Nicole Morris v. Greater McAllen Star Properties and Star properties/gmac Real Estate ( 2012 )

NUMBER 13-11-00316-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
NICOLE MORRIS, Appellant,
v.
GREATER MCALLEN STAR PROPERTIES
AND STAR PROPERTIES/GMAC REAL
ESTATE, ET AL., Appellees.
On appeal from the County Court at Law No. 3
of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Garza
Memorandum Opinion by Chief Justice Valdez
Appellant, Nicole Morris, appeals the trial court’s summary judgment in favor of
appellees, Greater McAllen Star Properties and Star Properties/GMAC Real Estate
(collectively “Star Properties”), Marilyn Hardison, individually and d/b/a Greater McAllen
Star Properties, Inc., and Jasen Hardison, individually and d/b/a Greater McAllen Star
Properties, Inc. By five issues, Morris contends that the trial court erred by: (1) granting
appellees’ no-evidence and traditional motions for summary judgment; (2) denying her
motion for continuance of summary judgment hearing; (3) denying her motion to compel
discovery and motion to reconsider the denial of the motion to compel discovery and
request to compel Marilyn’s and Jasen’s depositions; (4) rendering a dismissal with
prejudice of all claims asserted and that could have been asserted; and (5) denying her
motion for new trial. We affirm as modified.
I. BACKGROUND
Morris was divorced from her ex-husband, Cristoph Morris, and won a judgment
of $415,000 from him in 2005. Morris claimed in the trial court and on appeal that
Cristoph improperly avoided her efforts to collect the amount owed. Appellees are
Cristoph’s employers.
On July 30, 2009, Morris filed an “Application for Turnover Relief and Plaintiff’s
Original Petition” accusing appellees of fraud and unlawful civil conspiracy to commit
fraud.1 Morris claimed appellees fraudulently stated that Cristoph is an employee of
Star Properties when he is in fact an independent contractor.2 Morris stated that “the
representation [that Cristoph is an employee] appears to be false in that GREATER
STAR PROPERTIES, INC. does not employ sale[s] agents as employee[s], but have
[sic] independent contractor relationship with [Cristoph].” Morris further accused
1
Morris further asked for the turnover of Cristoph’s non-exempt property in his possession or
control. Cristoph is not a party to this appeal, and Morris’s application for turnover relief is not at issue in
this appeal. Furthermore, the trial court granted appellees’ second motion to sever Morris’s cause of
action against them from her claims against Cristoph on May 24, 2010. A new cause number was given
to Morris’s case against appellees.
2
A party may not garnish an employee’s income under Texas law; however, a party may garnish
the income of an independent contractor.
2
appellees of conspiring with Cristoph with “the goal of depriving [her] of the lawful right
to collect upon her Judgment against [Cristoph].”
On March 16, 2010, appellees filed a joint motion for traditional summary
judgment and separate motions for no-evidence summary judgment. In their motions
for no-evidence summary judgment, appellees each stated that there was no evidence
regarding each element of fraud and conspiracy. In their motion for traditional summary
judgment, appellees alleged that the evidence conclusively showed that Cristoph is an
employee of Star Properties and attached evidence including the following: (1) a
brochure from the Internal Revenue Service entitled, “Independent Contractor or
Employee . . .”; (2) a transcript of Jasen’s deposition taken in Cristoph and Morris’s
divorce3; (3) a job description of duties assigned to Cristoph4; (4) Star Properties “Real
Estate Payroll Summary” for January 20085; (5) Star Properties “Real Estate Employee
3
In his deposition taken on June 10, 2008, Jasen testified that Cristoph is an at-will employee of
Star Properties, and Cristoph does not have a contract with Star Properties. Star Properties hired
Cristoph as an employee approximately two and one half years prior to Jasen’s deposition after Cristoph
told Jasen that he would be leaving Star Properties. Star Properties now withholds Cristoph’s federal
income taxes from his paycheck. Independent contractor sales agents receive 1099 tax forms at the end
of the year. Cristoph does not presently receive a 1099 form. Cristoph receives a Form W-2.
4
The following responsibilities, among others, were also assigned to Cristoph: (1) supervising
the daily activities of the office staff; (2) purchasing computer equipment and software; (3) assisting with
and chairing weekly office meetings; (4) maintaining officer computer network and phone systems; (5)
reviewing all closed file records; (6) preparing and filing monthly Star Properties performance reports; (7)
managing the website tickler system and office websites; (8) providing various marketing and advertising
duties; (9) assisting with training new agents; and (10) filing and processing payment of monthly franchise
fees.
5
The summary showed that in January 2008, Critoph’s gross salary was $13,153.84 and that
federal income taxes in the amount of $2,524.54 were withheld. Cristoph paid $190.74 to Medicare and
$815.52 to social security.
3
Quick Report January 1 through June 10, 2008”6; (6) Cristoph’s “Form W-2 Wage and
Tax Statement[s]” for 2006 and 2007; and (7) Cristoph’s W-4 form for 2005;.7
Morris filed a response to appellees’ motions for traditional and no-evidence
summary judgment on April 6, 2010. In her response, Morris claimed that Cristoph
entered into an agreement to serve as an independent contractor, as a sales associate,
with Star Properties. Morris stated that appellees claimed that Cristoph became an
employee of Star Properties in 2006. Morris also alleged that there was more than a
scintilla of probative evidence to raise a genuine issue of material fact regarding
whether appellees committed fraud by stating Cristoph is an employee of Star
Properties. Morris claimed that Marilyn said in a deposition in another unrelated case
that there are only three employees and the other people working at Star Properties are
independent contractors. Based on this evidence, Morris asserted that appellees’
statement that Cristoph is an employee was a false representation.
On April 12, 2010, the trial court held a hearing on appellees’ motions for
traditional and no-evidence summary judgment. The trial court granted appellees’
motions on May 6, 2010. On May 7, 2010, Morris filed a motion to compel discovery
and for sanctions against Star Properties. On June 29, 2010, “on its own motion,” the
trial court vacated its previous orders granting appellees’ motions for summary
judgment. On that date, the trial court also set appellees’ motions for summary
6
The quick report shows that Star Properties issued a paycheck to Cristoph during the period of
January 1 through June 10, 2008. The total amount paid to Cristoph was $33,368.73.
7
In 2007, Cristoph received $100,258.45 in wages, tips, other compensation from Star
Properties, and his social security wages were $97,500. $14,534.52 was withheld from Cristoph’s pay for
federal income taxes. Cristoph paid $6,045 in social security taxes and $1,453.75 in Medicare taxes. In
2006, Cristoph received $49,615.28 in wages, tips, and other compensation from Star Properties.
$8,773.92 was withheld for federal taxes, $3,076.15 for social security taxes, and $719.42 for Medicare
taxes.
4
judgment “for hearing, by submission only,” on September 7, 2010. Morris filed a
verified motion for continuance of summary judgment hearing on August 31, 2010,
complaining that discovery remained open and that she had not had an adequate
opportunity for discovery before the summary judgment hearing. In her motion for
continuance, Morris alleged that appellees had “deliberately refused to provide”
discovery on material and relevant issues raised in their motions for summary judgment.
On September 7, 2010, the trial court held a hearing on Morris’s motions for
continuance and to compel discovery. The trial court did not rule on Morris’s motion for
continuance and to compel discovery. On December 28, 2010, the trial court granted
appellees’ motions for traditional and no-evidence summary judgment. This appeal
followed.
II. MOTIONS FOR SUMMARY JUDGMENT
By her first issue, Morris contends that the trial court erred in granting summary
judgment in favor of appellees. Morris argues that there is more than a scintilla of
probative evidence that appellees committed fraud by stating that Cristoph is an
employee.
A. Standards of Review and Applicable Law
Texas Rule of Civil Procedure 166a(i) sets out the requirements for a no-
evidence motion for summary judgment as follows:
After adequate time for discovery, a party without presenting
summary judgment evidence may move for summary judgment on the
ground that there is no evidence of one or more essential elements of a
claim or defense on which an adverse party would have the burden of
proof at trial. The motion must state the elements as to which there is no
evidence. The court must grant the motion unless the respondent
produces summary judgment evidence raising a genuine issue of material
fact.
5
TEX. R. CIV. P. 166a(i); see Oasis Oil Corp. v. Koch Ref. Co., 60 S.W.3d 248, 250 (Tex.
App.—Corpus Christi 2001, pet. denied). Once a no-evidence motion for summary
judgment has been filed, the burden shifts to the non-moving party to present evidence
raising an issue of material fact as to the challenged elements. Mack Trucks, Inc. v.
Tamez, 206 S.W.3d 572, 581–82 (Tex. 2006).
In a no-evidence motion for summary judgment, we consider the evidence in the
light most favorable to the non-movant, crediting such evidence if reasonable jurors
could and disregarding all contrary evidence and inferences unless reasonable jurors
could not. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003) (citing Wal-
Mart Stores, Inc. v. Rodriguez, 92 S.W.3d 502, 506 (Tex. 2002); Johnson v. Brewer &
Pritchard, P.C., 73 S.W.3d 193, 208 (Tex. 2002)); see City of Keller v. Wilson, 168
S.W.3d 802, 825, 827 (Tex. 2005). A no-evidence point will be sustained when (a)
there is a complete absence of evidence of a vital fact, (b) the court is barred by rules of
law or of evidence from giving weight to the only evidence offered to prove a vital fact,
(c) the evidence offered to prove a vital fact is no more than a mere scintilla, or (d) the
evidence conclusively establishes the opposite of the vital fact. King Ranch, Inc., 118
S.W.3d at 751. A no-evidence summary judgment is properly granted if the respondent
does not bring forth more than a scintilla of probative evidence to raise a genuine issue
of material fact. Id.
Less than a scintilla of evidence exists when the evidence is “so weak as
to do no more than create a mere surmise or suspicion” of a fact. More
than a scintilla of evidence exists when the evidence “rises to a level that
would enable reasonable and fair-minded people to differ in their
conclusions.”
Id.
6
When, as in this case, the trial court does not state the grounds upon which
summary judgment was granted, we must affirm the judgment if any of the grounds
advanced in the motion for summary judgment are meritorious. Branton, 100 S.W.3d at
647 (citing Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989)). And when a party
moves for summary judgment under both rules 166a(c) and 166a(i) of the Texas Rules
of Civil Procedure, we first review the trial court’s judgment under the standards of rule
166a(i). Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004).
The elements of fraud are: (1) that a material misrepresentation was made; (2)
the representation was false; (3) when the representation was made, the speaker knew
it was false or made it recklessly without any knowledge of the truth and as a positive
assertion; (4) the speaker made the representation with the intent that the other party
should act upon it; (5) the party acted in reliance on the representation; and (6) the party
thereby suffered injury. Aquaplex, Inc. v. Rancho La Valencia, Inc., 297 S.W.3d 768,
774 (Tex. 2009).
B. No-Evidence Summary Judgment
In their no-evidence motions for summary judgment, each appellee alleged that
there is no evidence of the following: (1) appellees made a material, false
representation to Morris; (2) appellees knew any material representation made was
false; (3) appellees made any material representation recklessly without any knowledge
of the truth as a positive assertion; (4) appellees made any material, false
representation with the intent that Morris should act upon it; and (5) Morris acted in
reliance on any material, false representation by appellees. Appellees also alleged that
7
there was no evidence of each element of conspiracy.8 Appellees further argued that if
appellees prevailed on their motions for summary judgment concerning fraud, appellees
are entitled to summary judgment regarding civil conspiracy because it is a derivative
tort requiring proof of an underlying tort. Finally, appellees alleged that there was no
evidence of legal damages and Morris’s damages were “based upon a hypothetical
earnings stream had [Cristoph] remained a commissioned salesman instead of
becoming a salaried employee.”9
In response Morris claimed that appellees had falsely stated that Cristoph is an
employee of Star Properties, when he is actually an independent contractor. Morris
stated in her affidavit attached to her response that Jasen and Marilyn have claimed
that Cristoph is an employee of Star Properties. Morris provided Marilyn’s deposition
testimony from an unrelated case pointing to the following testimony:
Q Tell me about the size of the—your company, the number of
agents, employees that you have.
A We range anywhere from about 16 to 18. I think we have about 16
now.
Q About 16 agents?
A Uh-huh.
Q And that’s a yes, correct?
A Yes.
8
Appellees stated that there is no evidence that: (1) appellees were “part of an arrangement
between, or any ‘coming together’ of, two or more persons”; (2) “of any object to be accomplished by any
two or more persons”; (3) appellees were “part of a meeting of the minds on the object or course of
action”; or (4) appellees were parties “to one or more overt unlawful acts.”
9
Appellees further alleged that expert testimony was required to provide proof of Morris’s claimed
damages and because she had not provided any, Morris was unable to meet her burden of proving
Cristoph’s earnings as a commissioned real estate salesman.
8
Q Okay. And how many people—employees does—does your
company have?
A We have three.
Q And what are the roles of those employees?
A Two of them are assistants to me, Jason and Cristoph Morris, we
make up a team, and one of them is a general secretary that works
for all of the agents, and she has specific duties
Q So, you’ve got—so, you have two—two—two assistants or three
assistants?
A Two.
Q Two assistants. Then, the third employee, what is the third
employee?
A She’s like a secretary, administrative secretary for the entire office.
Q All right. And then all the others are agents.
A Yes.[10]
Morris also pointed to Jasen’s deposition testimony taken as part of the divorce
proceedings between Morris and Cristoph. Jasen testified that he owns forty-nine
percent of Star Properties and that his mother, Marilyn, owns fifty-one percent. Jasen
stated that Cristoph is part of the team that includes Jasen, Marilyn, and their
assistants. Jasen further testified that Cristoph had been with the company for
approximately nine years, but he stopped receiving commissions from Star Properties
two-and-one-half years prior to June 10, 2008. According to Jasen, real-estate agents
are independent contractors and are paid on commission. Finally, Morris provided a
10
We note that Morris’s attorney conducted the above deposition of Marilyn. It is unknown what
party Morris’s attorney represented in that matter or the period or time in question. Appellees filed a
motion for sanctions complaining that Marilyn’s attorney who represents her in this cause had not been
notified that Morris’s attorney would be asking Marilyn questions at the deposition in the unrelated case
regarding Morris’s cause of action for fraud in this case. The trial court did not appear to rule on
appellees’ motion for sanctions.
9
copy of an independent contractor agreement for sales associate commencing on
January 1, 2004 signed by Cristoph and Marilyn.
In order to defeat appellees’ no-evidence motions for summary judgment, Morris
is required to bring forth more than a scintilla of probative evidence to raise a genuine
issue of material fact regarding every challenged element. Mack Trucks, Inc., 206
S.W.3d at 581–82. Here, appellees challenged each element of Morris’s fraud claim.
Morris attempted to show through Marilyn’s testimony that an issue of material fact
exists regarding whether appellees falsely stated that Cristoph is an employee of Star
Properties. Morris claims that Marilyn stated that Cristoph is an independent contractor
in her deposition; however, Marilyn did not make such a statement.11
Even assuming that Marilyn implied in her deposition testimony that Cristoph is
an independent contractor and not an employee, Morris offered no evidence that either
Jasen or Marilyn made any false assertion with the intent that she rely on it, that Morris
actually relied on it, or that Morris suffered an injury.12 Therefore, Morris did not meet
her burden of producing summary judgment evidence raising a genuine issue of
11
Morris also relied on an independent contractor agreement for sales associate commencing on
January 1, 2004 signed by Cristoph, and Marilyn. Morris appears to rely on the agreement as evidence
that Cristoph is not an employee of Star Properties as appellees have stated. Morris provided no
evidence contradicting Jasen’s testimony that Cristoph became an employee of Star Properties in 2005
and merely argued that the independent contractor agreement must have been terminated by written
notice, and that no written notice had been submitted. Although, Jasen did not state and there is no
evidence that the independent contractor agreement had been terminated in writing, this is not evidence
that Jasen or Marilyn falsely stated that Cristoph is an employee. The agreement merely shows that the
agreement for Cristoph to be an independent contractor with Star Properties may have been terminated
by the parties without written notice in contravention of the contract. Furthermore, in her deposition,
Marilyn testified that a new independent contractor agreement is signed with the sales agents each year.
12
Without citing any specific evidence, Morris generally claimed in her response to appellees’
motions for summary judgment that she “has shown through her summary judgment evidence that the
other elements of fraud have been met.” On appeal, Morris states that she provided evidence that she
relied on the allegedly false representation by “not proceeding with a garnishment action against Star
Properties.” However, Morris did not make this argument to the trial court, and we have no evidence in
the record showing that appellees committed fraud.
10
material fact on all the challenged elements of her fraud claim.13 See Mack Trucks, Inc.,
206 S.W.3d at 581–82; see also King Ranch, Inc., 118 S.W.3d at 751; see also City of
Keller, 168 S.W.3d at 825, 827.
D. Civil Conspiracy
Morris’s civil conspiracy claim requires an underlying tort claim. See Ernst &
Young, L.L.P. v. Pac. Mut. Life Ins. Co., 51 S.W.3d 573, 583 (Tex. 2001) (“Because
Pacific’s conspiracy and ‘aiding and abetting’ claims are premised on Ernst & Young’s
alleged fraud, our conclusion on the fraud issue necessarily disposes of these other
claims.”). The only underlying tort Morris alleged is fraud. Because summary judgment
was proper as to the fraud claim, it was also proper as to Morris’s civil conspiracy claim.
See id. Accordingly, we overrule Morris’s first issue.14
III. MORRIS’S VARIOUS MOTIONS15
In her second issue, Morris generally contends that the trial court abused its
discretion by denying her motion to compel discovery and motions to reconsider the
denial of the motion to compel and requests to compel Marilyn and Jasen’s depositions.
13
On appeal, Morris claims that Jasen’s and Marilyn’s “intent was to convey to [her] that Cristoph
was an employee to cause [her] delay and hindrance from collecting on the Judgment.” To support this
claim, Morris only cites her affidavit reiterating the same claim, and there is no other evidence in the
record regarding this assertion.
14
Due to our finding that appellees are entitled to no-evidence summary judgment, we need not
determine whether the trial court should have granted appellees motion for traditional summary judgment.
See Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600–02 (Tex. 2004); see also TEX. R. APP. P. 47.4;
Johnson v. Orange River Royalties, L.L.P., No. 13-10-00038-CV, 2011 Tex. App. LEXIS 1802, at *10 n.4
(Tex. App.—Corpus Christi Mar. 10, 2011, no pet.) (mem. op.).
15
Although Morris identifies these as separate issues, she has briefed them together in a section
stating, “The No-Evidence Motions for Summary Judgment Should Not Have Been Considered Until
Adequate Opportunity for Discovery was Had. The Trial Court Should not Have Denied the Motion to
Compel Discovery and the Motion to Reconsider.” Therefore, we will address these issues together.
11
By her third issue, Morris contends that the trial court abused its discretion by
denying her verified motion for continuance of the summary judgment hearing. Morris
argues that in that motion she “established that there had not been adequate
opportunity for discovery because Star Properties had refused to answer certain key
Interrogatories and Requests for Production and Jasen and Marilyn had refused to sit
for depositions.”
Morris cites allegations she made in her verified motion for continuance as
evidence that Jasen and Marilyn were “purposely delaying the discovery process while
attempting to obtain summary judgment.” Morris also alleges that her motion for
continuance should have been granted because “there was no trial setting or Docket
Control Order in effect at the time the Motions for Summary Judgment were to be
considered by submission.” According to Morris, this violates rule 166a(i) which states
in the comments that “a discovery period set by pretrial order should be adequate
opportunity for discovery unless there is a showing to the contrary, and ordinarily a
motion under paragraph (i) would be permitted after the period but not before.” See
TEX. R. CIV. P. 166a(i).
A. Applicable Law
We review a trial court’s ruling on a motion to compel discovery under an abuse-
of-discretion standard. Austin v. Countrywide Homes Loans, 261 S.W.3d 68, 75 (Tex.
App.—Houston [1st Dist.] 2008, pet. denied). We also review a trial court’s ruling on a
motion for continuance under an abuse of discretion standard. See BMC Software
Belg., N.V. v. Marchand, 83 S.W.3d 789, 800 (Tex. 2002). We do not substitute our
judgment for that of the trial court. In re Nitla S.A. de C.V., 92 S.W.3d 419, 422 (Tex.
12
2002) (orig. proceeding). Instead, we must determine whether the trial court’s action
was so arbitrary and unreasonable as to amount to a clear and prejudicial error of law.
Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004). The test is
whether the trial court acted without reference to guiding rules or principles. Cire v.
Cummings, 134 S.W.3d 835, 838–39 (Tex. 2004). An appellate court must uphold the
trial judge’s discovery ruling if there is any legitimate basis for it. Owens-Corning
Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998).
B. Pertinent Facts
On November 30, 2009, appellees faxed responses to Morris’s first request for
disclosure, Star Properties’s objections and answers to Morris’s first set of
interrogatories, and Star Properties’s objections and responses to Morris’s first request
for production. On April 30, 2010, appellees faxed their first supplemental response to
Morris’s first request for disclosure. The record contains neither requests for production
and interrogatories from Morris to appellees nor responses from Marilyn and Jasen to
any requests for production and interrogatories made by Morris.
Appellees filed their motions for summary judgment on March 16, 2010. On
March 22, 2010, the trial court set the summary judgment hearing for April 12, 2010.
On April 6, 2010, Morris filed her response to appellees’ motions for summary judgment.
The summary judgment hearing was held on April 12, and the trial court granted
appellees’ motions for summary judgment on May 6, 2010.
Morris filed a verified motion for new trial complaining that notice of the summary
judgment hearing was faxed and she was not given twenty-four days notice of the
hearing as required by rules 21a and 166a(c) of the Texas Rules of Civil Procedure. On
13
June 7, 2010, the trial court vacated its May 6 summary judgment and set a hearing on
appellees’ motions for summary judgment by submission only on September 7, 2010.
Morris filed a motion for continuance of the summary judgment hearing on August 31,
2010. On September 2, 2010, she filed a motion to reconsider its ruling her motion to
compel discovery. The trial court granted appellees’ motions for summary judgment on
December 28, 2010.
C. Motion to Compel Star Properties to Comply with Discovery
Morris complains that the trial court abused its discretion in denying her motion to
compel because Star Properties refused to comply with discovery. Morris alleges that
the trial court implicitly overruled her motion to compel discovery. Although Morris
claims the trial court denied her motion, there is no such order in the record. See TEX.
R. APP. P. 33.1. However, assuming, without deciding that a trial court may implicitly
deny a motion to compel discovery as Morris argues, we will address Morris’s complaint
in an abundance of caution.
Star Properties served Morris with its objections and answers to Morris’s first set
of interrogatories, and its objections and responses to Morris’s first request for
production on November 30, 2009. Morris did not file her motion to compel until May 7,
2010—over six months after she received Star Properties’s objections.16
16
In her motion, Morris complained that Star Properties “failed and refused without good cause to
provide Answers and Responses” to her first set of interrogatories and first set of requests for production.
Morris requested that Star Properties objections to interrogatories number 3–4, 6–9, and 13–19 be
overruled and that it be ordered to fully provide complete answers to those interrogatories. Morris stated
that Star Properties had “failed and refused to provide documents and information responsive to Request
for Production No.’s 1, 6–19, 22, 41–42, and 47–48, without a Protective Order.” She requested that the
trial court order Star Properties to provide responsive documents and overrule any objections. In the
alternative, Morris requested that the trial court issue a protective order concerning the above requests.
14
On appeal, Morris merely states that she was entitled to the information she
requested in the interrogatories and requests for production because it was “essential to
the development of her case.” Morris does not argue that each of appellees’ objections
to her discovery requests were improper or provide analysis supporting such a
conclusion; thus, entitling her to that information.17 Therefore, Morris has not shown
that the trial court should have overruled each of appellees’ objections and should have
compelled discovery. See TEX. R. APP. P. 38.1(i); see also In re Hernandez, No. 14-11-
00408-CV, 2011 Tex. App. LEXIS 7981, at *2 (Tex. App.—Houston [14th Dist.] Oct. 6,
2011, orig. proceeding) (mem. op.) (denying mandamus relief where petition did not
contain argument, analysis and authority on all discovery requests at issue); In re
17
In their first response to Morris’s first requests for disclosure, appellees provided the correct
names of the parties to the lawsuit, their defensive theory, and the contact information of persons having
knowledge of relevant facts; appellees stated that there were no expert witnesses, no potential parties, no
affirmative claim for damages, no indemnity agreement, no settlement agreement, no medical records or
bills, and no known responsible third party. Morris requested “Any witness statements described in Rule
192.3(h), and appellees directed her to “the depositions previously taken by Plaintiff.”
In its objections and answers to Morris’s first set of interrogatories, Star Properties generally
objected to Morris’s interrogatories: (1) “to the extent that they attempt to impose duties and restriction on
Defendant greater than is allowed under the Texas Rules of Civil Procedure”; (2) “to the instructions and
definitions included with Plaintiff’s interrogatories to the extent they are vague, ambiguous, and overly
broad”; and (3) “to the disclosure to Plaintiff of any confidential information or information and documents
not relevant to the subject matter of this litigation.” Star Properties answered several of the
interrogatories, objected to and subject to the objections answered other interrogatories, and objected to
and did not answer several other interrogatories. Star Properties specifically objected to interrogatories
for a variety of reasons including but not limited to a claim the interrogatories: (1) were “overly broad,”
vague, “not properly limited in time and scope,” “general in nature and uncertain of meaning”; (2) sought
privileged information”; (3) were duplicative of Morris’s requests for disclosure and submitted for the
purposes of harassment; (4) required it to “marshal all its evidence in violation of TEX. R. CIV. P. 194.2(c)”;
and (5) sought irrelevant evidence and information “not likely to lead to the discovery of admissible
evidence.”
Star Properties made similar general objections in its objections and responses to Morris’s first
request for production. Star Properties made specific objections to many of Morris’s requests for
production, including but not limited to the following: (1) the request is “overly broad, unlimited in scope
and seeks information that is nether relevant nor likely to lead to the discovery or relevant evidence”; (2)
the information sought “is protected from disclosure under privacy rights of third-parties”; and (3) the
request “fails to describe with particularity that which it seeks.” In many of its responses, Star Properties
offered to, subject to its objections, “make documents responsive to [Morris’s requests] available for
inspection and copying.”
15
Citizens Supporting Metro Solutions, Inc., No. 14-07-00190-CV, 2007 Tex. App. LEXIS
8550, at *4 (Tex. App.—Houston [14th Dist.] Oct. 18, 2007, orig. proceeding) (mem. op.)
(same).
Moreover, on March 22, 2010, the trial court set a hearing on appellees’ motions
for summary judgment for April 12, 2010. Morris appeared through counsel at the
summary judgment hearing held on April 12. Morris filed her motion to compel on May
7, 2010, almost one month after the trial court held the summary judgment hearing.
We cannot conclude based on these facts that the trial court’s implicit denial of
Morris’s motion to compel was so arbitrary and unreasonable as to amount to a clear
and prejudicial error of law. Joe, 145 S.W.3d at 161; Austin, 261 S.W.3d at 75. Rather,
from these facts, the trial court may have found that Morris did not exercise due
diligence in seeking discovery. See Piazza v. Cinemark, USA, Inc., 179 S.W.3d 213,
216 (Tex. App.—Eastland 2005, pet. denied) (noting that the trial court did not abuse its
discretion by denying motion to compel because plaintiff had more than ample time for
discovery); see also Fraud-Tech, Inc. v. Choicepoint, Inc., No. 02-05-00150-CV, 2006
Tex. App. LEXIS 3181, at *3 (Tex. App.—Fort Worth Apr. 20, 2006, no pet.) (mem. op.)
(holding that denial of motion to compel was not an abuse of discretion when appellants
failed to show due diligence in requesting continuance). Accordingly, we overrule
Morris’s second issue complaining that the trial court abused its discretion by denying
her motion to compel Star Properties to provide discovery. 18
18
Morris provides no argument regarding the trial court’s denial of her motion to reconsider its
ruling on her motion to compel discovery. Therefore, we will not address the issue. See TEX. R. APP. P.
38.1(i).
16
D. Morris’s Verified Motion for Continuance of the Summary Judgment
Hearing
Morris next claims that she did not have an adequate time for discovery because
the trial court granted the summary judgments before the discovery period ended.
Therefore, Morris concludes that the trial court abused its discretion by denying her
motion for continuance.19 Again, the record does not contain the trial court’s ruling on
Morris’s verified motion for continuance of the summary judgment hearing. So,
assuming without deciding that the trial court implicitly ruled on Morris’s motion, we will
address her claim.
Morris filed her verified motion for continuance of the summary judgment hearing
on August 31, 2010. In her motion for continuance, Morris claimed that “discovery
remain[ed] open.” However in her petition, Morris alleged that discovery was intended
to be conducted under “Level 2” of the Texas Rules of Civil Procedure. Morris did not
state in her motion for continuance when she first served written discovery on
appellees; however, in their response to Morris’s motion, appellees stated that Morris
served written discovery on them on October 30, 2009. Appellees claimed that based
on that date, the discovery period ended on August 2, 2010—nine months later. Morris
did not challenge that claim. See TEX. R. CIV. P. 190.3 (providing that discovery under
level two begins when the suit is filed and ends the earlier of thirty days before the date
set for trial, or “nine months after the earlier of the date of the first oral deposition or the
due date of the first response to written discovery”). Thus, Morris’s August 31, 2010
19
Morris appears to also assert that the trial court abused its discretion by denying her motion for
continuance and motion to compel because Marilyn and Jasen allegedly refused to be deposed. We
conclude that argument is inadequately briefed because Morris does not provide a clear and concise
argument with citation to appropriate authority supporting her assertion. See TEX. R. APP. P. 38.1(i).
17
motion for continuance was filed outside the discovery period. The trial court granted
appellees’ motions for summary judgment on December 28, 2010. We conclude that
Morris’s assertion that she did not have an adequate time for discovery because the trial
court granted the summary judgments before the discovery period ended is without
merit.20 Accordingly, we overrule Morris’s third issue.21
IV. DISMISSAL WITH PREJUDICE
By her final issue, Morris contends that the trial court committed error in its order
granting summary judgment by including the following language: “all claims made by
Plaintiff against Defendants, or that could have been made by Plaintiff against
Defendants, in the above-entitled and numbered cause are hereby dismissed with
prejudice.”
The Fourth Court of Appeals addressed a similar situation in Martinez v. South
Pacific Transportation Company, 951 S.W.2d 824, 830 (Tex. App.—San Antonio 1997,
no pet.), in which the plaintiff complained that the trial court erred by dismissing his
cause of action by summary judgment. In that case, the judgment provided:
On this 27 [sic] day of June, 1996, the court heard Defendant
[Southern Pacific's] Motion for Summary Judgment, and having
20
Morris states, “There was no trial setting or Docket Control Order in effect at the time the
Motions for Summary Judgment were to be considered by submissions. A hearing was held on the day
of submission of the Motions to set the case for trial. A Docket Control Order was signed the day after
the submission date setting the jury trial for February 21, 2011.” However, Morris does not explain how
these facts are relevant to our analysis of whether the trial court abused its discretion by denying her
motions for continuance and to compel discovery. See TEX. R. APP. P. 38.1(i).
21
Moreover, the party seeking a motion for continuance must state with particularity what
diligence was used; conclusory allegations of diligence are not sufficient. Rocha v. Faltys, 69 S.W.3d
315, 319 (Tex. App.—Austin 2002, no pet.). A party who fails to use the rules to diligently pursue
discovery is not entitled to a continuance. State v. Wood Oil Distrib., Inc., 751 S.W.2d 863, 865 (Tex.
1988). Here, Morris merely stated in her verified motion for continuance that she had “exercised diligence
in attempting to obtain the information and compel the information.” Morris did not state with particularity
what diligence was used. Accordingly, although no ruling appears in the record, the trial court could have
properly denied Morris’s motion for continuance on that basis.
18
considered the motion has determined it should be granted. It is therefore
ORDERED that the above-styled and numbered cause be dismissed with
prejudice as to [Southern Pacific] and that the Plaintiff take nothing from
the Defendant. . . .
Id.
Noting that the trial court had disposed of the case by granting summary
judgment, the court of appeals stated that the trial court should not have ordered
dismissal. Id. The court found that “the proper judgment is that plaintiff take nothing.”
Id. The court of appeals then modified the judgment by deleting the order of dismissal
with prejudice and affirmed the judgment of the trial court as modified. Id.
The judgment in the instant case is similar to that in Martinez. See id. We agree
with the reasoning in Martinez and modify the judgment to delete the dismissal
language.22 See id. Accordingly, we delete the complained of language and substitute
the following: It is further ordered, adjudged and decreed by the Court that Plaintiff take
nothing.
V. CONCLUSION
We affirm the trial court’s summary judgment as modified.
_________________
ROGELIO VALDEZ
Chief Justice
Delivered and filed the
26th day of July, 2012.
22
In a section in her brief entitled “Issues Presented,” Morris states that her fifth issue is that the
trial court abused its discretion by denying her motion for new trial. However, Morris has not provided any
argument with citation to appropriate authority concerning her motion for new trial. See TEX., R. APP. P.
38.1(i). Nonetheless, in her motion for new trial, Morris made the same arguments she has made on
appeal. Therefore, because we have concluded that summary judgment is proper in this case, the trial
court did not abuse its discretion by denying her motion for new trial. We overrule Morris’s fifth issue.
19