Court of Appeals of Texas, Eighth District, El Paso
from the 394th District Court of Hudspeth County, Texas
Panel No. 2 Barajas, C.J., McClure, and Chew, JJ.
RICHARD BARAJAS, CHIEF JUSTICE.
an appeal from the trial court's granting of a
"no-evidence" summary judgment against Appellant.
For the reasons stated herein, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
filed a lawsuit against Appellees alleging various torts
related to a business partnership that purportedly existed
among the parties. Appellant contends that she had entered
into a business relationship with Appellees where the parties
had agreed to purchase a grocery business. At some time
after, not reflected in the record, the parties had a
disagreement over the arrangement. Appellant filed suit on
August 13, 2002, alleging causes of action based in fraud and
forgery, loss of business opportunities, breach of fiduciary
duty, intentional infliction of emotional distress, and
tortious interference with prospective business relationship.
The parties filed requests for disclosure and proceeded with
other written discovery. Appellee Gonzalez, individually and
d/b/a Groc. Inc. d/b/a Dell Mini Mart filed special
exceptions to Appellant's original petition. The
appellate record reflects an order granting the special
exceptions and providing Appellant with sixty days to
replead. The record does not reflect the filing of any
amended pleadings if any were filed.
parties continued to exchange written discovery. Appellee
Gonzalez et al, filed a "no-evidence" motion for
summary judgment pursuant to Texas Rules of Civil Procedure
166a(i) on May 5, 2003. On May 12, 2003, Appellee Rascoe
filed his "no-evidence" motion for summary
judgment. Both motions were considered by the court on May
29, 2003. At the hearing, Appellee Gonzalez apparently
presented written objections to the timeliness of
Appellant's response to the motion for summary judgment
and to the form of the affidavit. Appellee Gonzalez also
argued the basis for the objections to the court. The written
objection was not included in the appellate record but the
order sustaining all the objections is included and provides
that the trial court sustained all the objections.
Thereafter, the trial court granted the motions for summary
judgment in favor of both Appellees. Appellant filed a notice
of appeal. We note that Appellant included as an attachment
to her brief a copy of a document requesting findings of fact
and conclusions of law from the trial court. No proposed
findings were included in the record. The copy of the request
is not file stamped and no file stamped copy is included in
the clerk's record provided. We also note that if the
request was properly filed and presented to the trial court,
no proposed findings were provided and no notice of past due
findings of fact and conclusions of law was filed. Further,
we note that normally, findings of fact and conclusions of
law have no place in summary judgment proceedings.
Linwood v. NCNB Texas, 885 S.W.2d 102, 103 (Tex.
1994); Besing v. Moffitt, 882 S.W.2d 79, 82
(Tex.App.--Amarillo 1994, no writ); State v. Easley,
404 S.W.2d 296, 297 (Tex. 1966). The failure to make such
findings is not error and, if made, they are correctly
disregarded by the appellate court. Cotton v. Ratholes,
Inc., 699 S.W.2d 203, 204 (Tex. 1985).
has appealed, raising one issue.
sole issue on appeal, Appellant complains that the
"trial court erred and abused its discretion under the
circumstances of this case by granting [Appellees']
Motion for Summary Judgement [sic], as an adequate and
reasonable time to conduct discovery was not allowed."
The issue does not clearly complain of the erroneous action
of the trial court. It appears to complain that the trial
court's holding of the hearing was error because
Appellant had not had sufficient time to conduct discovery,
implying that the hearing should have been postponed or
continued. The issue as worded and argued does not attack the
merits of the granting of the motions for summary judgment.
We note that no motion for continuance was filed and
Appellant's response was struck and apparently not
considered by the trial court. Further, we observe that any
complaint on the merits of the granting of the summary
judgment is not briefed nor argued. Appellant's brief
only challenges the trial court's failure to allow more
time to continue the discovery process. Appellant's brief
does not present any argument regarding the substantive
reasons why the trial court should have granted her
additional time nor does it articulate any evidence to rebut
Appellees' motions. Appellant's argument is, in
essence, a contention that the "result reached by the
trial court is manifestly unfair to [Appellant]."
brief "must contain a succinct, clear, and accurate
statement of the arguments made in the body of the
brief." Tex.R.App.P. 38.1(g). Rule 38 requires Appellant
to provide us with such discussion of the facts and the
authorities relied upon as may be requisite to maintain the
point at issue. See Tesoro Petroleum Corp. v.
Nabors Drilling USA, Inc., 106 S.W.3d 118, 128
(Tex.App.--Houston [1st Dist.] 2002, pet. denied);
Franklin v. Enserch, Inc., 961 S.W.2d 704, 711
(Tex.App.--Amarillo 1998, no pet.). This is not done by
merely uttering brief conclusory statements, unsupported by
legal citations. Tesoro Petroleum Corp., 106 S.W.3d
at 128. Appellant does not present any case law or argument
to support her contention that a continuance was requested
and improperly denied. The only cases included in her brief
identify the standard of review applicable to a
"no-evidence" motion for summary judgment. By
presenting such attenuated, unsupported argument, Appellant
waives her complaints.
argument cites to a few cases regarding the general standard
of review applicable to a summary judgment but no cases that
address Appellant's contention that sufficient time for
discovery had not passed. See Tex. R. App. P.
38.1(h); Stephens v. Dolcefino, 126 S.W.3d 120,
125-26 (Tex.App.--Houston [1st Dist.] 2003, pet. filed);
Franz v. Katy Indep. Sch. Dist., 35 S.W.3d 749, 755
(Tex.App.--Houston [1st Dist.] 2000, no pet.).
in order to complain of the denial of a motion for
continuance, the party complaining must have actually
requested that a continuance be granted. Here, there is no
evidence that Appellant requested a continuance and as such,
any complaint regarding the same on appeal is waived. To
preserve a complaint for appellate review, a party must
present to the trial court a timely request, objection, or
motion stating the specific grounds for the ruling sought.
Tex.R.App.P. 33.1(a). Issue No. One is thus waived for
inadequate briefing and a fail to file a motion below.
determining that Appellant's issue should be overruled as
waived, we note, turning to the substantive question of the
granting of the no-evidence summary judgments by the trial
court, we affirm the trial court's decision. Initially we
note that Appellant's minimal response was struck and not
considered. We do not know on what basis the trial court
struck the response but the order ...