For decades preceding 2010, this Court and several circuit courts held it was improper for a trial court to sua sponte grant summary judgment, without first affording a non-movant notice and an opportunity to respond. In 2010, the proscription formally was memorialized in Federal Rule of Civil Procedure 56, with Rule 56(f)(3) providing: "After giving notice and a reasonable time to respond, the court may . . . consider summary judgment on its own . . . ."

Although the proscription is directed to trial courts, it would be made meaningless if a reviewing court—notwithstanding the proscription—could sua sponte affirm a summary judgment based on grounds that were not in the first instance noticed and preserved in the trial court. The appellate court held otherwise in the below proceedings, invoking a parallel principle whereby summary judgment sometimes can be affirmed on "alternative" grounds supported by the record. But to be consistent with Rule 56(f)(3), that principle requires the "alternative" grounds first to have been noticed and preserved in the trial court.

The questions presented are as follows:

1. Whether an appellate court may sua sponte raise grounds for summary judgment, which were not noticed or preserved in the trial court.

2. Whether an appellate court is precluded from affirming summary judgment on a ground for which the non-movant was not given notice and opportunity to respond.

3. Whether the United States Court of Appeals for the Fifth Circuit erred in this matter, by affirming summary judgment dismissal of a claim based on an "alternative" ground that had not been noticed and preserved.

Whether an appellate court may sua sponte raise grounds for summary judgment, which were not noticed or preserved in the trial court