Nancy Giraldo v. Southwestern Adventist University ( 2017 )

IN THE
TENTH COURT OF APPEALS
No. 10-16-00145-CV
NANCY GIRALDO,
Appellant
v.
SOUTHWESTERN ADVENTIST UNIVERSITY,
Appellee
From the 249th District Court
Johnson County, Texas
Trial Court No. C201400031
MEMORANDUM OPINION
In three issues, appellant, Nancy Giraldo, advancing pro se, argues that the trial
court erred in granting summary judgment in favor of her former employer, appellee
Southwestern Adventist University. Specifically, Giraldo contends that the trial court
erred by: (1) failing to provide her with an opportunity to complete discovery (2)
excluding critical evidence; and (3) granting summary judgment in favor of appellee. We
affirm.
I. BACKGROUND
Giraldo was previously employed by appellee as an Associate Professor in the
Psychology Department. In her live pleading, Giraldo asserted that appellee discharged
her from her position for improper purposes—a contention with which appellee
disagrees. Specifically, Giraldo alleged claims for gender discrimination, national-origin
discrimination, ethnic discrimination, color discrimination, retaliation, and breach of
contract.1
In response to Giraldo’s lawsuit, appellee filed traditional and no-evidence
motions for summary judgment. After a hearing, the trial court granted appellee’s
motions for summary judgment. This appeal followed.
II. ANALYSIS
In her first issue, Giraldo contends that the trial court erred in failing to grant her
motion to extend the time to respond to appellee’s motions for summary judgment and
to complete discovery. At the outset of our analysis of this issue, we note that Giraldo
has not provided any citations to the record in her briefing of this issue. See TEX. R. APP.
P. 38.1(i) (“The brief must contain a clear and concise argument for the contentions made,
with appropriate citations to authorities and to the record.”); Nguyen v. Kosnoski, 93
1Giraldo noted in her live pleading that she “is a female citizen of the United States of America.
She is an Hispanic who was born in Puerto Rico.” She also acknowledged that she does not possess a
Doctorate in Psychology, which, according to appellee, was one of the bases for not renewing her
employment contract.
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S.W.3d 186, 188 (Tex. App.—Houston [14th Dist.] 2002, no pet.) (“Moreover, an issue not
supported by references to the record is waived.”); see also Warren v. McLennan County
Judiciary, No. 10-13-00009-CV, 2013 Tex. App. LEXIS 7946, at **3-4 n.2 (Tex. App.—Waco
June 27, 2013, no pet.) (mem. op.) (“Moreover, under Texas law, pro-se litigants are held
to the same standards as licensed attorneys with regard to compliance with applicable
laws and rules of procedure.” (citing Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85
(Tex. 1978); In re N.E.B., 251 S.W.3d 211, 211-12 (Tex. App.—Dallas 2008, no pet.))). As
such, Giraldo has waived her complaint in this issue.
In any event, even if she had provided appropriate citations to the record in her
briefing, Giraldo’s complaint in this issue lacks merit. On January 11, 2016, Giraldo filed
a motion for extension of time to respond to appellee’s motion for summary judgment
and to complete discovery. Thereafter, on January 19, 2016, Giraldo filed a motion for
continuance, requesting more time to conduct discovery in preparation for the summary-
judgment hearing. Neither of Giraldo’s motions were verified or accompanied by an
affidavit describing the evidence sought, explaining its materiality, and showing that
Giraldo had used due diligence to obtain the evidence.2
If a continuance is sought to pursue further discovery, the motion must either be
verified or supported by affidavit describing the evidence sought, explaining its
materiality, and showing the party requesting the continuance has used due diligence to
2 It is worth noting that Giraldo filed her original petition in this case on January 21, 2014.
Giraldo v. Sw. Adventist Univ. Page 3
obtain the evidence. See TEX. R. CIV. P. 251, 252; Tenneco, Inc. v. Enter. Prods. Co., 925
S.W.2d 640, 647 (Tex. 1996); Wal-Mart Stores Tex., L.P. v. Crosby, 295 S.W.3d 346, 356 (Tex.
App.—Dallas 2009, pet. denied). Conclusory allegations are not sufficient. Lee v. Haynes
& Boone, L.L.P., 129 S.W.3d 192, 198 (Tex. App.—Dallas 2004, pet. denied). We must
presume that a trial court does not abuse its discretion in denying a motion for
continuance when the motion is not verified or supported by affidavit. See Serrano v.
Ryan’s Crossing Apartments, 241 S.W.3d 560, 564 (Tex. App.—El Paso 2007, pet. denied);
City of Houston v. Blackbird, 658 S.W.2d 269, 272 (Tex. App.—Houston [1st Dist.] 1983, writ
dism’d).
Therefore, because Giraldo’s motion for continuance was unverified and
unaccompanied by an affidavit outlining the information listed above, we must presume
that the trial court did not abuse its discretion in failing to grant her motions. See Serrano,
241 S.W.3d at 564; Blackbird, 658 S.W.2d at 272. Accordingly, we overrule her first issue.
In her second issue, Giraldo argues that the trial court erred in excluding evidence
that was controlling on a material issue. In particular, Giraldo complains about the trial
court’s exclusion of Exhibits A, B, M, N, and Q. Exhibit A purportedly is a copy of the
Southwestern Adventist University Faculty/Staff Handbook. Exhibit B purportedly is a
copy of the Southern Association of Colleges and Schools Faculty Credentialing
Guidelines. The remaining exhibits are personal emails of Giraldo’s.
Giraldo v. Sw. Adventist Univ. Page 4
As was the case in her first issue, Giraldo has not provided any citations to the
record in her briefing of this issue. See TEX. R. APP. P. 38.1(i); Nguyen, 93 S.W.3d at 188;
see also Warren, 2013 Tex. App. LEXIS 7946, at **3-4 n.2. Accordingly, Giraldo has waived
her complaint in this issue.
Nevertheless, even if Giraldo had provided appropriate citations to the record, she
waived her complaints as to these exhibits by failing to challenge all possible grounds for
the trial court’s ruling. See In re Blankenship, 392 S.W.3d 249, 259 (Tex. App.—San Antonio
2012, no pet.) (“When an appellee objects to evidence on several independent grounds
and, on appeal, the appellant complains of the exclusion of the evidence on only one of
those grounds, the appellant waives any error by not challenging all possible grounds for
the trial court’s ruling.” (citing Gulley v. Davis, 321 S.W.3d 213, 218 (Tex. App.—Houston
[1st Dist.] 2010, pet. denied); Trahan v. Lone Star Title Co. of El Paso, Inc., 247 S.W.3d 269,
284-85 (Tex. App.—El Paso 2007, pet. denied))).
Here, appellee objected to exhibits A, B, M, N, and Q on the following grounds:
“Plaintiff has failed to establish its authenticity or relevance, or lay any proper predicate
for the admissibility of same, either through a qualified witness or otherwise. The
purported document is inadmissible hearsay and not competent as summary judgment
proof.” Additionally, with respect to Exhibit M, appellee objected “to the extent it
attempts to interject opinion testimony from persons not designated as experts.” The trial
court sustained appellee’s objections to these exhibits.
Giraldo v. Sw. Adventist Univ. Page 5
On appeal, Giraldo does not: (1) contend that the exhibits are not hearsay; (2)
explain the relevance of Exhibits M, N, and Q; or (3) contend that Exhibit M does not
attempt to interject opinion testimony from persons not designated as experts. By not
challenging all possible grounds for the trial court’s exclusion of these exhibits, Giraldo
has waived this complaint. See In re Blankenship, 392 S.W.3d at 259; see also Gulley, 321
S.W.3d at 219; Trahan, 247 S.W.3d at 285. We overrule her second issue.
In her third issue, Giraldo contends that the trial court erred in granting appellee’s
motion for summary judgment because “Plaintiff argues that the argument presented in
summary judgement [sic] for its case meets the lower threshold necessary to survived
[sic] summary judgement [sic].” Once again, Giraldo has not provided any citations to
the record in her briefing of this issue. See TEX. R. APP. P. 38.1(i); Nguyen, 93 S.W.3d at
188; see also Warren, 2013 Tex. App. LEXIS 7946, at **3-4 n.2. Accordingly, Giraldo has
waived her complaint in this issue. We overrule her third issue.
III. CONCLUSION
Having overruled all of Giraldo’s issues on appeal, we affirm the judgment of the
trial court.
AL SCOGGINS
Justice
Giraldo v. Sw. Adventist Univ. Page 6
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed April 26, 2017
[CV06]
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