Date: 08-31-2017

Case Style:

Case Number: 05-14-00649-CV

Judge: Molly Francis

Court: Texas Court of Appeals, Fifth District on appeal from the 380th District Court, Collin County

Plaintiff's Attorney: Matt Kita

Defendant's Attorney: Christopher L. Kurzner, James F. Parker III, Matthew R. McCarley, Warren K. Paxton Jr.

Description: B.C. appeals the trial court’s take-nothing summary judgment on her common-law
assault claim against her former employer, Steak N Shake Operations, Inc. (SNS). On original
submission, this Court concluded B.C.’s claim was barred as a matter of law by the Texas
Commission on Human Rights Act.1 B.C. v. Steak N Shake Operations, Inc., 461 S.W.3d 928,
928 (Tex. App.—Dallas 2015). The Texas Supreme Court reversed our decision, concluding the
claim was not preempted by the TCHRA, and remanded the case for us to consider the remaining
issues. 512 S.W.3d 276, 285 (Tex. 2017). The issues that remain on appeal are (1) whether,
under its traditional motion for summary judgment, SNS established as a matter of law that
1 TEX. LAB. CODE ANN. §§ 21.001–.556 (West 2015 & Supp. 2016).
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B.C.’s assault claim fits within a traditional exception to the Texas Workers’ Compensation Act
(TWCA) and (2) whether, under the no-evidence motion, B.C. produced more than a scintilla of
evidence on each element of her claim. Because B.C. failed to file a timely response to the noevidence
motion, and the record does not show the trial court considered the late-filed response,
we conclude the trial court properly granted summary judgment in favor of SNS. Accordingly,
we affirm the trial court’s judgment.
The supreme court summarized the facts of this case at length in its opinion, so we need
not repeat them here. See id. at 277–79. SNS filed a combined traditional motion and noevidence
motion for summary judgment which was granted by the trial court. We review a trial
court’s granting of summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d
656, 661 (Tex. 2005). When a trial court’s order granting summary judgment does not specify
the ground or grounds relied on for its ruling, we must affirm summary judgment if any of the
grounds advanced is meritorious. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989).
No-evidence and traditional grounds for summary judgment may be combined in a single
motion. Binur v. Jacobo, 135 S.W.3d 646, 650–51 (Tex. 2004); Coleman v. Prospere, 510
S.W.3d 516, 518 (Tex. App.—Dallas 2014, no pet.). The substance of the motion and not its
form or the attachment of evidence determines whether the motion is a no-evidence, traditional,
or combined motion. Binur, 135 S.W.3d at 650–51; Coleman, 510 S.W.3d at 518. When a party
files both a no-evidence and a traditional motion for summary judgment, we first consider the
no-evidence motion. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004).
A no-evidence motion for summary judgment is essentially a motion for pretrial directed
verdict and is governed by the standards of Texas Rule of Civil Procedure 166a(i). Timpte
Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009). The motion must specifically state which
elements of the nonmovant’s claims lack supporting evidence. TEX. R. CIV. P. 166a(i); Jose
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Fuentes Co., Inc. v. Alfaro, 418 S.W.3d 280, 283 (Tex. App.—Dallas 2013, pet. denied) (en
banc). A no-evidence motion that only generally challenges the sufficiency of the nonmovant’s
case is fundamentally defective and cannot support summary judgment as a matter of law. Id.
But, when a movant has filed a motion that identifies the elements for which it contends no
supporting evidence exists, in a form that is neither conclusory nor a general no-evidence
challenge, summary judgment must be rendered absent a timely and legally adequate response by
the nonmovant. Landers v. State Farm Lloyds, 257 S.W.3d 740, 746 (Tex. App.—Houston [1st
Dist.] 2008, no pet.) (op. on reh’g).
In this case, SNS’s no-evidence motion identified the elements of assault and asserted
there is no evidence of any of these elements on either a direct or vicarious liability theory. B.C.
has not argued the motion was legally insufficient. Rather, she argues she presented sufficient
evidence on each element of her claim to defeat the motion and directs us to evidence contained
in her response. SNS argues we cannot consider B.C.’s evidence because the response was not
filed timely.
A response to a motion for summary judgment, including opposing summary judgment
evidence, may be filed no later than the seventh day before the date of the hearing “[e]xcept on
leave of court.” TEX. R. CIV. P. 166a(c); see also Landers, 257 S.W.3d at 745. If the response is
late, the record must contain an affirmative indication that the trial court permitted the late filing
or the response is a nullity. K-Six Television, Inc. v. Santiago, 75 S.W.3d 91, 96 (Tex. App.—
San Antonio 2002, no pet.). If the record contains nothing indicating the trial court considered a
late-filed response, we presume the trial court did not consider it, and the response will not be
considered on appeal. Benchmark Bank v. Crowder, 919 S.W.2d 657, 663 (Tex. 1996).
Here, the summary judgment hearing was held on January 22, 2014, and B.C.’s response
to the motion for summary judgment was filed six days earlier, on January 16, 2014.
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Consequently, her response was not timely, and SNS objected to the trial court’s consideration of
B.C.’s evidence on that basis. Nevertheless, B.C. argues the following language of the order
granting summary judgment contains an “affirmative indication” that the trial court considered
her evidence: “After considering the pleadings, evidence, and arguments of counsel, the Court
finds that the Motion should be granted.” She suggests the word “evidence” shows the trial court
considered all evidence, including her late-filed evidence. But B.C. has not cited, and we have
not found, an opinion concluding a trial court’s statement that it considered “evidence” was an
adequate indication in the record that the court considered late-filed responsive evidence. See
Neimes v. Ta, 985 S.W.2d 132, 138 (Tex. App.—San Antonio 1998, pet. dism’d by agr.)
(explaining trial court may memorialize its permission by separate order, a recital in summary
judgment order, or oral ruling contained in reporter’s record of hearing); see generally Judge
David Hittner & Lynne Liberatto, Summary Judgments in Texas: State and Federal Practice, 52
HOUS. L . REV. 773, 803 (2015).
The record shows SNS moved for traditional and no-evidence summary judgment in one
document and filed a 226-page appendix of evidence to support its traditional motion. Thus, the
trial court’s statement that it considered the evidence indicates nothing more than the trial court
considered SNS’s appendix of evidence in conjunction with the traditional motion. We could
reach a different conclusion had SNS filed only a no-evidence motion without any supporting
evidence or if the trial court stated that it considered the response to SNS’s motion. Neither,
however, is the case. On the record before us, we cannot conclude the trial court’s order
contained any “affirmative indication” that it considered B.C.’s late-filed evidence or granted
B.C. leave to late-file her response and evidence.2 Accordingly, we presume the trial court did
2 To the extent B.C. relies on the word “pleadings” to encompass her response, the law is clear that a summary
judgment response is not a pleading. See In re S.A.P., 156 S.W.3d 574, 576 n.3 (Tex. 2005); K.W. Ministries, Inc. v.
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not consider her response or evidence and exclude them from our review. Benchmark Bank, 919
S.W.2d at 663.
Because B.C.’s response to the no-evidence motion was untimely and the record does not
contain any indication the trial court granted leave for the late filing or considered the response
in rendering its decision, B.C. failed to meet her burden under rule 166a(i) to affirmatively raise
an issue of fact on the challenged elements of her claim. The absence of a timely and legally
adequate response to the no-evidence motion required the trial court to grant summary judgment
in favor of SNS. See Landers, 257 S.W.3d at 746.
The dissent in this case reaches a different result, concluding the evidence presented by
SNS in support of its traditional motion for summary judgment rendered its no-evidence motion
“legally defective or insufficient.” Although B.C. does not make this argument, the dissent cites
Binur v. Jacobo for the proposition that SNS’s evidence must be examined to determine if it
creates a fact issue precluding no-evidence summary judgment even though B.C. did not file a
timely response. See Binur, 135 S.W.3d at 651. We conclude, as other courts have, that Binur
should not be read this broadly. See Gallien v. Goose Creek Consol. Indep. Sch. Dist., No. 14–
11–00938–CV, 2013 WL 1141953, at *4 (Tex. App.—Houston [14th Dist.] Mar. 19, 2013, pet.
denied) (mem. op.); Dyer v. Accredited Home Lenders, Inc., No. 02–11–00046–CV, 2012 WL
335858, at *4–5, (Tex. App.—Fort Worth Feb. 2, 2012, pet. denied) (mem. op.).
In Binur, the supreme court disapproved appellate court decisions that disregarded or
recharacterized motions for no-evidence summary judgment if they attached evidence. See
Binur, 135 S.W.3d at 651. In doing so, the court stated that “if a motion brought solely under
subsection (i) attaches evidence, that evidence should not be considered unless it creates a fact
Auction Credit Enters., LLC, No. 05-14-01392-CV, 2016 WL 1085227, at *3 (Tex. App.—Dallas Mar. 21, 2016, no
pet.) (mem. op.).
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question.” Id. The court said nothing in Binur about considering evidence submitted as part of a
combined motion for traditional and no-evidence summary judgment when determining the
propriety of the no-evidence motion. See Dyer, 2012 WL 335858, at *4. More importantly, the
court said nothing that would indicate the nonmovant was relieved of her burden under rule
166a(i) to timely respond to the no-evidence motion and direct the court to the evidence she
believes creates a fact issue. Although the nonmovant may not be required to re-submit the
evidence already proffered by the movant, she must, at a minimum, file a timely response
identifying the portions of the movant’s evidence she is relying on to show a fact issue exists.
Cf. Campbell v. Mortg. Elec. Registration Sys. Inc., No. 03–11–00429–CV, 2012 WL 1839357,
at * 4 (Tex. App.—Austin May 18, 2012, pet. denied) (mem. op.)
The dissent contends the evidence creating a fact issue in this case was pointed out to the
trial court by the movant as part of its motion for traditional summary judgment and this was
sufficient. This conclusion does not take into account the fact that the trial court, in considering
a combined traditional and no-evidence summary judgment motion, should first address the noevidence
motion. Cf. Ridgway, 135 S.W.3d at 600; Blackard v. Fairview Farms Land Co., Ltd.,
346 S.W.3d 861, 867 (Tex. App.—Dallas 2011, no pet.). If the nonmovant fails to adequately
respond to the no-evidence motion, as was the case here, the trial court need never reach the
traditional motion and, therefore, never examine the evidence “pointed to” by the movant.
Additionally, even if the movant identifies evidence that arguably creates a fact issue, it is
not appropriate for the court to make those arguments on behalf of the nonmovant and deny the
motion for no-evidence summary judgment on that basis. It is the nonmovant’s burden under
rule 166a(i) to identify evidence and explain why it demonstrates that a fact issue exists.
Requiring the court to independently determine whether the movant’s evidence supports the
nonmovant puts the court in the improper position of advocate for the nonmovant.
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We recognize, as other courts have, the apparent injustice in allowing a no-evidence
summary judgment to stand when “the record discloses not only that evidence exists to support
the challenged element, but that the evidence was before the trial court.” See Dyer, 2012 WL
335858 at *3. But both the language of the summary judgment rule, and the impropriety of
asking the trial court to take on the nonmovant’s burden of identifying fact issues, dictates the
result. Id. We conclude the trial court did not err in granting a no-evidence summary judgment
in favor of SNS. Our disposition of this issue makes it unnecessary to address B.C.’s other
arguments.

Outcome: We affirm the trial court’s judgment.

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