Affirmed and Opinion Filed August 17, 2018.




                                             In The
                                 Court of Appeals
                          Fifth District of Texas at Dallas
                                      No. 05-17-00487-CV

                    MICHELE JACKSON, Appellant
                               V.
 MOTEL 6 AKA MOTEL 6 OPERATING LP, MOTEL 6 GP, AKA G6 HOSPITALITY
  LLC DBA MOTEL 6, KRUPALAXMI, LP AKA MOTEL 6 OF DALLAS, ACCOR
 FRANCHISING NORTH AMERICA, LLC AKA G6 HOSPITALITY FRANCHISING,
                          LLC, Appellees

                      On Appeal from the 116th Judicial District Court
                                   Dallas County, Texas
                           Trial Court Cause No. DC-15-14742

                             MEMORANDUM OPINION
                        Before Justices Lang-Miers, Evans, and Schenck
                                    Opinion by Justice Evans
       In the underlying proceeding, appellant Michele Jackson alleged that she was sexually

assaulted by a hotel manager while staying at a Motel 6 in Dallas, Texas, and she sought to hold

appellees Motel 6 Operating L.P. (“Motel 6 Operating”), G6 Hospitality LLC (“G6 Hospitality”),

Krupalaxmi, L.P. d/b/a Motel 6 of Dallas (“Krupalaxmi”), and Accor Franchising North America,

LLC n/k/a G6 Hospitality Franchising LLC (“G6 Franchising”) liable for her alleged personal

injuries. On appeal, Jackson contends the trial court erred in granting summary judgment for

appellees and abused its discretion by denying Jackson leave to file a late response to appellees’

no-evidence motions for summary judgment. For the reasons that follow, we affirm.
                                     FACTUAL BACKGROUND

       Jackson maintains that a manager employed by Motel 6 sexually assaulted her at a Motel

6 located at 8510 East R.L. Thornton Freeway in Dallas, Texas, on or about September 25, 2015.

Jackson sued Motel 6 Operating and G6 Hospitality in December 2015, alleging that they

negligently hired, supervised, trained, or retained the unidentified employee and such negligence

proximately caused her injury (“the negligent hiring claim”). Jackson added Krupalaxmi as a

defendant in her first amended petition.

       On July 8, 2016, Motel 6 Operating and G6 Hospitality filed their traditional motion for

summary judgment. They passed the hearing on that motion, however, when Jackson failed to file

a timely-response and, instead, filed a motion to continue the hearing, a motion for leave to file a

late response to the motion, and a third amended petition. In her third amended petition, Jackson

added G6 Franchising as a defendant and also added a “partnership” claim against all defendants

in which she alleged they worked as a partnership and, therefore, were vicariously liable for each

other’s actions.

       On September 2, 2016, Motel 6 Operating and G6 Hospitality filed their First Amended

Traditional and No Evidence Motion for Summary Judgment. In the traditional motion, they

argued that judgment should be rendered in their favor because they owed no legal duty to Jackson

as to her negligent hiring claim and they created no partnership with G6 Franchising or Krupalaxmi

for the operation of the motel. In the no evidence motion, they asserted there was no evidence on

any of the elements of the negligent hiring claim or the partnership claim. As with the first motion

for summary judgment, Jackson did not file a timely-response to the first amended motion.

Instead, on September 22, 2016, which was the eve of the summary judgment hearing, Jackson

moved for leave to file a late response to the motion and moved to continue the summary judgment




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hearing. She also filed her fifth amended petition, in which she added a vicarious liability claim

based on apparent authority against all defendants.

       The trial court granted the First Amended Traditional and No-Evidence Motion for

Summary Judgment by written order on September 23, 2016 and rendered a take nothing judgment

against Jackson as to her negligent hiring and partnership claims against Motel 6 Operating and

G6 Hospitality. On November 30, 2016, the trial court modified the summary judgment order to

make it a partial summary judgment order and to clarify that Jackson’s apparent authority vicarious

liability claim against Motel 6 Operating and G6 Hospitality remained pending.

       On March 10, 2017, G6 Franchising and Krupalaxmi filed a no-evidence motion for

summary judgment as to all of Jackson’s claims against them. The same day, Motel 6 Operating

and G6 Hospitality also filed a no-evidence motion for summary judgment motion as to Jackson’s

remaining apparent authority vicarious liability claim. On March 14, 2017, appellees requested

leave of court to have the no-evidence summary judgment motions heard within 30 days of trial.

On March 30, 2017, the trial court granted appellees’ motion for leave and appellees notified

Jackson of the April 28, 2017 summary judgment hearing by e-mail and through an e-filed notice

of hearing.

       The day before the scheduled hearing, Jackson filed a motion for leave to file a late

response to the motions. Contemporaneously, Jackson filed a late response to appellees’ no-

evidence motions for summary judgment. In support of her motion for leave, Jackson’s counsel

averred that Jackson encountered computer and transportation problems that hindered her ability

to timely provide summary judgment evidence to counsel. Jackson also argued that she was

provided only three days to prepare her responses to the motions because she did not receive the

deposition transcripts of corporate representatives until April 18, 2017, three days before the April

21, 2017 deadline to respond to the motions.

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          The trial court signed a “Final Summary Judgment” on May 2, 2017 without explicitly

ruling on Jackson’s motion for leave to file a late response. The Final Summary Judgment granted

appellees’ no-evidence motions for summary judgment, and ordered Jackson to take nothing as to

her claims against the appellees. The judgment also states that all relief requested by Jackson that

is not expressly granted is denied and that the judgment finally disposes of all claims against all

defendants and is appealable. Jackson now appeals the May 2, 2017 Final Summary Judgment.

                                              ANALYSIS

           On appeal, Jackson presents two issues: (1) the trial court erred in granting summary

 judgment in favor of appellees because Jackson raised a genuine issue of material fact on the

 elements of her claims in her late-filed response, and (2) the trial court abused its discretion by

 denying her leave to file a late response to appellees’ no-evidence motions for summary judgment.

 We address Jackson’s issues in reverse order.

A.        Denial of motion for leave to file late response

           In her second issue, Jackson argues the trial court abused its discretion by denying her

 motion for leave to file a late response to appellees’ no-evidence motions for summary judgment.

 Appellees argue that Jackson waived this complaint by failing to obtain a ruling on her motion for

 leave.

           To preserve a complaint for appellate review, the record must show the complaint was

 made to the trial court by a timely request, objection, or motion that was sufficiently specific, and

 the trial court (1) ruled on the request, objection, or motion either expressly or implicitly or

 (2) refused to rule on the request, objection, or motion, and the complaining party objected to the

 refusal. TEX. R. APP. P. 33.1(a); see also Duncan-Hubert v. Mitchell, 310 S.W.3d 92, 99 (Tex.

 App.—Dallas 2010, pet. denied). In other words, “Rule 33.1(a) requires a timely and ruled-upon




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 objection to preserve error.” Seim v. Allstate Tex. Lloyds, No. 17-0488, 2018 WL 3189568, at *3

 (Tex. June 29, 2018) (per curiam).

           Here, Jackson filed a motion for leave and a response to appellees’ no-evidence motions

 for summary judgment less than seven days of the scheduled hearing. See TEX. R. CIV. P. 166a(c).

 Appellees objected to Jackson’s motion for leave and late-filed response. Although the record

 contains no order granting or denying Jackson’s motion for leave, the Final Summary Judgment

 specifically stated the trial court “examined the timely pleadings filed in this matter,” and

 determined appellees were entitled to summary judgment on all of Jackson’s claims. We will

 assume without deciding that the order stating expressly that the trial court only considered timely-

 filed pleadings implicitly denied Jackson’s motion for leave to file a late response.1

           On the merits of Jackson’s contention, we review a trial court’s ruling on a motion for leave

 to file a late summary-judgment response for an abuse of discretion. Carpenter v. Cimarron

 Hydrocarbons Corp., 98 S.W.3d 682, 686–87 (Tex. 2002). A trial court abuses its discretion when

 it reaches a decision so arbitrary and unreasonable without reference to any guiding rules or

 principles. Id. (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex.

 1985)).

           Except on leave of court, a party opposing summary judgment may file a response “not

 later than seven days prior to the day of hearing.” TEX. R. CIV. P. 166a(c). A trial court may permit

 an act to be done after a period prescribed in other procedural rules upon a showing of “good

 cause.” TEX. R. CIV. P. 5. A motion for leave to file a late summary-judgment response should be

 granted when the nonmovant establishes good cause by showing that the failure to timely file a

 response (1) was not intentional or the result of conscious indifference, but the result of an accident



    1
      Summary judgment motions, responses, and evidence are not pleadings, so the statement may not relate to
Jackson’s motion for leave to late-file her response.
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or mistake, and (2) that allowing the late response will occasion no undue delay or otherwise injure

the party seeking summary judgment. Carpenter, 98 S.W.3d 682 at 687–88.

       Appellees filed the no-evidence motions for summary judgment on March 10, 2017. On

March 30, 2017, the trial court set the summary judgment hearing for April 28, 2017. Jackson

received notice of the hearing date on March 30, 2017 and does not dispute that she received the

required twenty-one days’ notice of the hearing date. See TEX. R. CIV. P. 166a(c). Jackson’s

response was due April 21, 2017. TEX. R. CIV. P. 166a(c). As she did with the two, prior summary

judgment proceedings, Jackson again failed to timely-file a response to the motions and, instead,

filed a motion for leave to file a late response with the response the day before the hearing.

       Jackson complains that the trial court should have granted leave because Jackson was not

given the full amount of time in which to respond. Specifically, Jackson maintains that she was

afforded only three days to prepare a response because appellees’ corporate representatives could

not be deposed until April 10, 2017, she needed the deposition transcripts to reply to the motions,

and she did not receive copies of the deposition transcripts. Although her counsel knew of these

potential time constraints well in advance of the hearing, Jackson did not seek leave to continue

the April 28, 2017 hearing or to file a late response until the day before the hearing.

       The rules of civil procedure require only twenty-one days’ notice of a summary judgment

hearing. Jackson received eight days’ more than the required notice and knew that the corporate

representatives’ depositions could not take place until April 10, 2017. Yet, Jackson failed to timely

take any steps to seek a continuance of the hearing or response deadline. Instead, as she had done

on two prior occasions, she waited until the eve of the hearing to seek relief from the trial court.

Moreover, the record reflects Jackson was aware of the need to provide evidence based on

corporate witnesses’ testimony well before the April 28, 2017 hearing. As grounds for her August

3, 2016 motion for continuance, Jackson indicated she needed to depose “[corporate]

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 representatives to ascertain the extent of the partnership relationship among the Defendants and

 KRUPALXMI,LP,” and that the “nature of the partnership goes to the heart of [her] case.”

 Similarly, in Jackson’s March 14, 2017 Motion to Continue, she stated depositions of corporate

 witnesses were necessary to the determination of her apparent authority claim. Importantly,

 Jackson neither claimed surprise nor objected to the scheduled April 28, 2017 hearing. Under this

 record, we conclude Jackson did not establish good cause to allow a late response. As such, the

 trial court did not abuse its discretion by denying Jackson’s motion for leave to file a late response.

B.     Grant of summary judgment

         In her first issue, Jackson contends the trial court erred in granting summary judgment in

 favor of appellees because she raised a genuine issue of material fact on the elements of her claims

 in her late-filed response. We review a trial court’s grant of summary judgment de novo. Buck

 v. Palmer, 381 S.W.3d 525, 527 (Tex. 2012). No-evidence motions are reviewed under the same

 legal sufficiency standard as a directed verdict. Merriman v. XTO Energy, Inc., 407 S.W.3d 244,

 248 (Tex. 2013). Thus, the non-movant must produce more than a scintilla of evidence to

 support each challenged element of its claims. See id. Under that standard, we view 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. Id.

         Where, as here, a party filed a motion that identifies the elements for which it contends

 no supporting evidence exists, in a form that is neither conclusory nor a general no-evidence

 challenge, summary judgment must be rendered absent a timely and legally adequate response

 by the nonmovant. See TEX. R. CIV. P. 166a(i); B.C. v. Steak N Shake Ops., Inc., 532 S.W.3d

 547, 549–50 (Tex. App.—Dallas 2017, pet. filed) (op. on remand) (citing Landers v. State

 Farm Lloyds, 257 S.W.3d 740, 746 (Tex. App.—Houston [1st Dist.] 2008, no pet.) (op. on


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 reh’g)). Except on leave of court, a response to a motion for summary judgment, including

 opposing summary judgment evidence, must be filed no later than the seventh day before the

 date of the hearing. TEX. R. CIV. P. 166a(c). If the response is late, the record must contain an

 affirmative indication that the trial court permitted the late filing or the response is a nullity.

 Steak N Shake Ops., 532 S.W.3d at 550. If the record contains nothing indicating the trial court

 considered a late-filed response, we presume the trial court did not consider it, and the response

 will not be considered on appeal. Id. (citing Benchmark Bank v. Crowder, 919 S.W.2d 657, 663

 (Tex. 1996)).

        Here, appellees’ no-evidence motions identified the elements of Jackson’s claims and

 asserted there was no evidence of any of the elements of those claims. Jackson argues she

 presented sufficient evidence on each element of her claims to defeat the motions and directs

 us to evidence contained in her response. We have already affirmed the trial court’s implicit

 denial of Jackson’s motion for leave to late-file her response, so her responsive evidence is

 presumed not to have been considered by the trial court. The absence of a timely and legally

 sufficient response to the no-evidence motions required the trial court to grant summary

 judgment in favor of appellees.       See TEX. R. CIV. P. 166a(i); see also Steak N Shake

 Operations, 532 S.W.3d at 549–50; Landers, 257 S.W.3d at 746. Accordingly, we conclude

 the trial court properly granted summary judgment in favor of appellees and overrule

 Jackson’s first issue.

                                           CONCLUSION

       For these reasons, we affirm the trial court’s judgment.




                                                   /David Evans/
                                                   DAVID EVANS
170487F.P05                                        JUSTICE
                                                –8–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

 MICHELE JACKSON, Appellant                          On Appeal from the 116th Judicial District
                                                     Court, Dallas County, Texas
 No. 05-17-00487-CV          V.                      Trial Court Cause No. DC-15-14742.
                                                     Opinion delivered by Justice Evans.
 MOTEL 6 AKA MOTEL 6 OPERATING                       Justices Lang-Miers and Schenck
 LP, MOTEL 6 GP, AKA G6                              participating.
 HOSPITALITY LLC DBA MOTEL 6,
 KRUPALAXMI, LP AKA MOTEL 6 OF
 DALLAS, ACCOR FRANCHISING
 NORTH AMERICA, LLC AKA G6
 HOSPITALITY FRANCHISING, LLC,
 Appellees

     In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.


Judgment entered this 17th day of August, 2018.




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