B.C. v. Steak N Shake Operations, Inc.

B.C., Appellant v. STEAK N SHAKE OPERATIONS, INC., Appellee

No. 05-14-00649-CV

Court of Appeals Fifth District of Texas at Dallas

August 3, 2020

On Appeal from the 380th Judicial District Court Collin County, Texas

Trial Court Cause No. 380-02686-2012

MEMORANDUM OPINION ON REMAND

Before Justices Reichek,¹ Nowell,² and Evans

Opinion by Justice Evans

B.C.'s assault claim³ against Steak N Shake Operations, Inc. (SNS) is before us for the third time on its second remand from the supreme court. B.C. appeals an adverse traditional and no-evidence summary judgment enumerating her issues as:(1a) whether there is a genuine issue of material fact that SNS is directly liable for Jose Tomas Ventura's assault on B.C. because he was a vice-principal of SNS and, therefore, B.C.'s assault claim fits into a traditional exception to the Texas Workers' Compensation Act (TWCA); (1b) whether B.C.'s common law assault claim was preempted by the Texas Commission on Human Rights Act (TCHRA); and (2) whether there is a genuine issue of material fact on each element of B.C.'s assault claim and whether B.C. has any evidence to support her alternative pleading that SNS is vicariously liable for Ventura's alleged assault under the common law doctrine of respondeat superior.⁴ As explained below, B.C.'s issue 1b has been finally resolved; we agree with B.C.'s issue 1a and the first-half of her issue 2 that there is summary judgment evidence that Ventura was SNS's vice-principal when he assaulted B.C.; but we disagree with B.C. regarding SNS's respondeat superior liability. So, we affirm in part and reverse in part and remand to the trial court for further proceedings.

PROCEDURAL POSTURE

Issue 1b—First Opinions

This Court's original opinion resolved against B.C. her issue 1b. B.C., 461 S.W.3d at 930. The supreme court reversed, distinguishing B.C.'s claim for a singleassault from its TCHRA preemption analysis in Waffle House, Inc. v. Williams, 313 S.W.3d 796 (Tex. 2010) on the basis that the gravamen of B.C.'s claim is not workplace harassment but assault in part because B.C. alleges her claim directly against SNS as an assault committed by Ventura as a vice-principal of SNS. B.C., 512 S.W.3d at 281-83. The supreme court remanded to us to decide B.C.'s remaining issues. Id. at 285. So, B.C.'s issue 1b is conclusively resolved in her favor.

Issues 1a & 2

Opinion after First Remand—B.C.'s Summary Judgment Response not Considered

In a divided opinion after the first remand, the majority resolved B.C.'s issues 1a and 2 by deciding B.C.'s summary judgment response was filed late and nothing in the record indicated the trial court had granted leave for late filing or otherwise considered it. B.C. v. Steak N Shake Operations, Inc., 532 S.W.3d 547, 550 (Tex. App.—Dallas 2017), rev'd, 598 S.W.3d 256 (Tex. 2020). On the merits, the majority concluded that without her summary judgment response, B.C. had failed to raise a genuine issue of material fact and affirmed the trial court. 532 S.W.3d at 552, 562. In a supplemental panel opinion on motion for rehearing en banc, the panel majority decided B.C. waived her new argument—that a supplemental record demonstrated B.C. had timely filed her summary judgment response⁵—because shefirst asserted it after this Court had issued two different majority opinions and the supreme court had issued a per curium opinion. Id. at 561-62.

Second Supreme Court Opinion—All Summary Judgment Evidence Should be Considered

The supreme court reversed for a second time but without reaching the merits of B.C.'s issues 1a and 2. B.C. v. Steak N Shake Operations, Inc., 598 S.W.3d 256 (Tex. 2020). First, the supreme court decided this Court's supplemental opinion correctly decided B.C. had waived her argument on motion for rehearing en banc that her late-filed summary judgment response related back in time to her first attempted filing as shown by the electronic receipt in a supplemental record after remand. Id. Then, the supreme court considered the recital in the summary judgment order that the trial court considered the "evidence and arguments of counsel," without any limitation. Id. at 261. The court noted, "B.C. contends that the trial court's recital is sufficient—as it demonstrates that the trial court considered all the evidence." B.C., 598 S.W.3d at 260 (emphasis added). The supreme court agreed with B.C.'s argument stating "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." Id. at 262 (emphasis added). "We . . . 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 response and the evidence attached to it." Id. at 261. The supreme court remanded to this Court toconsider all the summary judgment evidence including B.C.'s response. Id. at 262. We, therefore, now reconsider B.C.'s issues 1a and 2 considering all the summary judgment evidence.

BACKGROUND FOR DECISION ON THE MERITS

SNS's motion for summary judgment presented the following summary facts regarding Ventura's assault on B.C.:

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. . . . When she refused, Ventura attempted to remove her pants and apron and lift his hand up her shirt until she pushed him away. . . . Plaintiff also testified that Ventura 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. . . . According to Plaintiff, the encounter lasted 15 to 20 minutes.

(Footnotes omitted citing B.C.'s deposition testimony). This presented B.C.'s version of the facts of the assault: Ventura attempted to sexually impose himself on B.C., attempted to remove her clothes and fondle her under her clothes, exposed himself to her, attempted further sexual assault of oral sex, and B.C. succeeded in resisting Ventura's assault then left the restroom. In its first opinion, the supreme court explained the basis on which B.C. alleges SNS was directly responsible for the assault is because Ventura was a vice principal so it was the same as alleging SNS assaulted her:

Here, B.C. claims that Steak N Shake is liable because one of its alleged vice principals committed an assault. Essentially, B.C. alleges thatSteak N Shake steps into the shoes of the assailant and is, therefore, directly liable for her injury.

B.C., 512 S.W.3d at 281.⁶

SNS moved for traditional and no-evidence summary judgment. As relevant here, SNS sought traditional summary judgment on B.C.'s claim SNS was directly liable for its vice-principal's conduct. SNS sought to affirmatively prove as a matter of law Ventura was not a vice-principal. In its no-evidence ground, SNS challenged B.C. to produce more than a scintilla of evidence that the assault occurred. In addition, SNS challenged the absence of any evidence supporting B.C.'s claim SNS had respondeat superior liability for the assault. SNS sought dismissal of the case if it prevailed on either ground.

ANALYSIS

Summary Judgment Standards

We review de novo a trial court's grant of a motion for summary judgment. Buck v. Palmer, 381 S.W.3d 525, 527 (Tex. 2012). We must affirm a summary judgment when a trial court does not specify the grounds for its ruling if any of the grounds in the motion are meritorious. Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013).

To review a no-evidence ground for summary judgment, we consider the evidence in the light most favorable to the nonmovant, 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, 168 S.W.3d 802, 823 (Tex. 2005). We will affirm when

"(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, 118 S.W.3d 742, 751 (Tex. 2003) (quoting Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)).

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, 73 S.W.3d 211, 215 (Tex. 2002). As with no-evidence grounds, we affirm a summary judgment if any of the theories presented to the court and preserved for review are meritorious. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 157 (Tex. 2004).

The record on which the trial court makes its summary judgment decision and on which we review the summary judgment is created by the movant and non-movant filing the evidence on which they rely as attachments to their respective motion or response, or by reference to appendices they file. See TEX. R. CIV. P.166a(a) (attachment by movant), (b) (attachment by non-movant), (d) (appendices filed and referred to by either movant or non-movant). Where the summary judgment order contains a recital that the trial court considered the "evidence and arguments of counsel" without any limitation, "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." B.C., 598 S.W.3d at 262 (emphasis added). So, we must consider "all the summary-judgment evidence on file" when we conduct our appellate review. Id.

Where, as here, a trial court grants a summary judgment on traditional and no-evidence grounds, we...