532 S.W.3d 547
Tex. App.2017Background
- Plaintiff B.C. sued Steak N Shake Operations, Inc. (SNS) for common-law assault based on alleged sexual assault by an on-site manager (Ventura). The Texas Supreme Court held the claim was not preempted by the TCHRA and remanded for further review.
- At trial SNS moved for summary judgment on both traditional and no-evidence grounds; the trial court granted a take-nothing judgment for SNS.
- SNS’s combined motion included an extensive evidentiary appendix and quoted/cited B.C.’s own deposition testimony describing the assault.
- B.C. filed a response and supporting evidence one day late (six days before the hearing instead of seven); the trial court’s order stated it considered the "pleadings, evidence, and arguments" but did not expressly indicate it permitted the late filing.
- The majority excluded B.C.’s late response and evidence as not considered by the trial court, treated the no-evidence motion first, and affirmed summary judgment. The dissent would have considered SNS’s evidence and found genuine fact issues about Ventura’s vice-principal status and the assault.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of response to no-evidence MSJ | B.C.: her response/evidence defeated no-evidence motion; trial court considered evidence. | SNS: response was filed late and trial court did not grant leave, so it should be excluded. | Held: response was untimely and record shows no affirmative indication court considered it; exclude it. |
| Effect of movant-supplied evidence in combined traditional/no-evidence MSJ | B.C.: movant’s filing of her deposition and other evidence demonstrates a fact issue defeating no-evidence ground. | SNS: movant may attach evidence; nonmovant still must timely identify evidence creating fact issue. | Held: nonmovant’s timely response is required; movant’s evidence in combined motion does not relieve that burden when nonmovant’s response is untimely. |
| Whether traditional MSJ raised genuine fact issues as to assault/vice-principal exception to TWCA | B.C.: there is evidence (e.g., job descriptions, testimony) creating a genuine issue that Ventura was a vice-principal, so the assault exception applies. | SNS: vice-principal status not shown; traditional MSJ established entitlement as a matter of law. | Held: majority did not reach traditional-MSJ merits because no-evidence ground required no further inquiry; dissent would have found genuine fact issues on vice-principal status and reversed. |
| Post-decision supplementation / filing-receipt evidence | B.C.: late-submitted e-filing receipt shows she attempted timely filing and court should reconsider. | SNS: receipt was not part of trial record when judgment entered and cannot be considered on appeal; issue was waived. | Held: court declined to consider supplemental record filed after opinions; waiver and procedural rules bar reconsideration. |
Key Cases Cited
- Valence Operating Co. v. Dorsett, 164 S.W.3d 656 (Tex. 2005) (standard of review for summary judgment is de novo)
- Binur v. Jacobo, 135 S.W.3d 646 (Tex. 2004) (treatment of evidence attached to no-evidence motions in combined motions)
- Benchmark Bank v. Crowder, 919 S.W.2d 657 (Tex. 1996) (presumption trial court did not consider late-filed response absent affirmative indication)
- Timpte Indus., Inc. v. Gish, 286 S.W.3d 306 (Tex. 2009) (no-evidence motion standard under Rule 166a(i))
- McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337 (Tex. 1993) (nonmovant may challenge legal sufficiency of movant’s traditional summary-judgment proof on appeal)
- B.C. v. Steak N Shake Operations, Inc., 512 S.W.3d 276 (Tex. 2017) (Texas Supreme Court ruling that TCHRA did not preempt B.C.’s common-law assault claim)