Court of Appeals of Texas, Dallas.

Rebecca SHERROD, Appellant,

v.

AMERICAN AIRLINES, INC., Appellee.

No. 05-98-01951-CV.

|

May 25, 2001.

Before JAMES, BRIDGES, and MALONEY, JJ.

MEMORANDUM OPINION

MALONEY.¹

*1 Rebecca Sherrod sued American Airlines, Inc., alleging it wrongfully terminated her because she filed a workers’ compensation claim.² Sherrod appeals the trial court’s granting American’s motion for summary judgment. We affirm the trial court’s judgment.

After reviewing the briefs of the parties and the appellate record, we conclude all dispositive issues are clearly settled in law. Therefore, we issue this memorandum opinion pursuant to Texas Rule of Appellate Procedure 47.1. The factual nature of this case, as well as its procedural history, are known to the parties; therefore we do not recount these matters in detail.

American’s second motion for summary judgment included a no evidence ground-no evidence existed of a causal link between Sherrod’s termination and her workers’ compensation claim or that American’s reason for terminating Sherrod’s employment was pretextual. See Tex.R.Civ.P. 166a(i). The trial court’s order granting summary judgment did not specify the grounds upon which it granted judgment. When a trial court grants summary judgment without specifying the grounds upon which it granted judgment, we must affirm the summary judgment if any of the theories advanced had merit. Weiner v. Wasson, 900 S.W.2d 316, 317 n. 2 (Tex.1995); State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex.1993). Accordingly, if summary judgment was appropriate on any of the grounds asserted by American, we affirm.

Here, Sherrod filed her response to the motion for summary judgment on October 20, 1998. The hearing was held on October 26, 1998.

Rule 166a(c) provides that the nonmovant may file its response “not later than seven days prior to the day of [the] hearing.” Tex.R.Civ.P. 166a(c); Sullivan v. Bickel & Brewer, 943 S.W.2d 477, 486 (Tex.App.-Dallas 1995, writ denied). To file within seven days, the adverse party must obtain leave of court. Tex.R.Civ.P. 166a(c); Benchmark Bank v. Crowder, 919 S.W.2d 657, 663 (Tex.1996); Sullivan, 943 S.W.2d at 486. The trial court has discretion to allow the late filing of opposing proof. Sullivan, 943 S.W.2d at 486 (citing Bell v. Moores, 832 S.W .2d 749, 755 (Tex.App.-Houston [14th Dist.] 1992, writ denied). The trial court does not abuse its discretion by refusing to consider untimely affidavits opposing a motion for summary judgment. Sullivan, 943 S.W.2d at 486 (citing Bell, 832 S.W.2d at 755). When nothing in the record indicates that the trial court granted leave to late file a summary judgment response, we presume the trial court did not consider the response. Benchmark Bank, 919 S.W.2d at 663 (citing INA of Texas v. Bryant, 686 S.W.2d 614, 615 (Tex.1985)). This presumption applies to documents filed within seven days of a summary judgment hearing and documents filed after a summary judgment hearing. Dominguez v. Kelly, 786 S.W.2d 749, 753 (Tex.App.-El Paso 1990, writ denied).

Sherrod’s untimely filed evidence was inadmissible unless the trial court granted leave to late file her summary judgment response. Sherrod neither directs us to any portion of the record showing she obtained leave of court to late file her response to American’s motion for summary judgment nor does our own review reveal that the trial court granted leave of court for a late filing. Not only do we presume the trial court did not consider her response but also the trial court’s order granting summary judgment recites it “considered the admissible summary judgment proof” before the Court.

*2 We recognize that Sherrod’s response includes a certificate of service stating she mailed opposing counsel her response on October 19, 1998. Our rules of civil procedure provide as follows:

If any document is sent to the proper clerk by first-class United States mail in an envelope or wrapper properly addressed and stamped and is deposited in the mail on or before the last day for filing same, the same, if received by the clerk not more than ten days tardily, shall be filed by the clerk and be deemed filed in time. A legible postmark affixed by the United states Postal Service shall be prima facie evidence of the date of mailing.

Tex.R.Civ.P. 5. This rule applies to summary judgment filings. Clendennen v. Williams, 896 S.W.2d 257, 259 (Tex.App.-Texarkana 1995, no writ); E.B. Smith Co. v. U.S. Fid. & Guar. Co., 850 S.W.2d 621, 623 (Tex.App.-Corpus Christi 1993, writ denied).

Sherrod’s attorney attached his affidavit to Sherrod’s reply brief. The affidavit states:

A true and correct copy of Plaintiff’s Response to Defendant’s Motion for Summary Judgment in Cause No. 94-09896-K was served on Defendant and the Original was filed with the Court by depositing it in the United States Mail on October 19, 1998. A true and correct copy of the cover letter which was attached to the Response and the certified mail receipts and return receipts are attached hereto as Exhibit “1”.

The return receipt indicates the Dallas County District Clerk received Sherrod’s response on October 20, 1998. However, there is no evidence of a legible postmark. Moreover, the attachments to Sherrod’s brief are not found in the clerk’s record, and we may not consider matters found outside of the official record. Sabine Offshore Serv., Inc. v. City of Port Arthur, 595 S.W.2d 840, 841 (Tex.1979) (orig.proceeding) (holding courts of appeal cannot consider affidavits outside the record for any purpose other than determining its own jurisdiction); Carlisle v. Philip Morris, Inc., 805 S.W.2d 498, 501(Tex.App.-Austin 1991, writ denied). Absent a complete record of the summary judgment evidence, we must assume that the omitted documents support the trial court’s judgment. DeSantis v. Wackenhut Corp., 793 S.W.2d 670, 689 (Tex.1990).

Sherrod’s first issue contends the trial court erred in granting summary judgment and dismissing her case. American moved for summary judgment alleging Sherrod could not establish a prima facie case under section 451.001. See Tex.Lab.Code Ann. § 451.001 (Vernon 1996). Because her response was untimely, the trial court had no evidence of a prima facie case. The trial court properly granted summary judgment on American’s no evidence grounds. We overrule Sherrod’s first issue.

Because summary judgment was properly granted on no evidence grounds, we need not address Sherrod’s remaining five issues, all of which argue the trial court improperly granted summary judgment for various reasons. We affirm the trial court’s judgment.

	Footnotes
1		The Honorable Frances Maloney, Retired, Court of Appeals, Fifth District of Texas at Dallas, sitting by assignment.
2		See Tex.Lab.Code Ann. § 451.001 (Vernon 1996).