concurring.
I believe that an appellate court may affirm a summary judgment on any properly raised and preserved grounds, even those not recited in the trial court’s order. Because I believe we should not exercise such authority in this case, however, I join only in the Court’s judgment, not its opinion.
As the writings in this ease demonstrate, there is considerable tension between the mandate in our rules for appellate courts to render the appropriate judgment, Tex. R.App.P. 81(b), 180, and the various pronouncements by this and other courts that summary judgments should not be affirmed on unspecified grounds. The plurality would resolve this tension by adopting an inflexible rule against considering unspecified grounds under any circumstances. Justice Gonzalez, on the other hand, would prefer that appellate courts always consider all possible grounds for affirming a summary judgment. Both opinions, ironically, cite judicial economy as a principal justification for their position. I am not persuaded that judicial economy is in fact best served by either inflexible rule. At times, the record will be sufficiently clear, and the need for an immediate final disposition sufficiently strong, that an appellate court will best discharge its duty by reviewing all summary judgment grounds raised and preserved by movant, regardless of the trial court’s action. More often, however, the administration of justice would probably best be served by further trial court review. As we recently observed: “Ordinarily, when a trial court has specified the ground on which it was granting summary judgment, we must remand the cause to allow the trial court to rule on the remaining grounds.” State v. Flag-Redfern Oil Co., 852 S.W.2d 480, 484 n. 6 (Tex.1993) (emphasis supplied). Certainly that rule seems preferable here.
The determination of whether an insurance company has been relieved of its contractual obligations by the conduct of its insured is inherently a fact-intensive and case-specific inquiry. This Court should be very reluctant to undertake the initial determination of whether such conduct is established as a matter of law. Moreover, the respondents have declined to brief the issue to either the court of appeals or this Court. Under these circumstances, I agree with Justice Hecht that the ends of justice are best served by affording the trial court the first opportunity for review and decision. Therefore, I would remand this cause to the trial court for specific consideration of the remaining grounds of State Farm’s motion, and for such other and further proceedings as may be necessary in accordance with the Court’s judgment.