Affirmed and Majority and Concurring Memorandum Opinions filed March
19, 2013.




                                        In The


                     Fourteenth Court of Appeals

                               NO. 14-11-00938-CV



                        ADRIENNE GALLIEN, Appellant

                                          V.
GOOSE CREEK CONSOLIDATED INDEPENDENT SCHOOL DISTRICT,
                       Appellee


                    On Appeal from the 215th District Court
                            Harris County, Texas
                      Trial Court Cause No. 2009-10149


            CONCURRING MEMORANDUM OPINION

      I respectfully concur. I write separately to disagree with my colleagues’
holding that because Gallien failed to timely respond to the motion for summary
judgment, the trial court did not err. I would hold that the trial court did not err in
granting the motion for summary judgment because Gallien has not pointed to
summary judgment evidence that raises a genuine issue of material fact. The
difference between the holdings is one of scope of review. Stated differently, I do
not agree that it is appropriate to affirm solely because Gallien did not timely
respond to the motion for summary judgment.
      The majority correctly identifies GCISD’s motion as a hybrid motion in that
it seeks a traditional summary judgment or, in the alternative, a no-evidence
summary judgment. The majority correctly reviews the no-evidence motion first,
as the trial court did not identify the basis for the judgment. See Ford Motor Co. v.
Ridgway, 135 S.W.3d 598, 600 (Tex. 2004).
      Gallien failed to timely respond to GCISD’s motion. In the absence of any
contrary indication in the record, the majority correctly disregarded the response
for purposes of review. See Benchmark Bank v. Crowder, 919 S.W.2d 657, 663
(Tex. 1996). So, Gallien failed to ―produce[] summary judgment evidence raising
a genuine issue of material fact.‖ See TEX. R. CIV. P. 166a(i) (emphasis added).
      For the majority, this is the end of the analysis.      And that position is
eloquently supported by Dyer v. Accredited Home Lenders, Inc., No. 02-11-0046-
CV, 2012 WL 335858, at *3 (Tex. App.—Fort Worth Feb. 2, 2012, pet. denied)
(mem. op.). In Dyer, the Fort Worth Court of Appeals reluctantly held that the
plain language of the rule required the court to ignore summary judgment evidence
filed by the movant when reviewing a no-evidence motion for summary judgment.
Id. at *4 (―Although it appears to be a triumph of procedure over substance, we
cannot create a rule that the trial court disposing of a combined motion has a duty
to look at the traditional summary judgment evidence to see if it defeats the
movant’s right to no-evidence summary judgment when the rules of procedure
place the burden on the nonmovant to produce evidence.‖). I disagree.
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       The plain language of the rule does, in fact, require the nonmovant to
produce evidence raising a genuine issue of material fact. Notwithstanding that
plain language, the Texas Supreme Court instructs that the reviewing court must
look to evidence produced by the movant if it creates a genuine issue of material
fact. Binur v. Jacobo, 135 S.W.3d 646, 650–51 (Tex. 2004) (holding that ―if a
motion brought solely under subsection (i) attaches evidence, that evidence should
not be considered unless it creates a fact question‖ (emphasis added)). And, the
Texas Supreme Court instructs that the reviewing court may not ignore the no-
evidence portion of a hybrid motion simply because evidence is attached. Id. at
651.
       Thus, Binur teaches that:
       (a)   if a party attaches evidence to a no-evidence motion for
             summary judgment and that evidence creates a genuine issue of
             material fact, then it should be considered; and
       (b)   if a party attaches evidence to a no-evidence motion for
             summary judgment the motion is not converted into a
             traditional motion.

       The Binur rules are completely consistent with the standard for reviewing
no-evidence motions for summary judgment as initially established by the Texas
Supreme Court. Treating the no-evidence summary judgment as ―essentially a
pretrial directed verdict,‖ the court applied the same legal sufficiency standard for
reviewing directed verdicts. See King Ranch, Inc v. Chapman, 118 S.W.3d 742,
750–51 (Tex. 2003). That is, the court must consider all of the evidence. See
Collora v. Navarro, 574 S.W.2d 65, 68 (Tex. 1978).
       The supreme court has since reiterated the standard of review for no
evidence motions for summary judgment:
       A summary judgment motion pursuant to TEX. R. CIV. P. 166a(i) is
       essentially a motion for a pretrial directed verdict. See Merrell Dow
                                         3
      Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). Once
      such a motion is filed, the burden shifts to the nonmoving party to
      present evidence raising an issue of material fact as to the elements
      specified in the motion. Id.; W. Invs., Inc. v. Urena, 162 S.W.3d 547,
      550 (Tex. 2005). We review the evidence presented by the motion
      and response in the light most favorable to the party against whom
      the summary judgment was rendered, crediting evidence favorable to
      that party if reasonable jurors could, and disregarding contrary
      evidence unless reasonable jurors could not. See City of Keller v.
      Wilson, 168 S.W.3d 802, 827 (Tex. 2005); Johnson v. Brewer &
      Pritchard, P.C., 73 S.W.3d 193, 208 (Tex. 2002).

Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 581–82 (Tex. 2006) (emphasis
added); see also, e.g., Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex.
2009) (stating that the standard for reviewing a no-evidence motion is to review the
evidence ―presented by the motion and response‖); Taylor v. Louis, 349 S.W.3d
729, 733 (Tex. App.—Houston [14th Dist.] 2011, no pet.) (same).
      From these lessons, I would hold that Binur and Mack Trucks mean that,
notwithstanding the plain language of Rule 166a(i), the trial court should deny a
no-evidence motion for summary judgment even when the nonmovant does not
respond if (1) the movant attaches evidence and (2) that evidence raises a genuine
issue of material fact.       Here, we have a no-evidence motion for summary
judgment and no response. We must review the movant’s evidence to determine
whether it raises a fact issue.
      My conclusion is not altered by the fact that GCISD’s motion is not a mere
no-evidence motion, but is a hybrid motion with evidence attached. I find nothing
in law that changes our review simply because GCISD sought alternative relief
under TEX. R. CIV. P. 166a(b). I find nothing in law that permits us to presume that
the evidence attached to the hybrid motion applies ―solely to‖ the traditional
portion of the summary judgment.       And, we cannot know whether GCISD’s
                                         4
evidence raised a genuine issue of material fact unless we review it—whether it is
one page or 400.
      The rule I propose is consistent with Texas Supreme Court authority. More
important, any other rule is inconsistent with Texas public policy. The purpose of
summary judgment is to eliminate patently unmeritorious claims. Tex. Dep’t of
Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004). That policy
cannot be served by a trial court or an appellate court closing its eyes to a fact
question simply because it is raised by evidence filed by the movant.
      Having disagreed with the scope of review, I nonetheless concur. While I
would permit Gallien to rely upon GCISD evidence solely to the extent it raises a
fact issue, I agree with the majority that Gallien may not rely upon matters outside
of the summary judgment record. Here, none of the evidence Gallien relies upon is
attached to GCISD’s motion for summary judgment, and none of the evidence
attached to GCISD’s motion for summary judgment raises a genuine issue of
material fact. Thus, the trial court did not err in granting GCISD’s motion for
summary judgment.


                                                        /s/     Sharon McCally
                                                                Justice


Panel consists of Justices Boyce, McCally, and Mirabal (Mirabal, J., majority).1




      1
          Senior Justice Margaret Garner Mirabal sitting by assignment.
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