Kalei Merrill v. Mitchell Curry, Melinda DeFelice and Tamira Griffin, Each Individually as ( 2023 )

AFFIRMED in part and REVERSED and REMANDED in part; and Opinion
Filed April 25, 2023
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-21-00934-CV
KALEI MERRILL, Appellant
V.
MITCHELL CURRY, MELINDA DEFELICE AND TAMIRA GRIFFIN,
EACH INDIVIDUALLY AS DEFENDANTS, Appellees
On Appeal from the 380th Judicial District Court
Collin County, Texas
Trial Court Cause No. 380-01827-2019
MEMORANDUM OPINION
Before Justices Pedersen, III, Goldstein, and Smith
Opinion by Justice Smith
Appellant Kalei Merrill appeals the trial court’s summary judgment in favor
of appellees Mitchell Curry, Melinda DeFelice, and Tamira Griffin. Because we
conclude that appellees were immune from suit but that the trial court failed to
include a mandatory award of attorney’s fees to appellant under rule 91a of the Texas
Rules of Civil Procedure, we affirm the trial court’s summary judgment and reverse
and remand the issue of attorney’s fees for further proceedings consistent with this
opinion.
Factual and Procedural Background
Merrill was a teacher employed by the McKinney Independent School District
(MISD) for almost ten years. On October 16, 2017, her principal confronted her
with nude pictures of herself that had been posted on a website. She resigned in lieu
of an investigation but was subsequently reinstated after filing a grievance with
MISD’s Human Resources Department. In 2019, she filed suit against appellees
alleging they forced her to resign under duress and false pretenses. Specifically, she
alleged causes of action for (1) violation of section 98B.002 of the Texas Civil
Practice and Remedies Code by unlawfully disclosing or promoting intimate visual
material; (2) negligence per se by violating section 21.16 of the Texas Penal Code,
which makes it a criminal offense to unlawfully disclose or promote intimate visual
material; (3) intentional infliction of emotional distress; (4) intrusion upon seclusion;
(5) defamation; and (6) public disclosure of private facts. Appellees filed a general
denial and pleaded several affirmative defenses. Appellees also filed a motion to
dismiss under TEX. R. CIV. P. 91a, which the trial court denied, and a motion to
dismiss under the Texas Citizens Participation Act (TCPA),1 which the trial court
granted. The trial court entered a final judgment dismissing Merrill’s claims.
On appeal, this Court reversed and remanded the trial court’s judgment
dismissing the case pursuant to the TCPA. Merrill v. Curry, No. 05-19-01229-CV,
1
See TEX. CIV. PRAC. & REM. CODE ANN. § 27.003.
–2–
2020 WL 6498983, at *1 (Tex. App.—Dallas Nov. 5, 2020, no pet.) (mem. op.).
Also, in that opinion, we concluded that the rule 91a order was interlocutory and
declined to address the parties’ related issues on appeal. Id. at *1, 7–8. We set out
the relevant underlying facts of this case as follows:
Mitchell Curry is the principal at Scott Johnson Middle School in
McKinney. At 10:53 p.m. on October 15, 2017, an anonymous email
was sent to him and two of his assistant principals, Grace Harris and
David Warren. The email stated:
I am an anonymous MISD parent and I recently came
across some text messages on my son’s phone. The text
messages were from other kids [sic] were talking about a
teacher at Scott Johnson Middle School, who had posted
some nude pictures of herself. I found out the name of the
teacher and went online to FLICKR and checked it out for
myself to see if this was true and much to my surprise it is.
I can’t believe it! All I can say is WOW! I thought maybe
you should tell her that she needs to take those pictures off
the internet. I am not sure how many of the kids have
already seen these pics. I do not want to get involved in
this, because it is such an awkward situation. Please tell
this teacher to get those pictures off the internet. The
teacher’s name is Kalei Merrill.
The email provided a link to the website where the photos were posted
and could be viewed. Although the email showed it was sent by
“Anonymous Mom,” it is undisputed the email was sent by Merrill’s
ex-fiancé.
Because Curry’s email address contained a typographical error, he did
not see the email until the following morning when Warren forwarded
it to him. Curry accessed the website and saw “nude (and some
pornographic) photos” of Merrill. He believed the postings and sharing
of the photographs violated MISD policy, the Educators Code of Ethics,
and the MISD Student Code of Conduct, requiring investigation.
Because of the content of the email, Curry forwarded the email to his
–3–
district supervisor, Dr. Melinda DeFelice, assistant superintendent of
secondary student support, who then contacted Tamira Griffin, assistant
superintendent of human resources. Curry said they were concerned
the email and website link implicated “potential adverse effects on the
mental, safety, and well-being of MISD students” at his school and that
Merrill had “likely lost the ability to be an effective teacher in the
MISD.” DeFelice and Griffin instructed Curry to bring Merrill to his
office with her pictures on the screen “for a ‘shock factor.’” DeFelice
advised him to have a female administrator at the meeting.
The very same morning that he received the email, Curry pulled Merrill
from her classroom. As the two walked back to his office, Merrill, who
had worked in the McKinney school district for several years with only
positive performance reviews, asked the reason for the meeting. Curry
would not say. When they arrived at Curry’s office, Harris was already
there. Curry displayed the nude images from the website on an
oversized computer monitor and asked if the pictures were of her.
Merrill confirmed that they were but said she had not created the
website, posted the photographs, or authorized or consented to the
publishing of such photographs. Rather, she explained that she had
previously taken the pictures and sent them to a former fiancé with
whom she had been in a long-distance relationship.
Curry proceeded to scroll through the photographs and told Merrill she
had “two options: resign or go on administrative leave and incur an
investigation that would involve the human resources department and
school board to see the pictures.” Merrill was in a “shocked state” and
“under duress.” According to her petition, Merrill repeatedly stated that
she did not know what to do and asked for time to call her parents and
her lawyer, but Curry refused. Merrill alleged that Curry repeatedly
demanded and emphasized that it was “urgent” that she make a
decision. She asked for twenty-four hours to consider the events and
the options available to her, but Curry refused and demanded a decision
“now.” Merrill alleged that Curry told her that the photos “were being
viewed by school parents already, and that they were being circulated
thru [sic] student devices at school too.” He told Merrill that if she
proceeded with an investigation, “everyone” would know and they
“would ‘all’ see the website.” Merrill ultimately decided to resign, but
told Curry and Harris that she did not want to and did not understand
why she had to lose her job; both Curry and Harris told her she had “no
other choice.” Curry gave her a pad of paper and told her what to write.
–4–
He then escorted her from the building. Merrill alleged that a
subsequent investigation by MISD proved that the information used by
Curry to pressure and intimidate her, including that the photographs had
been viewed by parents and students, was false.
During the meeting, which lasted about thirty minutes, Curry left the
images displayed on his monitor rather than closing out the website.
When he left the office to walk Merrill to her car, the images remained
on his monitor, which faced the open, unlocked door “so that any one
passing by” could view them. And, Merrill alleged, the images were
viewed by other parties.
Id. at *1–2, 1 n.1 (alterations in original) (footnotes omitted) (taking facts from
pleadings and evidence filed in relation to motion to dismiss).
Following this Court’s remand, appellees moved for the trial court to
reconsider its orders on appellees’ motion to dismiss under rule 91a. The trial court
denied this motion. Although Merrill was the prevailing party on appellees’ rule 91a
motion, the trial court’s order denying appellees’ motion to reconsider did not award
any attorney’s fees to Merrill.
Additionally, following this Court’s remand, appellees also moved for
summary judgment on multiple grounds. First, appellees argued that they were
entitled to summary judgment because they could disprove at least one element of
each of Merrill’s six causes of action as a matter of law. As to Merrill’s cause of
action for violation of section 98B.002 of the Texas Civil Practice and Remedies
Code, appellees asserted that, at the time of their limited disclosure of the already
public photos, none of the appellees had reason to know Merrill had not consented
to the posting of the photos on the public website and none of the appellees promoted
–5–
the photos. Appellees argued that Merrill’s negligence per se claim, based on section
21.16(c) of the Texas Penal Code, failed because none of the appellees threatened to
disclose the photos without Merrill’s consent in order to obtain a benefit. Because
Merrill had alleged other claims that would provide a remedy for Merrill’s emotional
distress, appellees argued that she could not recover on her “gap filler” claim for
intentional infliction of emotional distress. As to Merrill’s claim for intrusion upon
seclusion, appellees contended that they did not physically invade Merrill’s privacy
or eavesdrop on her conversations and that the photos were no longer of Merrill’s
private affairs because they were already on a public website when appellees viewed
them. They asserted that the fact that the pictures were already on the internet when
they viewed them also defeated Merrill’s claim for public disclosure of private fact.
And, finally, appellees argued that Merrill’s defamation claim failed because they
did not publish any false statements that defamed her to a third party.
In the second part of their motion for summary judgment, appellees argued
that they could prove the following affirmative defenses as a matter of law:
governmental, official, and professional immunity as to all claims; Merrill’s
defamation claim was barred by the one-year statute of limitations; in defense of
defamation, the graphic photos of Merrill were true in that she took them of herself
and sent them to her fiancé; and any disclosure of the photos was necessary to
investigate the claim in the email that Merrill had posted the photos online and that
–6–
students were viewing and sharing the photos and, thus, the defense of excuse
defeated Merrill’s claims for violation of section 98B.002 and for negligence per se.
In response to appellees’ motion for summary judgment, Merrill argued that
appellees were not acting within the scope of their employment, that they violated
laws and policies by distributing the photos amongst themselves and by allowing
others to view them on Curry’s computer, and appellees not only lied in their
affidavits but also copied and pasted each other’s accounts of what happened.
Merrill also asserted that she had no time to properly and sufficiently ascertain the
true scope of appellees’ employment and whether they were acting outside their legal
authority because she had been “hampered by the limitations” placed on discovery
by the trial court and the appellees were refusing to submit to depositions.
After granting Merrill’s first motion for continuance of the summary
judgment hearing, the trial court denied Merrill’s second motion for continuance and
granted summary judgment in favor of appellees. The trial court did not specify on
which ground it granted appellees’ motion. The trial court further ordered that
Merrill take nothing on her causes of action and dismissed such causes with
prejudice.
On appeal, Merrill presents the following six issues: (1) whether the trial court
erred in concluding that appellees were immune from their conduct; (2) whether the
trial court erred in concluding that appellees established their affirmative defenses
as a matter of law; (3) whether the trial court erred in concluding that appellees
–7–
disproved as a matter of law any elements of Merrill’s six causes of action; (4)
whether the trial court erred by failing to grant a continuance for Merrill to obtain
further discovery from appellees; (5) whether the trial court erred by failing to award
mandatory fees to Merrill for surviving two 91a motions to dismiss in its final
judgment; and (6) whether the trial court’s “continual punishment of a victim is
inherently against Texas values and any reliance on immunity is anachronistic to the
American way of life.”
Summary Judgment Standard of Review
We review a summary judgment de novo. Trial v. Dragon, 593 S.W.3d 313,
316 (Tex. 2019). A traditional motion for summary judgment requires the moving
party to show that no genuine issue of material fact exists and that it is entitled to
judgment as a matter of law. TEX. R. CIV. P. 166a(c); Lujan v. Navistar, Inc., 555
S.W.3d 79, 84 (Tex. 2018). If the movant carries this burden, the burden shifts to
the nonmovant to raise a genuine issue of material fact. Lujan, 555 S.W.3d at 84.
We take evidence favorable to the nonmovant as true, and we indulge every
reasonable inference and resolve any doubts in the nonmovant’s favor. Ortiz v. State
Farm Lloyds, 589 S.W.3d 127, 131 (Tex. 2019).
A defendant is entitled to summary judgment on a plaintiff’s cause of action
if the defendant conclusively negates at least one essential element of the plaintiff’s
cause of action or conclusively establishes all the elements of an affirmative defense
as a matter of law. KCM Fin. LLC v. Bradshaw, 457 S.W.3d 70, 79 (Tex. 2015).
–8–
We must affirm the summary judgment if any ground asserted in the motion, and
preserved for appellate review, is meritorious. Joe v. Two Thirty Nine Joint Venture,
145 S.W.3d 150, 157 (Tex. 2004).
Affirmative Defense of Immunity
In her first issue, Merrill argues that the trial court could not have concluded
that appellees were immune from their conduct under any theory of immunity. First,
Merrill contends that courts have erroneously concluded that there is no good faith
requirement to an educator’s immunity under the education code. Even removing
this requirement, Merrill argues that appellees failed to establish that their actions
were within their official capacity or discretionary, thus defeating official immunity,
governmental immunity, or professional immunity. Because appellee’s affirmative
defense of professional immunity is dispositive, we address it first.
The Texas Education Code provides that “[a] professional employee of a
school district is not personally liable for any act that is incident to or within the
scope of the duties of the employee’s position of employment and that involves the
exercise of judgment or discretion on the part of the employee.” TEX. EDUC. CODE
ANN. § 22.0511. A “professional employee of a school district” includes “a
superintendent, principal,” and “any other person employed by a school district
whose employment requires certification and the exercise of discretion.” Id. §
22.051(a)(1), (6).
–9–
Merrill has not challenged whether appellees were professional employees of
the school district as defined by the education code, and Curry, as principal, and
Griffin and DeFelice, as superintendents, clearly fall within the definition. See id.
Although Merrill argues that courts have erroneously concluded that there is no good
faith element under the education code as is generally required for official immunity,
the plain language of the statute does not require the act to have been performed in
good faith. See, e.g., Compton v. Port Arthur Indep. Sch. Dist., No. 09-15-00321-
CV, 2017 WL 3081092, at *8 (Tex. App.—Beaumont July 20, 2017, no pet.) (mem.
op.); Robinson v. Brannon, 313 S.W.3d 860, 866 n.3 (Tex. App.—Houston [14th
Dist.] 2010, no pet.); Kobza v. Kutac, 109 S.W.3d 89, 93 & n.2 (Tex. App.—Austin
2003, pet. denied). The education code makes clear that the two are different: “The
statutory immunity provided by this subchapter is in addition to and does not
preempt the common law doctrine of official and governmental immunity.” TEX.
EDUC. CODE § 22.051(b). Therefore, we turn to the two remaining elements of
immunity under the education code. Merrill argues that appellees failed to prove
that (1) their actions fell within the scope of their employment, or within their official
capacity or authority, and (2) their actions were discretionary. We disagree.
The scope-of-employment analysis “calls for an objective assessment of
whether the employee was doing her job when she committed an alleged tort, not
her state of mind when she was doing it.” Laverie v. Wetherbe, 517 S.W.3d 748,
753 (Tex. 2017). “The scope-of-employment analysis, therefore, remains
–10–
fundamentally objective: Is there a connection between the employee’s job duties
and the alleged tortious conduct? The answer may be yes even if the employee
performs negligently or is motivated by ulterior motives or personal animus so long
as the conduct itself was pursuant to her job responsibilities.” Id.The summary judgment evidence consisted of affidavit testimony by each
appellee, exhibits attached to the affidavits, and the deposition testimony of Griffin
and Curry. Griffin testified that her duties as Assistant Superintendent of Human
Resources/Chief Human Resources Officer included directing and managing district
personnel functions to ensure legally sound and effective personnel management
practices, processing employee-related complaints, and assisting supervisory
personnel such as principals in conducting due process procedures. DeFelice
testified that her duties as Assistant Superintendent of Secondary Support included
supporting MISD secondary schools in all areas to enable the schools to carry out
their mission of educating the students of MISD; managing and hearing district level
grievances associated with education issues; complying with and implementing
policies established by state and federal law, State Board of Education rules, and
local board policies, regulations, and guidelines; and performing all other duties as
assigned. Curry testified that his duties as Principal of Scott Johnson Middle School
included supervising and evaluating the performance of staff assigned to his campus.
He reported to DeFelice and was subject to Griffin’s direction regarding employee
–11–
issues. The summary judgment evidence also included a job profile of each
appellee’s position with the district, which included the duties listed above.
When Curry received the email, he called DeFelice for direction and
forwarded the email to her in her role as his direct supervisor and Assistant
Superintendent for secondary schools. Because the email concerned potential
teacher misconduct, she immediately forwarded the email to Griffin in her role as
Assistant Superintendent of Human Resources. Appellees testified that the email
was concerning because the posting of nude photos by a teacher and subsequent
sharing of those photos by students would violate district policy, such as the
Educator’s Code of Ethics and the Student Code of Conduct, and might need to be
reported to CPS.2 And, in fact, Curry did report the situation to CPS.3 Griffin further
testified, “Because the email and FLICKR.com link implicated potential teacher
misconduct, it was within my job responsibilities to investigate this matter in order
to take potential disciplinary action, up to and including termination.” Appellees
also testified that, because the email implicated potential adverse effects on the
mental health, safety, and well-being of MISD students, it was within each of their
job responsibilities as principal or superintendent to investigate so that, if necessary,
2
CPS, or Child Protective Services, is a division of the Texas Department of Family and Protective
Services.
3
By separate order we deny Merrill’s request for this Court to take judicial notice of Merrill’s CPS
records request and CPS’s response.
–12–
they could protect minor students and take appropriate remedial or disciplinary
action.
Appellees decided Curry would first meet with Merrill as her principal
because Human Resources Director Dr. Chad Teague, who would normally meet
first with an employee, was not available. Griffin suggested that Curry have a female
administrator with him and show Merrill the photos. Neither Griffin, nor DeFelice,
advised Curry to leave the pictures open on his computer where others could
potentially walk by and see the photos while he was not in his office. Griffin
explained, “I gave [Curry] instructions in general that he needed to look into it, ask
any questions that he had, talk certainly to Ms. Merrill, get her side of whatever the
story was, and visit with her about that.”
Curry testified that he met with Merrill and, after Merrill admitted the photos
were of her, he provided her with “two options as directed by his superiors: promptly
resign or go on paid administrative leave pending a more formal human resources
investigation, which would likely include additional persons within the school
district viewing the photos.” As to leaving the photos on his computer screen while
he escorted Merrill out of the building, Curry testified that he did not remember
doing so, that he did not do so intentionally, and that his screen had gone to “sleep”
during the five minutes that he was gone.
Merrill argues that it was not within appellees’ scope of employment to
investigate whether she posted nude pictures on the internet; it was Teague’s
–13–
responsibility to investigate. We disagree. Although Teague was the district
employee generally assigned to investigate such an issue with personnel, Teague
was unavailable to do so that day. Teague, as Director of Human Resources,
reported to Griffin; Griffin reported directly to the Superintendent of MISD. Thus,
as Superintendent of Human Resources, it was within Griffin’s scope of employment
to direct Curry to talk with Merrill due to Teague’s unavailability and the
information at issue. It was also in DeFelice’s scope of employment to report the
email to Griffin and seek assistance from her in how to direct Curry to handle the
situation. Griffin explained that, as principal, Curry would have authority to ask her
to resign—to “have that conversation with her.” Furthermore, Griffin expressly
assigned him that task as his superior. Therefore, we conclude that appellees acted
within the scope of their authority because they were each discharging duties
generally assigned to them or specifically assigned to them that day. See Ballantyne
v. Champion Builders, Inc., 144 S.W.3d 417, 424 (Tex. 2004).
We next turn to whether appellees acts were discretionary. There can be no
dispute that Griffin’s actions in directing Curry to talk with Merrill and confront her
about the pictures involved personal deliberation, decision, and judgment. See id. at
425. The same is true for DeFelice when she received the email from Curry and
forwarded it to Griffin for her assistance. Merrill argues that Curry was simply
following orders and, therefore, his actions were not discretionary. We disagree that
Curry’s actions were of such a nature to be considered ministerial. Griffin gave him
–14–
general instructions in how to approach the situation with Merrill, but she did not
give him specific orders that were “with such precision and certainty as to leave
nothing to the exercise of discretion or judgment.” Id. at 425 (quoting Comm’r of
the Gen. Land Off. v. Smith, 5 Tex. 471, 479 (1849)). Curry still exercised discretion
in how he discussed the situation with Merrill and in how he treated Merrill during
the discussion. Griffin did not provide Curry with line-by-line directives in how to
proceed. Curry also had a choice in whether to even talk to Merrill about the
pictures. Appellees testified that they decided Curry would talk to her because he
was there on campus with her, but there is no evidence in the summary judgment
record to suggest that Curry had no choice but to comply with Griffin’s instructions.
See id. And, finally, as to Curry’s decision to leave the pictures on the computer
while he escorted Merrill out of the building, we conclude that such action involved
his personal judgment; he was not ordered to show the pictures to anyone else or to
leave them displayed for others to see. See id.Merrill also contends that this Court has already decided, in the parties’ first
appeal, that Merrill’s allegations do not concern a legitimate investigation. Merrill
quotes the following language from our opinion: “[T]he actions that Merrill has
alleged form the basis of her claims in this case concern how the email was used in
a manner that does not implicate that legitimate interest.” Merrill, 2020 WL
6498983, at *6. In making this statement, this Court was determining whether the
TCPA applied to Merrill’s suit, not whether appellees were acting within the scope
–15–
of their employment. Id. at *4–7. Specifically, this Court was deciding whether
Merrill’s claims involved a matter of public concern so as to be based on, related to,
or filed in response to appellees’ exercise of the right of free speech. Id. at *5–7.
We explained:
In her petition, Merrill alleged that appellees “planned the intentional
display of the intimate and private photos” contained in the email in a
way that they knew would humiliate and intimidate her into resigning
by, for example, displaying the private images on an oversized
computer monitor for “shock factor,” refusing to allow her to seek out
a third party for advice, and then leaving the images on the monitor for
others to see. In other words, the gravamen of Merrill’s lawsuit
involves how appellees used the email to create a hostile and
humiliating environment in the context of a private employment matter.
The manner in which appellees conducted a private employment
matter, even if the target is a public schoolteacher, is not a matter of
public concern under the circumstances here. In so concluding, we
acknowledge school districts have a legitimate interest in investigating
information such as that contained in the email. But the actions that
Merrill has alleged form the basis of her claims in this case concern
how the email was used in a manner that does not implicate that
legitimate interest.
Id. at *6 (emphasis in original). It is undisputed that appellees did not formally
investigate the claims in the email, such as whether any parents, students, or teachers
had viewed or distributed the images of Merrill. However, as we previously
explained, the basis of Merrill’s claims involve how the appellees acted in a “private
employment matter” at Merrill’s place of employment. Id. We are not persuaded
that this Court’s prior opinion changes our conclusion today that appellees’ actions
were discretionary and were within their scope of employment and authority.
–16–
Exercising poor judgment does not remove an act from within the scope of the
district employee’s duties. Kobza, 109 S.W.3d at 94.
We conclude that the trial court did not err in granting summary judgment on
appellees’ affirmative defense of immunity as provided under the education code.
Therefore, we overrule Merrill’s first issue.
In her sixth issue, Merrill contends that “reliance on immunity is anachronistic
to the American way of life” and that neither the United States nor the Texas
Constitution grants immunity to government officials. As an intermediate appellate
court, we must follow the law as set by the legislature and interpreted by the Supreme
Court of Texas. See Dall. Area Rapid Transit v. Amalgamated Transit Union Loc.
No. 1338, 273 S.W.3d 659, 666 (Tex. 2008) (“It is fundamental to the very structure
of our appellate system that this Court’s decisions be binding on the lower courts.”);
Lowe v. Tex. Tech Univ., 540 S.W.2d 297, 298 (Tex. 1976) (“We adhere to our
decisions in the past that the waiver of governmental immunity is a matter addressed
to the Legislature.”). As illustrated by our discussion above, we have applied the
laws enacted by the legislature and as explained by the supreme court. Merrill’s
sixth issue is overruled.
Because we have concluded that the trial court did not err in granting summary
judgment against Merrill on each of her six causes of action based on appellees’
immunity, it is not necessary for us to reach Merrill’s second and third issues in
–17–
which she argues that the trial court erred in granting summary judgment for other
reasons. See TEX. R. APP. P. 47.1.
Motion for Continuance
In Merrill’s fourth issue, she argues that the trial court erred by failing to grant
a second continuance of the summary judgment hearing so that she could obtain
further discovery from appellees. We review a trial court’s decision on whether to
grant a continuance of the summary judgment hearing for an abuse of discretion.
Tenneco Inc. v. Enter. Prods. Co., 925 S.W.2d 640, 647 (Tex. 1996). A trial court
abuses its discretion when it acts arbitrarily or without regard to any guiding rules
or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42
(Tex. 1985).
“When a party contends that it has not had an adequate opportunity for
discovery before a summary judgment hearing, it must file either an affidavit
explaining the need for further discovery or a verified motion for continuance.”
Tenneco, 925 S.W.2d at 647. Rule 166a(g) provides:
Should it appear from the affidavits of a party opposing the motion that
he cannot for reasons stated present by affidavit facts essential to justify
his opposition, the court may refuse the application for judgment or
may order a continuance to permit affidavits to be obtained or
depositions to be taken or discovery to be had or may make such other
order as is just.
TEX. R. CIV. P. 166a(g). We consider the following nonexclusive factors when
determining whether a trial court abused its discretion in denying a motion for
–18–
continuance that seeks additional time to conduct discovery: the length of time the
case has been on file, the materiality and purpose of the discovery sought, and
whether the party seeking the continuance has exercised due diligence to obtain the
discovery sought. Joe, 145 S.W.3d at 161.
Here, the trial court granted Merrill’s first motion for continuance so that
Merrill could take appellees’ depositions. The summary judgment hearing was
continued from April 16, 2021, until June 14, 2021. Merrill took appellees’
depositions during that timeframe; however, Merrill’s counsel abruptly suspended
Griffin and Curry’s depositions after appellees’ counsel made objections. In her
second motion for continuance, Merrill argued that she needed to again take their
depositions because appellees’ “answers, during the deposition, have made it clear
that they did not take the time to answer [Merrill’s] requests honestly or completely.”
She further claimed that appellees’ testimony was conflicting and perjurious and
accused counsel of prompting witnesses “to forget” or “to develop amnesia” “by
making invalid objections to form.” Merrill also alleged that appellees did not fully
or truthfully answer her requests for production, requests for admission, or
interrogatories. Merrill filed her summary judgment response the same day she filed
her second motion for continuance.
Appellees maintain that they properly answered discovery and that there was
no legitimate reason for Merrill’s counsel to abruptly suspend the depositions.
“Merrill’s counsel’s unwarranted, unilateral suspension of Griffin’s and Curry’s
–19–
depositions is not proper grounds for a continuance to take more discovery.”
Further, although Merrill argued that appellees failed to produce responsive
documents, Curry and Griffin no longer worked with MISD at the time of the request
and did not have access or possession to MISD documents, such as emails they sent
through their MISD email account. Appellees maintain that they turned over what
they personally possessed or controlled and argue that Merrill’s counsel’s “mere
surmise” that appellees failed to produce responsive documents is insufficient to
support a motion to compel.
Based on the record before us and the ground on which we have affirmed the
trial court’s summary judgment, we cannot conclude that the trial court abused its
discretion in denying Merrill’s second motion for continuance. The record shows
that the case was filed in April 2019 and, after remand, had been pending before the
trial court for six months when the trial court denied Merrill’s motion. The record
also shows that appellees responded to discovery in 2019 and 2021. Merrill has not
shown that appellees failed to properly answer her discovery requests. At the 2021
depositions, which the trial court ordered when it granted Merrill’s first motion for
continuance, Curry and Griffin remained available to answer questions and were
ready and willing to continue their depositions; however, Merrill’s counsel abruptly
suspended them. Thus, Merrill had the opportunity to depose appellees but failed to
exercise diligence in doing so.
–20–
Moreover, we conclude that Merrill has failed to establish what essential facts
she believes she would discover if allowed to re-depose appellees. Merrill maintains
that appellees did not truthfully answer questions and disagrees with appellees’
contentions that they were acting within the scope of their employment. But Merrill
has failed to demonstrate how further discovery would establish a fact question on
that issue. Therefore, Merrill’s fourth issue is overruled.
Mandatory Attorney’s Fees under Rule 91a
Merrill argues in her fifth issue that the trial court failed to award her
mandatory fees for surviving appellees’ two motions to dismiss under Rule 91a and
failed to incorporate any award into the final judgment. Rule 91a provides that “a
party may move to dismiss a cause of action on the grounds that it has no basis in
law or fact.” TEX. R. CIV. P. 91a.1. The rule also provides that the prevailing party
is entitled to attorney’s fees:
Except in an action by or against a governmental entity or a public
official acting in his or her official capacity or under color of law, the
court must award the prevailing party on the motion all costs and
reasonable and necessary attorney fees incurred with respect to the
challenged cause of action in the trial court.
FORMER TEX. R. CIV. P. 91a.7.4
4
See Final Approval of Rules for Dismissals and Expedited Actions, Misc. Docket No. 13-9022 (Tex.
Feb. 12, 2013, order). Rule 91a.7 has been amended since this action was commenced to state that a trial
court “may,” rather than “must,” award costs and attorney’s fees to the prevailing party. See Order
Amending Texas Rule of Civil Procedure 91a.7, Misc. Docket No. 19-9052 (July 11, 2019). The 2019
comment to Rule 91a.7 provides: “The amendments to Rule 91a.7 apply only to civil actions commenced
on or after September 1, 2019. A civil action commenced before September 1, 2019 is governed by the
rule as adopted in Misc. Docket No. 13-9022.” TEX. R. CIV. P. 91a cmt. 2019. Merrill filed suit against
appellees on April 3, 2019; therefore, the former rule controls.
–21–
In the trial court’s August 21, 2019 order denying appellees’ first motion to
dismiss under Rule 91a, the court awarded Merrill her costs and attorney’s fees but
ordered counsel to submit all costs and reasonable and necessary attorney’s fees by
affidavit. Merrill’s counsel filed his unsworn declaration after the trial court entered
final judgment based on its granting of appellees’ TCPA motion to dismiss. Before
the trial court lost its plenary power, it signed an order awarding $24,878.39 in costs
and attorney’s fees to Merrill, as well as $30,000 in attorney’s fees “based on
successful appeal by the Plaintiff to any court of appeals” and $75,000 for a
successful appeal to the supreme court. However, that award was not included in
the trial court’s 2019 final judgment.
After concluding that the TCPA did not apply, this Court declined to address
the rule 91a motion in the parties’ first appeal because we concluded the order
denying the motion was interlocutory. Merrill, 2020 WL 6498983, at *7–8. We
noted, “Nothing in this opinion should be interpreted to preclude the trial court from
considering or reconsidering any interlocutory ruling, including those related to the
rule 91a motion.” Id. at *8 n.7. On remand, appellees filed a motion to reconsider
the orders on appellees’ motion to dismiss under rule 91a. In their motion to
reconsider, appellees asserted that, even if the trial court denied its motion to
reconsider and Merrill was entitled to attorney’s fees, her counsel’s unsworn
declaration did not support the fees requested because it did not provide evidence
regarding the time expended on each particular task. Merrill filed a new declaration,
–22–
which included billing statements in response. In her final request, Merrill asked for
a total of $40,628.69 for prevailing in the two 91a motions and $52,687.50 to defend
the first appeal.
On September 27, 2021, the trial court denied appellees’ motion to
reconsider its orders entered on appellees’ motion to dismiss pursuant to rule 91a.
The trial court also denied Merrill’s request for attorney’s fees by striking out the
language in the proposed order that would have granted Merrill attorney’s fees in
the amounts she requested.
On appeal, appellees agree Merrill was awarded $24,878.39 in attorney’s fees
before the first appeal concerning the motion to dismiss under the TCPA. They
contend that the award did not have to be included in the final judgment to be
ordered. However, appellees argue that Merrill was not entitled to appellate
attorney’s fees because the first appeal did not address the rule 91a motion.
Appellees further argue that the trial court’s denial of the second requested award
was not error because the court could have found the additional amount was not
reasonable and necessary due to it being a motion for reconsideration and not a
motion to dismiss the new, live pleading.
Based on the record before us, we cannot agree that it is clear that the trial
court intended for the $24,878.39 to stand when it entered a subsequent order
striking out the fees Merrill requested, which included that original amount.
Furthermore, if the trial court’s 2021 order is a denial of Merrill’s appellate fees from
–23–
the parties’ first appeal, we agree such denial is in error. As Merrill explains, this
Court has previously held a dismissal by this Court for want of jurisdiction means
that the party was “unsuccessful” and “fail[ed] to obtain relief” on appeal. Law Offs.
of Windle Turley, P.C. v. French, 164 S.W.3d 487, 493 (Tex. App.—Dallas 2005,
no pet.). Therefore, we sustain Merrill’s fifth issue and remand the issue of
mandatory attorney’s fees under rule 91a to the trial court for resolution.
Conclusion
Having sustained Merrill’s fifth issue and having overruled her remaining
issues, we affirm the trial court’s summary judgment in favor of appellees and
remand the issue of mandatory attorney’s fees under rule 91a for further proceedings
consistent with this opinion.
/Craig Smith/
CRAIG SMITH
JUSTICE
210934F.P05
–24–
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
KALEI MERRILL, Appellant On Appeal from the 380th Judicial
District Court, Collin County, Texas
No. 05-21-00934-CV V. Trial Court Cause No. 380-01827-
2019.
MITCHELL CURRY, MELINDA Opinion delivered by Justice Smith.
DEFELICE AND TAMIRA Justices Pedersen, III and Goldstein
GRIFFIN, EACH INDIVIDUALLY participating.
AS DEFENDANTS, Appellees
In accordance with this Court’s opinion of this date, the summary judgment
of the trial court is AFFIRMED. We REVERSE and REMAND the issue of
mandatory attorney’s fees under TEX. R. CIV. P. 91a to the trial court for further
proceedings consistent with this opinion.
It is ORDERED that each party bear its own costs of this appeal.
Judgment entered this 25th day of April 2023.
–25–