PER CURIAM In this appeal, we consider whether a trial court’s recital in a final summary-judgment order that it considered “the pleadings, evidence, and arguments of counsel” included a late-filed response and attached evidence. The court of appeals concluded that the recital did not, and thus upheld the summary judgment without addressing its legal merit. We initially denied review. We grant rehearing, and without hearing oral argument, see TEX. R. APP. P. 59.1, we reverse the court of appeals’ judgment. We remand the case to that court for consideration of the merits of the appeal. I A former Steak N Shake employee, B.C., sued the restaurant and her former supervisor, alleging that the supervisor had sexually assaulted her during her employment. Steak N Shake moved for summary judgment, presenting traditional and no-evidence grounds in a combined motion.[1] The trial court granted the motion. A previous appeal to this Court dealt with statutory preemption, the ground the court of appeals relied on in first affirming the trial court’s summary judgment.[2] The court of appeals had held that the Texas Commission on Human Rights Act provided the exclusive remedy for the employee’s claims, foreclosing her common law assault claim as a matter of law.[3] We disagreed and reversed, holding that “where the gravamen of a plaintiff’s claim is not harassment, but rather assault, as it is here, the [Act] does not preempt the plaintiff’s common law assault claim.”[4] We remanded the case to the court of appeals to consider Steak N Shake’s remaining grounds for summary judgment.[5] On remand, the court of appeals outlined these remaining issues: (1) “whether, under its traditional motion for summary judgment, [Steak N Shake] established as a matter of law that B.C.’s assault claim fits within a traditional exception to the Texas Workers’ Compensation Act,” and (2) “whether, under the no-evidence motion, B.C. produced more than a scintilla of evidence on each element of her claim.”[6] But the court of appeals ultimately did not decide these issues, concluding that B.C. had “failed to file a timely response to the no-evidence motion, and the record does not show the trial court considered the late-filed response.”[7] In upholding summary judgment on no-evidence grounds, the court of appeals declined to consider the evidence that Steak N Shake had attached to its combined motion, including B.C.’s deposition testimony, because no timely response pointed out a fact issue raised by that evidence.[8] As the court of appeals upheld summary judgment on no-evidence grounds, it did not consider the remaining legal ground—the worker’s compensation bar—urged in Steak N Shake’s traditional motion.[9] On rehearing en banc in the court of appeals, B.C. newly contended that she had attempted to electronically file her response on the day it was due—including 461 pages of supporting evidence—but her filing was rejected “because one of the exhibits was not formatted for optical character recognition.” B.C. contends she then re-filed her motion with properly formatted exhibits the following day, which is consistent with the file stamp appearing on her response in the record. B.C. did not move to continue the summary-judgment hearing or seek leave of court to file her response late. Despite the tardiness of B.C.’s response, Steak N Shake filed a reply brief before the summary-judgment hearing challenging the merits of B.C.’s response. In a footnote, Steak N Shake also objected to the response as untimely. The parties agree that Steak N Shake raised its objection at the summary-judgment hearing. There is no record of the hearing or of a ruling on the objection. But in the order granting summary judgment, the trial court recited: “After considering the pleadings, evidence, and arguments of counsel, the Court finds that the motion should be granted.” II In its combined motion for summary judgment, Steak N Shake argued that it is entitled to judgment for several reasons, including the preemption argument we previously rejected.[10] Steak N Shake also argued that no evidence exists to support any element of B.C.’s common law assault claim under direct or vicarious liability theories.[11] For a traditional summary judgment, Steak N Shake, as the movant, bears the burden to conclusively establish that it is entitled to judgment as a matter of law, notwithstanding the nonmovant’s response or lack thereof.[12] In contrast, a movant seeking a no-evidence summary judgment need only identify “one or more essential elements of a claim or defense . . . as to which there is no evidence,” and the burden then shifts to the nonmovant to produce “summary judgment evidence raising a genuine issue of material fact.”[13] If a nonmovant fails to carry this burden, then the court “must” grant summary judgment.[14] At issue in this case is the timeliness of B.C.’s response. A response to a no-evidence summary-judgment motion, including any evidence opposing the motion, is due seven days before the summary-judgment hearing.[15] Rule 166a(c) provides that a response must be timely filed “[e]xcept on leave of court.”[16] B.C. newly argued during en banc proceedings in the court of appeals that her response should relate back to her earlier, rejected electronic filing, a position she maintains at this Court. We agree with the court of appeals, however, that B.C. waived this argument by “waiting to raise the issue until after [the court of appeals] issued two opinions based on the unchallenged assertion that her response was untimely.”[17] The question before us, then, is not whether B.C. timely filed her response, but whether the trial court considered her untimely response in granting summary judgment in Steak N Shake’s favor. “[W]here nothing appears of record to indicate that late filing of a summary judgment response was with leave of court, it is presumed [the] trial court did not consider the response.”[18] Courts of appeals considering whether a trial court granted leave commonly—and correctly— examine the record for “an affirmative indication that the trial court permitted the late filing.”[19] That indication may arise from “a separate order, a recital in the summary judgment, or an oral ruling contained in the reporter’s record of the summary judgment hearing.”[20] So while a “silent record” on appeal supports the presumption “that the trial court did not grant leave,”[21] courts should examine whether the record “affirmatively indicates” the late-filed response was “accepted or considered.”[22] The court of appeals in this case did so, correctly asking whether the record contains an “affirmative indication” that the trial court permitted B.C.’s late-filed response.[23] But the court concluded that the recital in the order was insufficient to overcome the presumption. In her petition to this Court, B.C. contends that the trial court’s recital is sufficient—as it demonstrates that the trial court considered all the evidence, including that attached to her late-filed response. She further reasons that, had the trial court not considered B.C.’s evidence, it would not have considered any evidence in opposition to the no-evidence motion. Relying on Ford Motor Co. v. Ridgway, she observes that reviewing courts, when presented with combined motions for traditional and no- evidence summary judgment, generally address the no-evidence point first.[24] Though many courts of appeals follow our example in Ridgway—as do we[25]—that holding does not compel trial courts to consider no-evidence motions first. We cannot assume the trial court did so here. We nonetheless conclude that the trial court’s recital that it considered the “evidence and arguments of counsel,” without any limitation, is an “affirmative indication” that the trial court considered B.C.’s response and the evidence attached to it. The court of appeals concluded this reference “indicates nothing more than the trial court considered [Steak N Shake's evidence] in conjunction with the traditional motion.”[26] But a court’s recital that it generally considered “evidence”—especially when one party objected to the timeliness of all of the opposing party’s evidence—overcomes the presumption that the court did not consider it.[27] This has long been our approach when considering late-filed amended pleadings in advance of a summary-judgment hearing. Our rules provide that a party may not amend its pleadings within seven days of a summary-judgment hearing without leave of court.[28] In this context, we have held that “leave of court is presumed when a summary judgment states that all pleadings were considered, and when, as here, the record does not indicate that an amended pleading was not considered, and the opposing party does not show surprise.”[29] Similarly, while we presume that a trial court did not consider a late-filed response absent an affirmative indication in the record, a recital in a summary-judgment order that the trial court considered “the evidence” without qualification or limitation overcomes that presumption.[30] And although Steak N Shake objected to the timeliness of B.C.’s response, it neither sought nor obtained a ruling on that objection before or after the trial court’s order; therefore, we have no basis to conclude the trial court did not consider all summary-judgment evidence on file at the time the motion was heard. Because the trial court recited that it had considered “the pleadings, evidence, and arguments of counsel,” the court of appeals should have considered that evidence as well in its review of the trial court’s summary judgment.[31] Accordingly, we reverse the court of appeals’ judgment without hearing oral argument, see Tex. R. App. P. 59.1, and remand the case to that court to consider the merits of the summary-judgment issues it outlined in its opinion.[32] OPINION DELIVERED: March 27, 2020
