Opinion
No. 07-18-00407-CV
08-13-2020
BOBBY D. HAWES, APPELLANT v. LINK MINISTRIES, INC., APPELLEE
On Appeal from the 237th District Court Lubbock County, Texas
Trial Court No. 2017-526,603, Honorable Les Hatch, Presiding
DISSENTING OPINION
Before QUINN, C.J., and PIRTLE and PARKER, JJ.
The majority concludes that evidence attached to Link Ministries, Inc.'s hybrid motion for summary judgment presented in support of its traditional summary judgment can and should be utilized to assess whether it is entitled to a no-evidence summary judgment when Hawes wholly failed to file a response to the motion. Concluding that this evidence raises a genuine fact issue that refutes Link's no-evidence motion, the majority reverses the trial court's decision to grant Link's summary judgment motion. Because I conclude that Hawes's failure to file a response to Link's motion for summary judgment requires that Link's no-evidence summary judgment be granted, I would affirm the judgment of the trial court. Accordingly, I respectfully dissent.
Background
After Hawes sustained an injury on Link's property, he sued Link under a premises-liability theory. After discovery, Link filed a hybrid traditional and no-evidence motion for summary judgment challenging the status held by Hawes when he was on Link's property. In support of its traditional summary judgment motion, Link attached evidence that included the deposition of Hawes. Despite having notice of the summary judgment, Hawes did not file a response or present any summary judgment evidence of his own. On submission, the trial court granted summary judgment in favor of Link and ordered that Hawes take nothing by his suit. The trial court entered its final judgment, but that judgment does not reflect whether the trial court granted summary judgment on the traditional or no-evidence basis.
Standard of Review
We review the granting of a motion for summary judgment de novo. See Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). When a movant files a no-evidence motion under Rule of Civil Procedure 166a(i), the burden shifts to the nonmovant to produce summary judgment evidence raising a genuine issue of material fact as to each challenged element of its suit. Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013). In meeting this burden, the nonmovant need not marshal its proof; its response must only identify evidence that raises a fact issue regarding the challenged elements. Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex. 2008) (citing TEX. R. CIV. P. 166a(i), Notes and Comments (1997)). When a party seeks summary judgment on both no-evidence and traditional grounds, we address the no-evidence grounds first. Merriman, 407 S.W.3d at 248. Because I conclude that the no-evidence grounds for summary judgment in this case are dispositive, I do not address Link's traditional grounds. See Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004) (if the nonmovant fails to produce sufficient evidence to meet its burden as to the no-evidence motion, there is no need to analyze whether the movant satisfied its burden under the traditional motion).
Analysis
In his opinion, Justice Pirtle concludes that, because Link attached evidence to its summary judgment motion in support of its traditional grounds that is sufficient to raise a genuine issue of material fact regarding each challenged element of Hawes's claim, Link's no-evidence allegations are procedurally and evidentiarily deficient to support summary judgment. Notably, Justice Pirtle does not cite applicable case law to support his approach nor does he analyze why evidence provided by Link in support of its traditional summary judgment should be reviewed to determine whether this evidence precludes a no-evidence summary judgment in the absence of the filing of any response to the summary judgment motion by Hawes.
The plain language of Rule 166a(i) requires the court to grant a no-evidence summary judgment motion "unless the respondent produces summary judgment evidence raising a genuine issue of material fact." TEX. R. CIV. P. 166a(i). Nothing in the rule provides that the nonmovant can avoid a no-evidence summary judgment when it fails to file a response to the motion. Certainly, relying on evidence proffered by the movant is not producing evidence.
It appears that Justice Pirtle justifies his approach, namely, reviewing the movant's traditional summary judgment evidence in consideration of no-evidence grounds, on a statement made by the Supreme Court in Binur v. Jacobo, 135 S.W.3d 646, 651 (Tex. 2004). That statement is, "if a motion brought solely under subsection (i) [(no-evidence motion)] attaches evidence, that evidence should not be considered unless it creates a fact question, but such a motion should not be disregarded or treated as a motion under subsection (a) or (b) [(traditional motion)]." Id. (emphasis added). Our sister courts have determined that this statement does not justify considering evidence presented in support of a traditional summary judgment in determining whether a fact issue is raised to preclude a no-evidence summary judgment when a hybrid motion is filed. See B.C. v. Steak N Shake Operations, Inc., 532 S.W.3d 547, 551 (Tex. App.—Dallas 2017), rev'd on other grounds by, 598 S.W.3d 256 (Tex. 2020); Gallien v. Goose Creek Consol. Indep. Sch. Dist., No. 14-11-00938-CV, 2013 Tex. App. LEXIS 2790, at *8-10 (Tex. App.—Houston [14th Dist.] Mar. 19, 2013, pet. denied) (mem. op.); Dyer v. Accredited Home Lenders, Inc., No. 02-11-00046-CV, 2012 Tex. App. LEXIS 877, at *9-16 (Tex. App.—Fort Worth Feb. 2, 2012, pet. denied) (mem. op.); Viasana v. Ward Cty., 296 S.W.3d 652, 655 (Tex. App.—El Paso 2009, no pet.).
Nothing in Binur expressly imposes a burden on courts to consider evidence that was submitted as part of a hybrid motion for traditional and no-evidence summary judgment when determining the propriety of the no-evidence motion. B.C., 532 S.W.3d at 551; Dyer, 2012 Tex. App. LEXIS 877, at *12. Of more significance though, nothing in Binur relieves the nonmovant of its explicit burden under Rule 166a(i) to timely respond to the no-evidence motion and to direct the court to the evidence it believes creates a fact issue. B.C., 532 S.W.3d at 551; see TEX. R. CIV. P. 166a(i). While the nonmovant may not have "to re-submit the evidence already proffered by the movant, she must, at a minimum, file a timely response identifying the portions of the movant's evidence she is relying on to show a fact issue exists." B.C., 532 S.W.3d at 551 (citing Campbell v. Mortg. Elec. Registration Sys. Inc., No. 03-11-00429-CV, 2012 Tex. App. LEXIS 4030, at *10-11 (Tex. App.—Austin May 18, 2012, pet. denied) (mem. op.)); see Dyer, 2012 Tex. App. LEXIS 877, at *10 (nonmovant must "point out" evidence in its response).
We recognize that the Supreme Court, in reversing the appellate court in B.C., held that a reviewing court must consider evidence when the record, including separate orders, recitals in the summary judgment, or oral rulings made at the summary judgment hearing, includes "an affirmative indication that the trial court permitted the late filing." B.C., 598 S.W.3d at 259-60. However, that is as far as the opinion goes. The Supreme Court was reviewing whether the record affirmatively reflected that the trial court considered an untimely filed response of the nonmovant. Id. The Court recognized that a reviewing court must consider evidence filed in response to a no-evidence summary judgment if the record reflects that the trial court considered this evidence. Id. at 261. The Court did not hold that the reviewing court should consider evidence proffered in support of movant's traditional summary judgment in determining whether to grant movant's no-evidence summary judgment when nonmovant wholly fails to respond to the summary judgment motion. Consequently, I conclude that the Supreme Court's reversal of B.C. was on other grounds and, disagreeing with Chief Justice Quinn's conclusion to the contrary, provides no authority for a court to review evidence attached to a hybrid summary judgment motion in the absence of any attempt to respond by the nonmovant, even when the trial court stated that it reviewed the "evidence."
The Supreme Court, citing TEX. R. CIV. P. 166a(i), states "a movant seeking a no-evidence summary judgment need only identify 'one or more essential elements of a claim or defense . . . as to which there is no evidence,' and the burden then shifts to the nonmovant to produce 'summary judgment evidence raising a genuine issue of material fact.' If a nonmovant fails to carry this burden, then the court 'must' grant summary judgment." B.C., 598 S.W.3d at 259 (emphasis added).
Even if we were to conclude, as does the majority, that the movant produced evidence that raises a fact issue as to the challenged elements of nonmovant's case, it is inappropriate for a court to "make those arguments on behalf of the nonmovant and deny the motion for no-evidence summary judgment on that basis." B.C., 532 S.W.3d at 552. As previously noted, it is the nonmovant's burden to identify evidence and explain why it creates a genuine issue of material fact. Id.; Dyer, 2012 Tex. App. LEXIS 877, at *14. Requiring a court to independently examine the movant's evidence to determine whether it supports the nonmovant puts the court in the improper position of being an advocate for the nonmovant. B.C., 532 S.W.3d at 552; see Burns v. Canales, No. 14-04-00786-CV, 2006 Tex. App. LEXIS 1551, at *11 (Tex. App.—Houston [14th Dist.] Feb. 28, 2006, pet. denied) (mem. op.) ("the trial court is not required, sua sponte, to assume the role of [nonmovant's] advocate and supply his arguments for him.").
I recognize that granting a no-evidence summary judgment when evidence is before the trial court that raises a genuine issue of material fact as to the challenged elements of the nonmovant's claims seems unjust. But such a construction is required by the language of the summary judgment rule and the impropriety of putting courts in the role of advocate for the nonmovant. B.C., 532 S.W.3d at 552; Dyer, 2012 Tex. App. LEXIS 877, at *14.
Moreover, by failing to file a response to Link's summary judgment motion, Hawes did not present any argument or evidence to the trial court to refute Link's no-evidence summary judgment motion. Generally, the record must show that a complaint was made to the trial court by a timely request, objection, or motion before the complaint will be considered on appeal. TEX. R. APP. P. 33.1(a)(1)(A); USAA Tex. Lloyds Co. v. Menchaca, 545 S.W.3d 479, 510 (Tex. 2018). Because Hawes failed to respond to Link's no-evidence grounds, he is restricted on appeal to challenging the sufficiency of the summary judgment motion. Viasana, 296 S.W.3d at 655.
In that regard, the no-evidence portion of Link's summary judgment motion identified eight separate elements of Hawes's cause of action as not being supported by evidence. Consequently, Link's no-evidence ground sufficiently identified the specific elements of Hawes's cause of action for which there was no evidence, which is all that is required under the rule. See id. Because Hawes failed to "produce[] summary judgment evidence raising a genuine issue of material fact" in response to a proper motion for no-evidence summary judgment, the trial court was mandated to grant the motion. Id.
Based on the above, I would affirm the decision of the trial court. Accordingly, I respectfully dissent.
Judy C. Parker
Justice