Paree La'Tiejira v. John A. Cribb ( 2024 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
________________
NO. 09-22-00326-CV
________________
PAREE LA’TIEJIRA, Appellant
V.
JOHN A. CRIBB, Appellee
________________________________________________________________________
On Appeal from the 284th District Court
Montgomery County, Texas
Trial Cause No. 21-10-14420-CV
________________________________________________________________________
MEMORANDUM OPINION
After their romantic relationship ended, Appellant Paree La’Tiejira
(“La’Tiejira”) sued Appellee John A. Cribb (“Cribb”) for breach of contract and
fraudulent inducement, seeking specific performance. La’Tiejira asserted that Cribb
promised to pay her $250,000.00 and support her. She in turn would be in an
exclusive relationship with him and remove her personal ad from an online dating
website. The trial court granted Cribb’s No-Evidence Motion for Summary
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Judgment after striking all La’Tiejira’s evidence. In six issues, La’Tiejira complains
that the trial court improperly: (1) denied her Motion to Compel; (2) granted
Appellee’s Motion for Sanctions; (3) denied her Motion for Continuance without a
hearing; (4) denied her Motion for Leave to Depose Cribb; (5) granted Appellee’s
First Amended Answer in Violation of the Docket Control Order; and (6) granted
Cribb’s No Evidence Motion for Summary Judgment and First Amended Traditional
Motion for Summary Judgment. For the reasons discussed below, we affirm the trial
court’s judgment but reverse the sanctions award.
BACKGROUND
Facts
In November 2015, La’Tiejira and Cribb met through an online dating
website. Despite being married, Cribb initially told La’Tiejira he was unmarried, and
they began a romantic relationship. During the relationship, Cribb bought La’Tiejira
gifts and transferred money into La’Tiejira’s various accounts. In March 2016, Cribb
purportedly emailed La’Tiejira in which he promised to support her financially and
pay her $250,000.00 if she would remove her online dating profile from the website.
La’Tiejira alleged she learned for the first time that Cribb was married after the
March 27, 2016 email. In 2019, after their relationship ended but before La’Tiejira
sued, Cribb and his wife divorced. In 2021, La’Tiejira sued Cribb for breach of a
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unilateral contract and fraudulent inducement, seeking specific performance to
require Cribb pay her $250,000.00.
Deadlines, Motion for Continuance, Discovery, and Sanctions
The trial court’s Docket Control Order (“DCO”) set trial for October 3, 2022,
with a pleading deadline 150 days before trial. The DCO had a discovery deadline
of ninety days before trial, which included completing depositions. On June 23,
2022, La’Tiejira filed her “Motion for Continuance and to Amend Docket Control
Order” claiming that her attorney contracted COVID, that he needed to move to
compel, and needed to “seek to take Cribb’s deposition.” La’Tiejira set the Motion
for Continuance to be heard by submission on July 8, 2022. The trial court ultimately
denied La’Tiejira’s Motion for continuance by an order signed on August 8, 2022.
On June 23, 2022, La’Tiejira also filed a “Motion to Compel Defendant’s
Response to Request for Production.” The Motion to Compel contained explicit
sexual allegations and sought, among other things, production of documents from
Cribb’s divorce case, which La’Tiejira claimed were relevant to Cribb’s credibility.
It also included various exhibits, specifically receipts, itemized purchases, and
sexually explicit photographs. La’Tiejira set the Motion to Compel for submission
on July 8, 2022.
On June 29, 2022, Cribb filed “Defendant’s Motion to Strike ‘Plaintiff’s
Motion to Compel Defendant’s Responses to Request for Production’ or, in the
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Alternative, Motion to Seal ‘Plaintiff’s Motion to Compel Defendant’s Responses
to Request for Production’, and Defendant’s Request for Sanctions.” Cribb sought
sanctions under Texas Rules of Civil Procedure 13 and 76a, and Texas Civil Practice
and Remedies Code Chapters 9 and 10. Cribb complained that La’Tiejira attached
sexually explicit photographs of the parties and filed the Motion to Compel in bad
faith with the sole purpose of harassing and embarrassing him. He also argued
La’Tiejira filing the Motion violated his privacy rights and that “none of the sexually
explicit photographs are referenced as support for any relevant contention contained
within the motion[.]” Cribb claimed that on June 23, 2022, he asked La’Tiejira’s
counsel to withdraw the Motion to Compel and submit it without the sexually
explicit content, but counsel ignored the request. He argued he did not dispute they
had a past sexual relationship, so the photographs were irrelevant.
Additionally, Cribb cited Texas Penal Code section 21.16, which prohibits
disclosing such material without the effective consent of the depicted person. See
Tex. Penal Code Ann. § 21.16. He claimed there was no legal justification for filing
the material in the public record and asked the court to preserve the material as
confidential. Cribb asked that La’Tiejira be ordered to withdraw the Motion to
Compel Defendant’s Responses to Request for Production, or that she be ordered to
amend the document to remove the sexually explicit material from the court record.
Alternatively, Cribb requested that the trial court strike the Motion to Compel.
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Cribb asked that after notice and hearing, the trial court impose all sanctions
deemed appropriate on La’Tiejira and her attorney. Cribb argued the Motion to
Compel was brought in bad faith, to harass him, to increase litigation costs, and was
frivolous. He alleged that it was necessary for his lawyer to file the Motion to Strike,
and La’Tiejira should be ordered to pay reasonable attorney’s fees, expenses, and
costs associated with the Motion. Cribb asserted that judgment should be rendered
in favor of his attorney and against La’Tiejira. He prayed for costs, attorney’s fees,
and “any and all relief to which he may be entitled in equity or in law.” Cribb also
filed a “Notice of Submission and Request for Oral Hearing” and asked the trial
court to set his Motion to Strike the Motion to Compel and for Sanctions on July 8,
2022, the same day La’Tiejira had set her Motion to Compel for submission.
On June 30, 2022, Cribb also filed “Defendant’s Response to ‘Plaintiff’s
Motion to Compel Defendant’s Responses to Request for Production,’ Defendant’s
Request for Sanctions, and Request for Oral Hearing.” In his Response, Cribb
outlined that on May 27, 2022, he e-served discovery responses and sent a courtesy
copy to counsel’s address, which was returned to Defendant’s counsel as “unable to
forward[.]” On June 9, 2022, La’Tiejira’s attorney retrieved the discovery responses
from defense counsel’s office. On June 14, 2022, Plaintiff’s counsel sent defense
counsel a deficiency letter, and on June 23, 2022, defense counsel received
Plaintiff’s Motion to Compel Defendant’s Request for Production Responses. Cribb
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argued that the information La’Tiejira requested was irrelevant to this suit and had
no bearing on whether a contract existed with Plaintiff. Cribb contended that even if
all documents were provided, they would not make the contract’s existence more or
less likely. Further, Cribb claimed that despite valid objections, he produced a USB
containing documents. He noted that although La’Tiejira claimed the USB could not
be opened, she never told defense counsel that.
In his Response, Cribb also reincorporated his request for sanctions against
La’Tiejira and her attorney for filing the Motion to Compel. Cribb’s Response to
La’Tiejira’s Motion to Compel included the following exhibits: photograph of
undeliverable mail to La’Tiejira’s counsel; emails between counsel discovery
responses being available for pickup in defense counsel’s office; email from defense
counsel to La’Tiejira’s attorney advising he could get discovery responses from their
office and would not incur costs of resending since he failed to pick them up from
post office; letter regarding discovery responses being returned as undeliverable;
La’Tiejira’s attorney’s email sending interrogatories to defense counsel; emails
between counsel regarding discovery deadlines; emails between counsel regarding
La’Tiejira’s preferred email address for e-service; emails about sending discovery
requests in Word format; La’Tiejira’s attorney’s email sending Responses to
Requests for Production with picture of Camaro; and email from La’Tiejira’s
attorney asking defense counsel to look at additional photos.
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On July 6, 2022, Cribb filed a Notice of Oral Hearing indicating that the
following had been removed from the court’s July 8, 2022 submission docket and
would instead be an oral hearing on August 5, 2022: Plaintiff’s Motion to Compel;
and “Defendant’s Motion to Strike ‘Plaintiff’s Motion to Compel Defendant’s
Responses to Request for Production’ or, in the Alternative, Motion to Seal
‘Plaintiff’s Motion to Compel Defendant’s Responses to Request for Production’,
and Defendant’s Request for Sanctions.” The record reflects that on July 6, 2022,
Cribb served La’Tiejira’s attorney with this Notice of Oral Hearing scheduled for
August 5, 2022 via e-file.
On July 7, 2022, La’Tiejira filed “Plaintiff’s Response in Support of
Plaintiff’s Motion to Compel Production and Responses to Defendant’s Response
and Motion to Strike and/or for Sealing.” She again argued that the discovery sought
went to Cribb’s credibility and whether he lied in his divorce proceeding and to prior
inconsistent statements, among other things. La’Tiejira also asserted that Cribb
denied writing the letter containing the promise. She argued that the information
from Cribb’s divorce proceedings were evidence of his “untruthfulness and prior
inconsistent statements.”
On August 5, 2022, the trial court conducted a hearing on La’Tiejira’s Motion
to Compel and Cribb’s Motion for Sanctions. Neither La’Tiejira nor her attorney
attended the hearing. The trial court denied Plaintiff’s Motion to Compel and granted
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Cribb’s Motion for Sanctions. Regarding Plaintiff’s Motion to Compel, the trial
court stated, “I was deeply disturbed by the invasive visual recording and the
intimate visual material that he filed smack dab in the middle of the exhibits in his
Motion to Compel.” The trial court also cited Texas Penal Code section 21.16 and
explained she felt the statute was violated when La’Tiejira filed the visual “intimate
parts” without “effective consent” that harmed Cribb and revealed his identity by
showing his face. The trial court concluded sanctions were warranted for Plaintiff’s
Motion to Compel which included this material.
Cribb’s counsel explained that he “reached out to [Plaintiff’s counsel] to beg
him not to do this” and received no response. Cribb’s attorney testified regarding his
hourly rate of $600, his associate’s hourly rate of $375, and the time they each spent
responding to the Motion to Compel and dealing with the issues surrounding the
disclosure of private photographs. Counsel explained that he and his associate each
spent six hours working on it for a total amount of $5,850 in attorney’s fees, and the
trial court found “that amount is reasonable and necessarily incurred in dealing with
what is unusual, thankfully, and difficult, unfortunately, situation created by
[Plaintiff’s counsel].” The same day, the trial court signed an Order denying
La’Tiejira’s Motion to Compel and granting Cribb’s Motion for Sanctions. The trial
court ordered that La’Tiejira and her attorney were jointly and severally liable to pay
$5,850 to Cribb and specified the amount reflected “the reasonable and necessary
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attorney’s fees spent on addressing the Motion to Compel.” The order did not state
the Rule under which it granted sanctions, have particularized findings of good cause
for the sanctions award, or otherwise describe the conduct that led to the sanctions.
On August 17, 2022, La’Tiejira filed “Plaintiff’s Motion for Reconsideration
of Her Motion to Compel Defendant’s Responses to Requests for Production.” In
the Motion for Reconsideration, she complained about the sanctions and argued the
trial court abused its discretion. She reasserted the claims alleged in her Petition and
the Motion to Compel. She also claimed Cribb’s credibility is at issue. La’Tiejira
argued the trial court was preventing discovery of relevant matters for undisclosed
reasons. She complained that the trial court’s order was issued without any
reasoning, so she requested Findings of Fact and Conclusions of Law. La’Tiejira
argued that the trial court improperly decided the motion to compel and sanctions by
submission, despite it being moved to an oral hearing docket for August 5, 2022.
She noted that she filed the motion under the “Contains sensitive data” designation.
She complained the sanctions were improper under Rule 215 and that if awarded
under Rule 13, that the pleading must be groundless and brought in bad faith or
groundless and for the purpose of harassment and disputed that the Motion to
Compel was groundless. Finally, she contended that sanctions must be awarded only
for good cause and must be specified in the sanctions order, which the trial court
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failed to do. She set her Motion for Reconsideration for submission on September
16, 2022.
On August 17, 2022, La’Tiejira also filed “Plaintiff’s Request for Findings of
Fact and Conclusions of Law Regarding Trial Court’s Denial of Plaintiff’s Motion
to Compel and Sanction – Attorney Fees” where she again incorrectly noted that the
trial court considered those motions on submission rather than at an oral hearing. On
August 23, 2022, La’Tiejira filed “Plaintiff’s Motion for Leave to Take the
Deposition of Defendant John Cribb” and “Plaintiff’s Motion to Strike Defendant’s
First Amended Answer Filed in Violation of the Trial Court’s Docket Control
Order.” The record shows that La’Tiejira set her “Motion for Leave to Take
Deposition of John Cribb” for submission on September 16, 2022, a week after the
scheduled submission of Cribb’s Motion for Summary Judgment.
Motions for Summary Judgment, Response and Evidence
On February 24, 2022, Cribb filed his “Motion for Summary Judgment” based
on affirmative defenses, and the next day, he filed a “First Amended Motion for
Summary Judgment,” which the trial court denied. After the discovery period closed,
on August 18, 2022, Cribb filed “Defendant’s No Evidence Motion for Summary
Judgment, and First Amended Motion for Traditional Summary Judgment.” Cribb
argued, among other things, that La’Tiejira presented no evidence of consideration,
performance, or forbearance in reliance of Cribb’s alleged promise made on March
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27, 2016. Cribb further contended there was no evidence of a written contract
between the parties. Cribb argued that if the court determined the March 2016 note
was a written contract, it was unsigned by Cribb. Finally, Cribb argued that
La’Tiejira’s claim for fraud in inducement of a contract was unrecognized, since she
sought benefit of the bargain damages. Cribb scheduled the Motion to be heard by
submission on September 9, 2022.
La’Tiejira initially responded to “Defendant’s No Evidence Motion for
Summary Judgment, and First Amended Motion for Traditional Summary
Judgment” on September 1, 2022, and attached multiple exhibits, including her
affidavit, which was unsigned. The next day, she filed “Plaintiff’s Supplemental
Response to Defendant’s No Evidence Motion for Summary Judgment and First
Amended Motion for Traditional Summary Judgment” and attached all the same
evidence but supplemented with her signed affidavit. She also filed “Plaintiff’s
Motion for Leave to Supplement Plaintiff’s Response to Defendant’s No Evidence
and Motion for Summary Judgment” in which she addressed supplementing with her
signed affidavit if the trial court considered it to be untimely.
On September 13, 2022, after submission of his Motion for Summary
Judgment but before the trial court ruled on the Motion, Cribb filed “Defendant’s
Evidentiary Objections and Rejoinder to Plaintiff’s Supplemental Response to
Defendant’s No Evidence Motion for Summary Judgment and First Amended
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Motion for Traditional Summary Judgment.” He lodged specific objections to each
exhibit, which included all La’Tiejira’s summary judgment evidence. He objected
based on Texas Rules of Evidence 401, 403, 801, 802, 803, 804, 902 hearsay, lack
of foundation, that certain evidence was irrelevant, and that her descriptions
mischaracterized the evidence. As for La’Tiejira’s affidavit, Cribb objected that:
La’Tiejira’s descriptions on pages 2 and 3 of the affidavit mischaracterized the
evidence; specified statements within the affidavit were conclusory; specified
statements within the affidavit contained speculation; certain statements within the
affidavit were “internally inconsistent” and noted various inconsistent dates;
La’Tiejira’s assertion that Cribb promised to pay her $250,000.00 if they ever broke
up was self-serving; and statements contained self-serving statements that were
“subjective to Plaintiff and based on her unique interpretation of her own thoughts
and feelings.”
On September 16, 2022, the trial court signed a Final Judgment denying
Cribb’s Traditional Motion for Summary Judgment but granting his Motion for No
Evidence Summary Judgment. The trial court listed the elements of fraud and the
elements of breach of contract. The trial court sustained all Cribb’s objections to
La’Tiejira’s summary judgment evidence, thus no evidence supported any of the
contested elements. The trial court explained that “fraud in the inducement also
requires proof of a valid contract,” and there was no evidence of that element. The
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trial court noted that there was no evidence of consideration, and a unilateral contract
is accepted by performance, and “[i]n addition to being inadmissible, Plaintiff’s own
evidence demonstrates the lack of consideration[.]” The trial court explained the
alleged promise of $250,000.00 was based on events which previously took place,
and past consideration cannot support a contract.
Five days after the trial court signed the Final Judgment, La’Tiejira filed
“Plaintiff’s Motion to Strike Defendant’s Evidentiary Objections and to Plaintiff’s
Supplemental Response to Defendant’s No Evidence Motion for Summary
Judgment and First Amended Motion for Traditional Summary Judgment.” In her
Motion to Strike Defendant’s Evidentiary Objections, La’Tiejira complained that
Cribb filed his objections four days after submission without leave of court.
La’Tiejira further asserted that Cribb needed to file a motion to extend the deadline
and demonstrate good cause. La’Tiejira thus complained that Cribb’s “surreply”
filed four days after submission that contained his objections failed to comply with
Rule 166a(c).
ISSUE ONE: DENIAL OF MOTION TO COMPEL
In issue one, La’Tiejira contends that the trial court improperly denied her
Motion to Compel. She complains the trial court entered a “default order” and that
the discovery sought about Cribb’s divorce proceeding through the Motion to
Compel was relevant to “establish the unilateral agreement and the fraud.” La’Tiejira
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contends that she did not have notice of the August 5, 2022 hearing on the Motion
to Compel and Cribb’s Motion to Strike filed in response. While acknowledging that
notice of the scheduled August 5, 2022 hearing was sent to her attorney, she contends
that “counsel did not receive the notice” and was unaware of the hearing. She
complains that the trial court’s denying her Motion to Compel without a hearing
constituted a due process violation.
Standard of Review and Applicable Law
We review a trial court’s ruling on a motion to compel discovery for an abuse
of discretion. See Ford Motor Co. v. Castillo, 279 S.W.3d 656, 661 (Tex. 2009);
Stewart v. Lexicon Genetics, Inc., 279 S.W.3d 364, 373 (Tex. App.—Beaumont
2009, pet. denied). A trial court abuses its discretion if it acts arbitrarily or
unreasonably or without reference to guiding rules or principles. See Downer v.
Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985). Even if a trial
court abuses its discretion in a discovery ruling, “the complaining party must still
show harm on appeal to obtain a reversal.” Castillo, 279 S.W.3d at 667 (citing Tex.
R. App. P. 44.1(a)). Error is harmful if it “‘probably caused the rendition of an
improper judgment’ or ‘probably prevented the appellant from properly presenting
the case to the court of appeals.’” Id. (quoting Tex. R. App. P. 44.1(a)). The scope
of discovery is generally within the trial court’s discretion. In re UPS Ground
Freight, Inc., 646 S.W.3d 828, 831 (Tex. 2022) (orig. proceeding).
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Discovery
In essence, an overbroad discovery request seeks irrelevant information. See
id. at 832 (citations omitted). “Evidence is relevant if it tends to make a
consequential fact ‘more or less probable than it would be without the evidence.’”
Id. (quoting Tex. R. Evid. 401). While relevance is broadly construed, “discovery
may not be used as a fishing expedition.” Id. (citations omitted).
In support of her first issue, La’Tiejira also complains that the trial court
improperly denied her Motion to Compel and argues the discovery sought was
relevant. The pleaded causes of action in this case were breach of “unilateral
contract” and fraudulent inducement. La’Tiejira filed the Motion to Compel the
production of multiple documents, including those related to a separate divorce
proceeding involving Cribb and his wife. Other documents La’Tiejira sought
included financial records showing Cribb transferred money to her or for purchases
he made for her, receipts for their trips together, and other financial records.
Cribb never denied having a romantic relationship with La’Tiejira or that he
gave her gifts and money. The record also shows La’Tiejira knew that he was
married no later than November 11, 2015. Nevertheless, La’Tiejira’s Motion to
Compel attached multiple documents and photographs describing and depicting
sexually explicit interactions between the parties. The sexually explicit documents
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attached as exhibits were irrelevant and unnecessary to the Motion to Compel and
the production of documents La’Tiejira claimed she was entitled to.
The discovery sought from Cribb’s divorce proceeding is irrelevant to the
existence of a unilateral contract between Cribb and La’Tiejira. What happened in
Cribb’s divorce does not make it more or less probable that Cribb entered into a
contract to pay La’Tiejira $250,000.00. See id.; see also Tex. R. Evid. 401. The
record shows that La’Tiejira already possessed the additional financial information
sought, as it was attached to her Motion to Compel with the sexually explicit
material.
Finally, as the complaining party, La’Tiejira bears the burden of showing
harm to warrant reversal. See Castillo, 279 S.W.3d at 667 (citing Tex. R. App. P.
44.1(a)). La’Tiejira has failed to show that the trial court’s denial of her Motion to
Compel caused the rendition of an improper judgment or prevented her from
properly presenting her case on appeal. See id.; see also Tex. R. App. P. 44.1(a). We
hold that the trial court did not abuse its discretion in denying La’Tiejira’s Motion
to Compel, and La’Tiejira failed to show she was harmed by the trial court’s denial
of her Motion to Compel. See Tex. R. App. P. 44.1(a); Castillo, 279 S.W.3d at 667.
Notice of Oral Hearing
Due process requires that parties receive notice of trial court proceedings that
is “‘reasonably calculated, under all the circumstances, to apprise interested parties
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of the pendency of the action and afford them an opportunity to present their
objections.’” B. Gregg Price, P.C. v. Series 1 – Virage Master LP, 661 S.W.3d 419,
422–23 (Tex. 2023) (quoting Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S.
306, 314 (1950)) (other citations omitted). Texas Rule of Civil Procedure 21
provides that:
Every pleading, plea, motion, or application to the court for an order,
whether in the form of a motion, plea, or other form of request, unless
presented during a hearing or trial, must be filed with the clerk of the
court in writing, must state the grounds therefor, must set forth the relief
or order sought, and at the same time a true copy must be served on all
other parties, and must be noted on the docket ....
Tex. R. Civ. P. 21(a). The parties must also file a certificate of service for every filed
pleading, plea, motion or application. Tex. R. Civ. P. 21(d). Rule 21(b) requires that
“[a]n application to the court for an order and notice of any court
proceeding, as defined in Rule 21d(a) . . . must be served upon all other
parties not less than three days before the time specified for the court
proceeding, unless otherwise provided by these rules or shortened by
the court. Notice of any court proceeding must contain the information
needed for participants . . . to participate in the proceeding, including
the location of the proceeding[.]
Tex. R. Civ. P. 21(b). Rule 21a(a)(1) states that documents “must be served
electronically through the electronic filing manager if the email address of the party
or attorney to be served is on file with the electronic filing manager.” Tex. R. Civ.
P. 21a(a)(1). “Electronic service is complete on transmission of the document to the
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serving party’s electronic filing service provider. The electronic filing manager will
send confirmation of service to the serving party.” Tex. R. Civ. P. 21a(b)(3).
“Receipt is an element of service.” Strobel v. Marlow, 341 S.W.3d 470, 476
(Tex. App.—Dallas 2011, no pet.) (citation omitted). “Notice served in accordance
with Rule 21a raises a presumption that notice was received . . . but ‘we cannot
presume that notice was properly sent[.]’” Wade v. Valdetaro, No. 23-0443, 2024
WL 3996110, at *2–4 (Tex. Aug. 30, 2024) (citing Tex. R. Civ. P. 21a(e); Mathis v.
Lockwood, 166 S.W.3d 743, 745 (Tex. 2005)). A presumption of receipt may be
rebutted by an offer of proof of nonreceipt. See Cliff v. Huggins, 724 S.W.2d 778,
779–80 (Tex. 1987). When a document has been sent according to Rule 21a, absent
contrary evidence, the presumption of receipt “has the force of a rule of law.” Id. at
780 (citation omitted).
The record reveals that when La’Tiejira filed her Motion to Compel, she set
it for submission on July 8, 2022 rather than an oral hearing. Then, Cribb filed and
electronically served “Defendant’s Response to ‘Plaintiff’s Motion to Compel
Defendant’s Responses to Request for Production,’ Defendant’s Request for
Sanctions, and Request for Oral Hearing.” Thereafter, on July 6, 2022, Cribb filed a
Notice of Oral Hearing reflecting Plaintiff’s Motion to Compel had been removed
from the trial court’s July 8 submission docket, and instead an oral hearing would
be held on August 5, 2022, addressing Plaintiff’s Motion to Compel and
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“Defendant’s Motion to Strike ‘Plaintiff’s Motion to Compel Defendant’s
Responses to Request for Production’ or, in the Alternative, Motion to Seal
‘Plaintiff’s Motion to Compel Defendant’s Responses to Request for Production’,
and Defendant’s Request for Sanctions.” The Notice of Oral Hearing included the
date, time, and location of the hearing, and it included a Certificate of Service
showing that La’Tiejira’s attorney had been served electronically. The email address
corresponded to the one where he had sent “Defendant’s Motion to Strike ‘Plaintiff’s
Motion to Compel Defendant’s Responses to Request for Production’ or, in the
Alternative, Motion to Seal ‘Plaintiff’s Motion to Compel Defendant’s Responses
to Request for Production’, and Defendant’s Request for Sanctions.” In her brief,
La’Tiejira acknowledges that Cribb “filed a Notice of Oral Hearing on July 6, 2022,
notifying Appellant of the hearing on the Motion to Strike, Motion to Compel and
Motion for Sanctions filed by Defendant/Appellee,” sent to the correct email
address, yet denies receiving the Notice of Hearing. On appeal, she asserts this
constituted a denial of due process.
After the trial court denied her Motion to Compel and granted Cribb’s Motion
for Sanctions, La’Tiejira filed “Plaintiff’s Motion for Reconsideration of her Motion
to Compel Defendant’s Responses to Request for Production.” In the Motion for
Reconsideration, La’Tiejira did not offer evidence of nonreceipt. See Tex. R. Civ. P.
21a(e) (allowing for evidence to rebut presumption of receipt). Rather, the record
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establishes that Cribb sent the Notice of Hearing in accordance with Rule 21a, and
absent contrary evidence, the presumption of receipt “has the force of a rule of law.”
See Cliff, 724 S.W.3d at 780 (citation omitted). Counsel for Cribb provided a
certificate of service, which “certificate . . . shall be prima facie evidence of the fact
of service.” See Tex. R. Civ. P. 21a(e); Duarte v. Brookaye P’ship, Ltd., No. 09-20-
00128-CV, 2022 WL 17350922, at *5 (Tex. App.—Beaumont Dec. 1, 2022, no pet.)
(mem. op.) (same discussing Rule 21a(e)). The record also shows that: (1) she
received the electronically filed motions that were the subject of the August 5, 2022
hearing sent to the same email addresses; and (2) her attorney responded to those
motions before the hearing. Despite denying receipt of the Notice of Hearing, “we
do not consider factual assertions that appear solely in briefs and are not supported
by the record.” Marshall v. Hous. Auth. of San Antonio, 198 S.W.3d 782, 789 (Tex.
2006) (citation omitted); see also Unifund CCR Partners v. Weaver, 262 S.W.3d
796, 797 (Tex. 2008) (citation omitted) (same).
La’Tiejira also seemingly confuses this hearing with a later scheduled
submission of Cribb’s Motion for Summary Judgment. She contends that the Motion
to Compel was set for hearing on September 9, 2022, and that by ruling on it on
August 5, the trial court violated her due process rights. As explained above, the
record conclusively establishes the Motion to Compel and the Motion to Strike
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containing the request for sanctions was set for oral hearing on August 5, 2022, and
the Notice of hearing was sent in accordance with Rule 21a.
She likens the trial court’s order denying the Motion to Compel as a “default
judgment.” In support of this, La’Tiejira contends that the August 5, 2022 Order
would not have provided “notice that an in person hearing was conducted.” This
argument lacks merit, as the Order on Motion to Compel and Motion for Sanctions
states in the first sentence that “[o]n this day, the Court called Plaintiff’s Motion to
Compel and Defendant’s Motion for Sanctions for oral hearing.” Further, the
Reporter’s Record from the August 5 hearing shows that the trial court considered
La’Tiejira’s Motion to Compel, Cribb’s Response to Plaintiff’s Motion to Compel
Defendant’s Responses to Request for Production, and La’Tiejira’s Response in
Support of Plaintiff’s Motion to Compel Production and Responses to Defendant’s
Response and Motion to Strike and/or for Sealing filed by Plaintiff on July 7, 2022.
We disagree that La’Tiejira’s due process rights were violated. Rather, the
record shows, and she acknowledges in her brief, that Cribb’s counsel sent a Notice
of Hearing scheduled for August 5, 2022 in accordance with Rule 21a. See Tex. R.
Civ. P. 21a. Despite her denial on appeal that she received the notice, she did not
make an offer of proof to rebut the presumption of receipt. See Cliff, 724 S.W.2d at
780; Duarte, 2022 WL 17350922, at *5 (explaining that party must offer evidence
rebutting presumption of receipt). Appellant’s Reply Brief states that “[t]he
21
undersigned attorney concedes that he may have missed notice of hearing, but such
failure was not intentional.” La’Tiejira and her attorney were afforded notice and an
opportunity to be heard regarding the Motion to Compel and Cribb’s Motion for
Sanctions, thus due process requirements were satisfied.
We conclude that when Cribb served the Notice of Hearing in accordance with
Rule 21a, La’Tiejira failed to offer evidence rebutting the presumption that she
received notice. See Cliff, 724 S.W.2d at 780; Duarte, 2022 WL 17350922, at *5;
see also Tex. R. Civ. P. 21a(a)(1), (b)(3), (e). Thus, the due process requirement that
a party receive notice and an opportunity to be heard was satisfied. See B. Gregg
Price, P.C., 661 S.W.3d at 422–23.
We overrule issue one.
ISSUE TWO: SANCTIONS
In her second issue, La’Tiejira complains that the trial court improperly
granted sanctions that required her and her attorney to pay $5,860 for responding to
the Motion to Compel that contained the sexually explicit photographs. In support
of this issue, she contends the trial court’s sanctions order fails to specify the reason
for the sanctions and the sanction was “improper and excessive.” She also argues
that the Motion to Compel was not groundless and asserted that the discovery sought
went to, among other things, Cribb’s credibility.
22
After La’Tiejira filed her Motion to Compel that attached sexually explicit
material, Cribb moved to strike the Motion to Compel and sought sanctions under
Texas Rule of Civil Procedure 13 and 76a and Texas Civil Practice and Remedies
Code Chapters 9 and 10. Cribb argued La’Tiejira’s Motion to Compel “was filed in
bad faith, with the sole purpose of harassing and embarrassing the Defendant and/or
influencing the Court with evidence of a salacious and embarrassing nature which is
not relevant to the filing of the pleading in question.” Cribb’s counsel explained that
he asked opposing counsel to withdraw the filing and submit it without the sexually
explicit content, but La’Tiejira’s attorney “ignored” the request. Cribb included an
email exhibit that showed his attorney advised opposing counsel the images filed
with the Motion to Compel as part of the public record violated Cribb’s privacy
rights and that the explicit photographs attached as exhibits to the Motion to Compel
were “not a necessary component of your claims.”
At the August 5, 2022 hearing, the trial court addressed Cribb’s Motion to
Strike Plaintiff’s Motion to Compel and his request for sanctions. As explained
above, La’Tiejira and her attorney failed to appear. The trial court explained that
La’Tiejira’s Motion to Compel including the sexually explicit photographs filed
without Cribb’s consent likely violated Texas Penal Code sections 21.15 and 21.16.
See Tex. Penal Code Ann. §§ 21.15, 21.16. Cribb’s attorney explained that he spent
much time responding to the Motion to Compel and preparing the Motion to Strike.
23
He also explained that he requested opposing counsel withdraw the filing, and that
request was ignored. Cribb’s attorney testified as to his hourly rate, his associate’s
rate, and how long they spent responding to the Motion to Compel, preparing the
necessary motions to try to remove the explicit material from the public record, and
preparing for the hearing. The trial court granted the Motion for Sanctions and
awarded $5,850 in attorney’s fees.
The trial court’s “Order on Motion to Compel and Motion for Sanctions”
provided,
It is further ORDERED that Defendant’s Motion for Sanctions is
GRANTED.
It is further ORDERED that Paree La’Tiejira and her counsel,
Jimmie L. Brow[]n are jointly and severally liable for sanctions in the
amount of $5,850.00 to be paid to John A. Cribb through his counsel of
record, said amount reflecting the reasonable and necessary attorney’s
fees spent on addressing the Motion to Compel.
In her Motion for Reconsideration, La’Tiejira objected that the trial court’s sanctions
order was defective and argued, among other things, that the order lacked the
requisite particularity and failed to specify the misconduct leading to the sanctions
award.
Standard of Review
We review the imposition of sanctions under the Rules of Civil Procedure and
the Civil Practice and Remedies Code for an abuse of discretion. See Low v. Henry,
221 S.W.3d 609, 614 (Tex. 2007); Cire v. Cummings, 134 S.W.3d 835, 838–39 (Tex.
24
2004). “The test for an abuse of discretion is not whether, in the opinion of the
reviewing court, the facts present an appropriate case for the trial court’s action, but
‘whether the court acted without reference to any guiding rules and principles.’”
Cire, 134 S.W.3d at 838–39 (citing Downer, 701 S.W.2d at 241). We will reverse
only if the trial court’s ruling is arbitrary or unreasonable. See id. at 839.
Rule 76a Sanctions
Although Cribb requested sanctions under Rule 76a, that rule solely addresses
sealing court records. See generally Tex. R. Civ. P. 76a. No language in Rule 76a
authorizes the award of sanctions. See id.
Rule 13 Sanctions
Texas Rule of Civil Procedure 13 provides, in pertinent part:
The signatures of attorneys or parties constitute a certificate by them
that they have read the pleading, motion, or other paper; that to the best
of their knowledge, information, and belief formed after reasonable
inquiry the instrument is not groundless and brought in bad faith or
groundless and brought for the purpose of harassment.... If a pleading,
motion or other paper is signed in violation of this rule, the court, upon
motion or upon its own initiative, after notice and hearing, shall impose
an appropriate sanction available under Rule 215-2b, upon the person
who signed it, a represented party, or both.
Tex. R. Civ. P. 13. Courts presume that pleadings, motions, and other papers are
filed in good faith. See id. “No sanctions under this rule may be imposed except for
good cause, the particulars of which must be stated in the sanction order.” Id. Under
Rule 13, “[g]roundless . . . means no basis in law or fact and not warranted by good
25
faith argument for the extension, modification, or reversal of existing law.” Id. Bad
faith is more than poor judgment or negligence and involves conscious wrongdoing
for an impermissible reason and “includes ‘conscious doing of a wrong for a
dishonest, discriminatory, or malicious purpose.’” Brewer v. Lennox Hearth Prods.,
LLC, 601 S.W.3d 704, 719 (Tex. 2020) (citations omitted) (discussing bad faith in
context of court’s inherent power to sanction). Harassment means the motion was
intended to annoy, alarm, and abuse another person. Parker v. Walton, 233 S.W.3d
535, 540 (Tex. App.—Houston [14th Dist.] 2007, no pet.). Under Rule 13, a trial
court may not award sanctions unless the pleading is both: (1) groundless; and (2)
brought in bad faith or for the purpose of harassment. See Tex. R. Civ. P. 13.
A trial court imposing sanctions under Rule 13 must include particularized
findings of “good cause” justifying the sanctions in its order. See Tex. R. Civ. P. 13;
Interest of D.Z., 583 S.W.3d 284, 294 (Tex. App.—Houston [14th Dist.] 2019, no
pet.); Mobley v. Mobley, 506 S.W.3d 87, 93 (Tex. App.—Texarkana 2016, no pet.).
“An order imposing Rule 13 sanctions that fails to state the particulars of good cause
is an abuse of discretion and unenforceable.” Guerra v. L&F Distributors, LLC, 521
S.W.3d 878, 889 (Tex. App.—San Antonio 2017, no pet.) (citation omitted). “When
sanctions are based on a party’s motion, a trial court may not award sanctions on
grounds not asserted in that motion.” Reynolds Energy Transport, LLC v. Plains
26
Mktg., L.P., No. 04-22-00450-CV, 2024 WL 3207541, at *12 (Tex. App.—San
Antonio June 28, 2024, no pet.) (mem. op.) (citations omitted).
Although the record shows that at the hearing, Cribb’s counsel and the trial
court discussed the nature of the offensive exhibits at length, there was no discussion
of the discovery sought by the Motion to Compel. Without this, the record does not
support that the Motion to Compel had “no basis in law or fact and [was] not
warranted by good faith argument for the extension, modification, or reversal of
existing law.” See Tex. R. Civ. P. 13. Even though the record supports a finding that
the motion was filed in bad faith or for the purpose of harassment, it does not support
a finding that it was groundless. See id.Here, the trial court did not include particularized findings of “good cause” in
its Order as required by Rule 13. See id.; Interest of D.Z., 583 S.W.3d at 294; Mobley,
506 S.W.3d at 93. La’Tiejira complained about this in her Motion for
Reconsideration, preserving error about the form of the Order. See Mobley, 506
S.W.3d at 93 (explaining that a party waives its right to complain of trial court’s
failure to specify the grounds for its sanctions order if appellant did not bring
omission to trial court’s attention); see also Tex. R. Civ. P. 33.1. Since the record
does not support a finding that the Motion to Compel was groundless, and the trial
court’s Order on the Motion to Compel and Motion for Sanctions failed to include
particularized findings of good cause for Rule 13 sanctions, it constituted an abuse
27
of discretion and is unenforceable. See Tex. R. Civ. P. 13; Guerra, 521 S.W.3d at
889.
Chapter 9 and 10 Sanctions
Cribb also moved for sanctions under Texas Civil Practice and Remedies
Code Chapters 9 and 10. Although the Order states it was based on Cribb’s Motion
for Sanctions, it did not mention Chapter 9 or 10. We now turn to whether the trial
court could have properly awarded sanctions under those chapters.
Under Chapter 9,
The signing of a pleading as required by the Texas Rules of Civil
Procedure constitutes a certificate by the signatory that to the
signatory’s best knowledge, information, and belief, formed after
reasonable inquiry, the pleading is not:
(1) groundless and brought in bad faith;
(2) groundless and brought for the purpose of harassment; or
(3) groundless and interposed for any improper purpose, such as to
cause unnecessary delay or needless increase in the cost of litigation.
Tex. Civ. Prac. & Rem. Code Ann. § 9.011. As discussed above, while the record
may support a finding of bad faith or harassment, it does not support a finding that
the Motion to Compel was groundless, thus sanctions under Chapter 9 would
likewise not be warranted. See id. § 9.011.
Section 10.001 provides,
The signing of a pleading or motion as required by the Texas Rules of
Civil Procedure constitutes a certificate by the signatory that to the
signatory’s best knowledge, information, and belief, formed after
reasonable inquiry:
28
(1) the pleading or motion is not being presented for any
improper purpose, including to harass or to cause unnecessary
delay or needless increase in the cost of litigation;
(2) each claim, defense, or other legal contention in the pleading
or motion is warranted by existing law or by a nonfrivolous
argument for the extension, modification, or reversal of existing
law or the establishment of new law;
(3) each allegation or other factual contention in the pleading or
motion has evidentiary support or, for a specifically identified
allegation or factual contention, is likely to have evidentiary
support after a reasonable opportunity for further investigation or
discovery; and
(4) each denial in the pleading or motion of a factual contention
is warranted on the evidence or, for a specifically identified
denial, is reasonably based on a lack of information or belief.
Id. § 10.001. “When imposing sanctions under chapter 10, the trial court must
describe the conduct it has determined violated section 10.001 and explain the basis
for the sanction imposed.” 21st Mortg. Corp. v. Hines, No. 09-15-00354-CV, 2016
WL 7177697, at *4 (Tex. App.—Beaumont Dec. 8, 2016, pet. denied) (mem.
op.). (citation omitted); see Tex. Civ. Prac. & Rem. Code Ann. § 10.005 (“A court
shall describe in an order imposing a sanction under this chapter the conduct the
court has determined violated Section 10.001 and explain the basis for the sanction
imposed.”).
Unlike Chapter 9 or Rule 13, “a pleading is sanctionable under chapter 10 if
it violates just one of the certifications set out in section 10.001.” Dunavin v.
Meador, No. 2-7-230-CV, 2008 WL 2780782, at *6 (Tex. App.—Fort Worth July
17, 2008, no pet.) (mem. op.) (emphasis in original). Under Chapter 10, a pleading
29
is sanctionable if, “it is presented for an improper purpose or it lacks evidentiary
support and is unlikely to have evidentiary support after a reasonable opportunity
for further investigation.” Id. (emphasis in original) (citing Tex. Civ. Prac. & Rem.
Code Ann. §§ 10.001, 10.004(a)).
The record shows La’Tiejira’s attorney filed the Motion to Compel in the
public record and the motion included sexually explicit photographs. Such evidence
could support a finding that the Motion to Compel was presented for an improper
purpose, including to harass or embarrass Cribb, and thus violated section 10.001(1).
See Tex. Civ. Prac. & Rem. Code Ann. § 10.001(1). Even so, the trial court failed to
describe the conduct in its Order that violated section 10.001 or to explain the basis
for the sanction imposed. See id. § 10.005; Hines, 2016 WL 7177697, at *4.
La’Tiejira complained about the deficiencies in the trial court’s Order granting
sanctions. See Tex. Civ. Prac. & Rem. Code Ann. § 10.005. To the extent the trial
court awarded sanctions under Chapter 10, we conclude the trial court abused its
discretion by entering an Order that failed to describe the conduct that violated
section 10.001 or to explain the basis for the sanction imposed. See id. § 10.005;
Hines, 2016 WL 7177697, at *4.
We have determined that the record does not support a finding that the Motion
to Compel was groundless under Rule 13 or Chapter 9. See Tex. R. Civ. P. 13, Tex.
Civ. Prac. & Rem. Code Ann. § 9.011. The trial court also abused its discretion by
30
failing to include in its sanctions Order (1) particularized findings of good cause
under Rule 13 and (2) a description of the conduct resulting in the sanction or the
basis for the sanction imposed as required by Chapter 10. See Tex. R. Civ. P. 13,
Tex. Civ. Prac. & Rem. Code Ann. § 10.005; Hines, 2016 WL 7177697, at *4; see
also Guerra, 521 S.W.3d at 889. We sustain issue two.
ISSUES THREE AND FOUR: CONTINUANCE AND DEPOSITION
In issue three, La’Tiejira complains that the trial court improperly denied her
“Motion for Continuance” without a hearing, which constituted an abuse of
discretion. In issue four, she asserts that the trial court improperly denied her
“Motion for Leave to Take the Deposition of Defendant John Cribb.”
Denial of Continuance
We review a trial court’s denial of a motion for continuance for an abuse of
discretion. See BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 800 (Tex.
2002); Kozak v. LeFevre Dev., Inc., No. 09-18-00369-CV, 2019 WL 2220305, at *7
(Tex. App.—Beaumont May 23, 2019, no pet.) (mem. op.). We will reverse the trial
court’s denial of a motion for continuance only if it acted arbitrarily, unreasonably,
or without reference to any guiding rules and principles. See BMC Software Belg.,
83 S.W.3d at 800; Kozak, 2019 WL 2220305, at *7. Texas Rule of Civil Procedure
252 requires that if a continuance is sought for “want of testimony, the party applying
therefor shall make affidavit . . . showing that he has used due diligence to procure
31
such testimony, stating the diligence, and the cause of failure, if known[.]” Tex. R.
Civ. P. 252; see Risner v. McDonald’s Corp., 18 S.W.3d 903, 909 (Tex. App.—
Beaumont 2000, pet. denied) (noting Rule 252’s requirement that party seeking
continuance must assert that they have “exercised due diligence in obtaining any
needed discovery” or assert “the reason for her failure to obtain such discovery in a
timely fashion[]”).
On October 15, 2021, La’Tiejira filed suit, and the trial court granted her
motion for substituted service. On January 21, 2022, Cribb answered. On June 23,
2022, La’Tiejira filed her Motion for Continuance noting that the case was set for
trial in October 2022 and asking that the trial date be continued until February 2023.
She requested that the trial court amend its DCO to extend the discovery deadline
from July 2022 to November 2022. La’Tiejira listed the written discovery that had
been completed and asserted that she “will seek to take the deposition of
Defendant[,]” but she did not explain her diligence scheduling his deposition before
this time. See Tex. R. Civ. P. 252; Risner, 18 S.W.3d at 909; see also JTREO, Inc.
v. Hightower & Assocs., Inc., No. 03-19-00255-CV, 2020 WL 3468148, at *6 (Tex.
App.—Austin June 18, 2020, pet. denied) (mem. op.) (concluding no abuse of
discretion denying continuance where party did not explain how it exercised due
diligence scheduling depositions in previous eight months). Likewise, nothing in the
record suggests La’Tiejira attempted to depose Cribb before filing the Motion for
32
Continuance. See Tex. R. Civ. P. 252; Risner, 18 S.W.3d at 909; see also JTREO,
Inc., 2020 WL 3468148, at *6. She complained that she would need a hearing on
her Motion to Compel and that her attorney contracted COVID on June 15, 2022,
leaving him unable to work full time. This does not account for the intervening five
months after Cribb answered or show the diligence used to depose him before
counsel became ill, nor does the Motion for Continuance explain this. See Tex. R.
Civ. P. 252; Risner, 18 S.W.3d at 909; see also JTREO, Inc., 2020 WL 3468148, at
*6.
La’Tiejira’s recitation of the facts surrounding the denial of the continuance
requires clarification. She alleges that the trial court denied her Motion for
Continuance “without notice of hearing or submission[.]” Although true that the trial
court denied the Motion for Continuance, the record shows that La’Tiejira scheduled
her Motion for Continuance to be heard by submission on July 8, 2022. Unlike the
Motion to Compel, which involved a responsive Motion to Strike and for Sanctions
that was rescheduled for an oral hearing, the Motion for Continuance was only
scheduled to be heard by submission. On August 8, 2022, the trial court signed its
Order denying the Motion for Continuance, which stated, “On July 8, 2022,
Plaintiff’s Motion for Continuance was submitted to the Court for a ruling. It is:
ORDERED that Plaintiff’s Motion for Continuance is DENIED.” Her assertion that
the Motion for Continuance was denied “without notice and/or opportunity to
33
appear” lacks merit, as she is the party who filed the Motion and a Notice of
Submission specifying it would be “heard” on July 8, 2022, the date reflected in the
trial court’s Order denying the Motion for Continuance.
We conclude the trial court did not abuse its discretion by denying the Motion
for Continuance when La’Tiejira failed to explain how she exercised due diligence
in procuring Cribb’s deposition for the five months before her attorney became ill.
See BMC Software Belg., 83 S.W.3d at 800 (abuse of discretion); Kozak, 2019 WL
2220305, at *7 (same); see also Tex. R. Civ. P. 252 (requirement to explain
diligence); Risner, 18 S.W.3d at 909 (same). The trial court also did not abuse its
discretion by denying the Motion for Continuance without an oral hearing where the
record reflects the trial court “heard” the motion by submission, as requested and
noticed by La’Tiejira. See BMC Software Belg., 83 S.W.3d at 800; Kozak, 2019 WL
2220305, at *7. We overrule issue three.
Denial of Motion for Leave to Depose Cribb
In issue four, La’Tiejira also complains that the trial court improperly denied
her “Motion for Leave to Take the Deposition of Defendant.” On August 23, 2022,
she filed her “Motion for Leave to Take the Deposition of Defendant John Cribb”
and argued that because Cribb amended his answer on July 28, 2022, she needed to
depose him outside the discovery period, which closed per the trial court’s Docket
Control Order on July 5, 2022. On September 2, 2022, La’Tiejira set her “Motion
34
for Leave to Take the Deposition of Defendant John Cribb” to be heard by
submission on September 16, 2022.
“Trial courts have discretion to manage their dockets and to schedule cases so
the court may conveniently and efficiently dispose of the cases that are on its
docket.” Coe v. Weller, Green, Toups & Terrell, LLP, No. 09-18-00365-CV, 2020
WL 6929662, at *8 (Tex. App.—Beaumont Nov. 25, 2020, pet. denied) (mem.
op.) (citing Clanton v. Clark, 639 S.W.2d 929, 931 (Tex. 1982)). “Under the Texas
Rules of Civil Procedure, trial courts are authorized to create deadlines to control the
various phases of the cases on their dockets.” Interest of L.P., No. 09-19-00421-CV,
2020 WL 7062328, at *5 (Tex. App.—Beaumont Dec. 3, 2020, pet. denied) (mem.
op.) (citing Tex. R. Civ. P. 166).
For the same reasons outlined above in our discussion of the Motion for
Continuance, the trial court did not abuse its discretion in denying the Motion for
Leave to depose Cribb after the discovery deadline. La’Tiejira claims that she
needed to depose him after the discovery cutoff, because he filed an untimely
amended answer. Nevertheless, she failed to establish that she exercised diligence in
attempting to schedule his deposition before the discovery period ended. See Tex.
R. Civ. P. 252; Risner, 18 S.W.3d at 909; see also JTREO, Inc., 2020 WL 3468148,
at *6. She did not delineate any attempts she made to depose him before discovery
closed. See Tex. R. Civ. P. 252; Risner, 18 S.W.3d at 909; see also JTREO, Inc.,
35
2020 WL 3468148, at *6. Additionally, although she cited deposing Cribb as one
basis for her earlier Motion for Continuance, the record does not show, nor does she
allege any efforts she undertook to schedule his deposition in the two months that
followed. See Tex. R. Civ. P. 252; Risner, 18 S.W.3d at 909; see also JTREO, Inc.,
2020 WL 3468148, at *6.
Since La’Tiejira has failed to show that she exercised diligence in seeking
Cribb’s deposition before the close of the discovery period, the trial court did not
abuse its discretion in denying her Motion for Leave. See Tex. R. Civ. P. 252; Risner,
18 S.W.3d at 909; see also JTREO, Inc., 2020 WL 3468148, at *6. We overrule issue
four.
ISSUE FIVE: AMENDED ANSWER
Although difficult to determine from her brief, in her fifth issue, La’Tiejira
seemingly complains that the trial court impliedly granted leave for Cribb to amend
his answer after the deadline provided in the DCO. Cribb’s First Amended Answer
added the affirmative defenses of offset and payment in whole or part. Cribb
responds that although La’Tiejira filed a Motion to Strike his First Amended
Answer, she failed to present it to the court by submission or hearing.
As a prerequisite to presenting a complaint for appellate review, the complaint
(1) must have been presented to the trial court by a timely motion and (2) the trial
court must have expressly or implicitly ruled on the motion or refused to rule on the
36
motion and the complaining party objected to the trial court’s refusal to rule. See
Tex. R. App. P. 33.1(a); Appleton v. Consol. Crane & Rigging, LLC, No. 09-21-
00247-CV, 2022 WL 17843993, at *3 n.5 (Tex. App.—Beaumont Dec. 22, 2022, no
pet.) (mem. op.) (explaining that it was appellant’s responsibility to request a hearing
on her motion to compel where she noted the trial court’s failure to rule on a motion
to compel but she did not request hearing); Arevalo v. Hauser, No. 14-98-00932-
CV, 1999 WL 694939, at *1 (Tex. App.—Houston [14th Dist.] Sept. 9, 1999, pet.
denied) (mem. op.) (concluding complaint that trial court abused its discretion by
failing to strike answer was not preserved for appellate review where appellant failed
to obtain a ruling on the motion). The record does not show that La’Tiejira ever
presented her Motion to Strike Cribb’s First Amended Answer to the trial court by
hearing or submission nor does the record show she requested one on the Motion to
Strike. Thus, she has failed to preserve this complaint for our review. See Tex. R.
App. P. 33.1(a); Appleton, 2022 WL 17843993, at *3 n.5; Arevalo, 1999 WL 69439,
at *1. We overrule issue five.
ISSUE SIX: SUMMARY JUDGMENT
In issue six, Appellant claims the trial court improperly granted traditional and
no-evidence summary judgment for Cribb. Cribb counters that La’Tiejira failed to
produce evidence of consideration which is necessary to establish a valid contract,
and her evidence conclusively established the opposite of a vital fact. Cribb argues
37
that without consideration, there is not a valid contract— a requisite element of her
breach of contract and fraudulent inducement claims.
The Final Judgment shows the trial court denied Cribb’s First Amended
Traditional Motion for Summary Judgment but granted the No Evidence Motion for
Summary Judgment. Therefore, we limit our review to the grounds on which the trial
court based its judgment and do not address La’Tiejira’s arguments related to the
traditional motion. See Cincinnati Life Ins. v. Cates, 927 S.W.2d 623, 625–26 (Tex.
1996). After sustaining all Cribb’s objections to La’Tiejira’s summary judgment
evidence, the trial court granted Cribb’s No-Evidence Motion for Summary
Judgment. The trial court’s Final judgment explained this left La’Tiejira “with no
evidence on this record as to either the breach of contract or the fraud claim.” The
trial court also explained that “[i]n addition to being inadmissible, Plaintiff’s own
evidence demonstrates the lack of consideration to support the ‘contract.’” The trial
court reasoned that the “alleged promise of $250,000 is based on events which,
according to the author, previously took place – i.e., past consideration – and past
consideration is not valid consideration to support a contract.”
As we outlined in our recitation of the facts, Cribb’s “Motion for No Evidence
Summary Judgment, and First Amended Motion for Traditional Summary
Judgment” was set for submission on September 9, 2022. On September 13, 2022,
38
four days after the scheduled submission, Cribb filed his objections to La’Tiejira’s
summary judgment evidence but did not file a motion for leave.
Standard of Review
We review a trial court’s decision to grant summary judgment de novo.
See Shell Oil Co. v. Writt, 464 S.W.3d 650, 654 (Tex. 2015) (citation omitted). We
view the evidence in the light most favorable to the nonmovant. Id. (citing City of
Keller v. Wilson, 168 S.W.3d 802, 824 (Tex. 2005)). In doing so, we indulge every
reasonable inference and resolve any doubts against the motion. See City of Keller,
168 S.W.3d at 824. “Undisputed evidence may be conclusive of the absence of a
material fact issue, but only if reasonable people could not differ in their conclusions
as to that evidence.” Buck v. Palmer, 381 S.W.3d 525, 527 (Tex. 2012) (citation
omitted).
If a defendant files a combined traditional and no-evidence summary
judgment motion, we first review the judgment under the no-evidence standards of
Rule 166a(i). Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004); Werth
v. Johnson, 294 S.W.3d 908, 909 (Tex. App.—Beaumont 2009, no pet.). When the
facts are undisputed, the analysis becomes a question of law for the judge; however,
if the facts are disputed, it is a question for the trier of fact. See Richey v. Brookshire
Grocery Co., 952 S.W.2d 515, 518 (Tex. 1997). When a no-evidence motion has
been filed, it “is essentially a pretrial directed verdict, and we apply the same legal
39
sufficiency standard in reviewing a no-evidence summary judgment as we apply in
reviewing a directed verdict.” King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750–
51 (Tex. 2003) (citations omitted).
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.
Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997) (citation
omitted); see also City of Keller, 168 S.W.3d at 810; Chapman, 118 S.W.3d at 751.
La’Tiejira sued for breach of a “unilateral contract” and that she was
fraudulently induced into entering that contract. She alleged that Cribb promised to
pay her $250,000.00 for deactivating her online dating profile and entering a
relationship with him and sought specific performance.
To prove a claim for breach of contract, a party must establish: (1) formation
of a valid contract; (2) performance by plaintiff; (3) breach by defendant; and (4)
“the plaintiff sustained damages as a result of the breach.” USAA Tex. Lloyds Co. v.
Menchaca, 545 S.W.3d 479, 501 n.21 (Tex. 2018). “[A] unilateral contract is created
when a promisor promises a benefit if a promisee performs.” City of Hous. v.
Williams, 353 S.W.3d 128, 135–36 (Tex. 2011); Vanegas v. Am. Energy Servs., 302
S.W.3d 299, 303 (Tex. 2009). “The requirement of mutuality is not met by an
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exchange of promises; rather, the valuable consideration contemplated in ‘exchange
for the promise is something other than a promise,’ i.e., performance.” City of Hous.
v. 4 Families of Hobby, LLC, No. 01-23-00436-CV, 2024 WL 3658049, at *10 (Tex.
App.—Houston [1st Dist.] Aug. 6, 2024, no pet. h.) (quoting Williams, 353 S.W.3d
at 136). Once the promisee performs, a unilateral contract becomes
enforceable. Williams, 353 S.W.3d at 136 (citing Vanegas, 302 S.W.3d at 303); 4
Families, 2024 WL 3658049, at *10. “‘[A] unilateral contract occurs when there is
only one promisor and the other accepts ... by actual performance,’” instead of the
usual exchange of mutual promises. Williams, 353 S.W.3d at 136 (quoting Vanegas,
302 S.W.3d at 302); 4 Families, 2024 WL 3658049, at *9. In other words, for a
unilateral contract, the “valuable consideration contemplated” is performance. See
Williams, 353 S.W.3d at 136 (citation omitted).
Past consideration will not support a subsequent promise. CRC-Evans
Pipeline Intern., Inc. v. Myers, 927 S.W.2d 259, 265 (Tex. App.—Houston [1st
Dist.] 1996, no writ). “Consideration is a present exchange bargained for in return
for a promise.” Roark v. Stallworth Oil & Gas, Inc., 813 S.W.2d 492, 496 (Tex.
1991) (citation omitted). It involves either a benefit to the promisor or a detriment
to the promisee. Id. “The detriment must induce the making of the promise, and the
promise must induce the incurring of the detriment.” Id. (citation omitted).
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Fraudulent inducement “is a particular species of fraud that arises only in the
context of a contract and requires the existence of a contract as part of its proof.”
Haase v. Glazner, 62 S.W.3d 795, 798 (Tex. 2001); see also Anderson v. Durant,
550 S.W.3d 605, 614 (Tex. 2018) (“Because fraudulent inducement arises only in
the context of a contract, the existence of a contract is an essential part of its proof.”).
As evidence of this “unilateral contract,” La’Tiejira relied on her affidavit
where she claimed that Cribb had repeatedly orally promised “to take care of me[,]”
as early as December 9, 2015, and the March 27, 2016 document promising the same
and to pay $250,000.00 prepared by Cribb. In her affidavit, she stated “that in the
event he died or anything happened to him or if we broke up, that he would give me
$250,000.00 because of all that I had done for him in loving him.” In the affidavit,
she also alleged that in March 2016, Cribb emailed her, “Thank you also for the
changes you have made in your life to accommodate my needs.” La’Tiejira asserted
that Cribb failed to pay her the $250,000.00 when they broke up. The written offer
La’Tiejira claims to have relied on is an email that stated that if anything ever
happened to Cribb, he wanted her to have $250,000.00 “to live on” and “[i]f we
should ever break up[,] I want to give her $250,000 . . . [b]ecause I asked her when
we [f]irst met online in the personals . . . [t]o take her ad down and I would take care
of her forever.” The evidence also showed that Cribb and La’Tiejira began a
romantic relationship in November 2015. The evidence also showed that La’Tiejira
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took her ad down when they began their relationship but accused Cribb of not doing
the same.
Cribb argued in his No Evidence Motion for Summary Judgment, among
other things, there was no evidence of consideration by La’Tiejira in reliance on the
March 2016 promise. We agree. Even assuming the trial court improperly sustained
all Cribb’s late-filed objections to La’Tiejira’s summary-judgment evidence and
considering that evidence in La’Tiejira’s favor, we agree that evidence conclusively
establishes the opposite of a vital fact. See City of Keller, 168 S.W.3d at 810, 824;
Chapman, 118 S.W.3d at 751.
Actual performance is the “valuable consideration” contemplated for a
unilateral contract, and a contract cannot be based on past consideration. See
Williams, 353 S.W.3d at 135–36; Vanegas, 302 S.W.3d at 303; Myers, 927 S.W.2d
at 265. Taken in the light most favorable to the La’Tiejira as the nonmovant and as
true, the oral statement and the March 2016 document show that the promises to pay
La’Tiejira $250,000.00 did not induce her to perform such that a unilateral contract
would be enforceable. See City of Keller, 168 S.W.3d at 810, 824 (viewing evidence
in the light most favorable to the nonmovant); Chapman, 118 S.W.3d at 751 (same);
see also Williams, 353 S.W.3d at 135–36 (discussing performance as consideration
for unilateral contracts); Vanegas, 302 S.W.3d at 303 (same); Myers, 927 S.W.2d at
265 (valid contract cannot be based on past consideration). Rather, the evidence
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shows when Cribb promised to pay $250,000.00: (1) the two were already in a
relationship; (2) she had already taken down her personal ad; and (3) the written
document shows that whether they remained together or broke up, Cribb said he
would pay, which did not require any performance by La’Tiejira. See Williams, 353
S.W.3d at 135–36; Vanegas, 302 S.W.3d at 303; Myers, 927 S.W.2d at 265.
La’Tiejira’s summary-judgment evidence conclusively proves the opposite of
a vital fact–that there was no consideration by actual performance. Accordingly,
there can be no unilateral contract. See Williams, 353 S.W.3d at 135–36; Vanegas,
302 S.W.3d at 303; Myers, 927 S.W.2d at 265; see also City of Keller, 168 S.W.3d
at 810, 824; Chapman, 118 S.W.3d at 751. Absent a contract, there is no fraudulent
inducement claim. See Anderson, 550 S.W.3d at 614; Haase, 62 S.W.3d at 798. The
trial court properly granted Cribb’s No Evidence Motion for Summary Judgment on
the breach of contract and fraudulent inducement claims. We overrule issue six.
CONCLUSION
We affirm the trial court’s No Evidence Summary Judgment for Cribb. We
reverse the portion of the trial court’s August 5, 2022 Order awarding sanctions and
render judgment that Cribb take nothing on his sanctions request, because (1) the
record does not support a finding that the Motion to Compel was groundless under
Chapter 9 or Rule 13, and (2) the trial court’s Order awarding sanctions did not
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contain the requisite information under Rule 13 or Texas Civil Practice and
Remedies Code section 10.005.
AFFIRMED IN PART, REVERSED AND RENDERED IN PART.
W. SCOTT GOLEMON
Chief Justice
Submitted on February 29, 2024
Opinion Delivered October 17, 2024
Before Golemon, C.J., Johnson and Chambers, JJ.
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