Unreported / Non-Citable
Background
Jose Hernani Blanco-Prudencio sued Forterra Pipe & Precast, LLC after a Forterra employee, Porfirio Alonso Porras, struck his car while driving a company-owned truck to work. Blanco-Prudencio alleged that Forterra was vicariously liable for Porras’s negligence and directly liable for negligent hiring, training, supervision, and retention, as well as gross negligence.
Forterra sought traditional and no-evidence summary judgment. At Blanco-Prudencio’s request, the trial court changed the proceeding from written submission on July 26, 2024, to an oral hearing on July 25. Although the change moved the response deadline to July 18 under Texas Rule of Civil Procedure 166a(c), Blanco-Prudencio filed his response on July 19 without seeking leave. He did not appear at the hearing, and the trial court struck his response and evidence, granted Forterra’s motion, and dismissed the claims against Forterra with prejudice.
The Court’s Holding
The First Court of Appeals affirmed. It held that the response deadline changed when the hearing date changed, even though an earlier scheduling order had identified July 19 as the deadline for the original submission date. Because Blanco-Prudencio filed fewer than seven days before the rescheduled hearing and did not seek leave for a late filing, the trial court properly struck his response and supporting evidence. His unpreserved characterization of that ruling as a death-penalty sanction also could not be considered on appeal.
Proceeding as though no response had been filed, the court upheld no-evidence summary judgment on the negligent-training and gross-negligence claims because Forterra’s motion satisfied Rule 166a(i) and Blanco-Prudencio supplied no timely evidence raising a fact issue. The court also upheld traditional summary judgment on vicarious liability because Blanco-Prudencio did not timely present his special-mission-exception argument to the trial court and therefore waived it as a ground for reversal. The court noted that, even if it considered the stricken response, the evidence would not raise a genuine fact issue on the challenged direct-liability elements or the special-mission exception.
Key Takeaways
- Rescheduling a summary-judgment hearing changes the Rule 166a(c) response deadline, including when the nonmovant requested the new hearing date.
- An untimely summary-judgment response is ineffective absent an affirmative indication that the trial court granted leave to file it.
- When no timely response is filed, a compliant no-evidence motion must be granted, and defenses to traditional summary judgment that were not properly presented below generally cannot support reversal.
Why It Matters
The decision underscores that Texas summary-judgment deadlines must be recalculated whenever the hearing or submission date changes. Reliance on an earlier scheduling order will not preserve a response deadline tied to a date that was later rescheduled.
It also illustrates the appellate consequences of a stricken response: the nonmovant loses both the evidence needed to defeat a no-evidence motion and any arguments that had to be expressly presented to the trial court to challenge traditional summary judgment.