PER CURIAM

In this appeal, we consider whether a trial court’s recital in a final summary-judgment order that it considered “the pleadings, evidence, and arguments of counsel” included a late-filed response and attached evidence. The court of appeals concluded that the recital did not, and thus upheld the summary judgment without addressing its legаl merit. We initially denied review. We grant rehearing, and without hearing oral argument, see TEX. R. APP. P. 59.1, we reverse the court of appeals’ judgment. We remand the case to that court for consideration of the merits of the appeal.

I

A former Steak N Shake employee, B.C., sued the restaurant and her former supervisor, alleging that the supеrvisor had sexually assaulted her during her employment. Steak N Shake moved for summary judgment, presenting traditional and no-evidence grounds in a combined motion.¹ The trial court granted the motion.

A previous appeal to this Court dealt with statutory preemption, the ground the court of appeals relied on in first affirming the trial court’s summary judgment.² The court of appeals had hеld that the Texas Commission on Human Rights Act provided the exclusive remedy for the employee’s claims, foreclosing her common law assault claim as a matter of law.³ We disagreed and reversed, holding that “where the gravamen of a plaintiff’s claim is not harassment, but rather assault, as it is here, the [Act] does not preempt the plaintiff’s сommon law assault claim.”⁴ We remanded the case to the court of appeals to consider Steak N Shake’s remaining grounds for summary judgment.⁵

On remand, the court of appeals outlined these remaining issues: (1) “whether, under its traditional motion for summary judgment, [Steak N Shake] established as a matter of law that B.C.’s assault claim fits within a traditional exception to the Texas Workers’ Compensation Act,” and (2) “whether, under the no-evidence motion, B.C. produced more than a scintilla of evidence on each element of her claim.”⁶ But the court of appeals ultimately did not decide these issues, concluding that B.C. had “failed to file a timely response to the no-evidenсe motion, and the record does not show the trial court considered the late-filed response.”⁷ In upholding summary judgment on no-evidence grounds, the court of appeals declined to consider the evidence that Steak N Shake had attached to its combined motion, including B.C.’s deposition testimony, because no timely response pointed out a fact issue raised by that evidence.⁸ As the court of appeals upheld summary judgment on no-evidence grounds, it did not consider the remaining legal ground—the worker’s compensation bar—urged in Steak N Shake’s traditional motion.⁹

On rehearing en banc in the court of appeals, B.C. newly contended that she had attempted to electronically file her response on the day it was due—including 461 pages of supporting evidence—but her filing was rejected “because one of the exhibits was not formatted for optical character recognition.” B.C. contends she then re-filed her motion with properly formatted exhibits the following day, which is consistent with thе file stamp appearing on her response in the record. B.C. did not move to continue the summary-judgment hearing or seek leave of court to file her response late.

Despite the tardiness of B.C.’s response, Steak N Shake filed a reply brief before the summary-judgment hearing challenging the merits of B.C.’s response. In a footnote, Steak N Shake also objected to the response as untimely. The parties agree that Steak N Shake raised its objection at the summary-judgment hearing. There is no record of the hearing or of a ruling on the objection. But in the order granting summary judgment, the trial court recited: “After considering the pleadings, evidence, and arguments of counsel, the Court finds that the motion should be granted.”

II

In its combined motion for summary judgment, Steak N Shake argued that it is entitled to judgment for several reasons, including the preemption argument we previously rejected.¹⁰ Steak N Shake also argued that no evidence exists to support any element of B.C.’s common law assault claim under direct or vicariоus liability theories.¹¹

For a traditional summary judgment, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Steak N Shake, as the movant, bears the burden to conclusively establish that it is entitled to judgment as a matter of law, notwithstanding the nonmovant’s response or lack thereof.¹² In contrast, a movant seeking a no-evidence summary judgment need only identify “one or more essential elements of a claim or defense . . . as to which there is no evidence,” and the burden then shifts to the nonmovant to produce “summary judgment evidence raising a genuine issue of material fact.”¹³ If a nonmovant fails to carry this burden, then the court “must” grant summary judgment.¹⁴

At issue in this case is the timeliness of B.C.’s response. A response to a no-evidence summary-judgment motion, including any evidеnce opposing the motion, is due seven days before the summary-judgment hearing.¹⁵ Rule 166a(c) provides that a response must be timely filed “[e]xcept on leave of court.”¹⁶ B.C. newly argued during en banc proceedings in the court of appeals that her response should relate back to her earlier, rejected electrоnic filing, a position she maintains at this Court. We agree with the court of appeals, however, that B.C. waived this argument by “waiting to raise the issue until after [the court of appeals] issued two opinions based on the unchallenged assertion that her response was untimely.”¹⁷ The question before us, then, is not whether B.C. timely filed her response, but whether thе trial court considered her untimely response in granting summary judgment in Steak N Shake’s favor.

“[W]here nothing appears of record to indicate that late filing of a summary judgment response was with leave of court, it is presumed [the] trial court did not consider the response.”¹⁸ Courts of appeals considering whether a trial court granted leave commonly—and correctly—examine the record for “an affirmative indication that the trial court permitted the late filing.”¹⁹

That indication may arise from “a separate order, a recital in the summary judgment, or an oral ruling contained in the reporter’s record of the summary judgment hearing.”²⁰ So while a “silent record” on appeal suppоrts the presumption “that the trial court did not grant leave,”²¹ courts should examine whether the record “affirmatively indicates” the late-filed response was “accepted or considered.”²²

The court of appeals in this case did so, correctly asking whether the record contains an “affirmative indication” that the trial cоurt permitted B.C.’s late-filed response.²³ But the court concluded that the recital in the order was insufficient to overcome the presumption. In her petition to this Court, B.C. contends that the trial court’s recital is sufficient—as it demonstrates that the trial court considered all the evidence, including that attached to her late-filed respоnse. She further reasons that, had the trial court not considered B.C.’s evidence, it would not have considered any evidence in opposition to the no-evidence motion. Relying on Ford Motor Co. v. Ridgway, she observes that reviewing courts, when presented with combined motions for traditional and no-evidence summary judgment, generally address the no-evidence рoint first.²⁴ Though many courts of appeals follow our example in Ridgway—as do we²⁵—that holding does not compel trial courts to consider no-evidence motions first. We cannot assume the trial court did so here.

We nonetheless conclude that the trial court’s recital that it considered the “evidence and arguments of counsel,” without any limitation, is an “affirmative indication” that the trial court considered B.C.’s respоnse ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍and the evidence attached to it. The court of appeals concluded this reference “indicates nothing more than the trial court considered [Steak N Shake’s evidence] in conjunction with the traditional motion.”²⁶ But a court’s recital that it generally considered “evidence”—especially when one party оbjected to the timeliness of all of the opposing party’s evidence—overcomes the presumption that the court did not consider it.²⁷

This has long been our approach when considering late-filed amended pleadings in advance of a summary-judgment hearing. Our rules provide that a party may not amend its pleadings within seven days of a summary-judgment hearing without leave of court.²⁸ In this context, we have held that “leave of court is presumed when a summary judgment states that all pleadings were considered, and when, as here, the record does not indicate that an amended pleading was not considered, and the opposing party does not show surprise.”²⁹

Similarly, while wе presume that a trial court did not consider a late-filed response absent an affirmative indication in the record, a recital in a summary-judgment order that the trial court considered “the evidence” without qualification or limitation overcomes that presumption.³⁰ And although Steak N Shake objected to the timeliness of B.C.’s response, it neither sought nor obtained a ruling on that objection before or after the trial court’s order; therefore, we have no basis to conclude the trial court did not consider all summary-judgment evidence on file at the time the motion was heard.

Because the trial court recited that it had considered “the pleadings, evidence, and arguments of counsel,” the court of appeals should have considered that evidence as well in its review of the trial court’s summary judgment.³¹ Accordingly, we reverse the court of appeals’ judgment without hearing oral argument, see TEX. R. APP. P. 59.1, and remand the case to that court to consider the merits of the summary-judgment issues it outlined in its opinion.³²

OPINION DELIVERED: March 27, 2020

Notes

Our rules provide that a party may move for a no-evidence and a traditional summary judgment in a single motion. .

, rev’d, .

. During en banc proceedings in the court of appeals, B.C. filed “a newly created ‘supplemental clerk’s record.’” . Through it, B.C. argued for the first time that her summary-judgment response should relate back to her attempted eleсtronic filing the day before. In a supplemental opinion, the court of appeals rejected this argument because B.C. had never previously challenged the assertion that her response was untimely. The court concluded that it could not consider the “supplemental clerk’s record” because the evidence that it contained—including an e-filing receipt filed with the trial court after the court of appeals issued its opinion—“was not before the trial court at the time it rendered judgment, and, indeed, was never part of the trial court’s record until after our opinions issued.” .

TEX. R. CIV. P. 166a(c); (“The nonmovant has no burden to respond to a summary judgment motion unless the movant conclusively establishes its cause of action or defense.”).

TEX. R. CIV. P. 166a(i).

Id.

TEX. R. CIV. P. 166a(c).

Id.

(citing ).

(quoting ). See also, e.g., (looking to “affirmative language in the record” to overcome presumption that trial court did not consider late-filed response); (mem. op.) (examining record for an “order or other affirmative evidence that the trial court granted leave to late file a response”); (“[A] trial judge may accept summary judgment evidence filed late, even after summary judgment, so long as he affirmatively indicatеs in the record that he accepted or considered it.”); (“The record must contain an affirmative indication that the trial court permitted the late filing of a response or the response is a nullity.” (citing )); (“[I]f the court allows the late filing, it must affirmatively indicate in the record acceptance of the late filing.”); (applying presumption “[i]n the absence of an affirmative indication in the record that the trial court accepted the late-filed response”).

(quoting ); see also (mem. op.); (mem. op.); (mem. op.); ; ; ; ; (citing TIMOTHY PATTON, SUMMARY JUDGMENT IN TEXAS § 2.02[2] (Michie 1996)).

(citing ).

; see also (applying “accepted or considered” standard articulated in ).

(citing ).

See . Citing , the court of appeals in this case stated that “[w]hen a party files both a no-evidence and a traditional motion for summary judgment, we first consider the no-evidence motion.” (citing ).

See, e.g., (“When a party moves for both traditional and nо-evidence summary judgments, we first consider the no-evidence motion.”); (mem. op.); (mem. op.); ; ; ; (mem. op.);

See (mem. op.) (“The summary judgment order makes clear that the trial court considered, and thus gave leave to file, the supplemental evidence attached to SureTec’s reply. The order recites, ‘After considering the Motion, the responses filed by Serafim and Ione Stavron, and the replies thereto filed by SureTec Insurance Company, the Court finds that SureTec’s Motion should be GRANTED in its entirety.’”); (“In its order denying the motion for new trial [following summary judgment], the trial court stated, ‘after considering Plaintiffs’ Motion for New Trial, the response, affidavits, the pleadings in this matter, and other evidence on file, this Court is of the opinion that such motion should hereby be Deniеd.’ Therefore, the trial court affirmatively indicated that it considered the affidavit attached to the motion for new trial although it denied the motion, effectively reaffirming its earlier [summary-judgment] ruling.”); (“In its order granting the summary judgment, the trial judge stated that he had reviewed the motions, the supporting briefs, and summary judgment evidence filed by Grant, the responses to еach motion, controverting summary judgment evidence, and other specified materials. . . . [T]he trial court’s order granting the summary judgment specifically states the trial judge reviewed the investors’ responses. We conclude, therefore, the record indicates the trial court permitted the late response.”); (mem. op.) (“Here, the order on Appellees’ motion for summary judgment reflects that the trial court considered ‘all responses [and] all competent summary judgment evidence.’ We hold that that this recital in the summary judgment order is an affirmative indication that the trial court permitted the Seims’ various untimely summary judgment responses and evidence.” (alteration in original)), rev’d on other grounds, (per curiam); (mem. op.) (holding trial court accepted late response where recital stated: “After considering the Motion, the response, the evidence presented and the arguments of counsel . . . .”).

TEX. R. CIV. P. 63.

(citing ). The requirement that “the opposing party . . . not show surprise”—an element nоt present when considering whether the record contains an “affirmative indication” that the court “accepted or considered” a late response—derives from the language of Rule 63, which provides that parties may amend their pleadings “at such time as not to operate as a surprise to the opposite рarty,” but in any event “within seven days of the date of trial” unless leave is obtained. TEX. R. CIV. P. 63.

In , the court of appeals considered whether a summary-judgment recital contained an affirmative indication of leave to file supplemental evidence where the trial court granted summary judgment “[a]fter considering the pleadings, the motion, affidavits, and other evidence on file” and concluded that “the phrase ‘other evidence on file’ is too general to necessarily encompass the supplemental evidence.” (alteration in original). For the reasons explained in this opinion, we disapprove of on this point.

After rejecting Steak N Shakе’s argument that “B.C.’s appellate arguments are necessarily waived as a result of filing her summary judgment response one day late,” the dissenting justice went on to consider the evidence supporting B.C.’s challenge to the trial court’s summary judgment, concluding that “the trial court did not err in granting no-evidence summary judgment on B.C.’s pleaded vicarious liability thеory” but that “there are genuine issues of material fact regarding B.C.’s assault claim and whether [the alleged assailant supervisor] was a vice-principal of [Steak N Shake].” (Evans, J., dissenting). Although we hold that the court of appeals erred by not considering B.C.’s summary-judgment evidence, we ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍express no opinion on whether that evidence gives rise to any genuine issues of material fact that withstand summary judgment.

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