Opinion
No. 03-08-00120-CV
Filed: December 31, 2009.
Appealed from the District Court of Lee County, 21st Judicial District No. 13,050, Honorable Terry L. Flenniken, Judge Presiding.
Before Chief Justice JONES, Justices WALDROP and HENSON; Concurring Opinion by Justice HENSON.
MEMORANDUM OPINION
Buc-ee's, Ltd., a/k/a Buc-ee's, Inc., appeals from the take-nothing summary judgment on its claims against John J. Hribek. Concluding that Hribek's release of claims against Buc-ee's was not invalidated as a matter of law by the Older Worker Benefit Protection Act and that there is a genuine issue of material fact regarding whether the release was knowing and voluntary, we reverse the summary judgment and remand for further proceedings consistent with this opinion.
Buc-ee's is a company that owns and manages convenience stores. Hribek managed one of Buc-ee's stores. On October 5, 2004, he met with Buc-ee's assistant to the president, Pete Alexander. By the end of that meeting, Hribek agreed to resign effective October 26, 2004, and signed a "Full and Final Release" of claims against Buc-ee's in which he agreed to indemnify Buc-ee's and hold it harmless from all claims that could be brought in Hribek's name against Buc-ee's. The Release also states that Hribek agreed not to file for unemployment or any other benefit from a state or federal agency. The next day, however, Hribek attempted to revoke the Release — in writing — pursuant to the Older Worker Benefit Protection Act (OWBPA). See 29 U.S.C.A. § 626(f)(1)(G) (West 2008). Buc-ee's nevertheless paid Hribek consistent with the terms of the Release, and Hribek retained those funds.
Hribek thereafter filed several claims. He filed for unemployment benefits and filed suit, alleging that Buc-ee's discriminated against him because of his disability (a surgically repaired hernia) and his age (46 years old), and that Buc-ee's retaliated against him in violation of the Family Medical Leave Act because he took time off for the surgery.
Buc-ee's filed a counterclaim alleging that Hribek damaged it by breaching the Release. Buc-ee's then removed the case to federal court, which granted a take-nothing summary judgment on all of Hribek's claims against Buc-ee's. The federal court remanded Buc-ee's counterclaim to state court. Hribek moved for summary judgment on Buc-ee's claims, contending that the release was invalid because it did not comply with the OWBPA, because it was not entered knowingly and voluntarily, and because it was signed under duress. Buc-ee's moved for summary judgment, contending that Hribek ratified the Release by accepting and retaining the payments made by Buc-ee's. The trial court granted Hribek's motion for summary judgment on Buc-ee's counterclaims without specifying a basis. Buc-ee's motion for summary judgment was denied.
The clerk's record indicates that Buc-ee's motion for summary judgment was denied separately from the order granting Hribek's motion for summary judgment. Buc-ee's expressly appealed from the order granting Hribek's motion.
We review summary judgments de novo. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 156 (Tex. 2004). The standards for reviewing a summary judgment are well established: (1) the movant must demonstrate that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law; (2) in deciding whether a disputed issue of material fact exists that would preclude summary judgment, we take all evidence favorable to the non-movant as true; and (3) we indulge every reasonable inference and resolve any doubts in favor of the non-movant. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). When the trial court's order does not specify the grounds for granting summary judgment, the appellate court must affirm if any of the theories presented in the summary judgment motion have merit. Provident Life Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003). When, as in this cause, both parties move for summary judgment and the trial court grants one motion and denies the other, the reviewing court should review the summary judgment evidence presented by both sides and determine all questions presented and render the judgment the trial court should have rendered. Texas Workers' Comp. Comm'n v. Patient Advocates, 136 S.W.3d 643, 648 (Tex. 2004); Tobin v. Garcia, 316 S.W.2d 396, 400 (Tex. 1958).
Hribek argues that the Buc-ee's motion is outside the scope of our review because Buc-ee's did not appeal from the denial of its motion, but specified only its desire to appeal the order granting Hribek's motion for summary judgment. The rules of appellate procedure do not require that an appellant explicitly state every aspect of its appeal in its notice of appeal. See Tex. R. App. P. 25.1(d). Buc-ee's motion for summary judgment is part of the record on appeal. Although the order denying Buc-ee's motion was not made part of the record, the trial court's docket sheet reveals that Buc-ee's motion was denied on the same date that Hribek's motion was granted — the date specified in Buc-ee's notice of appeal as the date of the order Buc-ee's sought to appeal. Further, the judgment granting Hribek's motion states that the court thereby dismisses Buc-ee's claims and disposes of all parties and claims. Buc-ee's motion, premised on the idea that Hribek ratified the terms of the Release by accepting its benefits and is therefore bound by its terms, is incompatible with the theory in Hribek's motion that the Release does not bind him. Given the nature of the motions and the long-standing precedent that, in a case in which competing motions for summary judgment were filed, a court reviewing the grant of one motion must also review the denial of the competing motion, see Texas Workers' Comp. Comm'n v. Patient Advocates, 136 S.W.3d 643, 648 (Tex. 2004), we conclude that Buc-ee's notice of appeal of the grant of Hribek's motion is sufficient to require review of the denial of Buc-ee's competing motion.
Hribek leans heavily on the application of the OWBPA to provide a basis for his revocation of the Release. However, the OWBPA does not apply to every aspect of Buc-ee's motion for summary judgment. Hribek made claims other than age discrimination which were purportedly covered by the Release. The OWBPA, however, is an amendment to the Age Discrimination in Employment Act that governs the validity of waivers executed without EEOC supervision. Blakeney v. Lomas Info. Sys., 879 F. Supp. 645, 647-48 (N.D. Tex. 1995). Its provisions regarding the requisites of waivers govern age discrimination claims, but do not affect other types of claims brought by persons older than 40 years of age. Williams v. Phillips Petroleum Co., 23 F.3d 930, 936 (5th Cir. 1994). Even if the OWBPA rendered the Release invalid as to Hribek's age discrimination claims, it does not bear on the validity of his waiver of his other claims. The district court erred if it granted summary judgment based on the failure of the release of non-age discrimination claims to comply with the OWBPA. Further, Hribek's argument that he revoked the Release under the OWBPA does not support the summary judgment that the Release was not binding on him as to claims other than age discrimination claims. See id.
Fact issues demonstrate error in the summary judgment if it was based on the lack of knowing and voluntary waiver. Courts should examine the following factors when assessing whether a waiver was knowing and voluntary:
(1) the plaintiff's education and business experience, (2) the amount of time the plaintiff had possession of or access to the agreement before signing it, (3) the role of [the] plaintiff in deciding the terms of the agreement, (4) the clarity of the agreement, (5) whether the plaintiff was represented by or consulted with an attorney, and (6) whether consideration given in exchange for the waiver exceeds employee benefits to which the employee was already entitled by contract or law.
Smith v. Amedisys Inc., 298 F.3d 434, 441 (5th Cir. 2002) (quoting O'Hare v. Global Natural Res., 898 F.2d 1015, 1017 (5th Cir. 1990)). There was evidence favoring both sides on many of these factors. Although Hribek was not an employment lawyer, he had some college education and experience managing not only the Buc-ee's store but also a Super S Food Store. There was no evidence that he was incapable of reading or understanding the waiver, particularly the parts where he promised not to file for unemployment benefits or file suit against Buc-ee's. Although he signed the waiver at the same meeting it was proposed and negotiated, there was no evidence he was required to do so. Although Hribek did not recall whether he read the waiver, he testified at his deposition that he was not denied the opportunity to read it. There is evidence that Hribek participated in deciding the terms of the agreement because there is evidence that terms relating to his compensation were added at his request. While the waiver could be clearer in some aspects, it plainly states that Hribek will indemnify and hold harmless Buc-ee's "from any and all claims, demands, actions and causes of action . . . which may hereafter be asserted by any person, firm, attorney or corporation whomsoever claiming by, through or under John Hribek." It also states that Hribek "will not file a unemployment EEOC, ADA or TWC claim or any other claim with any state or federal agency whatsoever" in connection with Buc-ee's. Hribek did not consult an attorney, and there is no evidence that Hribek received more compensation than was already due him at the time of the negotiation — assuming that he was entitled to remain employed through October 26, 2004. There is at least a genuine issue of material fact regarding whether Hribek's waiver was made knowingly and voluntarily.
Similarly, there is a genuine issue of material fact regarding whether Hribek signed the release under duress. Duress requires proof of a threat by a party to do something it has no legal right to do that destroys the free agency of the party to whom it is directed, overcomes the threatened party's will, and causes the threatened party to do that which he would not otherwise do and was not legally bound to do. Sheshunoff v. Sheshunoff, 172 S.W.3d 686, 703 n. 12 (Tex. App.-Austin 2005, pet. denied) (citing Matelski v. Matelski, 840 S.W.2d 124, 129 (Tex. App.-Fort Worth 1992, no writ)). The restraint caused by such threat must be imminent and such that the person to whom it is directed has no present means of protection. Id. Hribek's deposition testimony provides some evidence that, although he may have felt pressure to resign, he was not threatened improperly. He also testified that he was not forced to sign the release, although he did feel rushed. This evidence reveals at least a genuine fact issue regarding whether Hribek signed the release under duress. The summary judgment in favor of Hribek is not supported by the record and the law.
Buc-ee's contends by its cross-appeal that the trial court erred by denying its motion for summary judgment premised on the theory that, regardless of whether the Release was voidable, Hribek ratified the Release by retaining the payments Buc-ee's made and, consequently, Hribek breached the Release by suing Buc-ee's. On appeal, Buc-ee's requests that this Court "reverse the judgment and either (1) render judgment for Buc-ee's and remand the case to the trial court with instructions to determine and award Buc-ee's damages, or (2) remand the case with instructions to the trial court to grant Buc-ee's motion for summary judgment and determine and award Buc-ee's damages."
We conclude that the rules of appellate procedure prohibit us from providing either form of requested relief under the procedural posture of this case. Texas Rule of Appellate Procedure 44.1(b) provides that "[t]he court may not order a separate trial solely on unliquidated damages if liability is contested." See Redman Homes, Inc. v. Ivy, 920 S.W.2d 664, 669 (Tex. 1996). Hribek contests his liability by challenging whether he is bound by the Release. Buc-ee's states in its brief that it "has not had an opportunity to prove its damages." The Release does not contain a liquidated damages clause. In fact, the Release does not contain a clause contemplating the consequences of breach by either party. The Release did not specify the total amount that Buc-ee's was to pay Hribek, calling for "3 weeks pay @ $585 per wk, plus vacation hours, and bonus for Sept. part Oct. (through Oct. 26)." Although Buc-ee's transferred funds to Hribek purporting to satisfy the vacation and bonus obligations, it is not clear from the record that mere return of the funds transferred encompasses the full scope of Buc-ee's damages. Buc-ee's damages from any breach are unliquidated and, therefore, we cannot render judgment as to liability and remand solely for trial on those damages. Because the rules require us to remand the liability issue as well, any opinion on liability with respect to ratification would be advisory. We are not permitted to issue advisory opinions. See South Tex. Water Auth. v. Lomas, 223 S.W.3d 304, 307 (Tex. 2007).
Buc-ee's cites cases in which courts reversed judgments, considered liability issues, and remanded for further proceedings, but neither involved a liability determination coupled with a remand solely of unliquidated damages issues. See City of Pasadena v. Gennedy, 125 S.W.3d 687, 702 (Tex. App.-Houston 2003, pet. denied) (reversing judgment and remanding with instructions to render particular judgment and consider claims for attorney's fees); see also Texas Dep't of Pub. Safety v. Canon, 547 S.W.2d 302, 304 (Tex. Civ. App.-Dallas 1976, writ ref'd n.r.e.) (reversing and remanding with instructions to trial court to grant motion for summary judgment on certain issues and to determine length and terms of license suspension). Unliquidated attorney's fees are not considered unliquidated damages for purposes of Rule 44.1(b). Brown v. Traylor, 210 S.W.3d 648, 659 n. 15 (Tex. App.-Houston 2006, no pet.).
We reverse the summary judgment granted in favor of Hribek on Buc-ee's counterclaim. We remand this cause for further proceedings.
CONCURRING OPINION
I concur in the result reached by the majority, but write separately to emphasize how close the issue of knowing and voluntary waiver is in this case, even in the context of summary judgment. Other courts have noted that issues involving the "totality of the circumstances" test are "unusual to resolve on summary judgment" due to their fact-intensive nature. See Elf Atochem N. Am. v. United States, 914 F. Supp. 1166, 1170 (E.D. Pa. 1996). The totality of the circumstances is difficult to assess even in a case such as this, where numerous factors strongly favor one of the parties.
Federal law, and not state law, governs all questions relating to purported releases of federal statutory causes of action. Rogers v. General Elec. Co., 781 F.2d 452, 454-55 (5th Cir. 1986).
The majority analyzes whether Hribek waived his rights knowingly and voluntarily by applying the six-factor test relied upon by numerous federal courts. An employee need not meet all six of the requirements in order to show that the release was not knowing and voluntary. See Riddell v. Medical Inter-Insurance Exch., 18 F. Supp. 2d 468, 474 (D.N.J. 1998) (finding that employee did not waive rights knowingly and voluntarily even though "some of the relevant factors weigh in [employer's] favor"). In this case, Hribek makes strong arguments in his favor on five of the six factors.
Other courts have also considered a seventh factor, which analyzes whether the employee "knew or should have known his rights upon execution of the release." Cirillo v. Arco Chemical Co., 862 F.2d 448, 452 (3d Cir. 1988). This factor would also weigh in favor of Hribek. Courts have found that employees know their rights when the release "clearly informed employees of their rights and the manner in which they could enforce these rights." Id. at 453. No such information was provided to Hribek. While the release makes mention of "employment EEOC, ADA or TWC claim[s]," this passing mention of potential grounds for relief hardly amounts to a clear explanation of Hribek's rights. Further, there is no evidence that Hribek's background or experience should have alerted him to the specific legal remedies available to him. Hribek's attempt to revoke the agreement, sent the day after the waiver was signed, also indicated that he had been unaware of some of his rights (such as those under the Family and Medical Leave Act) when he signed the release.
Education and Business Experience
The first factor, that of the employee's level of education and business experience, does not appear to favor Hribek. Courts have found this factor to be a "minimal threshold," usually satisfied by a high-school diploma. See Ponzoni v. Kraft Gen. Foods, 774 F. Supp. 299, 310 (D.N.J. 1991). Hribek's credentials, including a high school diploma and years of convenience-store management experience, meet this threshold. However, courts analyzing this factor do not necessarily reach the conclusion that, because the employee meets the minimum requirements, the factor favors the employer. See Riddell v. Medical Inter-Insurance Exch., 18 F. Supp. 2d 468, 472 (D.N.J. 1998) (noting that where employee was "skilled at analyzing complex insurance contracts" but did not have education beyond high school diploma, age/experience factor "does not weigh greatly in favor of one party or the other"). In this case, Hribek's education and business experience, while meeting the minimal threshold, is not so extensive that this factor weighs in Buc-ee's favor. See id.
For the sake of consistency, we follow the numbering of the factors set out in Smith v. Amedisys, Inc., 298 F.3d 434, 441 (5th Cir. 2002), as quoted by the majority. We note that other courts have numbered the factors differently.
Amount of Time to Examine the Release
The second factor involves the amount of time that Hribek had possession of or access to the release agreement before signing it. Hribek had the release in his possession for less than a day. This time period is far short of the one month that other courts have found to be an adequate time for review. See Cirillo v. Arco Chemical Co., 862 F.2d 448, 453 (3d Cir. 1988) (indicating that "one month is a reasonable time for deliberation" regarding decision to sign release). The short period of time that Hribek had to evaluate the release even falls short of the ten days that another court found insufficient to properly consider a release. Cook v. Buxton, Inc., 793 F. Supp. 622, 625 (W.D. Pa. 1992) (concluding that "ten days is not a reasonable length of time in which to permit a terminated employee to deliberate" regarding release); see also Cole v. Gaming Entm't, LLC, 199 F. Supp. 2d 208, 213 (D. Del. 2002) (indicating that one day to review release "seems insufficient under either Title VII or the ADEA"). Further, other courts have found it favorable to the employee when neither the language of the release nor the company representatives indicate to the employee that he has time to deliberate. See Riddell, 18 F. Supp. 2d at 473. While Buc-ee's contends that Hribek did not ask for more time to consider the release, it does not argue that he was ever made aware that he had any additional time to deliberate.
Role in Deciding the Terms of the Release
The third factor involves the role of the plaintiff in deciding the terms of the agreement. The opportunity to negotiate "suggests that the atmosphere surrounding the signing of the release was not oppressive and thus indicates a voluntary waiver." Id. at 473-74. This element favors the employer when "[t]here is no evidence that plaintiffs were denied an opportunity to negotiate, nor that they were given a 'take it or leave it' offer." Williams v. Phillips Petroleum Co., 23 F.3d 930, 937 (5th Cir. 1994). While Hribek had some input into the terms of the agreement, Charles Peter Alexander, the Buc-ee's employee who presented the agreement to Hribek, stated during his deposition that he told Hribek, "Well, really, I'd like for you to do it today . . . if you're going to resign." This statement suggests a "take it or leave it" atmosphere rather than an open and permissive negotiating environment.
Clarity of the Release
The fourth factor involves the clarity of the release agreement. Courts have generally held that a release is valid if "written in plain English" and the language is not "shrouded in legalese." See Riddell, 18 F. Supp. 2d at 472. Further, the release should include "reference to specific claims that are being waived." See id. In this case, the release states that Hribek will not file "an unemployment EEOC, ADA or TWC claim or any other claim with any state or federal agency whatsoever in connection with Buc-ee's or its employees." The release does not state, however, that Hribek agrees not to file a lawsuit regarding any of the matters relating to the release. In addition, the release does not mention possible relief pursuant to the Family and Medical Leave Act (FMLA), under which Hribek later filed a claim. The fact that Hribek attempted to revoke the agreement the next day, claiming that he had been unaware of some of the rights he had waived, creates further doubt regarding the clarity of the agreement.
Opportunity to Seek Counsel
The fifth factor examines whether the employee consulted with or was encouraged to consult with an attorney. Courts have held that the "[m]ore important consideration is whether consultation with a lawyer was encouraged . . . rather than whether the plaintiff in fact received the benefit of counsel." Cirillo, 862 F.2d at 453. It is undisputed that Hribek did not consult with an attorney. Further, while Buc-ee's stated that Hribek never requested the assistance of an attorney, Buc-ee's presents no evidence that Hribek was ever encouraged to consult with an attorney.
Consideration for Signing Release
The sixth factor involves the consideration given to the employee, and whether it exceeds the benefits he was already entitled to under contract or law. The release indicates that the relevant consideration was "3 weeks salary @ $585 per week, plus vacation hours and bonus for Sept. part Oct. (through Oct. 26)." As the majority correctly states, based on this language "there is no evidence that Hribek received more compensation than was already due him at the time of the negotiation — assuming that he was entitled to remain employed through October 26, 2004." In its brief, Buc-ee's argues that the consideration for the release was not the pay, vacation hours, and bonuses for the interim between October 5 and October 26, but rather the acts of allowing Hribek to set his resignation date three weeks in the future and paying Hribek salary and bonuses for the period of October 5 through October 26, 2004 without requiring him to work. Such consideration, however, was not memorialized in the agreement, and Buc-ee's could presumably have required Hribek to work or terminated him prior to October 26 if it so chose. Accordingly, the consideration factor, like the four factors before it, weighs heavily in favor of Hribek.
The consideration issue also affects the burden-shifting analysis that precedes the evaluation of the totality of the circumstances. When examining whether a release was valid, courts place the initial burden on the employer to "establish[] that its former employee 'signed a release that addresses the claims at issue, received adequate consideration, and breached the release.'" Smith, 298 F.3d at 441 (quoting Williams v. Phillips Petroleum Co., 23 F.3d 930, 935 (5th Cir. 1994)) (emphasis added). Only after the employer has met this burden does the burden shift to the employee to show that, under the totality of the circumstances, the release was not knowing and voluntary. In this case, however, it appears that Hribek did not seek summary judgment with regard to Buc-ee's initial burden to show adequate consideration.
Buc-ee's counsel admitted as much at oral argument, stating that Hribek was technically expected to work during this period, and that Buc-ee's could have terminated him when he did not return to work.
This analysis of lack of consideration potentially impacts the validity of the contract itself. Under Texas law, lack of consideration constitutes an affirmative defense to an action on a written agreement, and in particular can be used to respond to the assertion that a claim is barred by a valid release. See 1464-Eight, Ltd. v. Joppich, 154 S.W.3d 101, 103 (Tex. 2004). However, the defense must be properly pleaded under the rules of civil procedure. See Tex. R. Civ. P. 94 (affirmative defenses); see also Tex. R. Civ. P. 93(9) (explaining that pleadings alleging lack of consideration must be verified); Lakeway Co. v. Leon Howard, Inc., 585 S.W.2d 660, 662 (Tex. 1979) ("Lack of consideration is an affirmative defense and must be pleaded.").
To paraphrase a popular recording artist, five out of six isn't bad. The purpose of this exercise, however, is not to argue that the judgment in favor of Hribek should be upheld, but rather to illustrate the difficulties of resolving the "totality of the circumstances" in a summary judgment proceeding. Under this analysis, it does not matter how many factors one has on one's side. The factors are merely guideposts along the way to the ultimate factual determination of whether the waiver was knowing and voluntary. Such matters are exceedingly difficult to determine on summary judgment, where the "analysis of the totality of the circumstances [must] demonstrate[] the futility of a trial," O'Hare v. Global Natural Res., Inc., 898 F.2d 1015, 1017 (5th Cir. 1990), and where any doubts must be resolved in favor of the nonmoving party. Hribek falls only slightly short of this demanding standard.
See Meat Loaf, Two out of Three Ain't Bad, on Bat out of Hell (Cleveland Int'l 1977).
Buc-ee's argues that even if the waiver was invalid, Hribek's failure to "tender back" the consideration amounts to ratification of the agreement. Leaving aside the issue of what exactly constitutes consideration in this case, we note that the Supreme Court has found the tender back doctrine of ratification inapplicable to ADEA claims. Oubre v. Entergy Operations, 522 U.S. 422, 428 (1998). Federal circuit courts are split, however, on whether the tender back doctrine applies to other federal remedial statutes. The Fifth Circuit has held that failure to tender back consideration ratifies an otherwise invalid release of federal claims. See, e.g., Faris v. Williams WPC-I, Inc., 332 F.3d 316, 323 (5th Cir. 2003). However, state courts located in the Fifth Circuit "are not bound by Fifth Circuit precedent when making a determination of federal law," Magouirk v. Phillips, 144 F.3d 348, 361 (5th Cir. 1998). Other circuits have held that "the tender back doctrine should be inapplicable to 'a variety of federal remedial statutes,'" such as Title VII. Cole v. Gaming Entm't, LLC, 199 F. Supp. 2d 208, 216 (D. Del. 2002) (quoting Long v. Sears, Roebuck Co., 105 F.3d 1529, 1541 (3d Cir. 1997)).
The task is particularly difficult when the opposing party contests many of the six factors, as Buc-ee's does in this case. See Elf Atochem N. Am. v. United States, 914 F. Supp. 1166, 1170 (E.D. Pa. 1996).
The traditional perception of the role of summary judgment in Texas presents yet another hurdle for Hribek to overcome. Though this case implicates numerous aspects of federal substantive law, the trial of the case is governed by state procedural law. See Dutton v. Southern Pacific Transp., 576 S.W.2d 782, 784 (Tex. 1978) (noting that, when employment cases governed by federal law "are filed in our state courts they are tried in accordance with our own applicable Rules of Civil Procedure"). Summary judgment motions have historically been viewed less favorably in Texas courts than in federal courts, where "summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed 'to secure the just, speedy and inexpensive determination of every action.'" Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986) (quoting Fed.R.Civ.P. 1). In Texas, by contrast, the "purpose of summary judgments" is limited to "eliminat[ing] patently unmeritorious claims and untenable defenses." Texas Dep't of Parks Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004). While the amendment of Texas Rule of Civil Procedure 166a in 1997 "obviated" many, if not all, of the practical differences between summary judgment procedure in federal and Texas courts, see Huckabee v. Time Warner Entertainment Co., 19 S.W.3d 413, 433 (Tex. 2000), longstanding Texas practice has generally limited the availability of summary judgment in the state system.