                                                                                   ACCEPTED
                                                                               03-13-00498-CV
                                                                                       6107077
                                                                    THIRD COURT OF APPEALS
                                                                               AUSTIN, TEXAS
                                                                         7/16/2015 11:39:01 PM
                                                                             JEFFREY D. KYLE
                                                                                        CLERK
                    No. 03-13-00498-CV

                          In the                              FILED IN
                                                       3rd COURT OF APPEALS
                                                            AUSTIN, TEXAS
         Third Court of Appeals                        7/16/2015 11:39:01 PM
                                                           JEFFREY D. KYLE
                                                                Clerk
                      at Austin
            RONNIE LAWSON AND LEAH LAWSON,
                                         Appellants,
                              v.


BENJAMIN KEENE, KRISTI KEENE, GRETCHEN GAYLE GULLEKSON,  
         DAYNA MARIE TWYMAN AND KWI-8, L.L.C.  
             D/B/A KELLER WILLIAMS REALTY,
                                         Appellees. 


           On Appeal from the 200th District Court 
                  of Travis County, Texas


M OTION FOR E N B ANC R EHEARING
                                    
                                   Don Cruse
                                   State Bar No. 24040744
                                   LAW OFFICE OF DON CRUSE
      
                                   1108 Lavaca Street,  
                                     Suite 110-436
                                   Austin, Texas 78701
                                   [Tel.] (512) 853-9100
                                   [Fax] (512) 870-9002
                                   don.cruse@texasappellate.com
                                   COUNSEL FOR APPELLANTS 
                                         TABLE         OF     CONTENTS

Table of Contents .................................................................................................i
Index of Authorities.............................................................................................ii
Introduction.........................................................................................................1
Factual Background .............................................................................................2
I.       The En Banc Court Should Clarify That Panels Can Examine, in the First
         Instance, Whether a Prior Panel Decision Still Rests on a Solid Legal
         Foundation Today......................................................................................3
         A.    The rule announced by the panel ..............................................3
         B.        Stare decisis is about the consistency of legal principles. ...........5
         C.        Texas appellate panels should be allowed to perform this core
                   part of the judicial function. .....................................................7
II.      The Standard for Reviewing a No-Evidence Summary Judgment Is Now
         Confused in Austin ..................................................................................10
         A.   The procedural posture of this summary judgment .................10
         B.        The record is not limited to the response evidence ..................10
         C.        Contradicting the Supreme Court’s test, the panel’s approach
                   would complicate, not simplify, litigation ................................13
Prayer ................................................................................................................17
Certificate of Service .........................................................................................18
Certificate of Compliance ..................................................................................18




                                                              i
                                 INDEX       OF    A UTHORITIES

Cases
Am. Tobacco Co. v. Grinnell,  
      951 S.W.2d 420 (Tex. 1997) ....................................................................14
Ayeni v. State,  
      440 S.W.3d 707 (Tex. App.—Austin 2013, no pet.) ..................................5
Binur v. Jacobo,  
      135 S.W.3d 646 (Tex. 2004) ....................................................................13
Boerjan v. Rodriguez,  
      436 S.W.3d 307 (Tex. 2014) ....................................................................12
Buck v. Palmer,  
      381 S.W.3d 525 (Tex. 2012) ..............................................................14, 16
Chase Home Fin., L.L.C. v. Cal W. Reconveyance Corp.,  
      309 S.W.3d 619 (Tex. App.—Houston [14th Dist.] 2010, no pet.) ...........5
DeGrate v. Executive Imprints, Inc.,  
     261 S.W.3d 402 (Tex. App.—Tyler 2008, no pet.) ....................................8
Earthkeepers, LLC v. Haag, 2014 Tex. App. LEXIS 3997,  
      2014 WL 1432663 (Tex. App.—Austin Apr. 11, 2014, pet. denied) .......12
Epps v. Fowler,  
      351 S.W.3d 862 (Tex. 2011) ..............................................................4, 5, 6
Gonzalez v. Ramirez, ___ S.W.3d ___, No. 14-0102,  
     2015 Tex. App. LEXIS 441 (Tex. May 8, 2015) ......................................11
Gonzales v. Servs. Lloyds Ins. Co., No. 14-08-00377-CV, 2009 WL 1493039  
     (Tex. App.—Houston [14th Dist.] May 21, 2009, no pet.) (mem. op.) .....8
Hight v. Dublin Veterinary Clinic,  
      22 S.W.3d 614 (Tex. App.—Eastland 2000, pet. denied) ........................13
International Group Partnership v. KB Home Lone Star, LP,  
      295 S.W.3d 650 (Tex. 2009) ......................................................................4


                                                     ii
Inv. Retrievers, Inc. v. Fisher, No. 03-13-00510-CV, 2015 Tex. App. LEXIS 6430
       (Tex. App.—Austin June 25, 2015, no pet. h.) ........................................12
KCM Fin. LLC v. Bradshaw,  
    457 S.W.3d 70 (Tex. 2015) ......................................................................14
King Ranch, Inc. v. Chapman,  
      118 S.W.3d 742 (Tex. 2003) ....................................................................13
Mack Trucks v. Tamez,  
     206 S.W.3d 572 (Tex. 2006) ....................................................................11
McAtee v. City of Austin, No. 03-10-00496-CV, 2013 Tex. App. LEXIS 12518,  
     2013 WL 5855638 (Tex. App.—Austin Oct. 10, 2013, no pet.)..............12
Merriman v. XTO Energy, Inc.,  
      407 S.W.3d 244 (Tex. 2013) ...............................................................14-15
Neely v. Wilson,  
       418 S.W.3d 52 (Tex. 2013) ................................................................14, 16
Public Util. Comm'n v. Gulf States Utils. Co.,  
       809 S.W.2d 201 (Tex. 1991) ......................................................................4
Roper v. CitiMortgage, Inc., No. 03-11-00887-CV, 2013 Tex. App. LEXIS 14518,
      2013 WL 6465637 (Tex. App.—Austin Nov. 27, 2013, pet. denied) ......12
Ross v. St. Luke’s Episcopal Hosp., No. 13-0439, ___ S.W.3d ___,  
       58 Tex. Sup. Ct. J. 766 (Tex. May 1, 2015) ...............................................6
Sierra Associate v. Hardeman, No. 03-0800324-CV, 2009 WL 416465  
       (Tex. App.—Austin Feb. 20, 2009, no pet.) (mem. op.) ...............3, 4, 5, 6
Sw. Bell Tel. Co., LP v. Mitchell,  
      276 S.W.3d 443 (Tex. 2008) ......................................................................6
Tex. Mut. Ins. Co. v. Ruttiger,  
      381 S.W.3d 430 (Tex. 2012) ......................................................................6
Timpte Industries v. Gish,  
      286 S.W.3d 306 (Tex. 2009) ....................................................................11




                                                     iii
Webb v. Robins, No. 03-07-00686-CV, 2008 WL 2777399  
      (Tex. App.—Austin July 17, 2008, no pet.) (mem. op.) ...............11, 12-13
Willis v. Owen,  
       43 Tex. 41 (Tex. 1875) ..............................................................................6
Wright's Adm'x v. Donnell,  
      34 Tex. 291 (1870) ....................................................................................6

Constitutions, Statutes, and Rules
TEX. R. APP. P. 41.2(c) ........................................................................................8
TEX. R. APP. P. 47.1.........................................................................................7, 8
TEX. R. APP. P. 47.7(b) ........................................................................................7
TEX. R. CIV. P. 166a(i) ......................................................................................13
5TH CIR. LOCAL R. 47.5.4 ...................................................................................7
5TH CIR. LOCAL R. 47.6 ......................................................................................7

Other Authorities
“Annual Statistical Report for the Texas Judiciary,”  
     Office of Court Administration (2014)...................................................8n.
Bryan A. Garner, A DICTIONARY OF MODERN LEGAL USAGE (2d ed. 2001) ......1
“Judicial Workload Statistics,”  
      United States Court of Appeals for the Fifth Circuit ( June 2014) .........8n.




                                                         iv
                                   INTRODUCTION

         If the Court is entertaining Fifth Circuit notions of how panels relate to the

en banc court, it might ponder the word they have developed to bridge the gap:

“enbancworthy.”1 This case is that. It features: [1] a serious inconsistency within

this court’s holdings; [2] conflict between the panel’s narrow view of no-evidence

summary judgment records and the Supreme Court’s very different approach,

which leaves Austin trial courts facing conflicting commands; and [3] an underlying

subject matter of broad importance involving a real-estate form contract.

         And this case particularly warrants en banc consideration because the panel

announces and applies a singularly broad rule of local practice, one that could

reshape how complex legal issues are briefed and argued to this Court. The panel

says that mere panels (such as it) are powerless to examine whether any previous

panel decision still rests on solid legal ground, absent some “clearly on point”

supreme court authority or unless this en banc court intervenes (Op. 3). This

motion explains how this rule is at odds with Texas principles of stare decisis and

unique features of Texas’s appellate system. But if it is to be Third Court practice

that only the en banc court can consider arguments that challenge the legal

foundation of any prior panel decision, it ought to be the en banc court that says so.




1   Bryan A. Garner, A DICTIONARY OF MODERN LEGAL USAGE 314 (2d ed. 2001).

                                             1
                           F ACTUAL BACKGROUND

       The claim is that the buyer’s own agent, the seller’s agent, and the sellers

misrepresented a key feature of the house, both by making affirmative claims that

were false and by failing to disclose material facts to induce this sale. The central

feature of the home listing was the sunroom—counted as one of the home’s living

areas and lumped together in the home’s claimed square footage. This roughly 450-

square-foot sunroom is what pushed the house above the square-footage threshold

that these buyers had instructed their agent was their minimum. And as Gullekson,

however reluctantly, eventually admitted, CR458 & CR463, square footage is

(obviously) a factor in pricing residential real estate.

       The sellers were under a statutory duty to disclose certain facts. The agents

held fiduciary duties, including duties to disclose. As an email chain attached to the

motion for summary judgment suggests, they hid the details, with the email thread

even including an instruction not to bring up a square-footage discrepancy that

came to their attention during the lending-approval process.

       The defendants contend that they were immunized from any liability—even

against claims that the Lawsons’ own agent breached fiduciary duties—by a non-

negotiable clause included in a TREC form contract between the seller and buyer

describing what repairs would be needed before closing. The defendants also

argued that the form contract entitled them to shift fees against anyone who might

question their conduct—even against Leah, who did not sign the contract.

                                            2
      The panel affirms the judgment on a different basis, saying that under its

(mistaken) view of the summary-judgment standard, it could only consider the

three documents attached to the Lawsons’ response papers—not the voluminous

other documents, such as the email exchange among the agents, the written

representations, and other depositions submitted by the movants. (Op. 3). On fees,

the panel further says that it lacks power to examine whether the legal reasoning

behind the Court’s 2008 Sierra Associate decision remains viable after more recent

Texas Supreme Court guidance about how to interpret a fee-shifting provision in

this type of form contract. (Op. 9). In the panel’s formulation, only the en banc

court can do so. (Op. 9).



I.    THE EN BANC COURT SHOULD CLARIFY THAT PANELS CAN EXAMINE,
      IN THE FIRST INSTANCE, WHETHER A PRIOR PANEL DECISION STILL
      RESTS ON A SOLID LEGAL FOUNDATION TODAY.
      A.     The rule announced by the panel
      The attorney’s fee question sets the stage for the panel’s announcement of

this rule. In 2008, a prior panel had decided Sierra Associate v. Hardeman, which

reasoned from principles of administrative law about the meaning of the contract

between the buyer and seller of real estate. No. 03-0800324-CV, 2009 WL 416465

(Tex. App.—Austin Feb. 20, 2009, no pet.) (mem. op.). There was no discussion of

the parties’ intent. To the contrary, Sierra made clear that its opinion rested on the

idea that, “[b]ecause the contract at issue was promulgated by rule through the


                                           3
agency rulemaking process, we construe the contract as an administrative rule.” Id.

From that premise, Sierra then applied robust administrative deference, saying that

a court will “defer to an agency’s interpretation of its own rule unless it is plainly

erroneous or inconsistent with the rule.” Id. (citing Public Util. Comm'n v. Gulf

States Utils. Co., 809 S.W.2d 201, 207 (Tex. 1991)). The legal principles applied in

Sierra concerned agency deference, not party intent.

      In Epps v. Fowler, the Supreme Court examined a later version of the same

form contract and focused on its fee-shifting language. 351 S.W.3d 862 (Tex. 2011).

The legal principles that it applied, however, are incompatible with Sierra. Instead

of treating this contract as a regulation accorded agency deference, the Supreme

Court looked to the parties’ intent. Id. at 865-66. Epps relied heavily on International

Group Partnership v. KB Home Lone Star, LP, another contract-interpretation case,

in which the Court stated,“[a] contract’s overriding purpose is to capture the

parties’ intent, meaning we must construe it in light of how the parties meant to

construe it.” 295 S.W.3d 650, 657-58 (Tex. 2009).

      The Lawsons contend that the legal rationale for Sierra is now unsound, in

light of this intervening authority. The panel does not deny that the legal analysis

about agency intent that underpins Sierra is untenable in light of Epps. Instead, it

says that minor factual or procedural differences deprive the panel of power to

consider whether the legal analysis of Sierra remains good law:




                                            4
      The question before the Court in Epps was “whether a defendant is a
      prevailing party entitled to attorney’s fees when the plaintiff nonsuits a
      claim without prejudice,” a question distinct from the one before us.

(Op. 8-9). From that premise, the panel says that it must apply Sierra unless and

until some higher court speaks even more precisely to the same question:

      Because the Lawsons have not drawn our attention to a supreme court
      holding clearly on point, we decline to revisit the Sierra decision. See
      Chase Home Fin., L.L.C. v. Cal W. Reconveyance Corp., 309 S.W.3d 619,
      630 (Tex. App.—Houston [14th Dist.] 2010, no pet.) (“Absent a deci-
      sion from a higher court or this court sitting en banc that is on point
      and contrary to the prior panel decision or an intervening and material
      change in the statutory law, this court is bound by the prior holding of
      another panel of this court.”); see also Ayeni v. State, 440 S.W.3d 707,
      717 (Tex. App.—Austin 2013, no pet.) (Pemberton, J., concurring)
      (“We may not overrule a prior panel opinion of this court absent an
      intervening change in the law by the Legislature or a higher court or by
      decision of this court sitting en banc.”).

(Op. 9). But if Epps, which dealt with a newer version of the same clause of the very

same form contact as Sierra, is not “clearly [enough] on point,” what is?

      And, not only did the panel rely on unsound law, it extended Sierra to new

contexts—imposing fees against a person who did not even sign the contract and

interpreting this agency-written contract to deter enforcement of fiduciary duties

created by the same agency elsewhere in its rules. The panel does not explain how

extending Sierra to these new alignments of parties or new claims fits Texas law.

      B.     Stare decisis is about the consistency of legal principles.
      What is entitled to stare decisis effect is a case’s legal holding. But when the

panel says that the Lawsons “do not argue … the holding of Epps contradicts our


                                           5
holding in Sierra,” (Op. 8) (emphasis added), it takes an unduly narrow view of how

two case holdings might conflict.

       The Texas Supreme Court has emphasized that stare decisis attaches to the

legal principles behind the outcome. Ross v. St. Luke’s Episcopal Hosp., No. 13-0439,

___ S.W.3d ___, 58 Tex. Sup. Ct. J. 766 (Tex. May 1, 2015). And later courts can

examine whether that legal foundation remains solid. “[W]e are called upon to re-

evaluate common-law rules, giving deference to stare decisis when warranted, but

departing when the prior rule no longer furthers the interests of efficiency, fairness,

and legitimacy. As we noted 142 years ago, ‘When the reason of the rule fails, the

rule itself should cease. Cessante ratione legis, cessat ipsa lex..’” Tex. Mut. Ins. Co. v.

Ruttiger, 381 S.W.3d 430, 457 (Tex. 2012) (Willett, J., concurring) (emphasis added)

(citing Wright's Adm'x v. Donnell, 34 Tex. 291, 306 (1870)).

       Courts have an ongoing duty to examine the legal soundness of the rules they

apply. “[U]pon no sound principle do we feel at liberty to perpetuate an error, into

which either our predecessors or ourselves may have unadvisedly fallen, merely

upon the ground of such erroneous decision having been previously rendered.” Sw.

Bell Tel. Co., LP v. Mitchell, 276 S.W.3d 443, 447 (Tex. 2008) (quoting Willis v.

Owen, 43 Tex. 41, 48-49 (Tex. 1875)). A panel of elected Texas appellate judges

should not be barred from fulfilling this part of the judicial role.




                                              6
      C.     Texas appellate panels should be allowed to perform this
             core part of the judicial function.
      Preventing panels from examining the legal basis for prior cases poorly fits

Texas appellate practice. First, it ignores the differences between how publication

decisions are made in the Texas and federal courts. The Texas appellate courts do

not have the option, available in some other systems, of summarily affirming

without explanation. Cf. 5TH CIR. LOCAL R. 47.6 (affirmance without opinion). Nor

can Texas appellate courts issue unpublished, non-precedential decisions for those

cases where the court does not wish intermediate legal holdings on procedural

points to ripple through the law. Compare TEX. R. APP. P. 47.7(b) (all after 2003 are

precedential), with 5TH CIR. LOCAL R. 47.5.4 (unpublished opinions after 1996 are

not precedent). Rather than permit summary disposition, the Texas rules require

written opinions addressing every necessary issue. TEX. R. APP. P. 47.1.

      Critically, the federal courts that follow this principle, such as the Fifth

Circuit, have safety valves to dispose of such routine cases without risking serious

damage to the jurisprudence—they can label a case unpublished or even just

summarily affirm. The Fifth Circuit is, like other federal circuits, built as a machine

for disposing of cases without creating precedent. Its most recent statistical report

shows that it issued 3037 opinions in the year ending 2014, but that only 404 of




                                           7
those were given the status of precedential opinions.2 By contrast, the Texas system

issued more than 5000 such opinions last year, with the Third Court alone issuing

more than 600.3

        The better view is that panels can consider the legal foundation of those

precedential Texas cases, grappling with their reasoning under principles of stare

decisis, to determine the correct law to apply to the facts before them. By contrast,

the panel’s approach would make every short footnote brushing aside a pro se

litigant’s off-kilter procedural theory into binding writ that a mere panel cannot

avoid—no matter whether the legal reasoning can withstand more serious study

once the Court is presented with more helpful legal arguments or, on its own,

recognizes some unanticipated implications. Having so many precedential opinions

makes it all the more important that future panels have flexibility to digest them.

        Second, the Texas en banc rule does not have provisions for frequent en banc

sittings every time the courts must reconcile a new but far-reaching supreme court

decision with prior caselaw. See TEX. R. APP. P. 41.2(c). If anything, that rule

suggests there should be few such sittings—not a flurry of them to process each

broad pronouncement from the Supreme Court that might ripple through the law.
2 “Judicial  Workload Statistics,” United States Court of Appeals for the Fifth Circuit, at 11
( June 2014), available at http://www.ca5.uscourts.gov/docs/default-source/forms-and-
documents---clerks-office/statistics/arstats-2014.pdf In addition, almost 2000 other cases were
disposed of by the judges without an opinion, and over 1500 were disposed of by the clerk’s
office. Id. at 6. The vast bulk of the court’s work is processing cases that do not make law.
3 “Annual  Statistical Report for the Texas Judiciary,” Office of Court Administration (2014),
available at http://www.txcourts.gov/media/885306/Annual-Statistical-Report-FY-2014.pdf.

                                                8
      Third, en banc math gets silly when divided among fourteen intermediate

courts, only five of which have total membership large enough that an en banc could

even theoretically outvote a panel. Austin is not in that group, instead sitting with

the Thirteenth Court at a membership of six justices, where each panel makes 50%

of the en banc. Two other courts have four justices, so a panel comprises 75% of the

en banc and in practical terms might as well reach the question. The final five of

Texas’s appellate courts have three justices—so the en banc is the panel.

      The small sizes of Texas appellate courts do not suggest a need to adopt the

Fifth Circuit’s draconian rule about prior panels in order to maintain consistency.

Nor does it serve the interests of the courts to deter litigants from being candid

about the need for the Court to reconcile its web of older cases with more recent

legal developments by subjecting them to extra procedural steps to reach an en banc

court that might or might not offer the substantive answer that Rule 47.1 promises

to participants in Texas’s appellate system.




                                           9
II.    THE STANDARD FOR REVIEWING A NO-EVIDENCE SUMMARY
       JUDGMENT IS NOW CONFUSED IN AUSTIN
       A.      The procedural posture of this summary judgment
       This case involved multiple cross-motions for summary judgment briefed on

an overlapping schedule, argued at one hearing, and resolved in one order. The

defendants advanced both traditional grounds (attaching a significant volume of

evidence) and no-evidence grounds. The Lawsons presented their own no-evidence

motion about certain issues. The defendants responded to the Lawsons’ no-

evidence motion by attaching just a single exhibit—labeled “Exhibit L”, CR408,

building on the larger record assembled for the traditional motion. The next day,

the Lawsons filed their response, which added a few new pieces of evidence to the

stack—one more deposition, a new affidavit from Ronnie Lawson, and a recent

TCAD appraisal report. CR440-522. These motions were heard and decided

together. Under controlling precedent, the panel should have reviewed the whole

summary judgment record when determining whether a fact question exists.4

       B.      The record is not limited to the response evidence
       The panel held that, when reviewing the no-evidence grounds, it was limited

to consider only the three specific exhibits that the Lawsons included in their own

response rather than the full summary-judgment record for these cross-motions:

       In determining whether the Lawsons have raised more than a scintilla

4The motion for panel rehearing argues that even this limited record should have defeated the
no-evidence motion. Because that relates to evidentiary sufficiency, it is addressed to the panel.

                                                 10
      of evidence regarding the grounds on which the defendants based their
      no-evidence motion, we consider only the summary-judgment proof
      produced in the Lawsons’ response. See Webb v. Robins, No.
      03-07-00686-CV, 2008 WL 2777399, at *5 (Tex. App.—Austin July 17,
      2008, no pet.) (mem. op.); see also Gonzales v. Servs. Lloyds Ins. Co.,
      No. 14-08-00377-CV, 2009 WL 1493039, at *2 (Tex. App.—Houston
      [14th Dist.] May 21, 2009, no pet.) (mem. op.); DeGrate v. Executive
      Imprints, Inc., 261 S.W.3d 402, 408 (Tex. App.—Tyler 2008, no pet.)
      (citing Webb).

(Op. 3) (emphasis added). That string of cases comes from a Rule 38.7 letter

submitted by the Appellees.

      The court may observe that these cases end in 2009. As it happens, that year

brought a decision in Timpte Industries, where the Supreme Court clarified that a

statement it had made about summary-judgment records in general was fully

applicable to no-evidence motions:

      When reviewing a no-evidence summary judgment, we “review the
      evidence presented by the motion and response in the light most fa-
      vorable to the party against whom the summary judgment was ren-
      dered, crediting evidence favorable to that party if reasonable jurors
      could, and disregarding contrary evidence unless reasonable jurors
      could not.”

Timpte Industries v. Gish, 286 S.W.3d 306, 310 (Tex. 2009) (emphasis added)

(quoting Mack Trucks v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006)). The supreme

court still follows that principle. E.g., Gonzalez v. Ramirez, ___ S.W.3d ___, No.

14-0102, 2015 Tex. App. LEXIS 441, at *9-10 (Tex. May 8, 2015) (“We review the

evidence presented by a no-evidence motion for summary judgment and




                                         11
response…”); Boerjan v. Rodriguez, 436 S.W.3d 307, 311-12 (Tex. 2014). The panel

opinion cannot be squared with this supreme court authority.

      In failing to address Timpte, the panel also quietly disregards several opinions

from this Court that have echoed the supreme court’s formulation. See Roper v.

CitiMortgage, Inc., No. 03-11-00887-CV, 2013 Tex. App. LEXIS 14518, at *12-13,

2013 WL 6465637 (Tex. App.—Austin Nov. 27, 2013, pet. denied) (noting “movant

is not required to produce proof” but that “[w]e review the evidence presented by

the motion and response…”); see also Inv. Retrievers, Inc. v. Fisher, No.

03-13-00510-CV, 2015 Tex. App. LEXIS 6430, at *8-9 (Tex. App.—Austin June 25,

2015, no pet. h.) (“motion and response”) (quoting Mack Trucks); Earthkeepers,

LLC v. Haag, 2014 Tex. App. LEXIS 3997, at *9-11, 2014 WL 1432663 (Tex. App.

—Austin Apr. 11, 2014, pet. denied) (same); McAtee v. City of Austin, No.

03-10-00496-CV, 2013 Tex. App. LEXIS 12518, at *8, 2013 WL 5855638 (Tex. App.

—Austin Oct. 10, 2013, no pet.) (same). This inconsistency among this Court’s

own cases also warrants en banc scrutiny.

      And while the Court need not evaluate why Webb reached the wrong result to

conclude that it conflicts with current supreme court guidance, it turns out to be a

cautionary tale about why later panels must be able to scrutinize the legal soundness

of the reasons behind a prior panel opinion. That’s because Webb applied the

outcome of a sister court’s opinion without evaluating whether the legal reasoning

was still valid in light of intervening authority. See Webb, 2008 Tex. App. LEXIS


                                            12
5342, at *14-15 (citing Hight v. Dublin Veterinary Clinic, 22 S.W.3d 614, 619 (Tex.

App.—Eastland 2000, pet. denied)). The two steps of Hight’s legal reasoning were:

(1) it expressly declined to follow sister courts that had viewed no-evidence motions

as analogous to directed verdicts, 22 S.W.3d at 618; and (2) it assumed that Rule

166a(i) would automatically transform a no-evidence motion that attached evidence

into a traditional motion, reasoning that meant no movant could even have evidence

to consider, id. at 618-19. Both of those premises were already unsound at the time

of Webb. The Texas Supreme Court had embraced the more lenient direct-verdict

analogy. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003). And it

had held that a Rule 166a(i) movant could, if they wished, attach evidence without

having their motion automatically converted to something else. Binur v. Jacobo, 135

S.W.3d 646, 651-52 (Tex. 2004) (noting that evidence attached to the motion need

not be considered “unless it creates a fact question”). This Court should be

cautious before embracing a rule under which Webb would have been bound to

follow an unsound opinion—or which would bind current panels to Webb.

      C.     Contradicting the Supreme Court’s test, the panel’s
             approach would complicate, not simplify, litigation
      The panel may assume that its rule simplifies things for trial and appellate

courts. But the Texas Supreme Court has embraced a different simplification, one

that cannot be reconciled with the panel’s approach.




                                          13
      The supreme court has reasoned that, when an issue is presented both by a

no-evidence motion and by a traditional summary-judgment motion, the task of the

reviewing court should be simpler, not more complex. Traditional summary

judgment requires two steps of analysis: first, a traditional movant must bring

forward conclusive proof, and only then does a court consider the second question

whether a fact question exists. E.g., Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420,

425 (Tex. 1997). And a no-evidence motion has one step: does a fact question

exists? KCM Fin. LLC v. Bradshaw, 457 S.W.3d 70, 79 (Tex. 2015).

      Because a non-movant can defeat either kind of motion by showing that a fact

question exists, the supreme court has observed that having both motions in play

should simplify the reviewing court’s task:

      Though these burdens vary for traditional and no-evidence motions,
      the summary judgment motion here was a hybrid motion and both
      parties brought forth summary judgment evidence; therefore, the
      differing burdens are immaterial and the ultimate issue is whether a
      fact issue exists.

Neely v. Wilson, 418 S.W.3d 52, 59 (Tex. 2013); Buck v. Palmer, 381 S.W.3d 525, 527

& n.2 (Tex. 2012) (where both kinds of motion were in play, “the differing burdens

of the two forms of summary judgment are of no import here. The ultimate

question is simply whether a fact issue exists.”).

      Fairly read, this is also the observation made in Merriman v. XTO Energy,

Inc., 407 S.W.3d 244, 248 (Tex. 2013), an opinion released between Buck and Neely

making the practical point that it makes sense to start with no-evidence issues. The


                                          14
panel opinion, however, cites Merriman to suggest the proper record is limited—a

proposition that it does not support:

       We begin by reviewing the evidence that the Lawsons produced in
       response to the defendants’ no-evidence motion for summary
       judgment. See Merriman, 407 S.W.3d at 248.

(Op. 3). Merriman does not say that it restricted its analysis to a subset of the

record. Instead, it says that when (as here) “both parties move summary judgment

and the trial court grants one motion and denies the other, we review all the

summary judgment evidence…” Merriman, 407 S.W.3d at 248 (emphasis added).5

       If the panel’s approach is right, then the Supreme Court is wrong that having

both kinds of motion present simplifies things. The Supreme Court’s logic depends

on the shared element of the traditional and no-evidence motions being tested

against a shared record. If they were instead measured against different records, it

would no longer be true that the reviewing court need only conduct one analysis.

Instead, there would be two divergent records every time a no-evidence motion is

filed: the combined record of motion and response, and the subset consisting

merely of the response alone.6


5While Merriman does suggest that a court start with no-evidence grounds where possible, 407
S.W.3d at 248, that is a consequence of the practical point noted by Buck or Neely—that having
both motions means “there is no need to analyze whether the movant satisfied its burden under
the traditional motion.” Id.
6To be sure, it is possible that a response would attach documents that perfectly mirror those of
the motion. But that would relegate the supreme court’s simplification to a rare and special edge
case—not the general principle it claims to be.

                                                15
      Indeed, under the panel’s approach, reversing a grant of summary judgment

could require three steps of analysis, not one: (1) does the subset of the record

attached to a response by itself raise a fact question? (2) does the submission the

movant makes in any traditional motion by itself present conclusive proof on those

elements? and (3) does the total record spanning both motion and response defeat

that conclusive proof by showing that at least some fact question remains? Rather

than Neely’s observation of “differing burdens [becoming] immaterial” as shared

terms that can be factored out of the equation, 418 S.W.3d at 59, the panel’s rule

would multiply a reviewing court’s burdens by splintering the record.

      The solution is straightforward: As the Supreme Court has urged, a trial or

appellate court should consider the whole summary judgment record (“motion and

response”). By doing so, the analysis can be reduced to asking “simply whether a

fact issue exists.” Buck, 381 S.W.3d at 528 n.2. If it does, the movant can prevail on

neither motion. If it does not, the movant wins the no-evidence motion (and the

court need not worry about whether the movant also had the conclusive proof

required for a traditional motion).




                                          16
                                    P RAYER

      The Court should grant rehearing en banc and, based on the substantive

arguments that the panel did not reach, reverse and remand.



                                       Respectfully submitted,

                                       /s/ Don Cruse
                                       _________________________
                                       Don Cruse
                                       State Bar No. 24040744
                                       LAW OFFICE OF DON CRUSE
                                       1108 Lavaca Street, Suite 110-436
                                       Austin, Texas 78701
                                       [Tel.] (512) 853-9100
                                       [Fax] (512) 870-9002
                                       don.cruse@texasappellate.com

                                       COUNSEL FOR APPELLANTS
                                         




                                       17
                         CERTIFICATE        OF   S ERVICE

       I certify that on July 16, 2015, this Motion for En Banc Rehearing was sent
by electronic service to appellate counsel of record:


            D. Todd Smith
            Smith Law Group, P.C.
            1250 Capital of Texas Highway South
            Three Cielo Center, Suite 601
            Austin, Texas 78746
            Lead Counsel for Appellees


                                     /s/ Don Cruse
                                      __________________________
                                         Don Cruse




                     CERTIFICATE         OF    COMPLIANCE

       This brief complies with Texas Rules of Appellate Procedure 9.4 because the
sections covered by the rule contain 4243 words. The font used in the body of the
brief is no smaller than 14 points, and the font used in the footnotes is no smaller
than 12 points.

                                           /s/ Don Cruse
                                           __________________________
                                           Don Cruse




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