B.C. v. Steak N Shake Operations, Inc.

Concurring Opinion Filed November 2, 2020

In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-14-00649-CV

B.C., Appellant
V.
STEAK N SHAKE OPERATIONS, INC., Appellee

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 “to direct” the trial court’s attention to the summary judgment evidence

that establishes its error in rendering summary judgment. The motion also faults the

panel justices for becoming “surrogate advocates” in considering the summary

judgment record without being so invited by the briefs.

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

Texas Commission on Human Rights Act makes a single, rather than episodic

assault actionable. The second and now third decisions collectively conduct the

actual review of the summary judgment entered on both “no evidence” and

“traditional” grounds. Not that it controls our de novo review in this case,1 but the

order granting summary judgment recites that the judge considered “all of the

evidence.”

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.

1
To be clear, in my opinion the recitation to that effect would not change either the record or the
governing standards below or in this Court.
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 I. Trial Judges Are Answerable for 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

2
If we have arrived at the point where, for whatever reason, we would be required to discard the
presumption that judges are able to read the papers and apply the law to the matter being heard, we would
do better to say so directly and demand a functional remedy. As an equal, coordinate branch, we, and those
we serve, are entitled to rely on the idea that we are deciding cases on their merits and according to the law
and the facts before us. TEX. CONST. art. 1, §§ 2, 19.

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opposite, and appropriate, assumption that the trial courts, however staffed and

supported, are aware of the relevant issues and materials before them. 461 S.W.2d

119 (Tex. 1970).

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 reversed 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 TEX. R. APP. P. 60.2(c), 60.3.

Even assuming the supreme court’s decisions in this case did not have that

effect 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

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of the summary judgment rule invoked. 3 The record available to the trial and

appellate court alike would thus be limited to the respective 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 evidence 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

3
Issue development stems from our generous pleading standards and special exception practice. A
petition (or counterclaim) need not cite statutes or case law in support of a claim. Instead, it should contain
only “a short statement of the cause of action sufficient to give fair notice of the claim involved.” TEX. R.
APP. P. 47(a). Over recent decades, efforts to streamline and reduce the complications, delay and expense
associated with litigation brought refinements to allow prompt dismissal of legally futile claims. E.g., TEX.
R. CIV. P. 91a; Friesenhahn v. Ryan, 960 S.W.2d 656, 658 (Tex. 1998). Still, we focus on the facts alleged
(and inferences that might plausibly be credited) and the relevant law in evaluating the viability of a claim
or defense.

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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.

Putting that obvious textual problem aside, the argument also, and more

directly, fails to acknowledge that the only—and singular—“proceeding” or

“judgment” rule 166a authorizes are both found in rule 166a(c), which authorizes

one summary judgment by “issue” presented, not by the subparagraph invoked or

mechanism of summary judgment attack. 4

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

4
If rule 166a(c) authorizes “proceedings” in relation to only a traditional summary judgment motion,
what provision would authorize any proceedings under the ostensibly separate 166a(i) motion?
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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 proceeding (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

5
Notably, the proceeding here is specifically defined as a hearing. In at least this context, a request
that the trial judge take notice of its file should be unnecessary. Compare Duncan, 929 S.W.2d at 571
(rejecting that trial court must be asked to take notice of the file insofar as the materials pending within the
motions papers that are the subject of the hearing), with Blake v. Intco Invs., 123 S.W.3d 521, 525 (Tex.
App.—San Antonio 2003, no pet.) (trial court is “not required” to search voluminous record to identify fact
issue). As detailed below, neither the district court, nor this court is obliged to read the record. That is
separate from the question of whether we may or what will happen if a higher court does.

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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 its entry, regardless of which paragraph of the rule the movant intends to

invoke.7

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. TEX. R. APP. P. 38.1(f).

As a result, when both parties move for summary judgment, we review the entire

record before the trial court, regardless of which party produced it, and examine the

resulting judgment. Merriam v. XTO Energy, 407 S.W.3d 244, 248 (Tex. 2013).

We then examine the “issue” de novo for the legal question it is and, where proper,

6
If the motions and proceedings are in fact to be separately processed by the nonmovant and the trial
court such that a rule 166a(i) motion is to be viewed in isolation from the balance of the record, I would
ask what rule governs the proceedings.
7
Of course, a trial court has the authority to manage its docket. Thus, where a response simply attaches
voluminous materials with no evident connection to the response itself, the court may ask whether the
response’s assertion that a fact issue is “in there somewhere” was formed after “a reasonable inquiry that
the [response] is not groundless.” TEX. R. CIV. P. 13. The court might properly opt for a resubmission
under such additional terms as are reasonable under the circumstances. TransAmerican Natural Gas Corp.
v. Powell, 811 S.W.2d 913, 917 (Tex. 1991) (“The imposition of very severe sanctions is limited, not only
by these standards, but by constitutional due process.”). Of course, the trial court might simply also elect
to proceed, accepting that it is entering judgment on its understanding of the record, leaving the movant to
defend its claimed entitlement at the peril of potential reversal. From the trial court’s perspective, the
concern that a party might point more specifically to the record is little different from the concern that a
party might make a different argument in a higher court. Greene v. Farmers Ins. Exch., 446 S.W.3d 761,
764 n.4 (Tex. 2014) (parties may pursue arguments not presented below so long as they relate to the issue
presented below).

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“render the judgment that the trial court should have rendered.” TEX. R. APP. P.

43.2(c).

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

request 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 burden 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

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subparagraph of rule 166a invoked, but to the “issues . . . expressly presented to the

trial court” and whether by “motion, answer or other response.” TEX. R. CIV. P.

166a(c).

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 on appeal unless the nonmovant “directs it” to the trial court’s attention.

This theory, carried forward on appeal and endorsed as a limitation on review of the

judgment, would spare us work and avoid reversal where the trial court was deprived

of flag waving over the fact issue. The short answer is that the burden of reversal of

the judgment will fall on the shoulders of the party who bore the burden of proving

entitlement to it. The longer answer is that appellate courts, no less than trial courts,

have the right, if not the obligation, to answer the “issue” before them on the basis

of the record and the controlling law.

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

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that the trial judge 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 than 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

8
One would presume that a like charge could be made to the trial judge who, uninvited, has the temerity
to read the traditional summary judgment papers and identify the presence of a material and genuine fact
issue that is also the subject of a no evidence attack.

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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 Texas and elsewhere have long distinguished between the

legal arguments and authorities that drive the result and the issue or issues to which

they pertain. In any appeal, that distinction can be difficult but is informed by the

rules themselves, which direct us back to the motion in the trial court and the issues

framed there. To put the question in context, are there two “issues” left in this

(hopefully final) appeal: whether the defendant was entitled to “traditional”

summary judgment because it carried the burden of showing a juror could not

reasonably credit the available proof? And, separately, whether the plaintiff

produced enough evidence in response to the no evidence motion? As noted above,

the operative rule directs both motions into a single proceeding, and that proceeding

is, in turn, focused on the substance of, rather than the procedural vehicle for, the

attack. To reinforce that point, the rule requires the movant to direct the trial court

to the “grounds” on which judgment is sought.

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

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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 and 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 had 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 rule 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

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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?

As to the “may” question, the answer under the rules seems clear: “yes” we

may and, generally, we should allow the waiver to be cured. Flakes, 595 S.W.3d at

215; TEX. R. APP. P. 38.9(b), 44.3. Rule 38.9 authorizes us to seek supplemental

briefing where necessary to permit a merits disposition and rule 44.3, together with

supreme court directives on the proper interpretation of the rules, require us to

liberally construe the briefs and the rules to do so. But, having discretion to ask for

supplemental briefing is a far cry from a mandate to do so. Where we conduct de

novo review, as in the summary judgment context, and the papers below demonstrate

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the likely futility of further briefing, we may, for instance, say as much and simply

affirm, rendering the same decision and judgment that the trial court did. TEX. R.

APP. P. 42.

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 the 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

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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 761, 764 n.4 (Tex. 2014).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

written 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 possible claim of breach. Neither party, however, takes note of the

contract’s merger and modification provisions, the plain language of which, under

well-settled law from a superior court, would foreclose the hybrid contract/statutory

9
The parties are not limited to the arguments made below. The appellant is limited by the requirement
that the “complaint” was presented adequately below. TEX. R. APP. P. 33.1. An appellee is not required to
file a brief, much less preserve its ability to present arguments in support of the judgment.
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construction argument altogether. If breach of the contract is the “issue,” arguments

over its plain language ought to be on the table. If so, treating the plain language of

the contract as an unbriefed, but controlling and narrower argument and addressing

it ought to be appropriate. But, does the judge searching for the narrower disposition

anchored in the well-developed law and existing record become an activist? Isn’t

avoiding the obvious, narrower disposition under settled law the greater vice?

Making new law that will apply not only to parties but also to all the world seems

far more dangerous and short-sighted to me. As Justice Scalia and other ethical

appellate judges have observed: “not all legal arguments bearing upon the issue in

question will always be identified by counsel, and we are not precluded from

supplementing the contentions of counsel through our own deliberation and

research.” Regan v. Carducci, 714 F.2d 171, 177 (D.C. Cir. 1983); see also Kamen

v. Kemper Fin. Servs. Inc., 500 U.S. 90, 99–100 (1991).

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
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issues not raised, unless compelled by law to do so, and render the narrowest merits

decision possible. E.g., Regan, 714 F.2d at 177. All else is confusion.

/David J. Schenck/
DAVID J. SCHENCK
JUSTICE

Pedersen, III, Carlyle, Browning, J.J., join this concurring opinion.

140649CF.P05

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