Affirmed and Majority and Concurring Memorandum Opinions filed March
19, 2013.




                                    In The


                   Fourteenth Court of Appeals

                            NO. 14-11-00938-CV



                     ADRIENNE GALLIEN, Appellant

                                      V.
GOOSE CREEK CONSOLIDATED INDEPENDENT SCHOOL DISTRICT,
                       Appellee


                  On Appeal from the 215th District Court
                          Harris County, Texas
                    Trial Court Cause No. 2009-10149


             MAJORITY MEMORANDUM OPINION

      Appellant, Adrienne Gallien, appeals a summary judgment in favor of
appellee, Goose Creek Consolidated Independent School District (―Goose Creek‖),
in Gallien’s suit based on nonrenewal of her one-year term employment contract.
We affirm.

                                     I. BACKGROUND

       Gallien filed suit asserting various claims against Goose Creek based on
two general factual allegations: (1) Goose Creek discharged Gallien for reporting
to multiple governmental agencies that she was instructed by superiors to alter
records to falsely reflect students had completed certain courses and met
graduation requirements; and (2) Goose Creek failed to provide the required notice
of the proceedings relative to non-renewal of her contract and failed to conduct
open meetings.

      Goose Creek filed a motion for summary judgment. The trial court signed
an order granting the motion and dismissing all of Gallien’s claims with prejudice.

                                      II. ANALYSIS

      In five issues, Gallien contends the trial court erred by granting summary
judgment on the following claims: (1) violations of the Texas Commission on
Human Rights Act, (2) violations of the Texas Open Meetings Act, (3) violations
of the Texas Term Contract Nonrenewal Act, (4) violations of the Texas
Whistleblower Act, and (5) breach of contract based on wrongful termination.1

      Goose Creek filed one pleading, asserting both traditional and no-evidence
motions for summary judgment on all these claims, except the claim of harassment
or racial discrimination, on which Goose Creek presented only no-evidence
grounds, to the extent a claim was pleaded. Exhibits comprising more than 440

      1
          The above-listed claims are the only ones on which Gallien challenges the summary
judgment on appeal. Therefore, Gallien has waived a challenge to summary judgment on any
other claims. See Jacobs v. Satterwhite, 65 S.W.3d 653, 655–56 (Tex. 2001).
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pages were attached to Goose Creek’s combined motions for summary judgment.
The trial court granted summary judgment for Goose Creek without specifying the
grounds relied on.

A.    No-Evidence Summary Judgment Grounds

      After adequate time for discovery, a party may move for summary judgment
on the ground that there is no evidence of one or more essential elements of a
claim or defense on which an adverse party would have the burden of proof at trial.
Tex. R. Civ. P. 166a(i); W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005);
Pico v. Capriccio Italian Restaurant, Inc., 209 S.W.3d 902, 905 (Tex. App.—
Houston [14th Dist.] 2006, no pet.). The movant must state the elements as to
which there is no evidence. Tex. R. Civ. P. 166a(i). Goose Creek stated the
following grounds in support of its no-evidence motion for summary judgment.

      Texas Open Meetings Act

      Goose Creek asserted Gallien has no evidence that Goose Creek was
required to conduct public meetings on proceedings pertaining to non-renewal of
her contract, that she requested public meetings, or that Goose Creek failed to
provide the required notice. See Tex. Gov’t Code Ann. § 551.074(a)(1), (b) (West
2012) (providing that a meeting ―to deliberate the appointment, employment,
evaluation, reassignment, duties, discipline, or dismissal of a public officer or
employee . . . . ‖ is exception to requirement that meetings of governmental body
shall be open to public, but exception does not apply if employee requests public
hearing); id. § 551.041 (West 2012) (requiring governmental body to give certain
written notice of meetings).




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      Texas Term Contract Nonrenewal Act

      Goose Creek asserted Gallien has no evidence that Goose Creek failed to
allow her the opportunity for a hearing as provided by the Texas Term Contract
Nonrenewal Act. See generally Tex. Educ. Code §§ 21.206–.209 (West 2012)
(prescribing procedures for nonrenewal of certain employees’ term contracts,
including provisions regarding notice to employee and hearing on proposed
nonrenewal).

      Texas Whistleblower Act

      Goose Creek asserted Gallien has no evidence that her report to various
agencies regarding Goose Creek’s alleged violations of law ―was the but-for cause
of [Goose Creek’s] suspending, firing, or otherwise discriminating against
[Gallien] at the time [Goose Creek] took that action.‖ See Guillaume v. City of
Greenville, 247 S.W.3d 457, 463–64 (Tex. App.—Dallas 2008, no pet.) (reciting
elements of claim under Texas Whistleblower Act); see generally Tex. Gov’t Code
Ann. §§ 554.001–.010 (West 2004).

      Breach of Contract / Wrongful Termination

      Goose Creek asserted that Gallien has no evidence she performed, tendered
performance of, or was excused from performing her contractual obligations, or
that Goose Creek breached the contract by wrongfully discharging Gallien. See
West v. Triple B Servs., LLP, 264 S.W.3d 440, 446 (Tex. App.—Houston [14th
Dist.] 2008, no pet.) (reciting elements of breach-of-contract claim).

      The Texas Commission on Human Rights Act (“TCHRA”)

      Gallien contends the trial court erred by granting summary judgment on her
claim for violations of the TCHRA because Goose Creek did not expressly move
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for summary judgment on that claim. On appeal, Gallien suggests that Goose
Creek violated the TCHRA via ―retaliation, demotion and discriminatory
employment practices to effect a constructive or de facto discharge.‖ See generally
Tex. Lab. Code Ann. §§ 21.051, 21.055 (West 2006) (rendering unlawful certain
types of discriminatory employment practices, including practices based on
employee’s race, as well as retaliation by an employer for employee’s opposition
to, or complaints about, such practices). However, Gallien did not plead a claim
under the TCHRA in the trial court. At the outset of her original petition Gallien
did generally assert, as a factual allegation, that she was harassed because of her
African-American race and an ―undertone‖ of racial intolerance was always
apparent. In the ―Conclusion‖ or ―Prayer‖ sections of her petitions, Gallien made
isolated,   general   allusions   to   ―prejudice,‖   ―racial   discrimination‖   and
―discriminatory termination.‖ However, the focus of Gallien’s claims of retaliation
and discriminatory employment practices were her allegations under the
Whistleblower Act and Goose Creek’s alleged failure to comply with procedural
requirements relative to nonrenewal of Gallien’s contract. Gallien did not plead
any claims based on alleged harassment or discrimination or retaliation because of
race, much less mention the TCHRA, by name or statutory citation.

      To the extent Gallien’s allusions may be construed as pleading a general
claim for harassment or discrimination based on race, or even a claim under the
TCHRA, Goose Creek asserted in the no-evidence motion that Gallien has no
evidence she was subjected to harassment or discrimination based on race.




                                          5
B.    Summary-Judgment Response

      When a movant files a proper no-evidence motion for summary judgment,
the burden shifts to the respondent; unless the respondent produces summary-
judgment evidence raising a genuine issue of material fact, the trial court must
grant the motion for summary judgment. Tex. R. Civ. P. 166a(i); Urena, 162
S.W.3d at 550; Pico, 209 S.W.3d at 905. To defeat a no-evidence motion for
summary judgment, the non-movant need not marshal her evidence but must point
out in her response evidence raising a genuine issue of fact as to the challenged
elements.   See comment to Tex. R. Civ. P. 166a(i); Johnson v. Brewer &
Pritchard, P.C., 73 S.W.3d 193, 207 (Tex. 2002); Pico, 209 S.W.3d at 912; see
also Transcon. Ins. Co. v. Briggs Equip. Trust, 321 S.W.3d 685, 692 (Tex. App.—
Houston [14th Dist.] 2010, no pet.) (holding non-movant’s failure to respond to no-
evidence motion was ―fatal‖ to ability to successfully attack summary judgment on
appeal); Dyer v. Accredited Home Lenders, Inc., No. 02-11-00046-CV, 2012 WL
335858, at *2–5. (Tex. App.––Fort Worth Feb. 2, 2012, pet. denied) (mem. op.)
(holding that trial court is not required to review evidence presented by movant to
support traditional portion of a combined motion for summary judgment to
determine whether that evidence raises a fact issue on the no-evidence ground,
absent a timely response by non-movant); Modelist v. Deutsche Bank Nat’l Trust
Co., No. 14-10-00249-CV), 2011 WL 3717010, at *1, *3 (Tex. App.—Houston
[14th Dist.] Aug. 25, 2011, no pet.) (mem. op.) (summarily affirming summary
judgment on no-evidence grounds when movant filed combined motion but non-
movant failed to respond); Burns v. Canales, No. 14-04-00786-CV, 2006 WL
461518, at *3–6 (Tex. App.—Houston [14th Dist.] Feb. 28, 2006, pet. denied)
(mem. op.) (affirming no-evidence summary judgment when non-movant filed
one-half-inch-thick stack of evidence but page-and-a-half response which
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generally stated the attached evidence raised a fact issue but failed to cite argument
or specific evidence supporting challenged causes of action; ―trial court is not
required, sua sponte, to assume the role of [non-movant’s] advocate and supply his
arguments for him‖); Judge David Hittner and Lynne Liberato, Summary
Judgments In Texas, 47 S. TEX. L. REV. 409, 488 (2006) (―Responding to a no-
evidence summary judgment motion is virtually mandatory.‖).

      It is undisputed Gallien filed her response late, and without leave of court.
See Tex. R. Civ. P. Rule 166a(c) (providing that, except on leave of court, a
summary-judgment response must be filed no later than seven days before hearing
date). On appeal, Gallien acknowledges her summary-judgment response was
untimely filed and ―not properly before the trial court.‖     Because the trial court
did not grant leave for late filing of the summary-judgment response, we presume
the trial court did not consider the response. See Benchmark Bank v. Crowder, 919
S.W.2d 657, 663 (Tex. 1996); Brown v. Shores, 77 S.W.3d 884, 887 (Tex. App.—
Houston [14th Dist.] 2002, no pet.).

      Gallien asserts that, although she ―would have preferred to present evidence
in response to‖ the motion, she may still contend on appeal that the grounds
expressly presented in the motion for summary judgment are insufficient as a
matter of law to support summary judgment. However, Gallien then advances
cases and argument applicable to traditional summary-judgment grounds, see, e.g.,
M.D. Anderson Hospital and Tumor Institute v. Willrich, 28 S.W.3d 22, 23 (Tex.
2000), without regard to the fact that Goose Creek also asserted no-evidence
grounds. When, as in this case, the trial court does not specify in the order the
grounds relied upon in granting summary judgment, we must affirm the summary



                                          7
judgment if any of the grounds presented are meritorious. See Urena, 162 S.W.3d
at 550; Pico, 209 S.W.3d at 905.

      Despite acknowledging she did not timely file a response to the motion for
summary judgment, Gallien cites evidence attached to other filings, such as her
petition, the record of the hearing on her request for a temporary injunction, Goose
Creek’s response to Gallien’s request for mandamus, and a motion to exclude
certain evidence.     However, absent a timely summary-judgment response
identifying evidence purportedly defeating the no-evidence grounds, the trial court
was not required to search the record to find any such evidence. See Lee v.
Palacios, No. 14–06–00428–CV, 2007 WL 2990277, at *2 (Tex. App.—Houston
[14th Dist.] Oct. 11, 2007, pet. denied) (mem. op.); see also Burns, 2006 WL
461518, at *3–6.

      Finally, Gallien also cites evidence attached to her motion for new trial.
Assuming, without deciding, that Gallien timely filed a motion for new trial, there
is no indication the trial court considered any such evidence; there was no signed
order on the motion for new trial, and it was denied by operation of law. See Lee,
2007 WL 2990277, at *2 (refusing to consider evidence attached to non-movant’s
motion for new trial after grant of summary judgment without indication trial court
considered this late-filed evidence); cf. Auten v. DJ Clark, Inc., 209 S.W.3d 695,
702 (Tex. App.—Houston [14th Dist.] 2006, no pet.) (considering evidence
presented to support motion for new trial when reviewing summary judgment
because trial court affirmatively indicated in written order that it considered the
evidence yet confirmed summary-judgment ruling by denying new trial).

      In summary, because Gallien failed to timely respond to the properly filed
no-evidence motion for summary judgment, the trial court did not err by granting

                                         8
no-evidence summary judgment on her claims. Accordingly, we overrule all of
Gallien’s issues and affirm the trial court’s judgment.



                                                    /s/ Margaret Garner Mirabal
                                                        Senior Justice

Panel consists of Justices Boyce, McCally, and Mirabal (McCally, J., concurring).2




      2
          Senior Justice Margaret Garner Mirabal sitting by assignment.
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