Court of Appeals of Texas, Dallas.
STEAK N SHAKE OPERATIONS, INC., Appellee
Opinion Filed August 3, 2020
Attorneys & Firms
Christopher L. Kurzner, James F. Parker III, Matthew R. McCarley, Dallas, Warren K. Paxton Jr., Austin, for Appellee.
Matthew J. Kita, Dallas, for Appellant.
Before Justices Reichek,1 Nowell,2 and Evans
MEMORANDUM OPINION ON REMAND
Opinion by Justice Evans
*1 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.
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 single assault 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 she first 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
*2 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 to consider 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 that Steak 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.
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
*3 “(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 usually review the evidence using the no-evidence standard first, although we are not bound to do so. See id. at 260-61.
No-Evidence Grounds: Assault and SNS’s Respondeat Superior Liability
In B.C.’s issue 2, she contends there was evidence of the assault in the summary judgment record. We agree.
In its motion for no-evidence summary judgment, SNS challenged these elements of B.C.’s assault claim asserting:
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 plaintiff’s 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). So we begin by noting, SNS did not challenge that Ventura knew or reasonably should have believed that B.C. would regard the contact as offensive or provocative. See Umana v. Kroger Tex., L.P., 239 S.W.3d 434, 436 (Tex. App.—Dallas 2007, no pet.) (“A person commits an assault if he intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative.”).
We described above SNS provided B.C.’s testimony about Ventura assaulting her in the restaurant bathroom. In her response, B.C., also, pointed out to the trial court the same evidence as she summarized in her response:
*4 Ventura requested that Plaintiff go into the employee restroom at SNS with him during her shift under the pretense of offering her an opportunity to smoke.... When she was in the employee restroom with Ventura, Plaintiff has testified that Ventura trapped her in the restroom behind the closed door. While she struggled to get away from Ventura and refused his requests, he attempted to kiss her multiple times by grabbing the back of her head and pulling it toward his face, while pushing her against the sink.... During this episode, Ventura tugged at Plaintiffs pants and apron, tried to lift his hand up her shirt, unbuckled his pants and pulled his genitals out, and pushed her head toward her [sic] genitals.
(Record references omitted). Each statement that SNS and B.C. provided to the trial court was supported by evidentiary references to the evidence each supplied to the trial court. Each of their summaries accurately describe the evidence referenced.
B.C.’s testimony was competent summary-judgment evidence that Ventura had contact with B.C. and did so intentionally in his touching, attempting to fondle and disrobe her, and attempting to force B.C. to perform oral sex. In addition in her response, B.C. cited to and summarized her testimony that she experienced mental and physical pain, and embarrassment due to Ventura’s conduct and that she is not required to prove a physical injury. See Foye v. Montes, 9 S.W.3d 436, 441 (Tex. App.—Houston [14th Dist.] 1999, pet. denied) (actual injury is not required, “rather than physical injury, offensive contact is the gravamen of the action; consequently, the defendant is liable not only for contacts which cause actual physical harm, but also for those which are offensive and provocative.”). We agree with B.C. there was summary-judgment evidence brought to the attention of the trial court on each challenged element of her assault claim.
In its no-evidence motion, SNS did not challenge its direct liability based on Ventura’s status as a vice-principal. Instead, SNS challenged its common law vicarious liability for Ventura’s conduct. B.C. pleaded SNS was vicariously liable for Ventura’s assault under the common law doctrine of respondeat superior. But in her brief, B.C. fails to argue any basis for SNS’s respondeat superior liability for Ventura’s conduct.7 Instead, B.C. addresses the unchallenged ground of vice-principal liability by incorporating her appellate arguments as to the traditional grounds for summary judgment which we will analyze in the next section. So, 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 does not have vicarious, respondeat superior liability for Ventura’s assault on B.C.
Traditional Ground: SNS’s Direct Liability for Ventura’s Assault
*5 SNS argued for summary judgment and argues here B.C.’s assault claim was an on the job injury within the exclusive remedy of the TWCA. See TEX. LAB. CODE ANN. § 408.001(a) (“Recovery of workers’ compensation benefits is the exclusive remedy of an employee covered by workers’ compensation insurance coverage or a legal beneficiary against the employer or an agent or employee of the employer for the death of or a work-related injury sustained by the employee.”). B.C. pleaded and argued in response to summary judgment that she was assaulted by her supervisor, Ventura, and that because he was a vice-principal SNS was directly liable. B.C. further argued that because her assault claim was directly against SNS, her claim is removed from the ambit of the TWCA. See Medina v. Herrera, 927 S.W.2d 597, 600 (Tex. 1996) (“Middleton and its progeny clearly remove from the [TWCA]’s coverage intentional torts attributable directly to an employer, such as where a partner of a partnership-employer personally assaults an employee.”) (citing Middleton v. Texas Power & Light Co., 185 S.W. 556 (Tex. 1916) and Jones v. Jeffreys, 244 S.W.2d 924, 926 (Tex. Civ. App.—Dallas 1951, writ ref’d)).
We begin by examining the law regarding who in a corporation is a vice-principal, because central to SNS’s argument is its contention the supreme court changed the standard for determining which corporate agents are vice-principals. SNS urges we should add to the traditional vice-principal requirements that the person must be a controlling equity owner or alter ego of the corporation. SNS relies on the discussion in Medina of Professor Larson’s view that “the intentional tort exception, which is generally recognized in other jurisdictions, should apply to corporate employers only where the ‘assailant is, by virtue of control or ownership, in effect the alter ego of the corporation,’ or where the corporate employer specifically authorizes the assault.” Medina, 927 S.W.2d at 601 (citing 2A LARSON, THE LAW OF WORKMEN’S COMPENSATION, § 68.00, 68.21 (1990)). But the supreme court in Medina expressly declined to decide that issue stating, “While this issue is important, we decline to resolve it today....” Id. (emphasis added). Instead, the supreme court resolved Medina based on the worker’s acceptance of compensation benefits resulting in preclusion of his suit against his employer for a claim that would exclude TWCA benefits. Id. So Medina is not authority for SNS’s argument.
In a footnote in its first opinion, the supreme court stated the parties’ dispute about Ventura’s vice-principal status would be resolved on remand quoting GTE Southwest, Inc. v. Bruce, 998 S.W.2d 605, 618 (Tex. 1999): “When actions are taken by a vice-principal of a corporation, those acts may be deemed to be the acts of the corporation itself.” B.C., 512 S.W.3d at 281 n.3. This quotation is taken from the paragraph in GTE Southwest where the supreme court stated:
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 Corp. v. Ellender, 968 S.W.2d 917, 922 (Tex. 1998).
*6 Id. (emphasis added). In both Mobil Oil and Fort Worth Elevators—both of which are cited by GTE Southwest—the supreme court enumerated those who are 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, 968 S.W.2d 917, 922 (Tex. 1998); Fort Worth Elevators Co. v. Russell, 70 S.W.2d 397, 403 (1934), disapproved in part on other grounds by Wright v. Gifford-Hill & Co., 725 S.W.2d 712, 714 (Tex. 1987). SNS has not cited a more recent supreme court authority overruling the supreme court’s line of opinions that have used the same test at least since 1934 for classes of corporate agents who are vice-principals. Therefore, we reject SNS’s argument that we should change the vice-principal test by adding the requirement of equity ownership or sufficient identity with the corporation to constitute alter ego.8
We take note of the types of job positions, functions and authority which courts have found constitute a vice-principal:
• Highest ranking management person stationed at a facility who has authority to employ, direct, and discharge employees: 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., 998 S.W.2d at 618.
• Car dealership’s general manager, comptroller, and used car sales manager: Citing GTE Southwest and the same two tests on which B.C. relies, the supreme court did not disturb a finding that a car dealership’s general manager, comptroller, and used car sales manager were vice-principals whose maliciously defamatory statements were the statements of the business for which they worked. Chrysler Ins. Co. v. Greenspoint Dodge of Houston, Inc., 297 S.W.3d 248, 253 (Tex. 2009).
• Manager of a bar-restaurant: Following the same factors, this Court decided the acting manager of a bar-restaurant who verbally encouraged patrons to physically attack another bar patron was a vice-principal whose conduct was that of the business entity. Then West, Inc./Bait House, Inc. v. Sorrells, No. 05-01-01874-CV, 2002 WL 1397477, at *6 (Tex. App.—Dallas June 28, 2002, no pet.) (not designated for publication).
*7 • Person “who writes checks and hires and fires employees”: The Corpus Christi court of appeals determined that a person “who writes checks and hires and fires employees” is a vice-principal whose statements are those of her employer. Fontenot Petro-Chem & Marine Servs., Inc. v. LaBono, 993 S.W.2d 455, 460 (Tex. App.—Corpus Christi 1999, pet. denied).
• Trucking terminal manager: The Texarkana court of appeals concluded a trucking company’s “terminal manager with the right to direct and discharge” employees was a vice-principal. Rainbow Exp., Inc. v. Unkenholz, 780 S.W.2d 427, 431 (Tex. App.—Texarkana 1989, writ denied).
• Head of store security: This Court concluded the head of store security was a vice-principal because as the head of security he was entrusted with the management of the security department or division with wide discretion under the store’s directive. Treasure City v. Strange, 620 S.W.2d 811, 814 (Tex. Civ. App.—Dallas 1981, no writ).
In contrast to these jobs and positions, an hourly wage employee of Wal-Mart with no authority to speak on behalf of Wal-Mart was not a vice-principal and her defamatory statements were not the statements of Wal-Mart. Wal-Mart Stores, Inc. v. Lane, 31 S.W.3d 282, 289 (Tex. App.—Corpus Christi 2000, pet. denied).
B.C. argues Ventura was a vice-principal because (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. SNS informed the trial court in its motion for summary judgment that it rehired Ventura as a restaurant manager in November 2010 at the McKinney SNS. A month before the incident, Ventura was transferred to the Frisco store where he was a restaurant manager and reported to a general manager. 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.” 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.” Notwithstanding the documentary evidence, Chiles-Beauvais flatly denied Ventura had the authority to fire an associate. SNS also pointed out to the trial court that B.C. testified that, 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. In her summary judgment response and appellate brief, B.C. primarily relies on Chiles-Beauvais’s testimony about the documentary evidence of Ventura’s authority and that he was the manager of the SNS on the night he assaulted B.C.
We agree with B.C. the evidence in the summary judgment record 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 is more than a scintilla of evidence that Ventura was a vice-principal of SNS. See GTE Sw., 998 S.W.2d at 618 (highest ranking management person stationed at facility that had authority to employ, direct, and discharge employees was vice-principal); Then W., 2002 WL 1397477, at *6 (acting manager of a bar-restaurant was vice-principal); Rainbow Exp., 780 S.W.2d at 431 (trucking company’s “terminal manager with the right to direct and discharge” employees was vice-principal); Treasure City, 620 S.W.2d at 814 (head of store security was vice-principal). We recognize Chiles-Beauvais provided SNS testimony that contradicted the documentary evidence, but “we take as true all evidence favorable to the nonmovant, resolve all conflicts in the evidence in the nonmovant’s favor, and indulge every reasonable inference and resolve any doubts in the nonmovant’s favor.” Katy Venture, Ltd. v. Cremona Bistro Corp., 469 S.W.3d 160, 163 (Tex. 2015). This evidence raises a genuine issue of material fact regarding SNS’s traditional evidence grounds for summary judgment entitling B.C. to have a jury determine this factual issue. Accordingly, we agree with B.C. that the trial court erred in granting summary judgment on the basis that Ventura was not a vice-principal and that B.C.’s common law assault claim was a workers’ compensation claim.
*8 We conclude the trial court did not err in granting no-evidence summary judgment on B.C.’s pleaded vicarious liability theory of respondeat superior. But we conclude there are genuine issues of material fact regarding (1) whether 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 TWCA, and (2) each element of B.C.’s assault claim. Further, the supreme court previously decided B.C.’s assault claim is not preempted by TCHRA. Accordingly, we affirm the trial court’s summary judgment on B.C.’s theory of respondeat superior, we reverse the remainder of the trial court’s summary judgment, and remand for further proceedings consistent with this opinion.
The Honorable Justice Amanda Reichek succeeded the Honorable Molly Francis, a member of the original panel. Justice Reichek has reviewed the briefs and the record before the Court.
The Honorable Justice Erin Nowell succeeded the Honorable Craig Stoddart, a member of the original panel. Justice Nowell has reviewed the briefs and the record before the Court.
B.C. and SNS do not differentiate between her assault, sexual assault, and battery causes of action and discuss them together. As we did in our prior opinions, we will discuss these causes of action together and will refer to them collectively as her assault claim. B.C. v. Steak N Shake Operations, Inc., 461 S.W.3d 928, 929 n.2 (Tex. App.—Dallas 2015) (mem. op.), rev’d 512 S.W.3d 276 (Tex. 2017).
B.C. non-suited Ventura and did not appeal the adverse summary judgment dismissing her other causes of action which were negligence and premises liability; negligent hiring, retention, supervision, and training; and intentional infliction of emotional distress. “Accordingly, claims other than assault are not before us, and we express no opinion about them.” B.C., 461 S.W.3d at 929.
The clerk’s rejection notice indicated B.C.’s electronically filed response had been rejected, “because one of the exhibits was not formatted for optical character recognition.” 598 S.W.3d at 258.
The supreme court summarized the facts of this case at length in its first opinion. See B.C., 512 S.W.3d 277–79.
SNS’s no-evidence motion fails to identify any particular element of any of the theories of vicarious liability it challenges: (1) actual authority, (2) apparent authority, (3) respondeat superior, (4) ratification, (5) nondelegable duty, and (6) piercing the corporate veil. We have searched B.C.’s response to the summary judgment and her briefs on appeal and do not find a challenge to the legal sufficiency of SNS’s no-evidence grounds for failing to challenge specific elements. See 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) (no-evidence motion for summary judgment is legally insufficient if it fails to specifically state which elements of nonmovant’s claims lack supporting evidence). As we discuss in the next section, B.C. must establish SNS’s direct liability through Ventura’s vice-principal status for her assault claim to exist outside of the TWCA, which may be her reason for not challenging summary judgment as to SNS’s respondeat superior liability.
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., 482 S.W.3d 667, 669 (Tex. App.—Dallas 2015) (orig. proceeding) (“It is the prerogative of the supreme court to overrule its own decisions if it determines the reasons have been rejected by another line of decisions.” (citing Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989); Owens Corning v. Carter, 997 S.W.2d 560, 571 (Tex. 1999))).