AFFIRMED and Opinion Filed October 28, 2020 

# S

In The 

### Court of Appeals Fifth District of Texas at Dallas No. 05-19-00955-CV JENNIFER HARRIS, Appellant V. MASTEC NORTH AMERICA, INC . D/B/A MASTEC ADVANCED

TECHNOLOGIES, DIRE CTV, LLC AND AT&T , INC., Appellees On Appeal from the 160th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-17-05222 MEMORANDUM OPINION Before Chief Justice Burns , Justice Myers and Evans Opinion by Justice Burns Appellant was assaulted by Appell ee Mastec North America Inc.’s employee while he was in her home to install DIRECTV service. She assert ed claims against her assailant, Ahmad Habibi, Mast ec, DIRECTV, LLC, and AT&T, In c. 1 Harris contends the trial court erred by granting Appellees’ respectiv e summary judgment motions, and by denying her motion for continuance and sustaini ng objections to her late response to one of those motions. We affirm.

1 Mastec North America Inc., DIRECTV, and AT&T Inc. are referenc ed by their respective abbreviated corporate names.2 BACKGROUND

Jennifer Harris called AT&T to r equest changing her ATT Uverse cable system to DIRECTV. AT&T, Inc., which owned DIRECTV, subcontract ed the inhome installation work to Mastec, which in turn sent its employ ee, Habibi, to Harris’s home. Habibi arrived in a truck wrapped with an AT&T logo, wearing a uniform bearing AT&T logos. Upon arriving , Habibi progressed from small talk and asking for Harris’s assistance with his work, to repeatedly grabbing h er, rubbing against her, placing his hands under her dress, struggling with her, to uching her butt and breasts, and pinning Harris to a wall and then a bed. Harris w as frightened by Habibi, confused by his conduc t, and consistently objected to Habibi’s assaults. During the struggle, Harris injured her wr ist and sustained mental anguish . Harris reported the assault to the local police, 2 and, called the number she had been given on the installation paper-work, which was an AT&T number, to report th e assault to AT&T. Eventually, she learned Habibi worked for Mastec, rather than A T&T or DIRECTV. Harris filed suit and asserted Mastec was vicariously liable fo r Habibi’s assault, and directly liable for negligent hiring, training and supervision and gross negligence. She pleaded negligence and DTPA claims against DIRE CTV and AT&T. After the trial court granted summary judgment, first in favor of Mastec,

2 Habibi was criminally charged with a Class A misdemeanor assau lt.3 and then later in favor of DIRECT V and AT&T, the trial court se vered the remaining claims against Habibi, which proceeded to a jury trial. Harris now appeals the summary judgments granted in fa vor of Mastec, DIRECTV, and AT&T

. DISCUSSION In six multi-part issues, Harris contends the trial court erred in denying her emergency motion for continuance and sustaining objections to h er late response to AT&T and DIRECTV’s summary judgm ent motions, and granting Appel lees’ traditional and no evidence summa ry judgment motions. Though an absence of evidence supporting an element common to several of Harris’s cl aims permits collective consideration of mos t of her issues, we address each below.

A. Pre-trial orders Harris contends the trial court abused its discretion in denyin g her emergency motion to continue the hearing on AT&T and DIRECTV’s summary ju dgment motions and in granting their motion to strike her late respons e. AT&T and DIRECTV contend no abuse of discretion occurred, but if it had, Harris failed to argue or demonstrate any harm r esulting from any such error. An abuse of discretion governs these docket control rulings. In re Doe , 19 S.W.3d 249, 253 (Tex. 2000); Joe v. Two Thirty Nine Joint Venture , 145 S.W.3d 150, 161 (Tex. 2004) (ruling on mo tion for continuance subject to abuse of discretion standard); G.R.A.V.I.T.Y. Enterprises, Inc. v. Reece Supply Co. ,4 177 S.W.3d 537, 542 (Tex. App.—Da llas 2005, no pet.) (enforceme nt of scheduling order reviewed for abuse of discretion). An abuse of discretio n results from a decision so arbitrary and unreasonable that it amounts to a cle ar and prejudicial error of law. Joe, 145 S.W. at 161. A trial court doe s not abuse its discretion wh en some evidence reasonably supports its decision. Butnaru v. Ford Motor Co. , 84 S.W.3d 198, 211 (Tex. 2002); Stierwalt v. FFE Transp. Serv. Inc. , 499 S.W.3d 181, 189 (Tex. App.—El Paso 2016, no pet. ) (abuse of discretion test foc uses on whether trial court acts without reference to guiding rules or principles.). In conducting our evaluation, we view the evidence in the light most favorable to the trial court’s ruling, and indulge all presumptions favoring the ruling. Cypress Creek EMS v. Dolcefino , 548 S.W.3d 673, 687 (Tex. App.—Houston [1st Dist.] 2018, pet. denied). In 2018, the trial court entered an agreed scheduling order tha t included a January 2019 dispositive motio n deadline and an April 2019 tria l setting (the “2018 Scheduling Order”). The order did not specify whether a contin uance of the trial setting would impact other deadlines. On March 21, 2019, the t rial court granted a joint motion for continuance and reset the trial to July 2019 ( the “2019 Amended Scheduling Order”). 3

3 Neither the 2019 Amended Schedu ling Order, nor the agreed moti on referenced any other deadline.5 On February 19, 2018 Mastec filed a traditional motion for summ ary judgment. 4 Hearings scheduled on that motion were cancelled twice to all ow Harris time to obtain additional discove ry. Mastec amended its motion on April 17, 2019 to include a no evidence motion, and noticed the hearing on its motions for May 10, 2019. Harris filed a timely opposition and response. AT&T and DIRECTV filed their jo int motion for summary judgment on April 17, 2019, 5 and on the next day, provided notice of a June 7, 2019 hearing date for their motions. Rather than respond to AT&T’s and DIRECTV’s sum mary judgment motions, Harris moved to strike them as untimely due to the 201 8 Scheduling Order’s January 2019 disp ositive motion deadline. The trial court heard and granted Mastec’s motion for summary j udgment. About two weeks later, on May 28, 2019, the court heard and den ied Harris’s motion to strike AT&T and DIRECTV’s su mmary judgment motions. Three d ays later Harris sought an emergency continuance of the June 7 hearing da te for AT&T and DIRECTV’s motions for summary judgment. Although she was unabl e to obtain a hearing for her motion for continuance prior to the hearing set on the motions for summary judgment, Harris did not file a response to the summary judgment motions

4 Although Mastec’s original and amended motions for summary judg ment were, like AT&T and DIRECTV’s motions, filed outside of the dispositive motion dead line in the 2018 Scheduling Order, Harris did not move to strike either as untimely.
5 AT&T and DIRECTV subsequently amended their motions to include a table of contents and table of authorities, but did not change t he substance of the motion.6 until the evening before the hearing. 6 AT&T and DIRECTV moved to strike the late response, asserting Harris had a llowed 43 days to pass without responding to the motions or seeking a continuance. They also argued they were p rejudiced by the late filing. At the scheduled hearing, the court granted the m otion to strike and AT&T and DIRECTV’s motions for summary judgment.
1. Harris’s motion to strike In moving to strike AT&T and DI RECTV’s motions for summary jud gment as untimely, Harris relied on the January 2019 dispositive moti on deadline included in the 2018 Scheduling Order. In the trial court, Harris argue d the January 2019 dispositive motion deadline was unaffected by the 2019 Amended Scheduling Order, which was silent as to dispositive motions. Here, Harris argue s only that the trial court was harsh and unfair in denying her motion to strike AT&T and DIRECTV’s motions while conversely granting their motion to strike her re sponse and denying her request for a continuance so as to render her response time ly. The trial court, however, did not grant an extension or otherwi se extend any deadline to render AT&T and DIRECTV’s motions timely. It enfor ced its scheduling orders and recognized that because the 2019 Amended Scheduling Order did not include specific language to the contrary, it nullified the 2018 Scheduling

6 The verified motion for continuance stated Harris’s attorney w ould be out of state for expert depositions May 30, 2019 through June 1, 2019 and would not return to her o ffice until June 3, 2019.7 Order and its dispositive motion deadline. See Killam Ranch Properties, Ltd. v. Webb County , No. 04-08-00105-CV, 2008 WL 4958452, at *4 (Tex. App.-San Antonio Nov.19, 2008, no pet.) (re-setting trial nullifies prev ious deadlines in prior order) (mem. op.); J.G. v. Murray , 915 S.W.2d 548, 550 (Tex. App.—Corpus Christi 1995, no writ) (order resetting tr ial nullifies deadlines set b y docket control order). Cases to the contrary relied upon by Harris deal with scheduling orders or procedures specific to the court at issue which preclude nullif ication of pre-trial deadlines based on a trial conti nuance unless the continuance s pecifically addresses the additional deadlines. See Holmes v. GMAC, Inc ., 458 S.W.3d 85, 95 (Tex. App.—El Paso 2014, no pet.); Sprague v. Sprague , 363 S.W.3d 788, 800 (Tex. App.—Houston [14th Dist.] 2012, pet. denied); G.R.A.V.I.T.Y. Enterprises, Inc. , 177 S.W.3d at 542. The trial court did not abuse its discretion in denying Harris’ s motion to strike AT&T and DIRECTV’s motions for summary judgment.
2. Harris’s motion for continuance and AT&T and DIRECTV’s motion to strike Likewise, we see no abuse of discretion in the trial court’s de nial of Harris’s motion for continuance of the June 7, 2019 hearing on AT&T and DIRECTV’s summary judgment motions, nor its order granting appellees’ mot ion to strike Harris’s response filed the night before the hearing. Harris c ontends because the trial court did not overrule her motion to strike AT&T and DIRE CTV’s summary judgment motions as untimely until May 28, 2019, she had only t hree days to file a8 timely response. She argues her absence from the state for exp ert depositions provided good cause for the reque sted continuance, as well as f or the late filing such that the trial court abused its discretion in striking it. In comparison, appellees argue Harris had fifty days from the d ate she received notice of the June 7, 2019 hearing to prepare or file a response, but chose instead to rely on the court granting her motion to strike the summary judgment motion, although that motion was not set until near the deadlin e for Harris’s response. Appellees also assert that the continuance Harris r equested would have pushed the summary judgment hearing to, at best, within 26 days of the trial setting which in turn violated the court’s published procedures. They also argued the response, filed less than 24 hour s before the hearing, was prej udicial. Because Harris had more than the required notice of the hearing and ample time to prepare a response, and be cause her late-filed response prejudiced AT&T and DIRECTV, the trial court did not abuse its discretion in de nying Harris’s motion for continuance and st riking her response. Carpenter v. Cimarron Hydrocarbons Corp. , 98 S.W.3d 682, 688 (Tex. 2002) (no abuse of discretion in dis allowing late response where movant failed to o ffer any explanation demonstra ting mistake or accident); Stierwalt , 499 S.W.3d at 191 (no abuse of discretion in denying continuance of summary judgment hearing where plaintiff waited until three days before hearing to seek continuance to obtain discovery it knew, a month before filing9 its motion, was necessary to defend the summary judgment motion ). Moreover, given our resolution of the remainder of Harris’s issues, even if we were to conclude the trial court abused its discretion with respect to these doc ket management orders, we could not conclude Harris su ffered any resulting harm. See T EX

. R. A PP

. P. 44.1; see also KMS Retail Rowlett, L.P. v. City of Rowlett , 559 S.W.3d 192, 197-198 n.5 (Tex. App.—Dallas 2017), aff’d, 2019 WL 2147205 (Tex. May 17, 2019) (declining to address the merits of evidentiary objections to summary judg ment evidence where appellant failed to allege the e vidence probably resulted in th e rendition of an improper judgment). The unfortunate sequence of the relevant hearings—Harris’s moti on to strike heard just days before AT&T and DIRECTV’s summary judgment moti ons, and no setting for Harris’s emergency mo tion for continuance which was mooted when the court granted AT&T and DIRECTV’s summary judgment motions—sugge sts an order granting Harris’s motion for continuance would also have been within the trial court’s discretion. We do not, ho wever, substitute our judgment for the trial court’s even if we might have reached a different conclusion. Butnaru , 84 S.W.3d at 211. We overrule Harris’s first issue.
B. Standard of review regarding summary judgment Orders granting summary judgment are reviewed de novo. Lujan v. Navistar,
Inc. , 555 S.W.3d 79, 84 (Tex. 2018); De La Cruz v. Kailer , 526 S.W.3d 588, 59210 (Tex. App.—Dallas 2017, pet denie d). If no grounds are specifi ed for the ruling, we must affirm on any meritorious g rounds on which judgment was re quested. Merriman v. XTO Energy, Inc. , 407 S.W.3d 244, 248 (Tex. 2013). The legal sufficiency standard that governs directed verdicts a lso governs noevidence summary judgment motions. RTLC AG Prods., Inc. v. Treatment Equip.
Co. , 195 S.W.3d 824, 829 (Tex. App.—Dal las 2006, no pet.). To defeata noevidence motion for summary judgment, the nonmovant must produc e evidence regarding each challenged elemen t of each challenged claim whic h “would enable reasonable and fair-minded peopl e to differ in their conclusion s.” Ford Motor Co. v Ridgeway , 135 S.W.3d 598, 601 (Tex. 2004); see also King Ranch, Inc. v. Chapman , 118 S.W.3d 742, 751 (Tex. 2003) (“ A no evidence point will be s ustained when (a) there is a complete absence of evidence of a vital fact, (b) th e court is barred by rules of law or of evidence from giving weight to the only evidence o ffered to prove a vital fact, (c) the evidence offered to prove a vital fact is n o more than a mere scintilla, or (d) the evidence conclusively establishes the opp osite of the vital fact.”) (internal quotation omitted)). I n reviewing a no-evidence summa ry judgment, we consider evidence in the light most favorable to the nonmovant, crediting evidence a reasonable jury could credit and disregarding contrary eviden ce and inferences unless a reasonable jury could not. De La Cruz, 526 S.W.3d at 592.11 With respect to a traditional motion for summary judgment, we r equire the movant to demonstrate the absence of a genuine issue of materia l fact and its entitlement to judgment as a matter of law. T EX

. R. C IV

. P. 166a(c); Provident Life
& Acc. Ins. Co. v. Knott , 128 S.W.3d 211, 215–16 (Tex. 2003). If the movant satisfies this burden, to avoid summary judgment the nonmovant must then demonstrate a genuine issue of material fact. Lujan , 555 S.W.3d at 84. We credit all evidence favoring the nonmovant, indulging every reasonable inf erence and resolving all doubts in the nonmovant’s favor. Johnson v. Brewer & Pritchard, P.C. , 73 S.W.3d 193, 208 (Tex. 2002).
C. Summary judgments dismissing Harris’s claims We begin with the trial court’s summary judgment in favor of Ma stec. Harris asserted Mastec was vicariously liable for Habibi’s assault, di rectly liable for negligently hiring, training and supervising him, and grossly n egligent.
1. Vicarious liability claim asserted against Mastec Mastec contends that vicarious liability does not apply in the face of an employee’s intentional tort, here Habibi’s sexual assault, beca use as a matter of law, such conduct falls outside of th e course and scope of employmen t. Harris contends more than a scintilla of evidence creates a genuine issue of ma terial fact regarding whether Habibi was acting within the course and scope of his em ployment, thus demonstrating the trial court’ s error in dismissing her vicario us liability claim.12 Proving an employer's vicarious liability for a worker's neglig ence requires the plaintiff to show that, at the time of the offending conduc t, the worker was an employee and was acting in the c ourse and scope of his employme nt. Painter v. Amerimex Drilling I, Ltd. , 561 S.W.3d 125, 131 (Tex. 2018), reh’g denied (Dec. 14, 2018). An objective standard app lies to the course and scope q uestion, which focuses on whether in committing the tort, the employee was act ing “with the employer’s authority and for the employer’s benefit. Id. at 138–39; Minyard Food Stores, Inc. v. Goodman , 80 S.W.3d 573, 577 (Tex. 2002) (vicarious liability attaches only “when the tortious act falls within the scope of the employee’s general authority in furtherance of the employer’s business and for the accomplishment of the object for which the employee was hired.”). The employer b ears no liability when the employee “deviates fro m the performance of his duties for his own purposes.” Minyard Food Stores, Inc. , 80 S.W.3d at 577. Harris asserts the “primary t est” of the course and scope inqu iry focuses on whether the employer had the right to control and direct the em ployee’s performance at the time of the offending c onduct. But the supreme court re jected an employer’s ability to control and direct its employee’s work as a factor i nforming the course and scope inquiry, concluding instead that the inquiry was the defi ning characteristic of an employment relationship—the first inquiry in the vicarious l iability analysis.
Painter , 561 SW.3d at 131–32. Many of Harris’s arguments founder on thi s point.13 Neither party, however, disputed H abibi’s role as an employee. And Harris’s arguments that Habibi’s actions inside Harris’ home were incide ntal to his general authority, were in furtherance of Mastec’s business, and were f or the accomplishment of the object for which Habibi was hired, focus on the basis for his presence in her home, rather than, as discussed below, whether the assault was within the scope of his authority, in furtherance of AT&T or DI RECTV’s business, and for the accomplishment of i nstalling a satellite television system. Moreover, Harris’s complaint that Mastec failed to prove Habibi acted outside the course and scope of his employment misplaces that burden. Although Mastec sought a traditional summary judgment regarding Harris’ vicario us liability claim, it also moved for summary judgment pursuant to rule 166a(i), conte nding no evidence demonstrated Habibi’s assault occurred during the course and sc ope of his employment. With respect to Mastec’s no-evidence motion, Harri s bore the burden of providing more than a scin tilla of evidence on the challenge d element of the claim.
Ford Motor Co. , 135 S.W.3d at 601. Rather than pointing this Court to evidence creating the fact issue necessary to stave off judgment, Harris argues we should construe “the evidence” she fa ils to identify, in her favor. 7

7 Harris’s general reference to “the evidence” in support of Mas tec’s failure to demonstrate Habibi was not acting within the course and scope of his employment presumably refers to the evidence she cited in support of her arguments regarding Mastec’s right to direct and control Habibi’s performance. But as noted above, control speaks to the employment relationship rather than cours e and scope.14 With respect to the legal question underpinning Mastec’s vicari ous liability— whether an employer bears vicarious liability for an intentiona l tort committed by its employee—Harris argues liability a rises when the offending cond uct was closely connected with the servant’s authorized duties, citing GTE Southwest, Inc. v. Bruce , 998 S.W.2d 605, 618 (Tex. 1999). She also relies on the undisputed facts that Habibi committed the assault while he was on the clock, at Harr is’s home, and installing the DIRECTV system he was authorized to install. Th ese facts, however, merely beg the question. Harris argues GTE Southwest imposes vicarious liability when the assault is incidental to the conduct authorized by the employer. As Maste c asserts, however, the correct inquiry focuses on the employee’s conduct and wheth er the intentional tort was “closely connected with the servant’s authorized dutie s” or was instead committed when the employee turn ed from those duties because of personal animosity. GTE Sw., Inc. , 998 S.W.2d at 617–18. In GTE Sw, the employer was liable for a supervisor’s abusiv e, harassing, and intimidating conduct in supervising the plaintiffs, where the employer itself defended the incident s at issue as “mere employment disputes.” Id. at 618. In other words, the employer admitted the employee’s tortious conduct was au thorized and within the scope of the employment. Likewise, in G.T. Mgmt., Inc. v. Gonzalez , 106 S.W.3d 880, 884 (Tex. App.—Dallas 2003, no pet.) we hel d “[w]hen an employee commits an assault, it is15 for the trier of fact to determin e whether the em ployee ceased to act as an employee and acted instead upon his ow n responsibility.” That holding, however, followed our recognition of the predicate general rule ignored by Harris ; that the employee’s tortious conduct will fall within the scope of employment “when the tortious conduct is of the same general nature as that authorized or incidental to the conduct authorized.” Id. The general rule rests upon recognition that intentional torts are generally not within the course and scope of an employee’s authority or emplo yment, because assaults are generally “the expression of personal animosity,” rather than for the purpose of carrying out the employer’s business. Tex. & P. Ry. Co. v. Hagenloh , 151 Tex. 191, 197, 247 S. W.2d 236, 239 (1952); see also Thawar v. 7-Eleven, Inc. , 165 F.Supp.3d 524, 530 (N.D. Tex. 2016). Here, no evidence sug gests the assault committed by Habibi was closely connected with any of his autho rized duties, or incidental to his authority to install cable services. Instead , as Mastec argues, Texas courts generally reject vicari ous liability premised on a sexua l assault committed by an employee. See M.D.C.G. v. United States , 956 F.3d 762, 769 (5th Cir. 2020) (applying Texas law in holding border agent who legally detaine d suspected illegal aliens departed from his authori zed duties and thereby negated employer’s potential vicarious liability when he trans ported detained individuals to remote locations and physically and sexually assaulted each); Doe v. The Geo Group, Inc. , SA-16-CV-16 173-XR, 2017 WL 835209, at *3 (W.D. Tex. Mar. 2, 2017) (rejecti ng vicarious liability premised on Texas law fo r sexual assault of prisoner by guard, even where use of force was authorized in guard’s work duties, because the specific use of force at issue was motivated by guard’s personal gratification); Buck v. Blum , 130 S.W.3d 285, 290 (Tex. App.—Houston [14th Dist.] 2004, no pet.) (Neurol ogical examination became only a preten se or means for inappropriate a nd unauthorized conduct by employee when sexual a ssault commenced during examin ation). Lastly we reject Harris’s implic it request that we reverse the trial court’s judgment regarding her vicarious liability claim by rejecting s ettled law to further public policy concerns. In support of her policy arguments, Ha rris relies on numerous cases from other jurisdictions. Even if, in reliance on those non-binding authorities, we believed the pote ntial benefit of imposing vica rious liability on employers whose employees assault others outweighed the detrime nts of such a rule, we recognize our tripartite system of government requires that the legislature rather than this Court enact the rule Harris asks us to impose. See Waak v. Rodriguez , 603 S.W.3d 103, 111 (Tex. 2020) (“It is certainly not our place to make policy decisions that are for the Legislature to make.”). We ove rrule Harris’s fourth issue.17 2. Negligence claims ass erted against Mastec Harris asserted Mastec was direc tly liable to her for negligenc e in hiring, training, supervising, and retaining Habibi. Mastec sought bot h no-evidence and traditional summary judgment on the claim, 8 challenging the existence and evidentiary support for each element of the claim, and, asserti ng that as a matter of law, it was not liable for Habibi’s illegal conduct. In her br iefing, Harris argued evidence supported all elements of these claims, including “but -for” causation. Although Mastec’s brief focused primarily on foreseeability, we resolve this issue based on the absence of evide nce supporting cause-in-fact. In support of these claims, Harris relies on evidence 9 that Mastec’s management: admitted potential misconduct by a technician and i nvolving a customer was foreseeable; admitted it wanted to prevent misbeha vior of the type in which Habibi engaged; yet left Ha bibi alone to complete his wor k without in-person supervision. She contends this evidence created a fact issue r egarding causation. Mastec performed a pre-employment background check, which inclu ded criminal history checks through the First National Criminal Fil e, the Texas

8 Some courts analyze negligent hiring, training and supervision separately; others lump them together. See Castillo v. Gared, Inc. , 1 S.W.3d 781, 785 (Tex. App.—H ouston [1st Dist.] 1999, pet. d enied) (discussing link between claim for negligent hiring and negligent supervisi on or training). Because we are concerned with an element common to each, w e need not differentiate betwe en them.

9 Although she does not refer to these facts in support of her n egligence claims, in her statement of facts, Harris also referenced evidence that Habibi had failed to compl ete and turn in quality assurance forms regarding his own work numerous t imes and that various other as pects of his work indicated the quality of his performance was poor.18 Department of Public Safety, the Federal Criminal Database, the National Sex Offender Registry, a Global Sanc tions Search, and a motor vehic le report. Habibi’s report showed no incidents. During training with Mastec, emplo yees were warned not to engage in unprofessional contact with customers, a warni ng repeated in its employee handbook and training ma terials by which it sought to create a “harassment-free” work-place for its employees and customers. In the approximately five months he wa s employed by Mastec before the assault, 10 Mastec received no complaints about Habibi and had no reason to believ e he, or any other technician it employed, was likely to sexually assault or haras s a customer or anyone else. An employer may have direct liability for an employee’s neglige nt conduct if the employer failed to properly hi re, train, or supervise the e mployee and the plaintiff’s injuries arose from the employer’s conduct. Patino v. Complete Tire, Inc. , 158 S.W.3d 655, 660 (Tex. App.—Dallas 2005, pet. denied); Houser v. Smith , 968 S.W.2d 542, 544 (Tex. App.-Austin 1998, no pet.) (Under certain circumstances, law imposes a duty on an employer to use reasonable care in hir ing, training, and supervising its employees). As with any negligence claim, the elements of these claims are 1) a duty owed by the employer to the injured party; 2) breach of the duty; and 3) injury proximately cause d by the breach. T wo elements c omprise proximate

10 Mastec fired Habibi when it learned of the assault and the cri minal charges filed against him.19 cause; foreseeability and cause-in-fact. Doe v. Boys Clubs of Greater Dallas, Inc ., 907 S.W.2d 472, 477 (Tex.1995); Douglas v. Hardy , 600 S.W.3d 358, 366 (Tex. App.—Tyler 2019, no pet.) (Proxima te cause is “essential elemen t” of “negligent screening, hiring, training, and supervision claims”). Cause-i n-fact, or legal cause, justifies the conclusion that the injury sustained “was the nat ural and probable result” of the negligent conduct. Doe , 907 S.W.2d at 477–78 (even if but-for causation exists, “connection between the defendant and the plaintiff’s i njuries may be too attenuated to constitute legal cause”); Read v. Scott Fetzer Co. , 990 S.W.2d 732, 737 (Tex. 1998) (“cause-in-fact element of proximate cause is m et when there is some evidence that the defendant ’s act or omission was a substa ntial factor in bringing about injury without which the harm would not have occ urred.”) (internal quotation omitted)). Where a def endant’s conduct furnishes onl y a condition which makes the injury possible, however, cause-in-fact does not exis t. IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason , 143 S.W.3d 794, 799 (Tex. 2004). In order to be [the proximate cause] of another’s harm, it is n ot enough that the harm would not have occurred had the actor not been ne gligent. . . . [T]his is necessary, but it is not of itself sufficient. The negligence must also be a substantial fact or in bringing about the plainti ff’s harm. Id. (quoting Lear Siegler, Inc. v. Perez , 819 S.W.2d 470, 472 (Tex. 1991)); Doe , 907 S.W.2d at 477–78; Douglas , 600 S.W.3d at 368 (“[E]ven if the injury would not have happened but for the defe ndant’s conduct, the connection b etween the20 defendant and the plaintiff’s injuries simply may be too attenu ated to constitute legal cause.”). We cannot conclude that any of t he evidence relied upon by Harr is did more than create a potential condition rendering Harris’s injury pos sible. First, Mastec’s desire to prevent employee misbeh avior does not speak to causat ion in any manner; it speaks to Mastec’s role as an employer and presumably the de sire of all responsible employers. Likewise, the foreseeability that Maste c’s employees might engage in “misconduct” 11 generally, absent even the merest scintilla of evidence that Habibi himself was likely to enga ge in any misconduct, has no b earing on the causein-fact of Harris’s injury. Indeed, utilizing Harris’s logic, misconduct by any employee of any employer with whom she came in contact would render every employer liable for any inappropriate conduct by its employees, regardless of foreseeability or any other consideration. Here, no evidence s uggests an assault was either foreseeable or the natural and probable result of Mastec ’s employment of Habibi. In the same manner, Mastec’s failure to provide an in- person supervisor for Habibi, at most , did no more than furnish a cond ition by which the assault becam e possible. We cannot conclude, as a matter of law, that not hav ing an in-person supervisor rendered an ass ault by Habibi a natural and probable result of his

11 We do not imply that an assault is merely “misconduct.” Clear ly, it is more. But we use the terms Harris used in depositions of Mastec’s management and her briefing.21 employment. Accordingly, we conc lude Harris failed to provide more than a scintilla of evidence demonstrating Mastec’s hiring, training, or supervision of Habibi was a cause-in-fact of her injury. See IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. , 143 S.W.3d at 799–800 (negligence by medical facility in disc harging plaintiff and decedent without having provided adequate mental health care was not cause-in-fact of plaintiff’s inju ries sustained from car accide nt while riding in a car driven by decedent who experienced a psychotic episode and drov e recklessly to avoid a dog in the road caused car accident); Doe , 907 S.W.2d at 477–478 (no causein-fact between breach of duty to screen and supervise voluntee rs, where no evidence suggested any informati on available through screening would have prevented employer from accepti ng volunteer who later assaulted patron’s grandchild while babysitting); Barton v. Whataburger, Inc. , 276 S.W.3d 456, 461 (Tex. App.—Houston [1st Dist.] 2008, pet. denied) (liability fo r negligence in failing to prevent the criminal conduct of another requires more than c onduct creating an opportunity for the crime to occur); and Cf. Read , 990 S.W.2d at 737 (cause-in-fact existed where vacuum salesman ra ped customer, distributor faile d to perform any background check or contact references prior to contracting sal esman and would have discovered numerous instan ces of sexual misconduct by sale sman, and would not have hired distributor if it had known of salesman’s histor y). We overrule Harris’s fifth issue.22 Our conclusion regarding Harris’s claim for negligence also def eats her challenge to summary judgment dismissing her gross negligence c laim. Haddock v.
Gruber , No. 05-16-01113-CV , 2018 WL 1417453, at *14 (Tex. App.—Dallas Mar. 22, 2018, pet. denied) (mem. op. ) (prevailing on ordinary negli gence claim is a predicate to success on gross negligence claim). Accordingly, we also overrule Harris’s sixth issue.
3. DTPA claims against AT&T and DIRECTV AT&T and DIRECTV requested no- evidence and traditional summary judgment on each of Harris’s claims asserted against them. Two of Harris’s issues challenge the trial court’s su mmary judgment in these appellees ’ favor, regarding only the DTPA claim. 12
Harris asserted AT&T and DIRECTV were liable pursuant to the DT PA for (2) causing confusion and misunde rstanding as to the source . . . of . . . services;

. . . . (5) representing that ... a pers on has a sponsorship, approval, s tatus, affiliation, or connection, whic h the person does not; [or] .

. .

. . . . (7) representing that ... service s are of a particular standard [ or] quality ..., if they are of another.”
T EX

. B US

. & C OM

. C ODE § 17.46(b).

12 Harris voluntarily dismissed her direct negligence claims agai nst AT&T and DIRECTV.23 Harris contends that both DIRECTV and AT&T falsely represented Habibi was employed by each of them, and impliedly or expressly repres ented that their services would not include the se xual assault inflicted on Harr is. Appellees challenged several elements of this claim and assert numerous a rguments in support of the trial court’s summary judgment. Although we agree with several of those arguments, 13 we need address only one. As we did regarding Mastec’s potent ial liability, we conclude no evidence demonstrates the conduct of either AT&T or DIRECTV was a producing cause of Harris’s injuries. The DTPA creates liability only when defendants’ actions are th e “producing cause” of the plaintiff’s injury. Except for foreseeability, “ producing cause” pursuant to the DTPA and a negligence claim are the same. Peeler v. Hughes &
Luce , 868 S.W.2d 823, 828 (Tex . App.—Dallas 1993), aff’d , 909 S.W.2d 494 (Tex. 1995) (“Producing causation require s the same factual causation as proximate causation, and only lacks the element of “foreseeability” embra ced by the standard of proximate causation.”); Hawthorne v. Huffines Communities, Inc. , No. 05-12-

13 For instance, generally, the DTPA creates no liability for bod ily injury, which is one component of Harris’s injuries. See DiGangi v. 24 Hour Fitness USA, Inc. , No. 05-04-01119-CV, 2005 WL 1367945, at *2 (Tex. App.—Dallas June 10, 2005, no pet.) (mem. op.). Likew ise, if Harris’s affidavit had not been stricken, it would nonetheless not have qualified as competent summary judgment evidence in light of Harris’s many “belief” statements. See Ryland Grp., Inc. v. Hood , 924 S.W.2d 120, 122 (Tex. 1996); Doe I v. Ripley Entm’t, Inc. , No. 05-18-00470-CV, 2020 WL 573 39, at *3 (Tex. App.—Dallas Ja n. 6, 2020, no pet.) (mem. op.).24 01316-CV, 2014 WL 1676932, at *3 (Tex . App.—Dallas Apr. 24, 201 4, no pet.) (mem. op.). Here, all of Harris’ s evidence in response to AT&T and DIRECTV’s no evidence summary judgment motions was stricken, and thus she failed to carry her burden to demonstrate the existence of a genuine issue of m aterial fact. Doe , 907 S.W.2d at 481 (“Raising a fact question of producing cause . . . requires some evidence that the defendant’s act or omission was the cause in fact of the plaintiff’s injury.”). Even if we considered Harris’s evidence regarding causation, we would reach the same conclusion. She relies on DIRECTV’s contract with Mas tec regarding the installation pursuant to which Habibi found his way to her home ; AT&T’s “symbolic representations” on Habibi’s uniform and his truck; and their j oint failure to disclose that Habibi was not an AT&T employee. None of that evidence, h owever, does more than creating, in a remote way, a condition by which Harri s’s injury became possible. Compare Hawthorne , 2014 WL 1676932, at *4 (no cause in fact where defendant’s challenged conduct wa s too remote, factually, from the resulting assault); IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. , 143 S.W.3d at 799–800. We overrule Harris’s s econd and third issues.25 Having resolved each issue agains t Harris, we affirm the trial court’s judgments.

190955F.P05 /Robert D. Burns, III/ ROBERT D. BURNS, III CHIEF JUSTICE26 

# S

Court of Appeals Fifth District of Texas at Dallas JUDGMENT JENNIFER HARRIS, Appellant

No. 05-19-00955-CV V. MASTEC NORTH AMERICA, INC. D/B/A MASTEC ADVANCED TECHNOLOGIES, DIRECTV, LLC AND AT&T, INC., Appellees On Appeal from the 160th Judicial District Court, Dallas County, Texas Trial Court Cause No. DC-17-05222. Opinion delivered by Chief Justice Burns. Justices Myers and Evans participating.

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

. It is ORDERED that appellees MASTEC NO RTH AMERICA, INC. D/B/A MASTEC ADVANCED TECH NOLOGIES, DIRECTV, LL C AND AT &T, INC. recover their costs of this app eal from appellant JENNIFER HARR IS.
Judgment entered October 28, 2020