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English v. Bajjali

Court of Appeals of Texas, First District

December 21, 2017

WAYNE M. ENGLISH AND JAMES D. COLLING, Appellants
v.
COSTA BAJJALI, Appellee

         On Appeal from the 165th District Court Harris County, Texas Trial Court Case No. 2016-01849

          Panel consists of Justices Higley, Massengale, and Lloyd.

          MEMORANDUM OPINION

          LAURA CARTER HIGLEY JUSTICE

         Wayne M. English and James D. Colling sued Costa Bajjali, alleging damages from an investment with one of Bajjali's businesses. Bajjali filed a no-evidence motion for summary judgment. The trial court granted the motion. In six issues, English and Colling argue that (1) the trial court erred by granting summary judgment because there had been inadequate time for discovery; and (2) the trial court erred by striking portions of English and Colling's summary judgment evidence.

         We affirm.

         Background

         English and Colling each into entered into a limited partnership agreement in the Wallace Bajjali Investment Fund II, LP ("the Limited Partnership"). The Limited Partnership was formed in 2006 for the purposes of purchasing, developing, and selling real estate. Pursuant to the partnership agreement, English and Colling each invested $100, 000 in the Limited Partnership in or around 2007. Bajjali, a licensed real estate broker, was a corporate officer of WBIF II GP, LLC, f/k/a Perry Properties Investments, LLC ("the General Partner"), which was the general partner of the Limited Partnership. The Limited Partnership and the General Partner both filed for bankruptcy in 2015.

         English and Colling filed suit against Bajjali in 2016, alleging that various acts and omissions by Bajjali led to the "elimination of [their] investment[s]." In the suit, English and Colling alleged: (1) "Violations of the Texas Real Estate License Act sections 1101.602, 1101.652(b), 1101.653(1)-(4)"; (2) breach of contract; (3) fraud (fraud in the inducement, fraud by misrepresentation, and fraud by nondisclosure); and (4) breach of fiduciary duty ("Breach of Fiduciary Duties, Breach of Duty of Good Faith and Fair Dealing, and Defalcation"). On September 12, 2016, Bajjali filed a no-evidence motion for summary judgment, which was set for submission on October 3, 2016, the last day for consideration of dispositive motions under the docket control order.

         English and Colling filed a response to Bajjali's motion for summary judgment on September 23, 2016, in which they stated, "There has not been adequate time for discovery"; Bajjali's trial counsel's "actions and unresponsiveness has [sic] cause [sic] delays in Plaintiffs [sic] discovery"; and "Plaintiffs should be entitled to complete their discovery, file their Motion to Compel and initiate subpoenas." In the following paragraph, English and Colling asserted that they had "volumes of documents, evidence . . . to support each and every allegation in their complaint." English and Colling attached two written statements, both titled "Affidavit, " to the response. The statements asserted, in part, "We have served Bajjali with Interrogatories and Production Request [sic] which [sic] he has refused to comply, " as support for their claim that Bajjali "violat[ed] the Texas Real Estate Act." On September 29, Bajjali filed a reply in support of his summary judgment motion, along with his objections to English and Colling's summary-judgment evidence.

         On October 5, 2016, two days after the submission date, English and Colling filed a response to Bajjali's objections and an amended response to Bajjali's summary judgment motion. English and Colling attached additional summary- judgment evidence to their amended response without requesting or obtaining leave to do so. On November 1, 2016, the trial court sustained several of Bajjali's objections to the summary judgment evidence attached to English and Colling's original response to the summary judgment motion and rendered a summary judgment in favor of Bajjali on all of English and Colling's causes of action. This appeal followed.

         Adequate Time for Discovery

         In their first issue, English and Colling allege that the trial court erred by granting summary judgment in favor of Bajjali because there had been inadequate time for discovery.

         A. Standard of Review

         After an adequate time for discovery, the party without the burden of proof may move for a no-evidence summary judgment on the basis that there is no evidence to support an essential element of the non-moving party's claim. Tex.R.Civ.P. 166a(i); see Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex. 2008). We review a trial court's determination that an adequate time for discovery has passed for an abuse of ...


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