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Yarbrough v. ELC Energy, LLC

Court of Appeals of Texas, Twelfth District, Tyler

May 31, 2017

MAEBELLE YARBROUGH, INDIVIDUALLY AND AS TRUSTEE OF THE DARRELL YARBROUGH TESTAMENTARY TRUST, APPELLANT
v.
ELC ENERGY, LLC, APPELLEE

         Appeal from the 145th District Court of Nacogdoches County, Texas (Tr.Ct.No. C1530742)

          Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

          MEMORANDUM OPINION

          Greg Neeley Justice.

         Maebelle Yarbrough, in both her individual capacity and as Trustee of the Darrell Yarbrough Testamentary Trust (collectively Yarbrough), appeals the trial court's summary judgment entered in favor of Appellees ELC Energy, LLC, Gene Goldsmith, John R. Musselman, and Blevco Resources, Inc. In one issue, Yarbrough argues that the trial court erred in granting ELC's motion for summary judgment. We affirm in part and reverse and remand in part.

         Background

         Yarbrough owns a tract of land in Nacogdoches County, Texas. ELC claims rights to the property pursuant to a 1980 mineral lease on that land entered into by Yarbrough and her, now, deceased husband, Darrell Yarbrough, with Schlensker Drilling Corporation (the lease or the Yarbrough lease). On February 12, 2015, pursuant to a farmout agreement[1] from certain successors in interest to the Yarbrough lease, ELC sought to enter Yarbrough's property to conduct drilling operations. Yarbrough objected.

         On February 17, 2015, ELC filed suit for trespass to try title and other causes of action. Yarbrough filed a counterclaim, and various third party claims also were filed. ELC filed an amended motion for summary judgment on August 18, 2015, to which Yarbrough responded. On September 10, 2015, [2] ELC amended its pleadings to claim it had the right to access Yarbrough's property by virtue of a different farmout agreement from the one it referenced in its prior pleadings, but which had been filed in support of its amended motion for summary judgment.

         Yarbrough filed a motion for continuance, alleging that ELC's amended pleadings changed the nature of its cause of action and, therefore, Yarbrough needed additional time to conduct discovery. ELC filed a response. Following a hearing, the trial court denied Yarbrough's motion for continuance. Ultimately, the trial court granted ELC's amended motion for summary judgment. This appeal followed.

         Motion for Continuance

         In part of her first issue, Yarbrough argues that the trial court abused its discretion by denying her motion for continuance.

         Standard of Review

         We review a trial court's ruling on a motion for continuance of a summary judgment hearing for an abuse of discretion. See D.R. Horton-Tex., Ltd. v. Savannah Props. Assocs., 416 S.W.3d 217, 222 (Tex. App.-Fort Worth 2013, no pet.) (citing BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 800 (Tex. 2002)). We must determine whether the trial court acted without reference to guiding rules or principles or whether the trial court's action "was so arbitrary and unreasonable as to amount to a clear and prejudicial error of law." D.R. Horton- Tex., 416 S.W.3d at 222; see also BMC Software, 83 S.W.3d at 800. Unless the trial court acted arbitrarily and unreasonably, we will not disturb its decision on appeal. Karen Corp. v. The Burlington N. & Santa Fe Ry. Co., 107 S.W.3d 118, 124 (Tex. App.-Fort Worth 2003, pet. denied).

         Applicable Law

         Under Rule 166a(g), a court may grant a continuance of a summary judgment hearing when it appears "from the affidavits of a party opposing the motion [for summary judgment] that he cannot[, ] for reasons stated[, ] present by affidavit facts essential to justify his opposition[.]" Tex.R.Civ.P. 166a(g). The three nonexclusive factors used in determining whether a trial court has abused its discretion in denying a motion for continuance that seeks additional time to conduct discovery are (1) the length of time the case has been on file, (2) the materiality and purpose of the discovery sought, and (3) whether the party seeking the continuance has exercised due diligence to obtain the discovery sought. See Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004). The Fort Worth Court of Appeals has required a party seeking a continuance to obtain additional evidence to provide an affidavit describing the evidence sought, explaining its materiality, and showing that it has used due diligence to timely obtain the evidence. See D.R. Horton-Tex., Ltd., 416 S.W.3d at 222-23. The party moving for the continuance bears the burden to convince the court that she used due diligence in seeking to obtain the needed evidence, and must do so by specifying not only the evidence sought, but explaining why it was not obtained earlier in order to avoid the need for a continuance. See Stierwalt v. FFE Transp. Servs., Inc., 499 S.W.3d 181, 192 (Tex. App.-El Paso 2016, no pet.).

         An affidavit that is general and conclusory does not meet this standard. Id. Therefore, a trial court does not abuse its discretion by denying a motion for continuance when the affidavit submitted does not state with particularity what diligence was used to obtain the needed evidence or testimony. See, e.g., Landers v. State Farm Lloyds, 257 S.W.3d 740, 747 (Tex. App.- Houston [1st Dist.] 2008, no pet.); see also Schronk v. Laerdal Med. Corp., 440 S.W.3d 250, 264 (Tex. App.-Waco 2013, pet. denied) (trial court did not abuse its discretion in denying parties' motion for continuance of summary judgment hearing based on the need to conduct additional discovery where the parties failed to demonstrate that they exercised due diligence in obtaining additional discovery needed); Dozier v. AMR Corp., No. 02-09-186-CV, 2010 WL 3075633, at *2-3 (Tex. App.-Fort Worth Aug. 5, 2010, no pet.) (mem. op.) (motion for continuance of summary judgment hearing based on needed evidence must be supported by affidavit stating with particularity what diligence moving party used to obtain that evidence, and therefore conclusory allegations not sufficient); Rocha v. Faltys, 69 S.W.3d 315, 319 (Tex. App.-Austin 2002, no pet.) (same); Gabaldon v. Gen. Motors Corp., 876 S.W.2d 367, 370 (Tex. App.-El Paso 1993, no writ) (record failed to establish that trial court abused its discretion in denying motion to "defer ruling" on a summary judgment motion based on a request to obtain additional discovery, where continuance motion did not provide details of what steps, if any, movant had made toward obtaining needed discovery); Martinez v. William C. Flores, M.D., P.A., 865 S.W.2d 194, 197 (Tex. App.-Corpus Christi 1993, writ denied) (trial court did not abuse discretion in denying motion for continuance of summary judgment hearing where appellants requested more time to conduct additional discovery to respond to the summary judgment motion, but failed, among other things, to explain why needed discovery had not occurred before submission date of motion).

         Further, a party attempting to blame the opposing party for its inability to obtain needed discovery or evidence, claiming it has violated discovery or other rules, must be specific in making such an accusation. See Allen v. United of Omaha Life Ins. Co., 236 S.W.3d 315, 325- 26 (Tex. App.-Fort Worth 2007, pet. denied). The mere accusation that a party abused the discovery process, without sufficient explanation of how that abuse occurred, is insufficient to justify overturning a trial court's ruling on a motion to continue a summary judgment hearing. Id. (trial court did not abuse discretion in denying motion for continuance of summary judgment hearing where party claimed that it was unable to obtain needed evidence due to opposing party's dilatory discovery tactics, but failed to explain exactly how that party abused discovery process).

         Yarbrough's Motions

         In her motion for continuance, Yarbrough set forth the relevant procedural history of the case. That is, ELC filed suit on February 17, 2015 and filed its original motion for summary judgment on July 9, 2015. In this motion, ELC contended that its right to enter onto Yarbrough's land stemmed from a farmout agreement from Goldsmith, Musselman, and Blevco. On July 16, 2015, ELC filed its Second Amended Original Petition, in which it continued to allege a right of entry based on this farmout agreement. Following objections to her request for production, Yarbrough filed a motion to compel against ELC, Blevco, Goldsmith, and Musselman on August 12, 2015. She served a second request for production on ELC that same day.

         On August 18, 2015, ELC filed its First Amended Motion for Summary Judgment. In this amended motion, ELC claimed to have the right to access Yarbrough's property by virtue of a different farmout agreement from Musselman and Blevco. On September 1, 2015, ELC served Yarbrough with its objections and responses to her second request for production. On September 3, 2015, Yarbrough filed her First Amended Motion to Compel ELC, Musselman, Goldsmith, and Blevco to respond fully to her first and second requests for production.

         On September 4, 2015, Yarbrough filed a motion for continuance of the hearing on ELC's amended motion for summary judgment, which was scheduled for September 14, 2015.[3]She filed a response to ELC's motion that same day. On September 7, 2015, [4] ELC filed its Third Amended Original Petition, in which it alleged it had the right to access Yarbrough's property by virtue of a farmout agreement from Musselman and Blevco. On September 10, 2015, ELC filed a response to Yarbrough's motion for continuance.

         On September 14, 2015, the scheduled date of the hearing on ELC's motion for summary judgment, Yarbrough filed a supplemental motion for continuance, in which she argued that ELC's third amended petition constituted a material change in position and caused her the need to conduct further discovery.

         In her motions for continuance, Yarbrough makes the following arguments:

• In its amended motion, ELC changed the basis for its right of access to Yarbrough's property from one farmout agreement to another and, therefore, the affidavits made in support of these farmout agreements, in which the affiant swore that the attached farmout agreement was the operative document, demonstrate that there is a material question of fact regarding which document is the operative agreement.
• ELC's second amended petition makes material changes in allegations including (1) Goldsmith's is listed as a party to the farmout agreement despite his having been removed as a party to the agreement underlying ELC's amended motion for summary judgment, (2) ELC's second amended petition removed all allegations pertaining to the Fender lease even though ELC claims rights to Yarbrough's property under the Fender lease in its amended motion, (3) claims for possessory rights under the Access-Development rights of the lease, and (4) abandonment of certain allegations pertaining to the purposes for the formation of the J. Paul Goldsmith Acme Brick Company Oil Unit No. 1, which previously had been a judicial admission of that unit's purpose.
• As a result, Yarbrough "needs and is entitled to a reasonable time to make discovery because of the various changes in position, abandonment of claims, addition of claims, changes of factual position[, ] and various conflicts between Mr. Gordon's first Affidavit and second Affidavit, as well as the involvement and responsibility of Atlantis Oil Company."[5]
• Furthermore, Yarbrough "needs and is entitled to a reasonable time to make discovery because of the various changes in position, abandonment of claims, addition of claims, changes of factual position[, ] and various conflicts between ELC's Second Amended Original Petition with the allegations contained in its First Amended Original Petition and/or its First Amended Motion for Summary Judgment."
• Yarbrough filed multiple written discovery requests upon ELC and other "Cross-Defendants." These requests were met, in part, with objections, and Yarbrough has filed a motion to compel discovery.
• Yarbrough has "not had a reasonable time to conduct discovery, particularly as to Cross-Defendants, Blevco, Musselman[, ] and Goldsmith[.]"
• Yarbrough "is entitled to the discovery responses to which she has been denied by virtue of unmeritorious objections made by [ELC] and Cross-Defendants. Such responses should be made before [Yarbrough] takes oral depositions of the other parties to this case. Further, [Yarbrough] has not had a reasonable time to conduct discovery as to the newly added allegations and changes of position that [ELC] made in its Second Amended Original Petition and/or its First Amended Motion for Summary Judgment."
• Yarbrough has leveled special exceptions to multiple allegations in [ELC's] Second Amended Original Petition. Yarbrough is unable reasonably to be prepared for trial until ELC repleads to meet any such special exceptions that are sustained by the court.
• Yarbrough received ELC's third amended petition less than seven days before the summary judgment hearing. ELC materially changed its position by (1) alleging it has rights under a different farm out agreement, (2) claiming a specific amount of damages, and (3) alleging statutory authority for the recovery of attorney's fees. As a result, Yarbrough "needs and is entitled to a reasonable time to make discovery because of the various changes of position, abandonment of claims, addition of claims, changes of factual position[, ] and various conflicts between [ELC's] Third Amended Original Petition and its Second Amended Original Petition."

         Analysis

         The case had been on file for nearly seven months by the time of the summary judgment hearing. However, Yarbrough failed to set forth in her motions for continuance with any particularity what sort of further discovery she wished to conduct or what material information any such discovery might yield. See D.R. Horton-Tex., Ltd., 416 S.W.3d at 222-23. In her motion, Yarbrough, at most, (1) identified the differences in ELC's motions for summary judgment and pleadings, which mostly concerned ELC's reliance on a different farmout agreement, to which Goldsmith was no longer a party, and (2) identified Blevco, Musselman, and Goldsmith as persons from whom she intended to seek discovery. But these assertions were not specific enough to apprise the trial court of what information she intended to seek and the materiality of any such information.

         Based on our review of the record, we have found no indication that Yarbrough took any steps to notice the depositions of Blevco, Musselman, or Goldsmith. Furthermore, Yarbrough made reference to ELC's and other cross defendants' objections to written discovery and noted that she had filed a motion to compel. But she never sought a ruling on her motion to compel[6]nor did she specify in her motions for continuance how any of the objected-to discovery requests would be material to her defending against ELC's amended summary judgment motion.

         Lastly, ELC filed its third amended petition on a holiday, and, thus, it is considered filed only six days before the summary judgment hearing. See Tex. R. Civ. P. 4, 21(f)(5)(A), 63. In our review of the record, we have not found that ELC requested leave to file its amended pleading within seven days of the summary judgment hearing or that the trial court expressly granted it leave to do so. Moreover, Yarbrough stated to the trial court during the hearing that the pleading was filed fewer than seven days before the hearing. However, based on our review of the record, we conclude that the evidence indicates that Yarbrough did not make a sufficient showing of surprise to necessitate that the trial court refuse to grant ELC leave. See Tex. R. Civ. P. 63. The pleading tracked the arguments as set forth in ELC's amended motion for summary judgment, with which Yarbrough was served on August 18, 2015. Further still, the pleading was filed within three days of Yarbrough's ...


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