                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-14-00222-CV


ELVIA ANDRADE                                                 APPELLANT

                                     V.

HANY SHARAF D/B/A PAUL’S                                       APPELLEE
DONUT & SUB SHOP


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         FROM THE 67TH DISTRICT COURT OF TARRANT COUNTY
                   TRIAL COURT NO. 067-270860-14

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                       MEMORANDUM OPINION1

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     Appellant Elvia Andrade appeals from the trial court’s order granting

summary judgment in favor of Appellee Hany Sharaf d/b/a Paul’s Donut & Sub

Shop (Paul’s Donut & Sub Shop). We affirm.




     1
      See Tex. R. App. P. 47.4.
                                  Background

      From 2001 through 2013, Andrade worked as a cashier and server at

Paul’s Donut & Sub Shop.      She claims that from October 30, 2010, through

October 30, 2013, she worked an average of sixty hours per week but was not

paid overtime wages. She sued Paul’s Donut & Sub Shop under the Fair Labor

Standards Act (FLSA) to recover $39,200.22 in unpaid overtime wages. See 29

U.S.C.A. § 207(a)(1) (West 1998).2

      Paul’s Donut & Sub Shop filed a motion for summary judgment, claiming

that it was entitled to judgment as a matter of law because it was not subject to

29 U.S.C.A. § 207, which provides in part as follows:

      Except as otherwise provided in this section, no employer shall
      employ any of his employees who in any workweek is engaged in
      commerce or in the production of goods for commerce, or is
      employed in an enterprise engaged in commerce or in the
      production of goods for commerce, for a workweek longer than forty
      hours unless such employee receives compensation for his
      employment in excess of the hours above specified at a rate not less
      than one and one-half times the regular rate at which he is
      employed.

Id. Specifically, Paul’s Donut & Sub Shop argued that it was not engaged in

commerce, was not engaged in the production of goods for commerce, and was

not part of any enterprise engaged in commerce or in the production of goods for

commerce. See id.; see also 29 U.S.C.A § 203(b) (West 1998) (“‘Commerce’

means trade, commerce, transportation, transmission, or communication among

      2
        Section 216(b) of the FLSA gives state courts jurisdiction to hear cases
involving suits for overtime pay. 29 U.S.C.A. § 216(b) (West 1998).

                                        2
the several States or between any State and any place outside thereof.”). Paul’s

Donut & Sub Shop also asserted in its motion that it was entitled to summary

judgment because there was no evidence that it was subject to 29 U.S.C.A.

§ 207.

      The trial court granted Paul’s Donut & Sub Shop’s motion without stating

upon which ground or grounds it relied. This appeal followed.

                                   Discussion

      In one issue, Andrade argues that the trial court erred by granting Paul’s

Donut & Sub Shop’s motion for summary judgment because her summary-

judgment response and attached evidence established that Paul’s Donut & Sub

Shop was engaged in interstate commerce and therefore subject to the FLSA.

When, as here, a party moves for summary judgment under both rules 166a(c)

and 166a(i), we will first review the trial court’s judgment under the standards of

rule 166a(i). Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). If

the appellant failed to produce more than a scintilla of evidence under that

burden, then there is no need to analyze whether the appellee’s summary-

judgment proof satisfied the less stringent rule 166a(c) burden. Id.

      After an adequate time for discovery, the party without the burden of proof

may, without presenting evidence, move for summary judgment on the ground

that there is no evidence to support an essential element of the nonmovant’s

claim or defense. Tex. R. Civ. P. 166a(i). The motion must specifically state the

elements for which there is no evidence. Id.; Timpte Indus., Inc. v. Gish, 286

                                        3
S.W.3d 306, 310 (Tex. 2009). The trial court must grant the motion unless the

nonmovant produces summary-judgment evidence that raises a genuine issue of

material fact. See Tex. R. Civ. P. 166a(i) & cmt.; Hamilton v. Wilson, 249 S.W.3d

425, 426 (Tex. 2008).

      When reviewing a no-evidence summary judgment, we examine the entire

record in the light most favorable to the nonmovant, indulging every reasonable

inference and resolving any doubts against the motion. Sudan v. Sudan, 199

S.W.3d 291, 292 (Tex. 2006). We review a no-evidence summary judgment for

evidence that would enable reasonable and fair-minded jurors to differ in their

conclusions. Hamilton, 249 S.W.3d at 426 (citing City of Keller v. Wilson, 168

S.W.3d 802, 822 (Tex. 2005)). We credit evidence favorable to the nonmovant if

reasonable jurors could, and we disregard evidence contrary to the nonmovant

unless reasonable jurors could not. Timpte Indus., 286 S.W.3d at 310 (quoting

Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006)).              If the

nonmovant brings forward more than a scintilla of probative evidence that raises

a genuine issue of material fact, then a no-evidence summary judgment is not

proper. Smith v. O’Donnell, 288 S.W.3d 417, 424 (Tex. 2009); King Ranch, Inc.

v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003), cert. denied, 541 U.S. 1030

(2004).

      To establish a claim for overtime compensation under the FLSA, Andrade

was required to show “individual coverage”—that she was “engaged in

commerce or in the production of goods for commerce,” or “enterprise

                                       4
coverage”—that Paul’s Donut & Sub Shop was an “enterprise engaged in

commerce or in the production of goods for commerce.” 29 U.S.C.A. § 207(a)(1).

In her summary-judgment response, Andrade argued that only enterprise

coverage applied and did not contend that any of her summary-judgment

evidence raised a genuine issue of material fact supporting individual coverage

under the FLSA. Therefore, we must determine if Andrade’s summary-judgment

evidence raised a genuine issue of material fact supporting enterprise coverage

under the FLSA.

      An “enterprise engaged in commerce or in the production of goods for

commerce” is an enterprise3 (1) that “has employees engaged in commerce or in

the production of goods for commerce, or that has employees handling, selling,

or otherwise working on goods or materials that have been moved in or produced

for commerce by any person” and (2) “whose annual gross volume of sales made

or business done is not less than $500,000 (exclusive of excise taxes at the retail

level that are separately stated).”4 Id. § 203(s)(1)(A) (West 1998). In her affidavit



      3
       The parties do not dispute that Paul’s Donut & Sub Shop is an enterprise.
See id. § 203(r) (West 1998) (defining enterprise).
      4
     An “enterprise engaged in commerce or in the production of goods for
commerce” also includes an enterprise that

      (B) is engaged in the operation of a hospital, an institution primarily
      engaged in the care of the sick, the aged, or the mentally ill or defective
      who reside on the premises of such institution, a school for mentally or
      physically handicapped or gifted children, a preschool, elementary or
      secondary school, or an institution of higher education (regardless of
                                         5
filed in support of her summary-judgment response, Andrade stated, “As a

cashier, I personally heard Mr. Sharaf brag about the amount of money he was

making. He stated that the restaurant had revenues over one million dollars and

his sales are much higher.” Because this evidence does not indicate that Paul’s

Donut & Sub Shop’s annual gross volume of sales exceeded the FLSA’s

$500,000 threshold for any of the three years for which she is claiming unpaid

overtime, we conclude it fails to raise a genuine issue of material fact as to

whether Paul’s Donut & Sub Shop was an “enterprise engaged in commerce or

in the production of goods for commerce.” See id. Andrade did not present any

other evidence regarding Paul’s Donut & Sub Shop’s annual gross volume of

sales made or business done. Because Andrade failed to raise a genuine issue

of material fact on an essential element of enterprise coverage under the FLSA,

the trial court did not err by granting Paul’s Donut & Sub Shop’s no-evidence

motion for summary judgment. Having determined that the trial court properly

granted Paul’s Donut & Sub Shop summary judgment on no-evidence grounds,

we need not address whether the trial court erred by granting it summary

judgment on traditional grounds. See Ford Motor Co., 135 S.W.3d at 600; see

also Tex. R. App. P. 47.1. Accordingly, we overrule Andrade’s only issue.

      whether or not such hospital, institution, or school is public or private or
      operated for profit or not for profit); or

      (C) is an activity of a public agency.

Id. § 203(s)(1)(B)–(C) (West 1998). The parties agree that Paul’s Donut & Sub
Shop does not fall within either of these categories.
                                          6
                                Conclusion

     Having overruled Andrade’s sole issue, we affirm the trial court’s order

granting Paul’s Donut & Sub Shop’s motion for summary judgment.



                                               /s/ Anne Gardner
                                               ANNE GARDNER
                                               JUSTICE

PANEL: GARDNER, MEIER, and GABRIEL, JJ.

DELIVERED: July 30, 2015




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