Lead Opinion
Opinion by
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.
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 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,
No-evidence and traditional grounds for summary judgment may be combined in a single motion. Binur. v. Jacobo,
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,
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,
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. 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,
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.
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,
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,
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,
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 no-evidence motion. Cf. Ridgway,
' Additionally, even if the movant identifies evidence that arguably creates a fact issue, it is hot 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 norimovant puts the court in the improper position of advocate for the nonmovant.
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,
We affirm the trial court’s judgment.
Evans, J., dissenting.
Notes
. Tex Lab. Code Ann. §§ 21.001-.S56 (West 2015 & Supp. 2016).
. To the extent B.C. relies on the word "pleadings” to encompass her response, the
Dissenting Opinion
dissenting.
In this appeal, because the nonmovant did not timely respond in the trial court we must decide whether a no-evidence ground for summary judgment is legally defective because the movant’s factual summary retold, cited, and provided the nonmovant’s testimony contradicting the motion’s assertion that there was no such evidence and further directly provided the responsive evidence. We must then decide whether the evidence cited by the movant for its traditional motion actually identified a genuine issue of material fact. I would decide both questions in favor of the nonraovant and reverse in part and affirm in part. Because the majority opinion decides.differently, I dissent.
Procedural Posture
The supreme court summarized the facts of this case at length, so I do not repeat them here. See B.C. v. Steak N Shake Operations, Inc.,
Here, B.C. claims that Steak N Shake is liable because one of its alleged vice principals committed an assault. Essentially, B.C. alleges that Steak N Shake steps into the shoes of the assailant and is, therefore, directly liable for her . injury.
B.C.,
A second important aspect of the procedural . posture of this case is the no-evi
After lighting their cigarettes • and smoking them silently while staring at each other- for a minute or two, Plaintiff testified that Ventura moved toward her and attempted to kiss her, pushing her up against the sink. [Citation to B.C.’s deposition testimony provided in an appendix.] When she refused, Ventura attempted to remove her pants and apron and lift his hand up her shirt until , she pushed him away. [Citation to B.C.’s deposition- testimony provided in an appendix.] Plaintiff also testified that Ven-tura then exposed himself and .tried, to force her head toward his crotch, apparently in an effort to induce Plaintiff to perform oral sex on him, but that she pushed him to the ground and walked out the door, [Citation to B.C.’s deposition testimony provided in an appendix.] According. to Plaintiff, the encounter lasted 15 to 20 minutes, [Citation to B.C.’s deposition testimony provided in an appendix.]
These statements and citation to the appendix of evidence are not containéd in the traditional motion section, but in the general, factual section that introduced both the traditional and no-evidénce grounds sections. After the traditional grounds section, ,the no-evidence grounds first challenged the assault cause of action asserting the following:
To prove a cause of action for. assault by infliction of bodily injury, Plaintiff must prove (1) the defendant acted intentionally, knowingly, or recklessly; (2) the defendant made contact with the . plaintiffs person; and (3) the defendant’s contact caused bodily injury to the plaintiff. .... As to any claim against SNS for direct liability for assault/sexual assault, there is no evidence of any. of these ■ elements.
(Authorities in footnote ..and text omitted). The .no-evidence motion then challenged in detail SNS’s liability based on B.C.’s alternatively pleaded theory.of respondeat superior. , . ■
' Analysis
Content of Summary Judgment Record and B.C.’s Legal Sufficiency Argument
I begin by addressing SNS’s argument that- B.C. has waived her appellate arguments because she filed her summary judgment response and evidence late and did-not seek1 or obtain leave for consideration of her late filing. For the following reasons, I conclude B.C.’s Tate filing precludes our consideration of her response and evidence. But we may consider B.C.’s appellate issues that assert the'legal insufficiency of SNS’s motion for 'summary judgment. ’ . .
I conclude for the reasons stated in the majority opinion that B.C. filed her response and evidence one day late and that the- trial court did not indicate in a written order that it granted leave or considered her response and evidence.
SNS further requests we consider as waived all of B.C.’s appellate arguments as to both the traditional and no-evidence grounds of summary judgment because they were not made in the trial court. B.C. argues there was a genuine issue of material fact precluding the trial court from granting the traditional ground for summary judgment and the trial court erred when it granted the no-evidence ground citing the same testimony by B.C. as the movant cited.' So SNS challenges that B.C.’s appellate arguments do not argue the legal sufficiency of 'SNS’s summary judgment grounds.
As regards a motion for summary judgment on traditional grounds, “[t]he non-movant has no burden to respond to a
[Sjummary judgments must stand or fall on their own merits, and the nonmov-ant’s failure to answer or respond cannot supply by default the summary judgment proof necessary to establish the movant’s right. Clear Creek,589 S.W.2d at 678 . If a non-movant fails to present any issues in its response or answer, the movant’s right is not established and the movant must still establish its entitlement to summary judgment. The effect of such a failure is that the nonmovant is limited on appeal to arguing the legal sufficiency of the grounds presented by the movant. Id. at 678.
McConnell v. Southside Indep. Sch. Dist.,
Regarding SNS’s no-evidence ground, when evidence is attached to a motion for summary judgment that combines traditional and no-evidence grounds, the mov-ant’s evidence may be considered if it creates a fact issue. See Binur v. Jacobo,
Where a movant provides but does not point out to the trial court the conflicting evidence, there is no contradiction, no legal defect, in the no-evidence motion. In such situations, the nonmovant must point out to the trial court the evidence supplied by the movant that is more than a scintilla of evidence. See Dyer v. Accredited Home Lenders, Inc., No. 02-11-00046-CV,
I do not think we can ignore the contradiction in SNS’s motion for summary judgment any more than the trial court could when it read the motion merely because an appellate court generally would first consider a complaint about the granting of the no-evidence grounds in the motion. Accordingly, I would reject SNS’s argument that B.C.’s appellate arguments are necessarily waived as a result of filing her summary judgment response one day late.
Summary Judgment Standards
We review de novo a trial court’s grant of a motion for summary judgment. Buck v. Palmer,
To review a no-evidence ground for summary judgment, we consider the evidence in the light most favorable to the nonmov-ant, crediting evidence a reasonable jury could credit and disregarding contrary evidence and inferences unless a reasonable jury could not. See City of Keller v. Wilson,
(a) there is a complete absence of evidence of a vital fact, (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (c) the evidence offered to prove a vital fact is no more than a mere scintilla, or (d) the evidence conclusively establishes the opposite of the vital fact.
King Ranch, Inc. v. Chapman,
We review a traditional ground for summary judgment to determine whether the movant established that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Sw. Elec. Power Co. v. Grant,
No-Evidence Grounds: Assault and Re-spondeat Superior Liability for Assault
In its motion for no-evidence summary judgment, SNS contends B.C, has no evidence of any of the three elements needed to establish an assault claim directly against SNS. As described above, in SNS’s lengthy factual section of its motion for summary judgment and evidentiary appendix SNS provided B.C.’s testimony about Ventura assaulting her in the restaurant bathroom including each element of assault., (SNS stated in a footnote that it submitted her “testimony supporting'her allegations as true solely for purposes of this motion.”). B.C. complains on appeal that her deposition testimony is more than a scintilla of evidence of the assault so it was error for the trial court to grant no-evidence summary judgment on the assault claim. Even though B.C. did not characterize her appellate complaint as challenging the legal sufficiency of SNS’s motion, because B.C, challenges that the no-evidence motion does not establish entitlement to summary judgment, that is a challenge to the legal sufficiency of the motion. See McConnell,
After challenging the assault elements, SNS challenged its vicarious liability for Ventura’s conduct, a theory B.C. had pleaded. SNS did not assert in its no-evidence grounds that B.C. did not have any evidence of vice-principal liability or that Ventura was not a vice-principal. But in her brief, B.C. fails to challenge the summary, judgment on vicarious liability asserted in SNS’s no-evidence motion. Instead, B.C. addresses vice-principal liability by incorporating her appellate arguments as to the traditional grounds for summary judgment. As regards vicarious liability, B.C.’s brief presents nothing for us, to review. The trial court, therefore, did not err in granting no-evidence summary judgment .that SNS is not vicariously liable for Ventura’s-alleged assault on B.C.
Applicable Law Regarding Vice-Principal Status
B.C, asserts there was a genuine issue of material fact in the traditional ground for summary judgment remaining for our review. SNS argues the supreme court changed the standard for determining which corporate agents are vice-principals to add the requirements that a vice-principal must be a controlling equity owner or alter ego of the corporation. See Medina v. Herrera,
In its opinion in this case in a footnote comment, the supreme court stated the parties’ dispute about Ventura’s vice-principal status would be resolved on remand quoting GTE Southwest, Inc. v. Bruce,
Moreover, regardless of whether Shields acted within the scope of his employment, his status as a vice-principal of the corporation is sufficient to impute liability to GTE with regard to his actions taken in the workplace. Cf. Hammerly Oaks, Inc. v. Edwards,958 S.W.2d 387 , 391-92 (Tex. 1997) (corporations may be liable for punitive damages for torts committed by vice-principals). Corporations can act only through their agents. Id. at 391; Fort Worth Elevators Co. v. Russell,123 Tex. 128 ,70 S.W.2d 397 , 402 (1934), disapproved in part on other grounds by Wright v. Gifford-Hill & Co.,725 S.W.2d 712 ; 714 (Tex. 1987). When actions are taken by a vice-principal of a corporation, those acts may be deemed-to be the acts of the corporation itself. Fort Worth Elevators,70 S.W.2d at 406 . A vice-principal represents the corporation in its corporate capacity, and includes persons who have authority to employ, direct, and discharge servants of the master, and those to whom a master has confided the management of the whole or a department or division of his business. See Mobil Oil Carp. v. Ellender,968 S.W.2d 917 , 922 (Tex. 1998).
Id. (underline, added). In both Mobil Oil and Fort Worth Elevators—both of which are cited by GTE Southwest—the supreme court enumerated those who aré a. corporation’s vice-principal as:
“Vice principal” encompasses: (a) corporate officers; (b) those who have authority to employ, direct, and discharge servants of the master; (c) those engaged in the performance of nondelegable or absolute duties of the master; and (d) those to whom the master has confided the management of the whole or a department or a division of the business.
Mobil Oil Corp. v. Ellender,
It is important to take note of the types of job positions and authority that courts have found to meet the vice-principal test with attention to the two bases B.C. argues: (1) Ventura had authority to employ, direct, and discharge employees' of SNS and (2) Ventura was the manager of a department or division of SNS, namely, the' restaurant at which B.C. worked. In GTE Southwest, the supreme court .affirmed a jury award of exemplary damages based on the jury’s finding that the corporate employee “was the highest ranking management person stationed at the Nash facility, and that [he] had authority to employ, direct, and discharge employees.” GTE Sw.,
Summary Judgment Record Regarding Vice-Principal Status of Ventura
SNS argues B.C.’s assault claim falls within the exclusive remedy of the TWCA unless B.C. has evidence that intentional injuries are “directly attributable to the employer.” B.C. argues that her assault claim does not come within the scope of the TWCA because Ventura was a vice-principal of SNS which is a recognized exception to the application of the TWCA.
SNS informed the trial court it rehired Ventura as a Restaurant Manager in November 2010 at the McKinney SNS, citing attached evidence. SNS further stated a month before the incident, Ventura was transferred to the Frisco store where he was a Restaurant Manager and reported to a general manager citing attached evidence. SNS provided the testimony of its human relations manager, Stephanie Chiles-Beauvais, regarding whether Ventura was able to hire and fire associates. In her testimony, Chiles-Beauvais read into the record from a document SNS had Ventura sign that described his position as Restaurant Manager with these attributes: “Has the authority to terminate associates in accordance with Steak ’n Shake policies,” “Participates in the recruiting, interviewing, hiring and training of hourly associates,” and “Recommends associates for promotion or other changes in job status.” (It is these statements in this documentation on which B.C. primarily relies to argue there is a genuine issue of material fact). Chiles-Beauvais explained the document was for compliance with the Fair Labor Standards Act including the “key categories that make the management position salary exempt from overtime.” Nevertheless, Chiles-Beauvais flatly denied Ventura had the authority to fire an associate. SNS also pointed out to the trial court that B.C. testified on the night of the assault Ventura was the sole onsite manager at the restaurant and provided that testimony to the trial court in an appendix.
The evidence in the summary judgment record presented by SNS amounts to more than a scintilla' of evidence that Ventura had the authority to. fire associates .and participate in the hiring and promotion of associates as documented in SNS’s records for government labor law compliance. He was the sole manager onsite and while managing the restaurant, according to B.C., he assaulted her in the employee restroom. This evidence creates a genuine issue of material fact regarding whether Ventura was a vice-principal of SNS. See GTE Sw.,
CONCLUSION
I conclude the trial court did not err in granting no-evidence summary judgment on B.C.’s pleaded vicarious liability theory. But I conclude there are genuine issues of
SUPPLEMENTAL OPINION ON MOTION FOR REHEARING
On the Court’s own motion, we issue this supplemental opinion on rehearing.
For the first time during the appellate proceedings in this case, B.C. raises an argument in her Motion for En Banc. Reconsideration based on evidence never presented. to the trial court. Despite the issue being raised in the trial court and on- appeal by Steak N Shake, B.C. ignored omissions in the record that have twice proven fatal to her case. Only now, after all briefing has taken plqce and opinions have issued, does B.C. ask this Court to withdraw our opinions and reconsider our decision based on evidence in a newly created “supplemental clerk’s record.” Granting such a request would violate well-established rules of trial and appellate procedure, and would also fundamentally confuse the proper -roles. of, the trial and appellate courts. Accordingly, we decline B.C.’s request. We do, however, issue this supplemental opinion to explain fully our reason for denial.
I. B.C. never challenged in her appeal the assertion that her summary judgment response was filed late
The majority opinion issued by this Court on August, 30, 2017 concluded the trial court properly granted summary judgment against B.C. because she failed to timely file a response to Steak N Shake’s no evidence motion for summary judgment and, therefore, did not meet her burden to show fact, issues on the challenged elements of her claims. Both the majority opinion and the dissenting opinion were based on the premise, unchallenged on appeal and supported by the record, that B.C.’s response was filed late. Although’ the untimelinesS of'B.C.’s filing was discussed at length by Steak N Shake in its appellate brief, B.C. did not dispute the lateness of her filing in either her original brief or her reply brief. Nevertheless, B.C. now asserts for the first time in her motion for en' banc reconsideration that her response to the no evidence motion was filed within the time allowed. By waiting to raise the issue until after this Court issued two opinions based on the unchallenged assertion that her response was untimely, B.C. has'waived any argument that her response was timely filed. See Coastal Liquids Tramp, L.P. v. Harris Cty. Appraisal Dist.,
II. The record shows the summary judgment response was filed late
Both .the record before the trial court when it rendered summary judgment, and the record on appeal when our opinions issued, showed B.C.’s response to the no evidence motion was filed one day late. See Dallas Cty. v. Gonzalez,
B.C. now contends she explained to the trial court at the hearing on the motion for summary judgment that she transmitted her response to an e-filing service provider on the due date, but it was rejected due to technical difficulties, and a corrected copy was filed the next day. However, the summary judgment hearing was not recorded so there is no reporter’s record demonstrating what occurred.
IV. The “supplemental clerk’s record” filed by B.C. on September 14, 2017 does not contain omitted material, but rather a document filed in the trial court eight days after the issuance of our opinions
On September 7, 2017, after our opinions issued, B.C. filed in the trial court an e-filing receipt showing she transmitted her response to the no evidence motion on the day it' was due. B.C. then requested the trial court to send a new “supplemental clerk’s record” to this Court containing the receipt. Because this evidence was not before the trial court at the time it rendered judgment, and, indeed, was never a part of the trial court’s record until after our opinions issued, we cannot consider it. See Barnard v. Barnard,
V. Any information in the record about technical difficulties in B.C.’s filing was submitted by Steak N Shake to show the response was untimely and was never addressed by B.C. on appeal
B.C. now points to affidavit testimony in the summary judgment record in which opposing counsel acknowledged B.C.’s counsel informed him “there had been a technical difficulty in attempting to file the responses on the [due date].”. But the summary judgment evidence does not show B.C. tendered her response for filing on the due date in a manner that would satisfy the requirements of Texas Rule of Civil Procedure 21. The affidavit of Steak N Shake’s counsel has an attached email exchange in which the timeliness of the filing was discussed by counsel for both parties. But this shows only that B.C.’s counsel claimed he attempted to file the response on time. Steak N Shake’s counsel never conceded this filing actually occurred or that it occurred in a-manner that would satisfy the filing requirements. In fact, Steak N Shake specifically challenged the timeliness of the response in the summary judgment proceeding. This placed the burden on B.C. to produce evidence that the response was filed timely. See Tex. Dep’t of Family & Protective Servs. v. Wallace, No. 03-12-00373-CV,
This Court strives, as it should, to decide cases on the merits rather than procedural technicalities. See In re K.C.B.,
Supplementation of the record after a case is decided is a different matter. It certainly does not serve judicial economy for the appellate court to allow a supplementation of the record thatwould require it to reconsider its decision on the merits when the party has had ample opportunity to correct the omission prior to decision.
Ultimately, however, supplementation of the record is irrelevant to our disposition in this case. The document with which B.C. seeks to supplement the record does not support any issue raised or argued by B.C. before her motion for reconsideration. B.C.’s arguments are no less waived on appeal simply because she has now supplied us with evidence to support an argument she never made in her briefing to this Court.
For these reasons, we decline B.C.’s request to withdraw our opinions and consider her newly filed evidence, which was not before the trial court prior to its judgment or before this Court prior to our opinions and judgment.
. It would be inappropriate for this Court to change the vice-principal standard based on the implication from dicta in an opinion that was decided on another basis because doing so is the prerogative of the supreme court. See In re Fort Apache Energy, Inc.,