Carolyn Barnes v. University Federal Credit Union and Government Employees Insurance Company/GEICO Insurance ( 2010 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-09-00003-CV
Carolyn Barnes, Appellant
v.
University Federal Credit Union and Government Employees Insurance Company/
GEICO Insurance, Appellees
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 201ST JUDICIAL DISTRICT
NO. D-1-GN-08-003727, HONORABLE SUZANNE COVINGTON, JUDGE PRESIDING
MEMORANDUM OPINION
Appellant Carolyn Barnes appeals from the trial court’s order granting summary
judgment in favor of appellees University Federal Credit Union (UFCU) and Government Employees
Insurance Company (GEICO). Barnes also appeals from the trial court’s order of severance. We
affirm both the summary judgment and the order of severance.
BACKGROUND
In 2004, Barnes obtained a loan for $14,066 from UFCU, using two personal vehicles
as collateral. As part of the loan agreement, Barnes signed a document entitled, “Agreement to
Provide Insurance,” which included the following language: “I understand that one of the lender’s
requirements is that I provide adequate insurance coverage on the property securing my loan. This
insurance must at least provide comprehensive and collision coverage. The policy must contain a
loss payable clause endorsement naming the lender as lienholder.”
From March 25, 2005 to June 17, 2005, UFCU sent Barnes a number of letters
requesting a copy of the required comprehensive and collision insurance policy on the two vehicles.
In the last of these letters, UFCU stated, “If we do not receive evidence of insurance meeting our
requirements, collateral protection insurance (CPI) may be issued through our insurance program.”
The letter went on to state that if CPI is issued, the premium will be added to the loan balance.
Barnes did not provide the required proof of insurance in response to these notices. Barnes’s
insurance policy statements from the relevant time period indicate that she had liability coverage on
the vehicles, but did not have comprehension or collision coverage and had not named UFCU as a
lienholder as required.1 On July 6, 2005, Barnes called UFCU to ask about paying off the loan in
anticipation of selling one of the vehicles. At that time, she learned that CPI had been issued and
that premiums in the amount of $1,600 had been added to the loan balance.2 The next day, UFCU
sent Barnes written notice regarding the CPI and the $1,600 in premiums.
Barnes filed suit against UFCU and GEICO, her insurance carrier, for breach of
contract, fraud, deceptive trade practices, negligence, and gross negligence.3 She also brought claims
specifically against UFCU for fraud in the inducement and “unconscionable contract of adhesion.”
She took the position that GEICO had misled her regarding the scope of her coverage and had
1
Barnes also had personal injury protection and uninsured motorist coverage for each
vehicle.
2
This amount represented a $1,030 premium for one vehicle and a $570 premium for the
other.
3
There appears to have been some dispute in the trial court as to whether GEICO was
properly named as Barnes’s insurance carrier, or whether a related entity, Colonial County Mutual
Insurance Company, should have been named as the insurance carrier. The parties do not address
this issue on appeal, so we will assume that GEICO was properly named.
2
conspired with UFCU to wrongfully charge her the $1,600 premium. Barnes later amended her
petition to add claims for retaliation, defamation, invasion of privacy, malice, and intentional
infliction of emotional distress.
Barnes requested and obtained a temporary restraining order preventing GEICO or
UFCU from taking any action to collect on the loans or from reporting her to a credit agency until
a hearing could be held on her request for a temporary injunction. After a hearing, the trial court
dissolved the temporary restraining order and denied Barnes’s request for a temporary injunction.
Over the course of the litigation, a number of discovery disputes arose between the parties, leading
to numerous motions to compel and requests for sanctions on both sides.
On April 5, 2006, UFCU sent Barnes a settlement proposal, stating that in return for
$8,000, UFCU would consider the relevant loans to be paid in full, release the liens on her vehicles,
and forego collection of any late fees, penalties, interest, or attorneys’ fees.4 The proposal further
states, “UFCU and Barnes will execute reasonable and mutually agreeable full releases and other
settlement documentation necessary to fully resolve and dismiss the current proceedings.” In
response, Barnes sent UFCU a cashier’s check for $8,000, accompanied by a letter stating, “I am in
receipt of your extortion demand with threats of additional economic and financial terrorism if I do
not comply with your demands. This ransom and extortion money is being paid under extreme
economic and financial duress and not because it is due and owing.” The letter goes on to state that
the funds were being tendered “with all rights reserved.” UFCU then sent notice that it would not
accept Barnes’s check unless she signed a release of all claims. Barnes did not sign a release, and
4
According to Barnes, the principal balance on the two loans, exclusive of fees, interest, and
the CPI premiums, was $7,328.80 at the time of the settlement offer.
3
UFCU declined to negotiate the $8,000 check. Barnes filed UFCU’s letter with the trial court as a
Rule 11 Agreement, although the filed letter does not include Barnes’s signature. On June 26, 2006,
Barnes filed a “supplemental original petition,” alleging that UFCU had breached the parties’
Rule 11 agreement by proceeding with litigation after receiving her cashier’s check for $8,000.
On July 5, 2006, the trial court granted UFCU’s motion to compel and for
sanctions against Barnes, assessing her $500 in sanctions related to discovery abuses. Eventually
all parties filed motions for summary judgment, and a summary-judgment hearing was held on
December 21, 2006.
On January 24, 2007, the trial court issued an order on summary judgment, granting
GEICO’s and UFCU’s motions in part, denying them in part, and denying Barnes’s motion.
Specifically, the trial court granted summary judgment in favor of UFCU on all of Barnes’s claims
other than breach of contract5 and granted summary judgment in favor of GEICO on all of Barnes’s
claims other than deceptive trade practices.6
Additional summary judgment motions and supplemental pleadings were then filed,
and on October 17, 2007, GEICO filed a motion to sever the causes of action resolved by the trial
court’s order granting partial summary judgment. Barnes filed a response in opposition to the
motion to sever and sought sanctions against GEICO for filing the motion.
5
It is not clear from the trial court’s order whether the denial of summary judgment as to
Barnes’s breach-of-contract claim referred to the alleged breach of the loan agreement or to the
alleged breach of the Rule 11 agreement. At the jury trial on the non-severed claims, Barnes was
allowed to proceed on both claims, so we will assume that summary judgment was denied as to both.
6
In addition, the trial court denied UFCU’s motion for summary judgment with respect to
its counterclaims against Barnes for breach of contract, quantum meruit, unjust enrichment, and
conversion. Barnes’s no-evidence motion on UFCU’s counterclaims was also denied.
4
In November 2007, the trial court placed the matter on the docket of cases to be
dismissed for want of prosecution. Barnes filed a motion to retain, which the trial court granted over
the opposing parties’ objections. In September 2008, UFCU and GEICO filed a joint motion to
dismiss on the grounds that Barnes had not taken steps to schedule and complete mediation as
required in the order of retention. At the hearing on the motion to dismiss, the trial court entered an
order of severance, severing out those causes of action that had already been decided on summary
judgment and assigning them to cause number D-1-GN-08-003727, the cause number giving rise to
this appeal. The order of severance also included the following language: “It is further ORDERED
that the only remaining issues in this existing litigation are Plaintiff’s claims for Deceptive Trade
Practices Act against [GEICO] and breach of contract against [UFCU].” The order of severance had
the effect of making the trial court’s grant of summary judgment final and appealable, and this appeal
followed. See Pierce v. Reynolds, 329 S.W.2d 76, 78-79 (Tex. 1959) (“A judgment which fully
adjudicates one of the severed causes is appealable even though the entire controversy as it existed
prior to the severance is not determined thereby.”).
In four issues on appeal, Barnes argues that the trial court erred by (1) granting the
motion to sever, (2) denying her motion for summary judgment, (3) assessing discovery sanctions
against her in the amount of $500, and (4) granting summary judgment in favor of UFCU and
GEICO.
STANDARD OF REVIEW
Severance of claims under the Texas Rules of Civil Procedure rests within the sound
discretion of the trial court. Liberty Nat’l Fire Ins. Co. v. Akin, 927 S.W.2d 627, 629 (Tex. 1996)
(orig. proceeding); see also Tex. R. Civ. P. 174. A claim is properly severable if (1) the controversy
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involves more than one cause of action, (2) the severed claim is one that would be the proper subject
of a lawsuit if independently asserted, and (3) the severed claim is not so interwoven with the
remaining action that they involve the same facts and issues. Guaranty Fed. Savs. Bank
v. Horseshoe Operating Co., 793 S.W.2d 652, 658 (Tex. 1990) (op. on reh’g). An order of
severance is reviewable on appeal, but we will not disturb the trial court’s decision to grant a
severance absent an abuse of discretion. Id.
We review a trial court’s imposition of sanctions for an abuse of discretion. Cire
v. Cummings, 134 S.W.3d 835, 838 (Tex. 2004). The ruling will be reversed only if it was arbitrary
or unreasonable. Id. at 839.
Summary judgments are reviewed de novo. Valence Operating Co. v. Dorsett,
164 S.W.3d 656, 661 (Tex. 2005). To prevail on a motion for summary judgment, the movant must
show that there is no issue of material fact and that it is entitled to judgment as a matter of law.
TX Far West, Ltd. v. Texas Invs. Mgmt., Inc., 127 S.W.3d 295, 301 (Tex. App.—Austin 2004, no
pet.). Evidence favorable to the non-movant is taken as true and every reasonable inference must
be indulged in favor of the non-movant and any doubts resolved in its favor. Id. In reviewing a
no-evidence summary judgment, we examine the entire record in the light most favorable to the non-
movant to determine whether more than a scintilla of probative evidence was presented to raise a
genuine issue of material fact. See Perdue v. Patten Corp., 142 S.W.3d 596, 604
(Tex. App.—Austin 2004, no pet.). When the evidence supporting a finding rises to a level that
would enable reasonable, fair-minded persons to differ in their conclusions, more than a scintilla of
evidence exists. See id.
6
DISCUSSION
Procedural Posture of this Appeal
As a preliminary matter, we address the procedural posture of this appeal. The record
and briefs filed in this appeal identify the trial court’s cause number as D-1-GN-05-003010.
However, at the time this appeal was filed, there was no final and appealable judgment in cause
number D-1-GN-05-003010. Barnes’s notice of this appeal states that she seeks to appeal from the
order of severance and, if the order of severance is upheld, from those summary-judgment rulings
deemed final and appealable as a result of the severance. Thus, the trial court cause number giving
rise to this appeal is D-1-GN-08-003727, the cause number that was created by the trial court in the
order of severance and to which the claims resolved by summary judgment were assigned.7
Order of Severance
In her first issue on appeal, Barnes argues that the trial court erred in issuing the order
of severance because the severed causes of action are so interwoven with the remaining claims that
they involve the same facts and issues. See Horseshoe Operating, 793 S.W.2d at 658. Specifically,
the severed causes of action were Barnes’s claims against GEICO and UFCU for fraud, negligence,
gross negligence, retaliation, defamation, invasion of privacy, malice, and intentional infliction of
emotional distress, as well as her claims against UFCU for “unconscionable contract of adhesion,”
deceptive trade practices, and fraud in the inducement, and her claim against GEICO for breach of
7
A final and appealable judgment in D-1-GN-05-003010 was signed on October 9, 2009.
Barnes’s appeal from that judgment is currently pending before this Court as appellate cause
number 03-10-00147-CV. We have granted Barnes’s motion to allow the record in this appeal to
also serve as the record in 03-10-00147-CV, subject to any necessary supplementation.
7
contract. Barnes’s breach of contract claim against UFCU and deceptive trade practices claim
against GEICO both remained pending in the original cause, trial court cause number D-1-GN-08-
003010, and ultimately went to trial.
Barnes argues that the severed claims involve the same facts and issues as the non-
severed claims, and therefore that the trial court abused its discretion in ordering a severance.
However, our forthcoming discussion on the merits of the summary judgment confirms that the
severed claims implicate different issues and require proof of different elements than those claims
that survived summary judgment. In addition, many of the severed claims, including retaliation,
invasion of privacy, and malice, do not represent valid causes of action in the manner that Barnes
has pleaded them. The purpose of granting a severance is to ensure justice is done, prejudice is
avoided, and convenience is furthered. City of Dallas v. Redbird Dev. Corp., 143 S.W.3d 375, 386
(Tex. App.—Dallas 2004, no pet.). Given the trial court’s broad discretion in matters of severance,
as well as the underlying purpose of allowing a severance, we cannot conclude that the order to sever
in this case was an abuse of discretion. See Horseshoe Operating, 793 S.W.2d at 658. For that
matter, even if the order of severance was issued in error, it is not readily apparent what remedy
would be available. There would be no practical effect to reversing the order, as the severed claims
have been resolved on summary judgment and final judgment has been entered based on a jury
verdict as to the non-severed claims.
Barnes also contends that the severance order was issued in violation of due process
because she did not have prior notice that the motion to sever would be taken up during the hearing
on the joint motion to dismiss. While the trial court did address the motion to sever during a hearing
8
on a different motion, Barnes was not deprived of a reasonable opportunity to respond to the motion
to sever, as she had previously filed a response and objections to the motion. Further, despite her
lack of prior notice that the motion to sever would be addressed at the hearing, Barnes did attend and
present argument in opposition to the severance. Because Barnes had notice that the motion to sever
was pending and had an opportunity to file written objections, we conclude that no violation of due
process occurred. See Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 84 (1988) (holding that in a
proceeding “which is to be accorded finality,” due process requires notice that is reasonably
calculated to apprise interested parties of pendency of action and afford them opportunity to
present objections).8
Finally, Barnes argues that the trial court’s order improperly severed certain claims
that she had raised for the first time in supplemental pleading after the order granting summary
judgment was issued. Barnes’s first, second, and third supplemental petitions raise new claims of
breach of fiduciary duty and breach of fair debt collection laws. The record in this appeal includes
a transcript of the August 2009 jury trial on Barnes’s non-severed causes of action. This transcript
reflects that the trial court determined that Barnes was entitled to proceed at trial on claims that were
raised for the first time after the summary judgment order.9 Therefore, even if the order of severance
8
It is not abundantly clear that the due-process requirements of Peralta even apply to this
case, as it is the trial court’s order on summary judgment, rather than the order of severance, that “is
to be accorded finality” for purposes of the severed claims. The order of severance merely rendered
the summary-judgment order final and appealable.
9
We note that UFCU also proceeded at trial on its counterclaims against Barnes.
9
improperly severed claims that had not been resolved on summary judgment, that issue was remedied
when the trial court permitted Barnes to proceed with those claims at trial.
We overrule Barnes’s first issue on appeal.
Barnes’s Motion for Summary Judgment
In her second issue on appeal, Barnes argues that the trial court erred in denying her
motion for summary judgment with respect to her claims related to breach of the Rule 11 agreement.
Absent certain exceptions not applicable here, the denial of a motion for summary judgment is
interlocutory and cannot be appealed. See Novak v. Stevens, 596 S.W.2d 848, 849 (Tex. 1980). This
is not a situation where the parties filed cross-motions for summary judgment and the trial court
granted one and denied the other, in which case we would review all summary-judgment evidence
and determine all questions presented. See Texas Workers’ Comp. Comm’n v. Patient Advocates of
Tex., 136 S.W.3d 643, 648 (Tex. 2004). While UFCU’s summary-judgment motion did address
Barnes’s Rule 11 claims in its discussion of the breach-of-contract claim, UFCU’s motion was
denied as to the breach-of-contract claim. As a result, Barnes’s claims related to the Rule 11
agreement were not disposed of on summary judgment and therefore could not have been rendered
final and appealable by the order of severance.10 Furthermore, our review of the August 2009 trial
10
While the record is less than clear, it appears that Barnes’s motion for summary judgment
on her Rule 11 claims was filed on September 19, 2006, heard on October 23, 2006, and denied by
an order on March 7, 2007. Thus, Barnes’s request for summary judgment on her Rule 11 claims
was not even addressed in connection with the summary judgment proceeding before us in this
appeal. The order of severance states that “Plaintiff’s Motion for Summary Judgment” should be
included in the record for cause number D-1-GN-08-003727. Presumably, this refers to Barnes’s
no-evidence motion on UFCU’s counterclaims, which was filed December 4, 2006, and denied by
the trial court in the same January 24, 2007 order that granted in part and denied in part UFCU’s and
GEICO’s motions for summary judgment.
10
transcript in the non-severed action reflects that Barnes proceeded at trial on her claims related to
breach of the Rule 11 agreement. As a result, we cannot address the denial of her motion for
summary judgment on that issue.
Discovery Sanctions
In a third issue on appeal, Barnes argues that the trial court erred in issuing a
discovery order dated July 5, 2006, granting UFCU’s motion to enforce and assessing $500 in
sanctions against Barnes. The July 5, 2006 discovery order was issued in trial court cause number
D-1-GN-08-003010. This appeal is limited to those matters that were severed to trial court cause
number D-1-GN-08-003727 by the order of severance. Thus, we cannot address Barnes’s issue
related to the sanctions order in this appeal. The sanctions order may, however, be properly
addressed in Barnes’s appeal from the final judgment in cause number D-1-GN-08-003010, currently
pending before this Court as appellate cause number 03-10-00147-CV, assuming it is properly raised
in appellate briefing.
Summary Judgment
In her fourth issue on appeal, Barnes argues that the trial court erred in granting
summary judgment in favor of UFCU and GEICO on the severed claims. GEICO filed a motion for
summary judgment on Barnes’s claims for deceptive trade practices, fraud, breach of contract,
negligence, gross negligence, retaliation, defamation, invasion of privacy, malice, and intentional
infliction of emotional distress, asserting that there was no issue of material fact and that Barnes
could not prove her claims as a matter of law. UFCU moved for summary judgment on both
11
traditional and no-evidence grounds on Barnes’s claims for breach of contract, fraud, fraud in the
inducement, deceptive trade practices, negligence, gross negligence, retaliation, defamation, invasion
of privacy, malice, intentional infliction of emotional distress, and “unconscionable contract of
adhesion.” See Tex. R. Civ. P. 166a(c), (i).
In reviewing a summary judgment, we must take all evidence favorable to the non-
movant as true and indulge every reasonable inference in favor of the non-movant. See Nixon
v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). Viewing the record in this light, the
evidence reflects that Barnes signed an agreement to obtain comprehensive and collision insurance
on two vehicles used as collateral for a loan from UFCU. Subsequently, a representative of GEICO
informed Barnes that she had “full coverage,” when in fact she did not have comprehensive or
collision coverage on the vehicles in question. Barnes’s policy documents, attached to GEICO’s
motion for summary judgment, indicate that her policy covered bodily injury liability, property
damage liability, uninsured motorist bodily injury and property damage, and personal injury
protection, but did not include comprehensive or collision coverage. The documents further reflect
that no lienholder was named on the policy. Based on the inadequate insurance coverage, UFCU
issued retroactive insurance and charged Barnes $1,600 in premiums. Barnes’s evidence in response
to UFCU’s and GEICO’s motions for summary judgment consists primarily of her own 25-page
affidavit, detailing her allegations. While self-serving affidavits are not necessarily improper
summary-judgment evidence, affidavits consisting only of conclusions are insufficient to raise an
issue of fact. See Trico Techs. Corp. v. Montiel, 949 S.W.2d 308, 310 (Tex. 1997); Life Ins. Co. of
Va. v. Gar-Dal, Inc., 570 S.W.2d 378, 382 (Tex. 1978). Barnes also relies on letters of complaint
12
that she wrote to UFCU, her own testimony at prior hearings, and documentation regarding the rates
she paid for car insurance from a new insurance carrier after leaving GEICO.
The trial court determined that the only claims for which questions of fact existed
were the claims that UFCU breached the loan agreement and/or the parties’ Rule 11 agreement, and
the claim that GEICO committed deceptive trade practices. We agree that the summary-judgment
record contains no evidence of a defamatory statement that would support her defamation claim, no
evidence of any actionable invasion of privacy, and no evidence of the type of extreme and
outrageous conduct necessary to support a claim of intentional infliction of emotional distress. See
Kroger Tex. Ltd. P’ship v. Suberu, 216 S.W.3d 788, 796 (Tex. 2006) (holding that in order to
support claim of intentional infliction of emotional distress, conduct must be “so outrageous in
character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be
regarded as atrocious, and utterly intolerable in a civilized community”) (quoting Twyman
v. Twyman, 855 S.W.2d 619, 621 (Tex. 1993)).
The summary-judgment record also contains no evidence that UFCU committed
fraud. With respect to Barnes’s fraud claim against GEICO, there is no summary-judgment evidence
that GEICO’s statement regarding Barnes’s insurance coverage was made with knowledge of its
falsity or made recklessly without knowledge of its truth. See Ernst & Young, L.L.P. v. Pacific Mut.
Life Ins. Co., 51 S.W.3d 573, 577 (Tex. 2001) (elements of common-law fraud). Barnes maintains
that GEICO told her she had “full coverage.” While this statement may have been misleading as to
the extent of her coverage, there is no evidence that it was made with knowledge of its falsity or
13
made recklessly without any knowledge of the truth.11 For that matter, there is no summary-
judgment evidence that this statement was definitively false, as Barnes did have liability insurance
in excess of the minimum requirements imposed by the State of Texas.
With respect to the negligence and gross negligence claims, Barnes has presented no
evidence that UFCU breached any duty imposed by law, as opposed to a duty imposed solely by the
contract. See Southwestern Bell Tel. Co. v. Delanney, 809 S.W.2d 493, 495 (Tex. 1991) (where duty
arose solely from contract, claim for breach of that duty sounded in contract, rather than tort). As
for the negligence claims against GEICO, the summary-judgment evidence, specifically the
insurance policy documents clearly noting the absence of collision and comprehensive insurance,
negates the element of foreseeability as a matter of law. See Doe v. Boys Clubs, 907 S.W.2d 472,
477 (Tex. 1995) (stating that proximate cause, which includes component of foreseeability, is
required element of negligence). But see id. at 481 (“For DTPA claims, the plaintiffs need only
show producing cause, and need not establish that the harm was foreseeable.”) (internal citation
omitted). To prove foreseeability, a plaintiff must establish that a person of ordinary intelligence
should have anticipated the danger created by the negligent act. Id. at 478. The law presumes that
a party to a contract has read and understood the contract. See American Employers’ Ins. Co.
v. Aiken, 942 S.W.2d 156, 161 (Tex. App.—Fort Worth 1997, no writ). Thus, it would not have
been reasonably foreseeable that based on a statement that she had “full coverage,” Barnes would
ignore her insurance policy statements indicating that she did not have collision and comprehensive
11
For purposes of Barnes’s deceptive trade practices claim against GEICO, Barnes was not
required to establish that GEICO had an intent to misrepresent the scope of her coverage or that
GEICO had knowledge that its representation was untrue. See Eagle Props., Ltd. v. Scharbauer,
807 S.W.2d 714, 724 (Tex. 1990).
14
coverage, and that she would then suffer damages in the form of retroactive collateral
insurance premiums.
Barnes presented no evidence that UFCU employed trickery or artifice to convince
her to execute the loan agreement as required to prevail on her claim for fraud in the inducement.
See Caraway v. Land Design Studio, 47 S.W.3d 696, 698 (Tex. App.—Austin 2001, no pet.). Her
claim for deceptive trade practices against UFCU also fails as a matter of law because lending
activities do not constitute goods or services that would trigger the protections of the Texas
Deceptive Trade Practices Act, unless the goods or services ultimately sought by the borrower form
the basis of the complaint. See Riverside Nat’l Bank v. Lewis, 603 S.W.2d 169, 174-75 (Tex. 1980);
see also Walker v. FDIC, 970 F.2d 114, 123 (5th Cir. 1992). Because Barnes does not allege any
complaint regarding the goods she sought to acquire with the loan proceeds, she is not a “consumer”
subject to statutory protection in connection with her transaction with UFCU. See id. Further,
Barnes produced no evidence of any breach of contract by GEICO. Finally, Barnes’s remaining
claims of “unconscionable contract of adhesion,” retaliation,12 and malice do not appear to be
independent causes of action under Texas law.
Barnes also argues that the trial court erred in granting no-evidence summary
judgment because she had not yet had adequate time for discovery at the time the motion was
granted. A no-evidence motion is only proper after there has been “adequate time for discovery.”
Tex. R. Civ. P. 166a(i). We review a trial court’s determination that an adequate time for discovery
has passed under an abuse-of-discretion standard. Madison v. Williamson, 241 S.W.3d 145, 155
12
While statutory causes of action for retaliation do exist in the employment context, no
employer/employee relationship is implicated here. See, e.g., Tex. Health & Safety Code Ann.
§ 161.134 (West 2001).
15
(Tex. App.—Houston [1st Dist.] 2007, pet. denied). In the present case, litigation had been ongoing
for over a year before the no-evidence motion was filed. It is clear that discovery was conducted
during that time, as the record contains a number of UFCU’s and GEICO’s responses to Barnes’s
discovery requests. While the case appears to have been plagued with discovery disputes, the record
before us reflects that these disputes were resolved by the trial court in favor of UFCU and GEICO,
twice resulting in sanctions against Barnes. Given this procedural history, we cannot say that the
trial court erred in determining that an adequate time for discovery had passed to rule on a no-
evidence motion for summary judgment.
Based on the foregoing, we hold that the trial court did not err in granting summary
judgment in favor of UFCU and GEICO on the severed claims. We overrule Barnes’s fourth issue
on appeal.
CONCLUSION
We affirm the summary judgment and the order of severance.
__________________________________________
Diane M. Henson, Justice
Before Justices Patterson, Puryear and Henson
Affirmed
Filed: May 27, 2010
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