# Bartlett v. Cinemark USA, Inc.

> Texas Court of Appeals, 5th District (Dallas) · August 11, 1995 · 908 S.W.2d 229

URL: https://www.frixlaw.com/law-library/cases/9770532

## Case

- **Full name:** Steve BARTLETT, Larry Duncan, Charlotte Mayes, Domingo Garcia, Paul E. Fielding, Craig McDaniel, Barbara Mallory, and Donna Blumer, Appellants, v. CINEMARK USA, INC. and Tinseltown Equities, Inc., Appellees
- **Court:** Texas Court of Appeals, 5th District (Dallas)
- **Decided:** August 11, 1995
- **Citations:** 908 S.W.2d 229; 1995 Tex. App. LEXIS 2527; 1995 WL 376501
- **Precedential status:** Published
- **Opinion:** Concurrence by Devany
- **Judges:** Chapman, Whittington and Devany
- **Cited by:** 20 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9770532

## How later opinions describe it (automated extraction)

- applying state summary judgment standards to a § 1983 qualified immunity claim
- applying state summary judgment’standards to defense of qualified immunity

## Opinion text

DEVANY, Justice,
concurring.
I write to address the appellants’ motion for rehearing.
*239 The standard of review of a judgment granting or denying a motion for summary judgment has been ably presented in the opinion of this Court and, therefore, need not be repeated here. It is interesting that the appellants quote from our opinion as follows:
Appellants failed to conclusively establish that the functions they performed with respect to the development plan were discretionary.
After quoting from the very heart of our opinion, which quotation explains why we affirmed the trial court’s denial of summary judgment, appellants then proceed in their motion for rehearing to ignore that they submitted no summary judgment evidence upon which the trial judge could have determined that they were entitled to qualified immunity.
While the appellants’ motion for summary judgment eloquently speaks of qualified immunity, they fail to understand they have the burden to present the summary judgment evidence to demonstrate that they were entitled to qualified immunity as a matter of law. Appellants’ motion for summary judgment opines that the plaintiffs failed to show that the councilmembers acted improperly, however, appellants ignore that the burden is on the appellants because they filed the motion for summary judgment, not Cinemark, U.S.A., Inc., and Tinseltown Equities, Inc.
The record on appeal reveals that appellants provided no summary judgment evidence to the trial court to support appellants’ position- that the appellants-councilmembers were exercising their discretionary duty as councilmembers when voting on the subject matter of this lawsuit. Rule 166a(c) of the Texas Rules of Civil Procedure specifies the kind of summary judgment evidence that must be submitted. As a farther example of appellants’ failure is the fact that the non-movant provided an affidavit of one Willie Cothrum stating that the councilmembers function was ministerial rather than discretionary, which was left uncontroverted by appellants.
A Texas State Court of Appeals may not fill in the ‘gaps’ left by a movant in a motion for summary judgment by taking judicial notice of what the movant may believe is obvious.
On the record before us on appellants’ motion for summary judgment and what was presented to the trial court, I agree that appellants’ motion for rehearing should be denied.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9770532. Public record. Not legal advice.