COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-10-00322-CV

KOJO WIH NKANSAH APPELLANT

V.

UNIVERSITY OF TEXAS AT 

ARLINGTON, JAMES SPANIOLA, 

DANA DUNN, PHILIP COHEN, 

ROD HISSONG, AND SHERMAN 

WYMAN

APPELLEES

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FROM THE 17TH DISTRICT COURT OF TARRANT COUNTY

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MEMORANDUM OPINION1 ON REHEARING

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Appellant Kojo Wih Nkansah filed a motion for rehearing of our opinion 

issued August 18, 2011. We deny the motion, withdraw our opinion and 

judgment dated August 18, 2011, and substitute the following.

 

1See Tex. R. App. P. 47.4.
2

Nkansah, pro se, appeals from orders granting a motion to dismiss, a plea 

to the jurisdiction, and a motion for summary judgment in favor of Appellees 

University of Texas at Arlington (UTA), James Spaniola, Dana Dunn, Philip 

Cohen, Rod Hissong, and Sherman Wyman and from an order denying his 

motion for new trial. We will affirm.

UTA dismissed Nkansah from its School of Urban and Public Affairs’s

Ph.D. Program after he failed his dissertation defense. Although UTA 

subsequently invited Nkansah to apply for readmission, it declined his request 

that he be unconditionally passed or that UTA refund or pay for him to obtain a 

degree at another institution. Nkansah ultimately sued Appellees.2

The trial court granted (a) the first amended plea to the jurisdiction filed by 

Spaniola, Dunn, Cohen, Hissong, and Wyman, dismissing Nkansah’s claims 

against them in their official capacities;

3

(b) Appellees’ civil practice and remedies 

code section 101.106 motion to dismiss the tort claims that Nkansah asserted 

against Spaniola, Dunn, Cohen, Hissong, and Wyman; and (c) Appellees’ second 

plea to the jurisdiction and motion for summary judgment, which dismissed each 

of the claims that Nkansah alleged against UTA and any claims against the 

individual employees that the motion to dismiss did not address. After the trial 

 

2Spaniola is UTA’s president. Dunn is UTA’s Vice President for Academic 

Affairs. Cohen is Dean of the Graduate School at UTA. Hissong is an associate 

professor at UTA who served as Nkansah’s dissertation supervisor. And Wyman 

is a professor in UTA’s School of Urban and Public Affairs.

3Nkansah does not appeal this order.
3

court granted those motions, Nkansah filed an untimely response to the second 

plea to the jurisdiction and motion for summary judgment and also filed a motion 

to vacate the dismissal orders and reinstate the trial setting. The trial court 

denied Nkansah’s motion and granted Appellees’ objection asserted thereto. 

Nkansah appeals.

In what we construe to be Nkansah’s first issue, he argues that the trial 

court abused its discretion by not granting his motion for continuance. A motion 

for continuance shall not be granted except for sufficient cause supported by an 

affidavit, consent of the parties, or by operation of law. See Tex. R. Civ. P. 251. 

If a motion for continuance is not made in writing and verified, it will be presumed 

that the trial court did not abuse its discretion by denying the motion. Villegas v. 

Carter, 711 S.W.2d 624, 626 (Tex. 1986).

Appellees filed their second plea to the jurisdiction and motion for 

summary judgment on May 24, 2010, and they served Nkansah with the plea and 

motion by certified mail, return receipt requested, the same day. Several days 

later, on May 26, 2010, Appellees gave Nkansah notice of the hearing date set 

for the plea and motion—July 7, 2010. On June 17, 2010, Nkansah filed a 

motion to continue the hearing set for July 7, 2010, stating therein that he had a 

―family medical emergency conflicting with the hearing‖ set for July 7, 2010. But 

Nkansah never set the motion for a hearing, nor did he timely appear at the 
4

hearing on July 7, 2010, to present the motion to the trial court.4 Appellees’ 

counsel stated at the July 7, 2010 hearing that he and Nkansah had agreed to 

continue the July 26, 2010 trial date, not the July 7, 2010 hearing on the plea to 

the jurisdiction and motion for summary judgment. Nkansah’s motion is neither 

verified nor supported by affidavit. Therefore, we hold that the trial court did not 

abuse its discretion by not granting Nkansah’s motion for continuance.

In what we construe to be Nkansah’s second issue, he argues that the trial 

court erred by granting Appellees’ motion to dismiss Spaniola, Dunn, Cohen, 

Hissong, and Wyman from his lawsuit.

5

 Civil practice and remedies code section 

101.106(e) provides that ―[i]f a suit is filed under this chapter against both a 

governmental unit and any of its employees, the employees shall immediately be 

dismissed on the filing of a motion by the governmental unit.‖ Tex. Civ. Prac. & 

Rem. Code Ann. § 101.106(e) (West 2011). All tort theories of recovery alleged 

against a governmental unit, whether sued alone or together with its employees, 

 

4

The trial court later observed,

The Court will note that although Mr. Nkansah had, in fact, filed a 

motion for continuance, an unverified motion for continuance, that he 

did not request a hearing on the motion. And it could be that the 

Court would have considered his motion for continuance at today’s 

hearing, but, of course, it would be necessary for him to be here to 

present that motion for continuance.

5

The motion to dismiss was based on Nkansah’s second amended original 

petition. Therefore, we look to the claims alleged by Nkansah in his second 

amended original petition, rather than in his third amended original petition. See 

City of Arlington v. Randall, 301 S.W.3d 896, 903 (Tex. App.—Fort Worth 2009, 

pet. denied).
5

are assumed to be ―under [the Tort Claims Act]‖ for purposes of section 101.106. 

Mission Consol. ISD v. Garcia, 253 S.W.3d 653, 659 (Tex. 2008).

Nkansah alleged tort claims against Appellees for breach of fiduciary duty, 

negligence, premises liability, fraud, misrepresentation, negligent 

misrepresentation, forgery, and conversion. Because all of these tort theories 

were brought under the Texas Tort Claims Act (TTCA) for purposes of section 

101.106, the trial court did not err by granting Appellees’ motion to dismiss 

Spaniola, Dunn, Cohen, Hissong, and Wyman from those claims. Likewise, to 

the extent that Nkansah sought damages for alleged due process constitutional 

violations, the trial court did not err by granting Appellees’ motion to dismiss the 

individual employees from that claim. See Randall, 301 S.W.3d at 903

(reasoning that claim seeking damages for alleged constitutional violations is 

brought under the TTCA for purposes of section 101.106(e)). We overrule 

Nkansah’s second issue.

In what we construe to be Nkansah’s third issue, he argues that the trial 

court erred by granting UTA’s second plea to the jurisdiction. A plea to the 

jurisdiction is a dilatory plea, the purpose of which is to defeat a cause of action 

without regard to whether the claims asserted have merit. Bland ISD v. Blue, 34 

S.W.3d 547, 554 (Tex. 2000). Whether the trial court has subject matter 

jurisdiction is a question of law that we review de novo. Tex. Dep’t of Parks &

Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004); Tex. Natural Res. 

Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002). The 
6

determination of whether a trial court has subject matter jurisdiction begins with 

the pleadings. Miranda, 133 S.W.3d at 226. The plaintiff has the burden to 

plead facts affirmatively showing that the trial court has jurisdiction. Tex. Ass’n of 

Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). We construe the 

pleadings liberally in favor of the pleader, look to the pleader’s intent, and accept 

as true the factual allegations in the pleadings. See Miranda, 133 S.W.3d at 226, 

228; City of Fort Worth v. Crockett, 142 S.W.3d 550, 552 (Tex. App.—Fort Worth 

2004, pet. denied) (op. on reh’g). If a plea to the jurisdiction challenges the 

existence of jurisdictional facts, we consider relevant evidence submitted by the 

parties when necessary to resolve the jurisdictional issue raised. See Bland ISD, 

34 S.W.3d at 555.

Sovereign immunity deprives a trial court of subject matter jurisdiction for 

lawsuits in which the State or certain governmental units have been sued unless 

the State consents to suit. Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 

(Tex. 1999). State universities are agencies of the State; therefore, UTA is 

protected by the doctrine of sovereign immunity. See Tex. A&M Univ. v. Bishop, 

156 S.W.3d 580, 583 (Tex. 2005); Lowe v. Tex. Tech Univ., 540 S.W.2d 297, 

298 (Tex. 1976); see also Tex. Civ. Prac. & Rem. Code Ann. § 101.001(3) (West 

2011).

Under the TTCA, a governmental unit’s immunity from suit is waived to the 

extent that the TTCA creates liability. Tex. Civ. Prac. & Rem. Code Ann. 

§ 101.025(a) (West 2011). The TTCA expressly waives sovereign immunity in
7

only three areas: (1) use of publicly owned automobiles, (2) premises defects, 

and (3) injuries arising out of conditions or use of tangible property. Id. § 101.021 

(West 2011); Miranda, 133 S.W.3d at 225.

Nkansah alleged claims against UTA in his third amended original petition 

for breach of fiduciary duty, negligence, misrepresentation, fraud, forgery, 

conversion, negligent misrepresentation, abuse of process, and gross 

negligence. Nkansah failed to plead sufficient facts to bring any of these claims 

within the limited waiver of immunity under the TTCA. See Tex. Civ. Prac. & 

Rem. Code Ann. § 101.021; Miranda, 133 S.W.3d at 225. Accordingly, 

Nkansah’s claims against UTA for breach of fiduciary duty, negligence, 

misrepresentation, fraud, forgery, conversion, negligent misrepresentation, abuse 

of process, and gross negligence are barred by sovereign immunity. See Tex. 

Civ. Prac. & Rem. Code Ann. § 101.057(2) (West 2011) (stating that waiver of 

immunity under the TTCA does not extend to suits for intentional torts); Ethio 

Express Shuttle Serv., Inc. v. City of Houston, 164 S.W.3d 751, 758 (Tex. App.—

Houston [14th Dist.] 2005, no pet.) (holding that city’s sovereign immunity was 

not waived for claims of negligent misrepresentation and fraud); City of Fort 

Worth v. Pastusek Indus., Inc., 48 S.W.3d 366, 372 (Tex. App.—Fort Worth 

2001, no pet.) (holding sovereign immunity barred appellee’s claims for fraud, 

breach of fiduciary duty, negligence, and misrepresentation); RRR Farms, Ltd. v. 

Am. Horse Protection Ass’n, Inc., 957 S.W.2d 121, 133–34 (Tex. App.—Houston 

[14th Dist.] 1997, pet. denied) (explaining tort of abuse of process).
8

Nkansah alleged a claim against UTA for premises liability, pleading that 

UTA was liable to him ―because it owns and/or occupies the facilities or premise 

in which all Plaintiff’s claims and/or causes of action occurred.‖ A premises 

defect theory requires, among other things, that a condition of the premises 

create an unreasonable risk of harm. State Dep’t of Highways & Pub. Transp. v. 

Payne, 838 S.W.2d 235, 237 (Tex. 1992). Nkansah only pleaded that UTA’s 

premises was the location where the alleged wrongful acts occurred, not that a 

condition of UTA’s premises created an unreasonable risk of harm to him, 

causing him personal injury or injury to his personal property. Consequently, 

sovereign immunity bars Nkansah’s claim against UTA for premises liability.

Nkansah alleged a claim against UTA for violation of the Deceptive Trade 

Practices Act (DTPA). The legislature has mandated that a statute shall not be 

construed as a waiver of immunity unless the waiver is effected by clear and 

unambiguous language. See Tex. Gov’t Code Ann. § 311.034 (West Supp. 

2010); Sw. Bell Tel., L.P. v. Harris Cnty. Toll Road Auth., 282 S.W.3d 59, 68 

(Tex. 2009). The DTPA does not clearly and unambiguously provide for a waiver 

of immunity from suit for governmental units. Univ. of Houston Main Campus v. 

Simons, No. 01-02-00368-CV, 2002 WL 31388906, at *2 (Tex. App.—Houston 

[1st Dist.] Oct. 24, 2002, no pet.). Accordingly, sovereign immunity bars 

Nkansah’s claims against UTA for violation of the DTPA.

Nkansah alleged a claim against UTA for breach of contract. When a 

governmental unit contracts with a private citizen, it generally retains immunity 
9

from suit even though it waives immunity from liability. Fed. Sign v. Tex. S. 

Univ., 951 S.W.2d 401, 408 (Tex. 1997). Generally, a party seeking redress for 

breach of contract can establish legislative consent to sue by bringing suit under 

a special statute or by obtaining a legislative resolution. Gen. Servs. Comm’n v. 

Little-Tex Insulation Co., 39 S.W.3d 591, 596–97 (Tex. 2001). Nkansah has not 

alleged that he obtained legislative consent to sue UTA for his breach of contract 

claim, nor has he brought that claim under a special statutory provision waiving 

UTA’s immunity from suit. Accordingly, sovereign immunity bars Nkansah’s 

claim against UTA for breach of contract.

Nkansah alleged a claim against UTA for promissory estoppel, asserting 

that UTA ―made a promise to [him] regarding his dissertation,‖ that UTA ―could 

foresee that [he] would rely on the promise,‖ and that he ―did substantially rely on 

the promise to his detriment.‖ See, e.g., Bailey v. City of Austin, 972 S.W.2d 

180, 192 (Tex. App.—Austin 1998, pet. denied) (stating that promissory estoppel 

allows a cause of action to a promisee who has acted to his detriment in 

reasonable reliance on an otherwise unenforceable promise). The general rule is 

that when a unit of government is exercising its governmental powers, it is not 

subject to estoppel. See City of Hutchins v. Prasifka, 450 S.W.2d 829, 835 (Tex. 

1970). A municipality, however, may be estopped in certain cases where justice 

requires the application of estoppel and there is no interference with the exercise 

of the municipality’s governmental functions. Id. at 836 (stating that the doctrine 

is applied ―with caution and only in exceptional cases where the circumstances 
10

clearly demand its application to prevent manifest injustice‖). UTA is not a 

municipality, and we see no reason to extend this exception to UTA under the 

facts of this case. See Donna ISD v. Gracia, 286 S.W.3d 392, 395–96 (Tex. 

App.—Corpus Christi 2008, no pet.). Accordingly, sovereign immunity bars 

Nkansah’s promissory estoppel claim against UTA.

Nkansah alleged that UTA acted contrary to ―Article [I] sections 3, 3a, 17, 

and 19 of Texas Constitution under the Bill of Rights‖ in relation to its handling of 

his dissertation defense and dismissal. Nkansah pleaded for damages in the 

amount of $455,000 for UTA’s wrongful acts against him. As this court 

reaffirmed, ―[u]nder the Texas Supreme Court’s decision in Bouillion and its 

progeny, no private cause of action exists against a governmental entity for 

money damages relating to the governmental entity’s alleged violations of 

constitutional rights.‖ See Randall, 301 S.W.3d at 906 (referencing City of 

Beaumont v. Bouillion, 896 S.W.2d 143, 147 (Tex. 1995)). Therefore, with the 

exception of Nkansah’s claim based on article I, section 17, his claims for 

monetary damages based on UTA’s alleged constitutional violations are barred 

by governmental immunity. See id.; Bouillion, 896 S.W.2d at 149 (stating that the 

text of section 17 waives immunity only when one seeks adequate compensation 

for property lost to the State). Regarding the article I, section 17 takings claim, 

there are no pleadings or evidence that Nkansah has a vested property interest

for which compensation would be allowed under article I, section 17. See

Cypress Forest Pub. Util. Dist. v. Kleinwood Mun. Util. Dist., 309 S.W.3d 667, 
11

675 (Tex. App.—Houston [14th Dist.] 2010, no pet.) (stating that plaintiff 

asserting claim under article I, section 17 must show that it has a vested property 

interest); City of Houston v. Northwood Mun. Util. Dist. No. 1, 73 S.W.3d 304, 

310 (Tex. App.—Houston [1st Dist.] 2001, pet. denied) (stating that survey of 

Texas cases reveals that ―property‖ has generally been found to be a ―real 

property‖ interest). We overrule Nkansah’s third issue.

In what we construe to be Nkansah’s fourth issue, he argues that the trial 

court erred by granting Appellees’ motion for summary judgment. We review a 

summary judgment de novo. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 

862 (Tex. 2010). We consider the evidence presented in the light most favorable 

to the nonmovant, crediting evidence favorable to the nonmovant if reasonable 

jurors could, and disregarding evidence contrary to the nonmovant unless 

reasonable jurors could not. Mann Frankfort Stein & Lipp Advisors, Inc. v. 

Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We indulge every reasonable 

inference and resolve any doubts in the nonmovant’s favor. 20801, Inc. v. 

Parker, 249 S.W.3d 392, 399 (Tex. 2008). A defendant who conclusively 

negates at least one essential element of a cause of action is entitled to 

summary judgment on that claim. Frost Nat’l Bank v. Fernandez, 315 S.W.3d 

494, 508 (Tex. 2010), cert. denied, 131 S. Ct. 1017 (2011); see Tex. R. Civ. P. 

166a(b), (c).

We construe the motion for summary judgment as a traditional motion for 

summary judgment. Nkansah did not file a response to the motion for summary 
12

judgment until after the trial court had granted the summary judgment, and the 

trial court subsequently sustained Appellees’ objection to the untimely response, 

which Nkansah filed without leave of the trial court. Because we overrule 

Nkansah’s challenge to the trial court’s sustaining Appellees’ objection to 

Nkansah’s untimely response below, we limit our review of Nkansah’s third issue 

to whether the evidence that Appellees presented in support of the motion for 

summary judgment was sufficient as a matter of law. See Baghaei v. Appone,

Inc., No. 02-08-00413-CV, 2009 WL 1996297, at *3 (Tex. App.—Fort Worth July 

9, 2009, no pet.) (mem. op.) (reviewing sufficiency of evidence to support 

summary judgment when nonmovant failed to file response to traditional motion 

for summary judgment) (citing Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 

223 (Tex. 1999) and City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 

671, 678 (Tex. 1979)).

Nkansah filed a claim for due process violations against UTA, alleging that 

he was denied procedural and substantive due process in UTA’s handling of his 

dissertation defense and dismissal. To the extent that Nkansah relies on the due 

course of law provision of the Texas constitution, it is well settled that although 

the due process clause of the Fourteenth Amendment and the due course of law 

provision slightly differ in their language, the differences are ―without meaningful 

distinction.‖ Univ. of Tex. Med. Sch. at Houston v. Than, 901 S.W.2d 926, 929 

(Tex. 1995). Texas courts are not bound by federal due process jurisprudence, 
13

but they have traditionally followed federal due process interpretations and 

consider federal decisions on these matters as persuasive authority. Id.

The procedural component of the due process clause provides that 

citizens are entitled to notice and an opportunity to be heard at a meaningful time 

and in a meaningful manner before any rights to life, liberty, or property may be 

taken away by the State. Id. at 930. Cases involving dismissals for academic 

reasons are reviewed under a less stringent standard than those cases involving 

students dismissed for disciplinary reasons. Bd. of Curators of Univ. of Mo. v. 

Horowitz, 435 U.S. 78, 86, 98 S. Ct. 948, 953 (1978). In order to give due 

deference to the exercise of professional judgment, and because the educational 

process is not generally adversarial, students dismissed from school for 

academic reasons are not entitled to a hearing. Id. at 89–90, 98 S. Ct. at 955.

Assuming that Nkansah had a property interest to assert, the summary 

judgment record shows that Nkansah appealed the dissertation committee’s 

decision to dismiss him for academic reasons to Richard Cole, Dean of the 

School of Urban and Public Affairs. Thereafter, an ―Ad Hoc Committee on 

Student Grievance‖ met to consider Nkansah’s complaint. As part of its 

investigation, the committee met with Nkansah for one and a half hours and 

heard his complaints. The committee concluded that ―there was no meaningful 

departure from standard procedures followed in SUPA for the preparation and 

defense of a doctoral dissertation‖ and that ―Nkansah was accorded adequate 

procedural due process, including this opportunity for review.‖ Nkansah also 
14

appealed to Cohen, who addressed Nkansah’s complaints. Under the standards 

articulated above, UTA afforded Nkansah the procedural due process to which 

he was entitled.

Regarding substantive due process in the academic arena, a judge may 

not override a faculty’s professional judgment in academic affairs unless ―it is 

such a substantial departure from accepted academic norms as to demonstrate 

that the person or committee responsible did not actually exercise professional 

judgment.‖ Regents of Univ. of Mich. v. Ewing, 474 U.S. 214, 225, 106 S. Ct. 

507, 513 (1985). When a reviewing court has found evidence of ―professional 

judgment,‖ such evidence is considered sufficient to justify judgment against a 

student as a matter of law. Tobias v. Univ. of Tex. at Arlington, 824 S.W.2d 201, 

210 (Tex. App.—Fort Worth 1991, writ denied), cert. denied, 506 U.S. 1049 

(1993).

Hissong stated in his affidavit that he served as dissertation supervisor for 

Nkansah’s doctoral dissertation and that ―[i]n [his] professional judgment and 

experience as an academic, [Nkansah’s] research never met the academic 

standards required of doctoral level scholarship.‖ Wyman stated in his affidavit 

that he served as a committee member for Nkansah’s doctoral dissertation and 

that ―the academic rigor of the data collection and the conceptual bases of 

[Nkansah’s] dissertation were unacceptable.‖ UTA thus presented summary 

judgment evidence that it exercised professional judgment in dismissing Nkansah 
15

for academic reasons. We hold that the trial court did not err by granting UTA 

summary judgment on Nkansah’s due process claim.

Nkansah alleged a claim against the individual employees in his second 

amended original petition for breach of contract. To the extent that the individual 

employees were not entitled to be dismissed from that claim pursuant to the civil 

practice and remedies code section 101.106(e) motion to dismiss that the trial 

court granted, the trial court did not err by granting summary judgment for the 

individual employees on that claim because the summary judgment evidence 

demonstrated that they did not have an agreement with Nkansah regarding any 

matter related to his dissertation defense or his participation in UTA’s graduate 

school. See City of The Colony v. N. Tex. Mun. Water Dist., 272 S.W.3d 699, 

739 (Tex. App.—Fort Worth 2008, pet. dism’d) (stating that the existence of an 

agreement is an essential element of a breach of contract claim).

Nkansah alleged a claim for injunctive relief against Appellees, though he 

took no further action in pursuit thereof. Appellees argued in the trial court that 

they were entitled to summary judgment on the claim for injunctive relief because 

Nkansah did not have a probable right to relief. Because Nkansah’s claims

against Appellees were either barred by sovereign immunity or were properly 

dismissed by summary judgment or under civil practice and remedies code 

section 101.106(e), Appellees were entitled to summary judgment on Nkansah’s 

claim for injunctive relief, which appears to also be moot. We overrule Nkansah’s

fourth issue.
16

In what we construe to be Nkansah’s fifth and final issue, he argues that 

the trial court abused its discretion by denying his motion to vacate the orders 

granting Appellees’ motion to dismiss, plea to the jurisdiction, and motion for 

summary judgment and by sustaining Appellees’ objection to his untimely 

response. We liberally construe Nkansah’s motion as a motion for new trial. We 

review a trial court’s denial of a motion for new trial for an abuse of discretion. 

In re R.R., 209 S.W.3d 112, 114 (Tex. 2006). To determine whether a trial court 

abused its discretion, we must decide whether the trial court acted without 

reference to any guiding rules or principles; in other words, we must decide 

whether the act was arbitrary or unreasonable. Low v. Henry, 221 S.W.3d 609, 

614 (Tex. 2007); Cire v. Cummings, 134 S.W.3d 835, 838–39 (Tex. 2004).

The record of the hearing on Nkansah’s motion for new trial indicates that 

he arrived at the trial court on July 7, 2010, at approximately 11:20 a.m., after the 

trial court had already granted Appellees’ motion to dismiss, plea to the 

jurisdiction, and motion for summary judgment. Nkansah explained that he was 

under the impression that the trial court would be holding a hearing on his motion 

for continuance that day, not on the Appellees’ plea and motion, which were 

scheduled for that day. The trial court patiently explained to Nkansah that merely 

filing a motion for continuance does not mean that the scheduled matter will be 

continued. Rather, the party seeking the continuance needs to further obtain a 

court order granting the motion for continuance or reach an agreement with the 

opposing side to continue the scheduled matter. In the absence of one of those 
17

things, the trial court explained, the items scheduled to be heard will remain on 

the trial court’s calendar, as happened in this case.

Regarding the trial court’s sustaining Appellees’ objection to Nkansah’s 

untimely response, a response to a motion for summary judgment, including 

opposing summary judgment evidence, must be filed no later than the seventh 

day before the date of the summary judgment hearing, except on leave of court. 

Tex. R. Civ. P. 166a(c). If the record does not contain an affirmative indication 

that the trial court permitted the late filing, the response is a nullity. Neimes v. 

Ta, 985 S.W.2d 132, 138 (Tex. App.—San Antonio 1998, pet dism’d). The 

record does not reflect that Nkansah sought leave to file the late response.

We hold that the trial court did not abuse its discretion by denying 

Nkansah’s motion for new trial and by sustaining Appellees’ objection to 

Nkansah’s untimely response. We overrule Nkansah’s fifth issue.

Having overruled all of Nkansah’s issues, we affirm the trial court’s orders 

granting Appellees’ motion to dismiss, plea to the jurisdiction, and motion for 

summary judgment and denying Nkansah’s motion for new trial.

PER CURIAM

PANEL: MEIER, J.; LIVINGSTON, C.J.; and DIXON W. HOLMAN (Senior 

Justice, Retired, Sitting by Assignment).

DELIVERED: October 13, 2011