Avasthi & Associates, Inc. v. Ashish K. Banik ( 2011 )

Reversed and Remanded and Plurality and Dissenting Opinions filed May 17, 2011.

In The

Fourteenth Court of Appeals

NO. 14-09-01016-CV

Avasthi & Associates, Inc., Appellant

v.

Ashish K. Banik, Appellee

On Appeal from the 164th District Court

Harris County, Texas

Trial Court Cause No. 2008-20366

DISSENTING OPINION

The plurality concludes that the trial court erred in granting summary judgment on one of the three grounds asserted in the motion and then reverses and remands without determining whether the other two summary-judgment grounds have merit.  The plurality concludes that this court need not address these two grounds because the appellee concedes on appeal that he was not entitled to summary judgment on these grounds.  Such a concession is entitled to appropriate consideration; but it does not relieve this court of its judicial obligation to independently determine whether either of these two grounds provides a basis for affirming the trial court’s judgment.  Though appellees who concede legal issues on appeal are often correct in doing so, they sometimes concede an issue based on an erroneous analysis.  By concluding that the trial court’s judgment should be reversed without analyzing two of the three grounds upon which the trial court rendered its judgment, the plurality (1) effectively allows the appellee to make some of the judicial determinations necessary to dispose of this appeal, (2) undermines respect for the trial court by concluding its judgment should be reversed without any determination that the trial court committed reversible error, (3) ignores the public interest in correct appellate judgments and precedent, and (4) adds inefficiency to the judicial system by potentially reversing a correct judgment and remanding for an unnecessary trial. 

Appellant/plaintiff Avasthi & Associates, Inc. filed suit against appellee/defendant Ashish K. Banik asserting a breach-of-contract claim.  The trial court granted Banik’s motion for summary judgment, concluding that there was no genuine issue as to any material fact and that Banik was entitled to judgment as a matter of law based upon three grounds:  (1) there is no evidence of damages as to Avasthi’s breach-of-contract claim; (2) Avasthi’s prior breach of contract excused Banik from any requirement that he continue to comply with the contract; and (3) the parties’ contract is illusory and unenforceable. 

On appeal, Avasthi argues that the trial court erred in granting summary judgment.  This court must affirm the trial court’s judgment if the summary-judgment evidence shows that there is no genuine issue of material fact and that Banik is entitled to judgment as a matter of law under any of these three grounds.  See FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000).  Avasthi has assigned error and has presented argument in support of the proposition that Banik is not entitled to summary judgment under any ground.  The trial court determined that there was no genuine issue as to any material fact and that Banik is entitled to judgment as a matter of law based on each of the three grounds.  We review this legal determination de novo.  Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). 

In his appellate brief, Banik concedes that there are genuine issues of material fact precluding summary judgment in his favor as to the first two grounds, and Banik argues that this court should affirm the judgment based on the third ground.  The parties have not settled.  Banik continues to assert that Avasthi should take nothing on its contract claim and that the trial court’s judgment should be affirmed.  Avasthi argues that the trial court erred in granting summary judgment and that Avasthi is entitled to proceed with its contract claim against Banik.  The plurality concludes that Banik’s concession relieves this court of its obligation to determine whether the trial court erred in granting summary judgment based on the first two grounds.  The plurality errs in doing so. 

If the trial court correctly determined that there is no genuine issue of material fact and that Avasthi’s contract claim fails as a matter of law based upon the first or second ground, then this court should affirm the trial court’s judgment, even if Banik’s appellate counsel concludes to the contrary.  See Colorado Republican Federal Campaign Comm. v. FEC, 518 U.S. 604, 622, 116 S. Ct. 2309, 2319, 135 L. Ed. 2d 795 (1996) (holding that United States Supreme Court was not bound by a party’s concession regarding the proper legal characterization of the facts in a civil appeal); Sibron v. New York, 392 U.S. 40, 58, 88 S. Ct. 1889, 1900, 20 L. Ed. 2d 917 (1968); Orloff v. Willoughby, 345 U.S. 83, 87–88, 73 S. Ct. 534, 537, 97 L. Ed. 842 (1953) (stating, in a civil habeas corpus case, that if lower courts did not err in accepting appellee’s argument regarding an issue of law, then the United States Supreme Court should affirm, even though appellee conceded to the Supreme Court that this argument was erroneous); Young v. United States, 315 U.S. 257, 258–59, 62 S. Ct. 510, 511, 86 L. Ed. 832 (1942); Saldano v. State, 70 S.W.3d 873, 884–91 (Tex. Crim. App. 2002) (affirming trial court’s judgment despite appellee’s confession of error based upon appellate court’s independent determination that judgment did not contain reversible error); Wright v. Moore, 760 S.W.2d 242, 243–44 (Tex. 1988) (conducting independent analysis of will and concluding that will language was ambiguous despite parties’ agreement that will language was unambiguous); Hoggett v. Brown, 971 S.W.2d 472, 489–90 (Tex. App.—Houston [14th Dist.] 1997, pet. denied) (construing agreement based upon its unambiguous language despite contrary construction espoused by both sides’ experts); Haas v. Voight, 940 S.W.2d 198, 201 & n.1 (Tex. App.—San Antonio 1996, writ denied) (holding that, despite appellee’s concession to the contrary in a civil appeal, appellant’s first appellate issue lacked merit); Camaj v. S.S. Kresge Co., 393 N.W.2d 875, 879–80 & n.6 (Mich. 1986) (holding that treble-damages statute did not apply to plaintiff’s tort claim, even though on appeal, defendant conceded, against its interest, that the statute applied).

If counsel for an appellee concludes that the trial court erred in deciding certain legal issues in appellee’s favor, counsel can and should notify the appellate court of this conclusion, and Banik’s counsel should be commended for his candor.  See Orloff, 345 U.S. at 87–88, 73 S. Ct. at 537; Young, 315 U.S. at 258–59, 62 S. Ct. at 511.  This court should give an appellee’s concession appropriate consideration and, in most cases, such a concession probably will be correct.  See Saldano, 70 S.W.3d at 884.  But an appellee’s concession of a legal issue involved in the appeal does not relieve this court of the obligation to perform its judicial function by independently determining whether the appellee’s concession is based on sound analysis.  See Sibron, 392 U.S. at 58, 88 S. Ct. at 1900; Young, 315 U.S. at 258–59, 62 S. Ct. at 511; Saldano, 70 S.W.3d at 884; Texas Farmers Ins. Co. v. Cameron, 24 S.W.3d 386, 398, n.2 (Tex. App.—Dallas 2000, pet. denied) (holding that appellee’s concession regarding question of law necessary to the proper disposition of the appeal did not obviate need for appellate court to conduct independent analysis); Jackson Hotel Corp. v. Wichita Cnty. Appraisal Dist., 980 S.W.2d 879, 881 n.3 (Tex. App.—Fort Worth 1998, no pet.) (same as Cameron); Haas v. Voight, 940 S.W.2d 198, 201 & n.1 (same as Cameron). Despite Banik’s concession, it is possible that the trial court properly granted summary judgment in Banik’s favor based upon the first or the second summary-judgment ground.  It is this court’s judicial duty to determine this issue, and this court should not rely solely upon Banik’s concession.  See Young, 315 U.S. at 258–59, 62 S. Ct. at 511; Sibron, 392 U.S. at 58, 88 S. Ct. at 1900; Saldano, 70 S.W.3d at 884. 

In addition, the public has an interest in the proper administration of the legal system, and this court must determine for itself the proper appellate judgment and the reasons for this judgment; this court should not delegate this judicial function to appellee’s counsel.  See Colorado Republican Federal Campaign Comm., 518 U.S. at 622, 116 S. Ct. at 2319 (applying Young precedent in civil appeal and stating that the judgments of the United States Supreme Court are precedents and that the proper determination of matters of law “‘cannot be left merely to the stipulation of the parties’”) (quoting Young, 315 U.S. at 259, 62 S. Ct. at 511); Young, 315 U.S. at 258–59, 62 S. Ct. at 511; Camaj, 393 N.W.2d at 879, n.6. Moreover, a blind acceptance of an appellee’s concession fails to accord proper respect to the lower courts and abdicates the appellate court’s obligation to decide the case properly.  See Colorado Republican Federal Campaign Comm., 518 U.S. at 622, 116 S. Ct. at 2319; Sibron v. New York, 392 U.S. 40, 58, 88 S. Ct. 1889, 1900, 20 L. Ed. 2d 917 (1968); Camaj, 393 N.W.2d at 879, n.6.  The trial court’s error in granting summary judgment based on the third ground is not a reversible error unless Banik was not entitled to summary judgment based upon the other two grounds.  See Ramco Oil & Gas Ltd. v. Anglo-Dutch (Tenge) L.L.C., 207 S.W.3d 801, 826–27 (Tex. App.—Houston [14th Dist.] 2006, pet. denied).  By concluding that the trial court’s judgment should be reversed without determining that these two grounds lack merit, the plurality undermines respect for the trial court and determines that the trial court’s judgment should be reversed without a judicial determination that the judgment contains reversible error.  See Sibron, 392 U.S. at 58, 88 S. Ct. at 1900; Orloff, 345 U.S. at 87–88, 73 S. Ct. at 537; Ramco Oil & Gas Ltd., 207 S.W.3d at 826–27; Camaj, 393 N.W.2d at 879, n.6.

Though perhaps not likely, it is possible that, as a matter of law, there is no evidence of any damages resulting to Avasthi from Banik’s alleged breach of contract or that, as a matter of law, Avasthi’s prior breach excused Banik from complying with the provision of the contract that he allegedly breached.  In either event, the trial court, the taxpayers, and the people of Harris County should not be burdened with a jury trial of Avasthi’s contract claim and further proceedings in this case simply because Banik’s counsel might have reached the wrong legal conclusion.  See In re Team Rocket, L.P., 256 S.W.3d 257, 262 (Tex. 2008) (giving consideration, in mandamus context, to public’s interest in avoiding waste of time and money entailed in meaningless trials and proceedings).  Conducting an independent analysis of these matters here and now would not require significant judicial resources and it would reduce the chance that this court will erroneously reverse the trial court’s judgment and remand for the jury trial of a claim that fails as a matter of law.  See id.

The plurality correctly concludes that the trial court erred by granting summary judgment based on the third summary-judgment ground.  Nonetheless, this conclusion does not support this court’s reversal of the trial court’s judgment unless this court also determines that the trial court erred in granting summary judgment based on the other two grounds.  By reversing the judgment without addressing the merits of the other two grounds, this court jumps the gun and misses a critical step that, if performed, might yield a different result. Rather than deferring to Banik’s determination of these issues, this court should conduct an independent analysis.  Because it does not do so, I respectfully dissent.

                                                                        /s/        Kem Thompson Frost

                                                                                    Justice

Panel consists of Justices Anderson, Frost, and Brown.  (Anderson, J., plurality) (Brown, J., concurring without opinion).