view, would be inappropriate. If the plaintiff‘s brief marshaled and put forward proof establishing the presence of a fact issue in the record in response to the no evidence motion, why would we care that he or she hаd not also trotted through relevant standards for traditional summary judgment in the three pages of briefing our eyes skip over from familiarity?
Next, take a compound summary judgment like the one originally before us in this case. The contention that the governing statute does not permit the claim at all—and regardless of the quality of the proof—is clearly independent of the theory that the objective weight of the evidence could not support a verdict, and either would independently support the judgment. They are thus clearly separate “grounds” under rulе 166a. But are they separate “issues” on appeal as well? In other words, had the plaintiff failed to acknowledge one or the other in the briefing on appeal would we or, perhaps, should we say, that the plaintiff‘s brief fails, putting aside the consequences of that failure for the moment? Because the summary judgment rule tracks issues and grounds so closely and because Malooly affirmatively directs it, I believe the answer is yes: we should raise the issue of waiver even if the defendant failed to note it.
But, isn‘t the question of waiver itself an “issue” that a judge should refrain from raising against the charge of activism or advocacy—this time in favor of the defendant-appellee? The answer is perhaps it is an issue, but this issue, like subject matter jurisdiction, is one we are supposed to raise independently in order to avoid rendering an unnecessary, and perhaps advisory, law-making decision. Facing the briefing waiver question that we must acknowledge, the question then turns inexorably to the next question: may or even must we allow it to be fixed where it arises sua sponte from us or do we become “advocates” by permitting it?
The motion reminds us, as we have often warned: “It is not our duty to make an independent search of the voluminous summary judgment record for evidence supporting their position.” King v. Wells Fargo Bank, N.A., 205 S.W.3d 731, 735 (Tex. App.—Dallas 2006, no pet.) (citations omitted). This poses the same question on appeal that the motion raises as to the trial court. If you are not obliged to read the record before you, does doing so amount to illicit “advocacy“?
That argument fails because there is a vast chasm between “must” and “may” when reading thе record or the law as it pertains to an issue. Judges are no more potted plants as to the facts than they are to the law. If both parties appeared before us urging a result contrary to the record, whether for purposes of collusion or incompetence, would we be obliged to embrace it? Would we not then become advocates for an outcome one or both sides urge, rather than the one compelled by our standard of review? And, regardless of the answer to those questions, we are not a terminal court. What would happen in the supreme court if, represented by different counsel perhaps, a petitioner acknowledged the actual record in presenting their arguments? Is that court constrained to ignore the actual record if it grants a petition? See Greene v. Farmers Ins. Exch., 446 S.W.3d at 764 n.4.9
And what of the same problem with respect to the law, whether it is a controlling case that one side fails to cite or an argument that more readily forecloses the issue before us without making unnecessary new law? If the parties’ briefs present only two competing legal arguments, are we obliged to pick the second least absurd and announce it as the rule for all going forward? What if the arguments and authorities cited in the briefs direct us to make not absurd, but new, unnecessary law that would likely necessitate supreme court review? Should we avoid existing law already settled by the supreme court, though the parties missed it? Again, the summary judgment context of this case illustrates the problem well.
Suppose we have a summary judgment arising out of claimed breach of a writtеn contract. Suppose further that the parties’ briefs on appeal raise a single contract enforcement issue, but present it only with exotic legal arguments as to whether the parties’ course of performance has the effect of incorporating a statute that, if read as one side urges, would create additional performance obligations and, in turn, a
I agree that concerns over judicial activism are real, but that is not what was at work here. Once the parties have presented us with an issue, we are obliged to give them a merits-driven answer where we can. The parties do not sign our opinions and do not have the right to have us render a decision that is either contrary to the law that applies to their issue(s) or the record they made below, no matter how they choose to frame either. Appellate justices, no less than trial judges, have the right and perhaps the obligation to leave their chairs, read the record, and open a law book—without permission if necessary. When they do so, they should seek to avoid issues not raised, unless compelled by law to do so, and render
Pedersen, III, Carlyle, Browning, J.J., join this concurring opinion.
140649CF.P05
/David J. Schenck/
DAVID J. SCHENCK
JUSTICE