Blanchard v. Brazos Forest Products, L.P.

*575LEE ANN DAUPHINOT, Justice,

concurring.

The majority correctly recites the standard of review appropriate for a traditional summary judgment2 but then essentially holds that it is irrelevant because there is no real appeal from the determination of the Texas Workforce Commission (TWC), stating,

Rather than determine whether Brazos and TWC proved as a matter of law that Blanchard engaged in misconduct as defined by the labor code or whether fact issues precluded summary judgment, the trial court was required to determine whether Brazos and TWC proved as a matter of law that substantial evidence supported TWC’s decision to deny him unemployment benefits.3

No matter that we must take the allegations of the nonmovant as true and determine whether any issue of material fact exists in a true traditional summary judgment review,4 if there was any evidence amounting to more than a scintilla before the TWC that supports its decision, the entire appeal process is a sham because as a matter of law the TWC cannot be reversed.5 Here, the nonmovant showed substantial conflicting evidence. If we take it as true, summary judgment is not proper.6 But, despite the standard of review to which we must give lip service, all that conflicting evidence must be ignored in this case because, in determining appeals from a TWC ruling, factual allegations of the nonmovant are irrelevant if there was any evidence amounting to more than a mere scintilla before the TWC that supports its ruling.7

If this is what the legislature intends, then the Supreme Court of Texas should come up with a new standard of review to be applied to summary judgment cases involving appeals from administrative decisions based on substantial evidence, and that standard of review should make sense in light of the law that we are obligated to follow. I would suggest that the standard first look to whether there was substantial evidence to support the administrative ruling. Then I would ask whether the non-movant has produced evidence either below or as newly discovered evidence to show as a matter of law that the administrative ruling cannot stand or that reasonable persons could not disagree that the veracity or reliability of the evidence supporting the administrative ruling was so lacking that a reasonable person could not rely on the evidence below. If there is a question regarding when the nonmovant became aware of this evidence, it would go to the propriety of granting or denying the motion for summary judgment. That is, the burden would be on the proponent of *576the newly discovered evidence in the same manner as in a motion for new trial based on newly discovered evidence.8

The majority has correctly addressed the issues before us as the law now stands. I respectfully ask the Supreme Court of Texas to reconsider the standard of review for summary judgments in cases involving appeals from administrative rulings based on substantial evidence.

. Majority op. at 571-72; see Tex.R. Civ. P. 166a(b)-(c); Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex.2010); Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex.2009); 20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex.2008).

. Majority op. at 573.

. Tex.R. Civ. P. 166a(c); Fielding, 289 S.W.3d at 848.

. See majority op. at 573; City of Houston v. Tippy, 991 S.W.2d 330, 334 (Tex.App.-Houston [1st Dist.] 1999, no pet.); Edwards v. Tex. Emp’t Comm’n, 936 S.W.2d 462, 465 (Tex.App.-Fort Worth 1996, no writ); see also Tex. Health Facilities Comm’n v. Charter Med.-Dallas, Inc., 665 S.W.2d 446, 452-53 (Tex.1984) (noting that if there is substantial evidence, that is, more than a mere scintilla, supporting the agency findings, the decision must be upheld even if the evidence preponderates against it).

. See Tex.R. Civ. P. 166a(c); Fielding, 289 S.W.3d at 848.

. See majority op. at 573; Edwards, 936 S.W.2d at 465.

. See Fantasy Ranch, Inc. v. City of Arlington, 193 S.W.3d 605, 615 (Tex.App.-Fort Worth 2006, pet. denied).