=20
In=20 The
For=20 The
PEGGY =
MOORE,=20
Appellant COOPER =
AQRAWI,=20
INDIVIDUALLY, AND FAROUQ AQRAWI D/B/A =
MANHATTAN=20
LIMOUSINES OF HOUSTON, L.L.C., Appellees
On =
Appeal from the=20
270th District Court Harris =
County,=20
Texas Trial =
Court Cause=20
No. 2001-58765
MEMORANDUM=20
OPINION Appellant, =
Peggy Moore,=20
sued appellee, Cooper Aqrawi ("Cooper"), for assault and battery, =
seeking=20
to hold Cooper's employer, appellee Farouq Aqrawi d/b/a Manhattan=20
Limousines of Houston, L.L.C. ("Manhattan"), vicariously liable on =
these=20
claims. In addition, Moore brought claims against Manhattan for =
"negligent=20
hiring, training, supervision, and retention" of Cooper. Appellees =
(collectively, "Aqrawi") filed a motion for no-evidence summary =
judgment,=20
which the trial court granted. On appeal, Moore presents six =
issues. In=20
what we construe as her first through fifth issues, Moore contends =
that=20
the trial court erred by granting summary judgment in favor of =
Aqrawi=20
because (1) Aqrawi filed its motion for summary judgment before an =
adequate time for discovery had elapsed; (2) Aqrawi failed to give =
Moore=20
the requisite notice of the summary judgment hearing; (3) the =
trial court=20
erroneously refused to consider Moore's response to the motion for =
summary=20
judgment; (4) Aqrawi failed in its motion for summary judgment to =
properly=20
challenge Moore's claims; and (5) a genuine issue of material fact =
precluded summary judgment. In what we construe as her sixth =
issue, Moore=20
contends that the trial court erred by denying her post-judgment=20
motions. We reverse and =
remand. At the time of the events, =
Moore was=20
employed by the University of Texas Police Department ("UTPD") as =
a=20
non-commissioned security officer. On February 20, 2000, Moore was =
on=20
duty, directing traffic at M.D. Anderson Cancer Center, when she =
noticed a=20
limousine parked in a driveway that was blocking traffic. =
Moore, who was in uniform, =
approached the=20
driver, Cooper Aqrawi of Manhattan Limousines of Houston, L.L.C., =
as he=20
was getting out of the limousine. Moore instructed Cooper to move =
the=20
limousine and warned that if he refused, the limousine would be =
subject to=20
being ticketed and towed. Cooper became angry and moved closer to =
Moore,=20
allegedly threatening to "kick her ass" if she touched the car. =
Moore=20
raised her radio to call for assistance and Cooper yelled, "Don't =
touch me=20
b----" as he struck Moore's right hand, causing her to drop the =
radio.=20
Additional UTPD officers arrived, and Cooper was arrested. Cooper=20
subsequently pleaded no contest to misdemeanor assault. Moore alleges that, after the =
incident,=20
her hand began to swell where Cooper had hit her. Moore was =
examined at=20
M.D. Anderson Hospital, Hermann Hospital, and by Dr. Gerald T. =
Gabel.=20
Moore was placed on restricted duty at work, wore a wrist splint =
for a=20
month, and suffered pain for which she took medication. =
On November 15, 2001, Moore =
sued Cooper=20
for "severe damage in her lifetime occupation, extreme physical =
and mental=20
pain, anguish, endured shame, embarrassment, and humiliation," and =
alleged=20
that Manhattan was vicariously liable. In addition, Moore brought =
direct=20
claims against Manhattan for negligent supervision of Cooper. =
Moore sought=20
$500,000 in actual damages and $500,000 in exemplary damages. On =
August=20
16, 2002, after Aqrawi failed to appear and answer, the trial =
court=20
rendered a default judgment against Aqrawi. Moore was awarded =
$35,000 in=20
actual damages and $15,000 in exemplary damages. On September 12, =
2002,=20
the trial court granted Aqrawi's motion for new trial on the basis =
of=20
mistake. On March 13, 2003, in an =
amended=20
petition, Moore stated claims against Aqrawi for "assault and =
battery,"=20
for which Moore sought to hold Manhattan vicariously liable. In =
addition,=20
Moore stated claims directly against Manhattan for "negligent =
hiring,=20
supervision, training, and retention" of Aqrawi. Moore again =
sought=20
$500,000 in actual damages and $500,000 in exemplary =
damages. On May 22, 2003, Aqrawi filed a =
motion=20
for a no-evidence summary judgment, pursuant to Rule of Civil =
Procedure=20
166a(i), as to Moore's claims. Aqrawi alleged that adequate time =
for=20
discovery had passed, in that two years had elapsed between the =
time of=20
suit and the motion for summary judgment, and that Moore had =
failed to=20
show any evidence of damages. In its motion, Aqrawi requested a=20
hearing. On June 23, 2003, Moore filed a =
response=20
to the motion for summary judgment, contending that "there is =
enough=20
evidence to raise a genuine issue of material fact as to . . . =
damages"=20
and that such "damages can be shown by the medical records, =
medical bills,=20
and examination by the physician substantiating [Moore's]=20
damages." As evidentiary support, Moore =
appended=20
medical reports, medical bills, and her affidavit. On June 27, 2003, Moore and =
Aqrawi=20
appeared at a hearing held on Aqrawi's motion for summary =
judgment. On=20
July 3, 2003, the trial court granted the summary judgment and =
dismissed=20
Moore's claims with prejudice. A month later, on July 29, =
2003, Moore=20
filed a "Motion to Reset Hearing on Defendant[s'] Motion for =
Summary=20
Judgment and in the alternative Plaintiff's Motion to File =
Plaintiff's=20
Response to Defendant's Motion for Summary Judgment and Motion for =
Reconsideration," which was overruled by operation of law. This =
appeal=20
ensued. No-Evidence Summary=20
JudgmentA. Standard of Review After an adequate time for =
discovery, the=20
party without the burden of proof may move for summary judgment, =
with or=20
without presenting evidence, on the basis that there is no =
evidence to=20
support an essential element of the non-moving party's claim. Tex. =
R. Civ.=20
P. 166a(i); Johnson v. Brewer & Pritchard, P.C., 73 =
S.W.3d=20
193, 207 (Tex. 2002). First, the movant must specifically state =
the=20
element as to which there is no evidence. Tex. R. Civ. P. 166a(i). =
The=20
burden then shifts to the non-movant to produce evidence that =
raises a=20
fact issue on the challenged element. See Johnson, 73 =
S.W.3d at=20
207. If the non-movant brings forward more than a =
scintilla of=20
probative evidence to raise a genuine issue of material fact, then =
summary=20
judgment is not proper. Forbes, Inc. v. Granada Biosciences =
Inc.,=20
124 S.W.3d 167, 172 (Tex. 2003); Flameout Design & =
Fabrication,=20
Inc. v. Pennzoil Caspian Corp., 994 S.W.2d 830, 834 (Tex.=20
App.--Houston [1st Dist.] 1999, no pet.). When determining if more =
than a=20
scintilla of evidence has been produced, the evidence must be =
viewed in=20
the light most favorable to the non-movant. Ford Motor Co. v.=20
Ridgway, 135 S.W.3d 598, 601 (Tex. 2004). More than =
a=20
scintilla exists when the evidence "rises to a level that would =
enable=20
reasonable and fair-minded people to differ in their conclusions." =
Id. On the other hand, "[w]hen the evidence offered to =
prove a=20
vital fact is so weak as to do no more than create a mere surmise =
or=20
suspicion of its existence, the evidence is no more than a =
scintilla and,=20
in legal effect, is no evidence." Id. When, as here, a trial court =
does not=20
state the basis for its decision in its summary judgment order, we =
must=20
uphold the order if any of the theories advanced are meritorious.=20
State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, =
380 (Tex.=20
1993). B. Aqrawi's Motion for =
Summary=20
Judgment In what we construe as her =
fourth issue,=20
as briefed, Moore contends that the trial court erred by granting =
a "no=20
evidence" summary judgment in favor of Aqrawi because Aqrawi's =
motion for=20
summary judgment did not adequately meet the requirements of rule =
166a(i)=20
in that the motion "was conclusory or general in nature and did =
not=20
adequately present an evidentiary challenge to any particular =
element of=20
Moore's cause of action." Moore asserted claims against =
Cooper for=20
"assault and battery" 1. Assault To prevail on a claim of =
assault, Moore=20
is required to show that Cooper: (1) intentionally, knowingly, or=20
recklessly caused bodily injury to Moore; (2) intentionally or =
knowingly=20
threatened Moore with imminent bodily injury; or (3) intentionally =
or=20
knowingly caused physical contact with Moore when Cooper knew or =
should=20
reasonably have believed that Moore would regard the contact as =
offensive=20
or provocative. See Tex. Pen. Code Ann. =A7 22.01(a) =
(Vernon Supp.=20
2006) (elements are same in civil and criminal context); =
Morgan v.=20
City of Alvin, 175 S.W.3d 408, 418 (Tex. App.--Houston [1st =
Dist.]=20
2004, no pet.). Moore also asserted that Manhattan was vicariously =
liable=20
on the assault claim. The record shows that Aqrawi =
moved for=20
summary judgment based solely upon an alleged absence of evidence =
of the=20
essential element of damages. A showing of injury or damage, =
however, is=20
not essential for Moore to prevail on her assault claim. Here, =
prong (3)=20
or assault by offensive contact, finds support in the record =
because Moore=20
alleges that Cooper slapped her hand knowing that Moore would =
regard the=20
slap as offensive. Cooper contends that he merely contacted the =
telephone=20
in Moore's hand. Such conduct could, nevertheless, constitute an =
assault=20
under subsection (3) of section 22.01. Fisher v. Carrousel =
Motor=20
Hotel, Inc., 424 S.W.2d 627, 629 (Tex. 1967) (recognizing =
that=20
intentional snatching of object from one's hand is as offensive =
invasion=20
of person as would result from actual contact with body). =
Actual=20
injury or damages is not an element of assault by offensive =
contact.=20
See Tex. Pen. Code Ann. =A7 22.01(a)(3); WalMart =
Stores,=20
Inc. v. Odem, 929 S.W.2d 513, 528 (Tex. App.--San Antonio =
1996, writ=20
denied) (recognizing that plaintiff may recover for mental =
suffering apart=20
from actual physical injury). Hence, because Aqrawi moved for =
summary=20
judgment based only on the alleged absence of evidence of damages, =
and=20
actual injury or damage is not an element of an assault by =
offensive=20
contact, Aqrawi failed to challenge an essential element of the =
assault=20
claim, and therefore summary judgment as to Moore's assault claim =
was=20
improper. Hence, Moore's fourth issue is =
sustained=20
as to her assault claim. 2. In addition to her assault =
claim, Moore=20
asserted claims against Manhattan for "negligent hiring, training, =
supervision, and retention." Negligent hiring, retention, =
and=20
supervision claims are all simple negligence causes of action =
based on an=20
employer's direct negligence rather than on vicarious liability.=20
Castillo v. Gared, Inc., 1 S.W.3d 781, 786 (Tex. =
App.--Houston=20
[1st Dist.] 1999, pet. denied); Verinakis v. Med. Profiles, =
Inc.,=20
987 S.W.2d 90, 97 (Tex. App.--Houston [14th Dist.] 1998, pet. =
denied). The=20
elements of a negligence action are a duty, a breach of that duty, =
and=20
damages proximately caused by the breach. Greater Houston =
Transp. Co.=20
v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990); =
Castillo, 1=20
S.W.3d at 786; see also Morris v. JTM Materials, Inc., 78 =
S.W.3d=20
28, 49 (Tex. App.--Fort Worth 2002, no pet.) (explaining that =
employer=20
owes duty to other employees and general public to ascertain=20
qualifications and competence of employees it hires, and employer =
is=20
liable if its negligence in hiring or retaining unfit employee =
proximately=20
causes plaintiff's injuries). Hence, a showing of =
damages is a=20
required element of Moore's negligence claims. In its =
motion for=20
summary judgment, Aqrawi challenged the evidence as to the =
essential=20
element of damages. Accordingly, Moore's =
fourth=20
issue is overruled as to her negligence claims. =
C. Moore's=20
Response In her third issue, Moore =
contends that=20
the trial court erred by refusing to consider her response to =
Aqrawi's=20
motion for "no evidence" summary judgment. Specifically, Moore =
frames her=20
issue as "[a]ssuming arguendo" that the trial court considered her =
response to be untimely and states that "[p]resumably" the trial =
court=20
"believed that Moore's response was filed late." Texas Rule of Civil Procedure =
166a(c)=20
provides as follows in pertinent part: Except on leave of court, the =
adverse=20
party, not later than seven days prior to the day of hearing may =
file and=20
serve opposing affidavits or other written response. Tex. R. Civ. P. 166a(c); =
see also=20
Speck v. First Evangelical Lutheran Church of Houston,=20
01-06-00638-CV, 2007 WL 1599177, at *2 (Tex. App.--Houston [1st =
Dist.] May=20
31, 2007, no pet.) (applying seven-day period stated at Rule =
166a(c) to=20
Rule 166a(i) context). If a response is untimely filed and nothing =
appears=20
in the record to indicate that the trial court granted leave to =
file a=20
late response to a motion for summary judgment, we presume that =
the trial=20
court did not consider the response. Benchmark Bank v. =
Crowder,=20
919 S.W.2d 657, 663 (Tex. 1996); INA of Tex. v. Bryant, =
686=20
S.W.2d 614, 615 (Tex. 1985). Here, Aqrawi filed its motion =
for summary=20
judgment on May 22, 2003. The record shows that Moore filed her =
response=20
to the motion for summary judgment on June 19, 2003. It is =
undisputed=20
that, on June 27, 2003, Moore appeared at the summary judgment =
hearing and=20
argued the merits of her response. We conclude that Moore's June =
19, 2003=20
response was timely because it was filed seven days prior to the =
June 27,=20
2003 summary judgment hearing. See Tex. R. Civ. P. 4 ("In =
computing any period of time prescribed or allowed by these rules, =
. . . the day of the act, event, or default after which =
the=20
designated period of time begins to run is not to be included. The =
last=20
day of the period so computed is to be included."); Tex. R. Civ. =
P.=20
166a(c) (requiring response not later than seven days prior to =
date of=20
hearing); Geiselman v. Cramer Fin. Group, Inc., 965 =
S.W.2d 532,=20
535 (Tex. App.--Houston [14th Dist.] 1997, no writ) (noting that =
October=20
31 was last date to file response before November 7 summary =
judgment=20
hearing). Moore has not directed us to any place in the record =
that=20
indicates that the trial court struck or refused to consider =
Moore's=20
timely response. Accordingly, Moore's third =
issue is=20
overruled. D. Genuine Issue of =
Material=20
Fact In what we construe as her =
fifth issue,=20
Moore contends that the trial court erred by granting a "no =
evidence"=20
summary judgment in favor of Aqrawi because a genuine issue of =
material=20
fact precluded summary judgment. We have determined =
that summary=20
judgment as to Moore's assault claim was improper. As to =
Moore's=20
negligence claims, once Aqrawi contended that there was no =
evidence as to=20
the essential element of damages, Moore had the burden to bring =
forward=20
more than a scintilla of probative evidence to raise a genuine =
issue of=20
material fact. See Johnson, 73 S.W.3d at 207. If =
Moore=20
brought forward more than a scintilla of probative evidence to =
raise a=20
genuine issue of material fact as to the damages element, then =
summary=20
judgment was not proper. Forbes, 124 S.W.3d at 172; =
Flameout=20
Design & Fabrication, Inc., 994 S.W.2d at 834. =
Here, Moore appended her =
affidavit,=20
medical reports, and medical bills to her response as evidentiary =
support.=20
In her amended affidavit, dated June 5, 2003, Moore attested that =
Cooper=20
caused injury to her right hand that "resulted in excruciating =
pain, that=20
persist[s] until this day, up and down [her] right hand." Moore =
attested=20
that she missed 26 days of work, from February 21, 2000 to March =
17, 2000,=20
at $9.65 per hour, totaling $2,258.16; that she served 27 days on=20
restricted duty, from March 17, 2000 to April 14, 2000; that she =
incurred=20
medical bills of $1,950; that she attended therapy three times per =
week=20
for 60 days, from March 17, 2000 to May 17, 2000, and sought =
reimbursement=20
of her co-pays, totaling $600; and that she suffered =
pain. Moore's medical reports show =
that, on=20
February 23, 2000, Moore was examined at M.D. Anderson Cancer =
Center. The=20
report indicates that "[e]xamination of the right hand =
demonstrates intact=20
soft tissues and . . . [n]o fracture." On March 23, 2000, Dr. =
Gabel,=20
orthopedic surgeon, reported that Moore had full range of motion =
in her=20
fingers, "no local tenderness," and that radiographs of the wrist =
and=20
lower arm were negative, except for an old chip fracture. On July =
12, 2002=20
and again on July 17, 2002, exams at Hermann Hospital revealed "no =
evidence for acute injury . . . no soft tissue swelling . . . =
[and] no=20
evidence for acute fracture or dislocation." As Aqrawi contends, =
these=20
medical reports do not appear to establish a measurable physical =
injury to=20
Moore's hand. However, Moore also attached =
evidence of=20
a prescription from Dr. Gabel for Vioxx; worker's compensation =
payments to=20
rehabilitation centers; written directives from Moore's physicians =
restricting Moore's work duties; a written "Modified Duty Job =
Offer" from=20
Moore's employer, which Moore accepted in writing; and medical =
bills=20
totaling $1,950.25. Accordingly, Moore's fifth =
issue is=20
sustained as to her negligence claims. Having determined that the =
trial court=20
erred in granting summary judgment
Laura Carter Higley Justice Panel consists of Justices =
Taft, Hanks,=20
and Higley.