Court of Appeals of Texas, Fifth District, Dallas
Appeal from the 380th Judicial District Court Collin County,
Texas Trial Court Cause No. 380-02686-2012
Justices Francis, Evans, and Stoddart
OPINION ON REMAND
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
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 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
no-evidence 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.
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 no-evidence 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
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).
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 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).
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
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).
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.
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).
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. Accordingly, we presume the
trial court did not consider her response or evidence and
exclude them from our review. Benchmark Bank, 919
S.W.2d at 663.
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.
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)
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 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.)
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 no-evidence 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.
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
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.
affirm the trial court's judgment.
accordance with this Court's opinion of this date, the
judgment of the trial court is AFFIRMED.
ORDERED that appellee STEAK N SHAKE
OPERATIONS, INC. recover its costs of this appeal from