Ja-Lynn Kuo; Jlkuo, Pllc; Subho Mullick, Sm Er, Plc; Salima Amina Thobani; And Srg Consulting, LLC v. Regions Bank

Supreme Court of Texas
══════════
No. 24-1039
══════════

Ja-Lynn Kuo; JLKUO, PLLC; Subho Mullick; SM ER, PLC;
Salima Amina Thobani; and SRG Consulting, LLC,
Petitioners,

v.

Regions Bank,
Respondent

═══════════════════════════════════════
On Petition for Review from the
Court of Appeals for the Fifth District of Texas
═══════════════════════════════════════

PER CURIAM

The parties agree that the court of appeals failed to address the
merits of multiple issues that were properly before it. These issues
should have been resolved by the court of appeals on the merits rather
than on non-merits grounds. We therefore reverse the court of appeals’
judgment and remand the case to that court, which should resolve the
Petitioners’ unaddressed issues.
Respondent Regions Bank made loans for the construction of a
medical facility in Dallas. Petitioners are business entities and
individuals who signed guaranties securing the loans. The Bank sued
Petitioners and others to collect on the loans. The district court granted
summary judgment for the Bank, and Petitioners appealed. The court
of appeals affirmed. ___ S.W.3d ___, 2024 WL 3325436, at *1, *8 (Tex.
App.—Dallas July 8, 2024).
Petitioners raised several issues in the court of appeals. As
described by the court of appeals, Petitioners argued in their second and
third issues that “the Bank did not prove it satisfied conditions
precedent and failed to conclusively prove its damages.” Id. at *5.
Petitioners’ fourth issue challenged the sufficiency of the evidence to
support attorney’s fees. Id.
As to these three issues, the court of appeals did not reach the
merits, instead ruling, sua sponte, that the issues were “not preserved
for our review” because the appellate record was missing certain
documents offered in support of the Bank’s summary judgment motion.
Id. at *5-6 & n.7. Petitioners contend in this Court, and likewise argued
in the court of appeals, that these documents were in the district court
and appellate record and were “on file,” see TEX. R. CIV. P. 166a(c), for
purposes of the district court’s determination of the Bank’s summary
judgment motion. The documents were not, however, physically
attached to that motion. Petitioners contend, and the Bank does not
dispute, that these documents were filed multiple times in the
voluminous record and are referenced in various pleadings, including
previously filed summary judgment motions. In the court of appeals,
the Bank likewise agreed “that the evidence supporting its summary
judgment was on file at the time of the summary judgment hearing.”
And again, in this Court, the Bank “agrees with Petitioners that the

2
summary judgment evidence considered by the trial court was properly
included in the appellate record.” The Bank understandably maintains
that the evidence necessary to grant summary judgment in its favor was
on file, because otherwise it was not entitled to summary judgment.
Instead of embracing the court of appeals’ error-preservation holding,
the Bank contends that Petitioners’ evidentiary challenges fail on their
merits.
We agree with both sides that the documentary evidence at issue
was on file for consideration by the district court and the court of
appeals. The court of appeals therefore should have reached the merits
of Petitioners’ evidentiary challenges. Rule 166a does not require
evidence to be physically attached to a summary judgment motion; it
need only be on file at the time of the summary judgment hearing. State
v. Three Thousand, Seven Hundred Seventy-Four Dollars & Twenty-
Eight Cents U.S. Currency ($3,774.28), 713 S.W.3d 381, 388-90 (Tex.
2025); Enter. Leasing Co. of Hou. v. Barrios, 156 S.W.3d 547, 549 (Tex.
2004). If the court of appeals was uncertain as to whether documents
attached to one pleading were equally applicable to the motion under
review, it could have asked the parties to clear up the uncertainty,
instead of sua sponte finding a forfeiture that was not urged by the
Bank. See Bertucci v. Watkins, 709 S.W.3d 534, 541-43 (Tex. 2025).
Seeking a clarification (or simply considering the on-file evidence that
the parties agreed should be considered) would have allowed the court
of appeals to avoid a procedural default and to reach the merits of an
appeal, which is the preferable course whenever reasonably possible.
Id.; Weeks Marine, Inc. v. Garza, 371 S.W.3d 157, 162-63 (Tex. 2012).

3
The petition for review is granted. Without hearing oral
argument, see TEX. R. APP. P. 59.1, and without full briefing on the
merits, see TEX. R. APP. P. 55.1, we reverse the judgment of the court of
appeals and remand the case for further proceedings consistent with
this opinion. On remand, the court of appeals should address in the first
instance the merits of the second, third, and fourth issues Petitioners
previously raised in that court. See, e.g., U.S. Polyco, Inc. v. Tex. Cent.
Bus. Lines Corp., 681 S.W.3d 383, 391 (Tex. 2023) (remanding to court
of appeals to decide unaddressed issues in the first instance); Wasson
Ints., Ltd. v. City of Jacksonville, 489 S.W.3d 427, 439 (Tex. 2016)
(same).

OPINION DELIVERED: October 10, 2025

4