CONCUR and Opinion F iled November 2, 2020 

# S

In The 

## Court of Appeals Fifth District of Texas at Dallas
No. 05-14-00649-CV B.C., Appellant V. STEAK N SHAKE OPERATIONS, INC., Appellee

On Appeal from the 380th Judicial District Court Collin County, Texas Trial Court Cause No. 380-02686-2012 

### CONCURRING OPINION ON DENIAL OF EN BANC RECONSIDERATION Opinion by Justice Evans Before the Court is Steak N Shake Operations, Inc.’s (SNS) moti on for en banc reconsideration, which the C ourt denies by separate order. My colleague, Justice Schenck, writes a separa te concurrence explaining that in his view of our judicial role it would be proper to do what SNS asserts we did. I write this separate concurrence to explain what I as the author for the panel decis ion did in regard to analyzing the arguments SNS now a sserts in its motion for en ba nc reconsideration. Among other arguments in its motion for en banc reconsideration , SNS argues (1) we erred in concluding SNS’s no-evidence grounds for summar y judgment failed–2– to challenge Jose Tomas Ventura’s status as a vice-principal of SNS, (2) we erred in explaining the law regarding who is a vice-principal beyond the law articulated in the parties’ briefs, and (3) we erred in our examination of the summary-judgment record. I will review these arguments in sequence.
I. In its motion for en banc reconsideration, SNS contends the fol lowing statements in its no-evidence grounds for summary judgment chal lenged Ventura’s vice-principal status: To prove a cause of action for assault by infliction of bodily injury, Plaintiff must prove (1) [SNS] acted intentionally, knowingly, or recklessly; (2) [SNS] made contact with the plaintiff’s person; and (3) ... [SNS]’s contact caused bodily injury to the plaintiff. A s to any claim against SNS for direct liability for assault/sexual assau lt, there is no evidence of any of these elements

. (emphasis added). The only elem ents listed are three of the el ements of assault. Neither “vice-principal” nor the elements or standards for vice -principal status are mentioned. So, the only possibl e referents for SNS’s assertion , “there is no evidence of any of these elements,” are the three elements of assault th at were listed. See T EX

. R. C IV

. P. 166a(i) (challenged elemen ts must be identified); Jose Fuentes Co., Inc. v. Alfaro , 418 S.W.3d 280, 283 (Tex. App.—D allas 2013, pet. denied) (en banc) (noevidence motion must specify which element or elements are chal lenged). Therefore, SNS challenged on no-evidence grounds B.C.’s evidenc e of the assault, not Ventura’s status as a vice-principal.–3– II. In its motion for en banc reconsideration, SNS contends we made legal arguments about vice-principal status not asserted by B.C. In SNS’s traditional ground for summary judgment and in its appellate brief, SNS cha llenged Ventura’s vice-principal status by asserting the Supreme Court of Texas h ad indicated in
Medina v. Herrera , 927 S.W.2d 597, 600 (Tex. 1996), that the court was consideri ng requiring equity ownership by an agent to be a vice-principal f or whose conduct an entity is directly liable. In order to decide whether SNS’s ar gument justified affirming the trial court’s grant of summary judgment, we exami ned opinions explaining what type of agency authority constitutes vice-princ ipal status. We began with the authority the supreme court relied upon in its first o pinion in this case— see B.C. v. Steak N Shake Operations, Inc. , 512 S.W.3d 276, 281 n.3 (Tex. 2017)—and from there explained other simila r supreme court and appellate court opinions. Our research and analysis were necessary to properly analyze SNS’s argument. To the extent SNS contends we should have accepted its legal analysis or confined ourselves to authorities the par ties cited, SNS is mistaken.
III. Finally, in its motion for en banc reconsideration, SNS contend s we erred by examining and relying on evidence in the record not specificall y pointed out by the parties. To make this argument, SNS argues we should not consi der the record SNS brought to the trial court in support of its traditional ground for summary judgment–4– when analyzing its no-evidence grounds and implies we should no t have relied on the record B.C. filed characterizing B.C.’s response as late. We pointed out the supreme court has already rejected both of SNS’s arguments in t he supreme court’s second opinion in this case. B.C. v. Steak N Shake Operations, Inc. , 598 S.W.3d 256, 261–62 (Tex. 2020) (“We . . . conclude that the trial cour t’s recital that it considered the ‘evidence and arguments of counsel,’ without any limitation, is an ‘affirmative indication’ that the trial court considered B.C.’s response and the evidence attached to it. . . . [W]e have no basis to conclude the trial court did not consider all summary-judgment evidence on file at the time the motion was heard,” and remanding to this Court to consider all the summary judgmen t evidence, including B.C.’s response). SNS also implies we should not have reviewed the context of tho se parts of the summary judgment record referenced by the parties, inferrin g that we should have confined ourselves to considering only the parties’ summar ies of what the referenced record contained. In our opinion, we explained what those portions of the record referenced by the parties contained in their context , at times including more facts from the context of the cited record than what SNS o r B.C. summarized in their briefs before us or papers in the trial court. For ex ample, when SNS referred to a page in the record that contained a court reporter’s four- to-one pages of transcription of deposition testimony, we examined the context of the statements and the documents on which the depone nt was being questioned. In s o doing, we merely–5– discharged our duty to read and analyze the record in its conte xt to which the parties referred us, instead of merely trusting counsel’s persuasive ch aracterizations of the record’s content. See generally Horton v. Stovall , 591 S.W.3d 567, 569 (Tex. 2019) (describing appellate justice’s si mple search of summary judgme nt record to find evidence not specifically cited in briefs).
IV. My colleague, Justice Schenck, w rites separately to explain why he considers it within our discretion as part of our appellate review of sum mary judgments to review entire records to find supporting evidence for the issue s raised by the parties. That is more expansive review than I understand we conduct on a ppellate review of a summary judgment. But see Tex. Dep’t of Pa rks & Wildlife v. Miranda , 133 S.W.3d 217, 228, 232 (Tex. 2004) (re view of plea to jurisdictio n “generally mirrors that of a summary judgment” and “We search the record for evide nce [supporting appellants’ contention]. The [app ellants] fail to point to any evidence, and the record contains no evidence . . . .”). I agree that under some circumstances, we undertake such a record review to evaluate a legal sufficiency challenge to a jury verdict. See City of Arlington v. State Farm Lloyds , 145 S.W.3d 165, 167–68 (Tex. 2004) (when challenging the strength of evidence supporting a verdict as no more than surmise or suspicion, party must “detail the relevant parts of the record, ” but “[w]hen a complete absence of evidence is alleged, the reviewing court mu st include the entire record within its scope of review.”).–6– SNS urges a view opposite to Ju stice Schenck’s view. SNS’s pos ition is that we should not review summary judgment records at all, we should not observe even the context of the cited evidence, and instead we should only a ccept the parties’ characterizations of the record perhaps checking a record to ve rify the accuracy of words quoted from part of a sentence taken out of context only to ensure those particular words are, in fact, c ontained in the referenced reco rd. That is less review of summary judgment records than I understand we should conduct. So, the record review I conducted was somewhat more than SNS’s view and quite a bit less than Justice Schenck’s view. And my view of s ummary-judgment record review requires Texas tr ial judges, who have no staff at torneys to assist them, to review the parts of the record pointed out by the parties. The contrary views require too much or too little: Justice Schenck’s view would r equire unassisted trial judges to review the entire summary-judgment record in every ca se, and SNS’s view would permit trial judges to ignore the actual record and trust the accuracy of the advocates’ persuasive charact erizations of its content. We would certainly comply with whatever record review the supre me court instructs us to conduct. And if the supreme court adopts SNS’s extraordinarily limited role of record review, t hat would dispense with any mea ningful judicial review of summary judgment record s. But until we receive contr ary direction from the supreme court, we should continue to review the context of the record referenced–7– by the parties, including in our review what the referenced-rec ord contains, not merely the parties’ limited or inaccurate summary of the record

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140649CF.P05 /David Evans/ DAVID EVANS JUSTICE