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Giraldo v. Southwestern Adventist University

Court of Appeals of Texas, Tenth District

April 26, 2017

NANCY GIRALDO, Appellant
v.
SOUTHWESTERN ADVENTIST UNIVERSITY, Appellee

         From the 249th District Court Johnson County, Texas Trial Court No. C201400031.

          Before Chief Justice Gray, Justice Davis, and Justice Scoggins

          MEMORANDUM OPINION

          AL SCOGGINS Justice

         In three issues, appellant, Nancy Giraldo, advancing pro se, argues that the trial court erred in granting summary judgment in favor of her former employer, appellee Southwestern Adventist University. Specifically, Giraldo contends that the trial court erred by: (1) failing to provide her with an opportunity to complete discovery (2) excluding critical evidence; and (3) granting summary judgment in favor of appellee. We affirm.

         I. Background

         Giraldo was previously employed by appellee as an Associate Professor in the Psychology Department. In her live pleading, Giraldo asserted that appellee discharged her from her position for improper purposes-a contention with which appellee disagrees. Specifically, Giraldo alleged claims for gender discrimination, national-origin discrimination, ethnic discrimination, color discrimination, retaliation, and breach of contract.[1]

         In response to Giraldo's lawsuit, appellee filed traditional and no-evidence motions for summary judgment. After a hearing, the trial court granted appellee's motions for summary judgment. This appeal followed.

         II. Analysis

         In her first issue, Giraldo contends that the trial court erred in failing to grant her motion to extend the time to respond to appellee's motions for summary judgment and to complete discovery. At the outset of our analysis of this issue, we note that Giraldo has not provided any citations to the record in her briefing of this issue. See Tex. R. App. P. 38.1(i) ("The brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record."); Nguyen v. Kosnoski, 93 S.W.3d 186, 188 (Tex. App.-Houston [14th Dist.] 2002, no pet.) ("Moreover, an issue not supported by references to the record is waived."); see also Warren v. McLennan County Judiciary, No. 10-13-00009-CV, 2013 Tex.App. LEXIS 7946, at **3-4 n.2 (Tex. App.-Waco June 27, 2013, no pet.) (mem. op.) ("Moreover, under Texas law, pro-se litigants are held to the same standards as licensed attorneys with regard to compliance with applicable laws and rules of procedure." (citing Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978); In re N.E.B., 251 S.W.3d 211, 211-12 (Tex. App.-Dallas 2008, no pet.))). As such, Giraldo has waived her complaint in this issue.

         In any event, even if she had provided appropriate citations to the record in her briefing, Giraldo's complaint in this issue lacks merit. On January 11, 2016, Giraldo filed a motion for extension of time to respond to appellee's motion for summary judgment and to complete discovery. Thereafter, on January 19, 2016, Giraldo filed a motion for continuance, requesting more time to conduct discovery in preparation for the summary-judgment hearing. Neither of Giraldo's motions were verified or accompanied by an affidavit describing the evidence sought, explaining its materiality, and showing that Giraldo had used due diligence to obtain the evidence.[2]

         If a continuance is sought to pursue further discovery, the motion must either be verified or supported by affidavit describing the evidence sought, explaining its materiality, and showing the party requesting the continuance has used due diligence to obtain the evidence. See Tex. R. Civ. P. 251, 252; Tenneco, Inc. v. Enter. Prods. Co., 925 S.W.2d 640, 647 (Tex. 1996); Wal-Mart Stores Tex., L.P. v. Crosby, 295 S.W.3d 346, 356 (Tex. App.-Dallas 2009, pet. denied). Conclusory allegations are not sufficient. Lee v. Haynes & Boone, L.L.P., 129 S.W.3d 192, 198 (Tex. App.-Dallas 2004, pet. denied). We must presume that a trial court does not abuse its discretion in denying a motion for continuance when the motion is not verified or supported by affidavit. See Serrano v. Ryan's Crossing Apartments, 241 S.W.3d 560, 564 (Tex. App.-El Paso 2007, pet. denied); City of Houston v. Blackbird, 658 S.W.2d 269, 272 (Tex. App.-Houston [1st Dist.] 1983, writ dism'd).

         Therefore, because Giraldo's motion for continuance was unverified and unaccompanied by an affidavit outlining the information listed above, we must presume that the trial court did not abuse its discretion in failing to grant her motions. See Serrano, 241 S.W.3d at 564; Blackbird, 658 S.W.2d at 272. Accordingly, we overrule her first issue.

         In her second issue, Giraldo argues that the trial court erred in excluding evidence that was controlling on a material issue. In particular, Giraldo complains about the trial court's exclusion of Exhibits A, B, M, N, and Q. Exhibit A purportedly is a copy of the Southwestern Adventist University Faculty/Staff Handbook. Exhibit B purportedly is a copy of the Southern Association of Colleges and Schools Faculty Credentialing Guidelines. The remaining exhibits are personal emails of Giraldo's.

          As was the case in her first issue, Giraldo has not provided any citations to the record in her briefing of this issue. See Tex. R. App. P. 38.1(i); Nguyen, 93 S.W.3d at 188; see also Warren, 2013 Tex.App. LEXIS 7946, at ...


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