Full Opinion

Opinion issued October 30, 2026 In The Court of Appeals For The First District of Texas ———————————— NO. 01-24-00838-CV ——————————— JOSE HERNANI BLANCO-PRUDENCIO, Appellant V. FORTERRA PIPE & PRECAST, LLC, Appellee On Appeal from the 48th District Court Tarrant County, Texas1 Trial Court Case No. 048-355512-24 MEMORANDUM OPINION 1 Pursuant to its docket equalization authority, the Supreme Court of Texas transferred this appeal to this Court. See Misc. Docket No. 24–9081 (Tex. Oct. 14, 2024); see also TEX. GOV’T CODE ANN. § 73.001 (authorizing transfer of cases); TEX. R. APP. P. 41.3 (“In cases transferred by the Supreme Court from one court of appeals to another, the court of appeals to which the case is transferred must decide the case in accordance with the precedent of the transferor court . . . .”). Appellant, Jose Hernani Blanco-Prudencio (“Blanco-Prudencio”), challenges the trial court’s rendition of summary judgment in favor of appellee, Forterra Pipe & Precast, LLC (“Forterra Pipe”), in his suit against Forterra Pipe for negligence. In three issues, Blanco-Prudencio contends that the trial court erred in granting summary judgment in favor of Forterra Pipe. We affirm. Background In his amended petition, Blanco-Prudencio alleged that on January 15, 2021, he was driving southbound on the 1500 block of East Loop 820 North Freeway in Fort Worth, Tarrant County, Texas, when Porfirio Alonso Porras (“Porras”) “caused a collision” with Blanco-Prudencio’s car. According to Blanco-Prudencio, Porras did not keep a proper lookout, apply his brakes, use proper evasive action, and control his speed. When Porras struck Blanco-Prudencio’s car, he was driving a truck provided to him by his employer, Forterra Pipe. Blanco-Prudencio brought claims for negligence and gross negligence against Porras, and he alleged that Porras was acting in the course and scope of his employment with Forterra Pipe at the time of the collision, making Forterra Pipe vicariously liable for Porras’s negligence.2 Blanco-Prudencio also brought direct 2 Porras is not a party to this appeal. 2 liability claims against Forterra Pipe for negligent hiring, training, supervision, and retention. Blanco-Prudencio sought damages. Forterra Pipe answered, generally denying the allegations in Blanco-Prudencio’s amended petition, and it moved for summary judgment on Blanco-Prudencio’s claims against it. In its motion, Forterra Pipe argued that it was entitled to judgment as a matter of law on Blanco-Prudencio’s vicarious liability negligence claims because Porras was not acting within the course and scope of his employment at the time of the collision with Blanco-Prudencio’s car. According to Forterra Pipe, under the “coming and going rule,” an employee does not act within the course and scope of his employment when he is traveling to and from work, even if he drives a company-owned vehicle as a means of transportation. Here, Porras was on his way to work on the morning of the car collision with Blanco-Prudencio and was not acting within the course and scope of his employment as a matter of law. Further, because Porras was not acting within the course and scope of his employment, his conduct was not foreseeable to Forterra Pipe, and that negated the proximate cause element of Blanco-Prudencio’s claims against Forterra Pipe. Forterra Pipe also asserted that there was no evidence to support Blanco-Prudencio’s direct liability negligence claims against it, including Blanco-Prudencio’s claims for negligent hiring, training, supervision, and retention and gross negligence—to the extent that 3 Blanco-Prudencio had alleged a gross negligence direct liability claim against Forterra Pipe. Forterra Pipe attached to its motion for summary judgment the transcript from Porras’s deposition, during which he testified that on January 15, 2021, he was employed by Forterra Pipe and driving a truck owned by Forterra Pipe. Porras was allowed to drive the truck to his home, and Forterra Pipe did not limit his use of the truck. Before January 15, 2021, Porras had never received a traffic citation while driving a vehicle and his driver’s license had never been revoked. Porras only performed work at the Forterra Pipe facility. Porras further testified that on January 15, 2021, at about 5:45 a.m., he was driving on the highway on his way to work at the Forterra Pipe facility when he encountered another vehicle stopped on the road without any emergency lights activated. When Porras saw the vehicle, he could not switch lanes so he “stepped on the brakes.” (Internal quotations omitted.) His truck skidded and hit the other vehicle on the highway. After Forterra Pipe filed its summary-judgment motion, in a June 12, 2024 order, the trial court set the motion for written submission on July 26, 2024. Pursuant to Texas Rule of Civil Procedure 166a(c), the trial court ordered Blanco-Prudencio to file his summary-judgment response by July 19, 2024—seven days before the 4 submission date.3 Thereafter, Blanco-Prudencio requested that the trial court change the submission date and that the motion for summary judgment be heard orally on July 25, 2024, at 10:30 a.m., to which the trial court agreed.4 On July 19, 2024, Blanco-Prudencio filed his response to Forterra Pipe’s summary-judgment motion. In his response, Blanco-Prudencio stipulated that he had no valid claims for negligent hiring, retention, and supervision against Forterra Pipe. As to Forterra Pipe’s assertion that it was entitled to judgment as a matter of law on Blanco-Prudencio’s claims against it, Blanco-Prudencio asserted that there was a genuine issue of material fact as to whether Porras was acting within the course and scope of his employment at the time of the car collision and whether Porras’s conduct was foreseeable to Forterra Pipe. In doing so, Blanco-Prudencio relied on the “special-mission exception” to the “coming-and-going rule.” As to the no-evidence portion of Forterra Pipe’s motion, Blanco-Prudencio asserted that there was “more than a scintilla of competent evidence raising genuine issues of material fact regarding whether Forterra [Pipe] had a duty to train . . . Porras, [whether] 3 See TEX. R. CIV. P. 166a(c) (“[T]he adverse party [to a motion for summary judgment], not later than seven days prior to the day of the hearing may file and serve opposing affidavits or other written response.”). Any citation to Texas Rule of Civil Procedure 166a in this opinion refers to the version that was in effect until February 28, 2026. 4 “[S]even days prior to the day of the [summary-judgment] hearing” thus became July 18, 2024. See Higginbotham v. Gen. Life & Accident Ins., Co., 796 S.W.2d 695, 696 (Tex. 1990) (court may take judicial notice of dates); see also TEX. R. CIV. P. 166a(c). 5 Forterra [Pipe] failed to adequately train . . . Porras, [whether] additional training was necessary, and [whether] Forterra[] [Pipe’s] failure proximately caused the collision and [Blanco-Prudencio’s] injuries.” Blanco-Prudencio also asserted that there was “sufficient evidence [to] rais[e] a genuine issue of material fact on each essential element of his gross negligence claim.”5 After Blanco-Prudencio filed his summary-judgment response, Forterra Pipe objected, arguing that the response was untimely because, under Texas Rule of Civil Procedure 166a(c), it was due no later than seven days before the day of the hearing on Forterra Pipe’s motion. Because Blanco-Prudencio filed his response six days before the summary-judgment hearing, he was required to obtain leave of court, which he had not done. Forterra Pipe requested that the trial court strike Blanco-Prudencio’s response and the evidence attached to it because it was not timely filed.6 Blanco-Prudencio did not appear at the oral hearing on Forterra Pipe’s summary-judgment motion.7 During the hearing, the trial court found that Blanco-Prudencio’s response was untimely filed and that Blanco-Prudencio had not 5 Blanco-Prudencio attached certain exhibits to his response. 6 Forterra Pipe also replied to the merits of the arguments made by Blanco-Prudencio in his summary-judgment response. 7 After the summary-judgment hearing, Blanco-Prudencio filed a response to Forterra Pipe’s objections and reply. 6 sought leave to file a late response. The trial court struck Blanco-Prudencio’s response and the evidence attached to it. The trial court granted Forterra Pipe’s summary-judgment motion at the conclusion of the hearing. Subsequently, the trial court signed a written order striking Blanco-Prudencio’s summary-judgment response and its attached evidence because it was not timely filed. The trial court also signed an order granting Forterra Pipe summary judgment and dismissing Blanco-Prudencio’s claims against Forterra Pipe with prejudice. Standard of Review We review a trial court’s decision to grant summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). In conducting our review, we take as true all evidence favorable to the non-movant, and we indulge every reasonable inference and resolve any doubts in the non-movant’s favor. Valence Operating, 164 S.W.3d at 661; Knott, 128 S.W.3d at 215. When, as here, the trial court does not specify the grounds on which it granted summary judgment, we must affirm if any of the summary-judgment grounds are meritorious. See Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013). 7 A party seeking summary judgment may combine in a single motion a request for summary judgment under the no-evidence standard with a request for summary judgment as a matter of law. Binur v. Jacobo, 135 S.W.3d 646, 650–51 (Tex. 2004). To prevail on a no-evidence summary-judgment motion, the movant must establish that there is no evidence to support an essential element of the non-movant’s claim on which the non-movant would have the burden of proof at trial. See TEX. R. CIV. P. 166a(i). The burden then shifts to the non-movant to present evidence raising a genuine issue of material fact as to each of the elements challenged in the motion. KMS Retail Rowlett, LP v. City of Rowlett, 593 S.W.3d 175, 181 (Tex. 2019); Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006). A no-evidence summary judgment may not be granted if the non-movant brings forth more than a scintilla of evidence to raise a genuine issue of material fact on the challenged elements. See Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). More than a scintilla of evidence exists when the evidence “rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.” Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997) (internal quotations omitted). To prevail on a matter-of-law summary-judgment motion, the movant has the burden of establishing that it is entitled to judgment as a matter of law and there is no genuine issue of material fact. See TEX. R. CIV. P. 166a(c); Cathey v. Booth, 900 8 S.W.2d 339, 341 (Tex. 1995). When the defendant moves for a matter-of-law summary judgment, it must either: (1) disprove at least one essential element of the plaintiff’s cause of action, or (2) plead and conclusively establish each essential element of an affirmative defense, thereby defeating the plaintiff’s cause of action. See Cathey, 900 S.W.2d at 341; Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995). Once the movant meets its burden, the burden shifts to the non-movant to raise a genuine issue of material fact precluding summary judgment. See Siegler, 899 S.W.2d at 197. The evidence raises a genuine issue of fact if reasonable and fair-minded fact finders could differ in their conclusions in light of all of the summary-judgment evidence. Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007). Summary Judgment In his first issue, Blanco-Prudencio argues that the trial court erred in striking his summary-judgment response and its attached evidence because the trial court signed an order setting July 19, 2024 as the deadline for him to file a response. In his second issue, Blanco-Prudencio argues that the trial court erred in granting Forterra Pipe’s matter-of-law summary-judgment motion on his vicarious liability negligence claim because he established that the “special-mission exception applie[d].” In his third issue, Blanco-Prudencio argues that the trial court erred in granting Forterra Pipe’s no-evidence summary-judgment motion on his direct 9 liability negligent training and gross negligence claims because he “produced more than a scintilla of competent evidence raising a genuine issue of material fact on each essential element of th[e] failure to train claim and . . . clear and convincing evidence of each essential element of his gross negligence claim.” A. Timeliness of Response In his first issue, Blanco-Prudencio argues that the trial court erred in striking his summary-judgment response and the evidence attached to it because it was not untimely filed. Texas Rule of Civil Procedure 166a requires the non-movant in a summary-judgment proceeding to file and serve “opposing affidavits or other written response” not later than seven days before the day of the summary-judgment hearing. See TEX. R. CIV. P. 166a(c); Berdin v. Allstate Ins. Co., No. 02-22-00426-CV, 2023 WL 7037619, at *7 (Tex. App.—Fort Worth Oct. 26, 2023, no pet.) (mem. op.) (“To be timely, a summary judgment response must be filed and served at least seven days before the summary judgment hearing.”). A non-movant’s untimely response will not be considered by the trial court, absent leave of court. See TEX. R. CIV. P. 166a(c); B.C. v. Steak N Shake Operations, Inc., 598 S.W.3d 256, 259 (Tex. 2020). Notably, the record must contain an “affirmative indication” that the trial court granted leave to file the untimely response, or the response is a “nullity.” Berdin, 2023 WL 7037619, at *7 (internal quotations omitted). 10 Here, at Blanco-Prudencio’s request, the trial court set Forterra Pipe’s summary-judgment motion for oral hearing on July 25, 2024, at 10:30 a.m. Thus, Blanco-Prudencio’s response was due July 18, 2024—seven days before the summary-judgment hearing. See TEX. R. CIV. P. 166a(c). Blanco-Prudencio filed his response on July 19, 2024. He did not file a motion for leave to file the late response. See id.; Berdin, 2023 WL 7037619, at *7. Because Blanco-Prudencio’s response was untimely and he did not seek leave of court, Forterra Pipe objected and requested that the trial court strike Blanco-Prudencio’s response and its attached evidence. At the hearing on Forterra Pipe’s summary-judgment motion—at which Blanco-Prudencio did not appear—the trial court found that Blanco-Prudencio’s response was untimely filed and that he had not sought leave to file a late response. The trial court orally struck Blanco-Prudencio’s response and the evidence attached to it. Subsequently, the trial court signed a written order striking Blanco-Prudencio’s summary-judgment response and attached evidence because it was not timely filed. The record is clear that the trial court did not grant Blanco-Prudencio leave to file an untimely summary-judgment response. See Berdin, 2023 WL 7037619, at *7 (record must contain “affirmative indication” that trial court permitted late filing of response (internal quotations omitted)); Leave of court, BLACK’S LAW DICTIONARY 11 (12th ed. 2024) (“leave of court” means “[j]udicial permission to follow a nonroutine procedure”). Blanco-Prudencio argues that his summary-judgment response was timely filed because he filed it as required by the trial court’s June 12, 2024 order. We disagree. Initially, the trial court set Forterra Pipe’s summary-judgment motion for written submission on July 26, 2024. Because the submission date was set for July 26, 2024, the trial court ordered Blanco-Prudencio to file his response by July 19, 2024—seven days before the submission date. See TEX. R. CIV. P. 166a(c). Blanco-Prudencio then asked the trial court to change the submission date so that the summary-judgment motion would be heard orally on July 25, 2024, and the trial court agreed. Because the date of the summary-judgment hearing changed, so did Blanco-Prudencio’s response deadline. See id. Blanco-Prudencio acknowledges that he did not file his summary-judgment response at least seven days before the oral hearing on Forterra Pipe’s motion. He also provides no pertinent authority indicating that his response deadline would not change if the summary-judgment hearing date changed—particularly when it changed at his own request. Because Blanco-Prudencio did not timely file his summary-judgment response and did not seek leave of court to file an untimely response, we hold that 12 the trial court did not err in striking his summary-judgment response and the evidence attached to it. In his briefing, Blanco-Prudencio also asserts that if this Court determines that the trial court did not err in finding that his summary-judgment response was untimely, then the striking of his summary-judgment response by the trial court constituted a death penalty sanction and the trial court should have “analyzed whether any lesser sanctions” would have been appropriate so that Blanco-Prudencio’s response could have been considered. But Blanco-Prudencio did not raise this argument in the trial court, and thus, we conclude that it has not been preserved for appeal. See TEX. R. APP. P. 33.1(a) (requiring, as prerequisite for presenting complaint for appellate review, record must show that complaint was made to trial court by timely request, objection, or motion); see also E. African Drilling Ltd. v. OEJP, LLC, No. 01-16-00192-CV, 2018 WL 1473989, at *5 (Tex. App.—Houston [1st Dist.] Mar. 27, 2018, no pet.) (mem. op.) (objection to imposition of death penalty sanction must be raised in trial court); Akhtar v. Leawood HOA, Inc., 525 S.W.3d 814, 820–21 (Tex. App.—Houston [14th Dist.] 2017, no pet.) (appellant did not preserve complaint that death penalty sanctions were excessive). We overrule Blanco-Prudencio’s first issue. 13 B. No-Evidence Summary Judgment In his third issue, Blanco-Prudencio argues that the trial court erred in granting Forterra Pipe’s no-evidence summary-judgment motion on his direct liability negligent training and gross negligence claims because he “produced more than a scintilla of competent evidence raising a genuine issue of material fact on each essential element of th[e] failure to train claim and . . . clear and convincing evidence of each essential element of his gross negligence claim.” Forterra Pipe moved for a no-evidence summary judgment on Blanco-Prudencio’s direct liability negligence claims against it, namely his claims for negligent training and gross negligence.8 As noted above, we have concluded that the trial court properly struck Blanco-Prudencio’s response to Forterra Pipe’s summary-judgment motion as untimely filed. Thus, we proceed in this case as if no response had been filed. Without a timely response, a trial court must grant a no-evidence motion for summary judgment that meets the requirements of Texas Rule of Civil Procedure 8 Forterra Pipe also moved for a no-evidence summary judgment on Blanco-Prudencio’s direct liability negligence claims for negligent hiring, supervision, and retention. The parties appear to agree that Blanco-Prudencio did not have valid claims for negligent hiring, supervision, and retention against Forterra Pipe. Further, to the extent that the trial court granted summary judgment on such claims, that ruling has not been challenged on appeal. 14 166a(i).9 See TEX. R. CIV. P. 166a(i); Nicholson v. Bank of N.Y. Mellon as Tr. for Certificateholders of CWMBS, Inc., No. 02-20-00379-CV, 2022 WL 963990, at *16 n.29 (Tex. App.—Fort Worth Mar. 31, 2022, no pet.) (mem. op.); Kelly v. Ocwen Loan Serv., LLC, No. 02-14-00232-CV, 2016 WL 279262, at *2 n.4 (Tex. App.— Fort Worth Jan. 14, 2016, pet. denied) (mem. op.) (trial court properly granted summary judgment where non-movants did not file response to no-evidence summary-judgment motion); see also Mack Trucks, 206 S.W.3d at 582 (explaining when movant files no-evidence summary-judgment motion, burden shifts to non-movant to defeat motion by presenting evidence raising issues of material fact regarding elements challenged by motion). Accordingly, we hold that the trial court did not err in granting Forterra Pipe’s no-evidence summary-judgment motion.10 We overrule Blanco-Prudencio’s third issue. 9 Blanco-Prudencio, in his briefing, does not assert that Forterra Pipe’s no-evidence summary-judgment motion failed to meet the requirements of Texas Rule of Civil Procedure 166a(i). See TEX. R. CIV. P. 166a(i) (no-evidence summary judgment motion “must state the elements as to which there is no evidence”). 10 Even if Blanco-Prudencio’s summary-judgment response were considered, we would conclude that he did not raise a genuine issue of material fact on the challenged elements of his direct liability claims for negligent training and gross negligence. 15 C. Matter-of-Law Summary Judgment In his second issue, Blanco-Prudencio argues that the trial court erred in granting Forterra Pipe’s matter-of-law summary-judgment motion on his vicarious liability negligence claim because he established that the “special-mission exception applie[d].” A non-movant must expressly present in his written response or answer to a summary-judgment motion any issues that would defeat the movant’s right to summary judgment. McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 343 (Tex. 1993); see also TEX. R. CIV. P. 166a(c); D.R. Horton–Tex., Ltd. v. Markel Int’l Ins. Co., 300 S.W.3d 740, 743 (Tex. 2009) (“A non-movant must present its objections to a summary judgment motion expressly by written answer or other written response to the motion in the trial court or that objection is waived.”). To “expressly” present an issue, the written answer or response to the summary-judgment motion must fairly apprise the movant and the trial court of the issue the non-movant contends should defeat summary judgment. Tello v. Bank One, N.A., 218 S.W.3d 109, 119 (Tex. App.—Houston [14th Dist.] 2007, no pet.) (internal quotations omitted). Any issues not expressly presented by the non-movant to the trial court in a written response may not be considered as grounds for reversal 16 of the summary-judgment ruling.11 See TEX. R. CIV. P. 166a(c). The failure to present an issue to defeat summary judgment in the trial court waives the issue on appeal. D.R. Horton–Tex., 300 S.W.3d at 743; Zemos Logistics, LLC v. BKT Enters., No. 02-23-00049-CV, 2023 WL 8467374, at *7 (Tex. App.—Fort Worth Dec. 7, 2023, no pet.) (mem. op.). We have concluded that the trial court properly struck Blanco-Prudencio’s response to Forterra Pipe’s summary-judgment motion as untimely filed. Thus, we proceed in this case as if no response had been filed.12 Because Blanco-Prudencio did not file a summary-judgment response, he did not present his argument that the “special-mission exception applie[d]” to defeat Forterra Pipe’s entitlement to summary judgment on his vicarious liability negligence claim. We conclude that this argument has thus been waived. Kelley– 11 The exception to this general rule is that the non-movant may still challenge on appeal the legal sufficiency of the evidence supporting summary judgment. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979); Life Invs. Mgmt. Co. v. Settlements of Tex.. Inc., No. 02-23-00151-CV, 2025 WL 2264057, at *20 (Tex. App.—Fort Worth Aug. 7, 2025, pet. denied) (mem. op.) (“[T]he nonmovant who does not file a response may contend on appeal only that the movant’s evidence supporting the motion was insufficient as a matter of law . . . .”). Here, on appeal, Blanco-Prudencio does not assert that Forterra Pipe’s evidence was insufficient as a matter of law, but that his evidence, which was attached to his untimely summary-judgment response, raised a genuine issue of material fact as to whether Porras was acting in the course and scope of his employment because the “special-mission exception applie[d].” 12 Again, even if Blanco-Prudencio’s summary-judgment response were considered, we would conclude that he did not raise a genuine issue of material fact on whether the special-mission exception applied. 17 Coppedge, Inc. v. Highlands Ins. Co., 980 S.W.2d 462, 467 (Tex. 1998) (issue not raised in summary-judgment response is waived on appeal); Butler v. Skegrud, No. 02-14-00168-CV, 2015 WL 4148474, at *3–4 (Tex. App.—Fort Worth July 9, 2015, no pet.) (mem. op.) (“Because [non-movant] did not assert in her written response to [the] motion for summary judgment any of the arguments made in her first [appellate] issue, she has waived th[o]se arguments on appeal.”). Accordingly, we hold that the trial court did not err in granting Forterra Pipe’s matter-of-law summary-judgment motion. We overrule Blanco-Prudencio’s second issue. Conclusion We affirm the order of the trial court. Andrew Johnson Justice Panel consists of Chief Justice Adams and Justices Morgan and Johnson. 18