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Nemeth v. Republic Title of Texas, Inc.

Court of Appeals of Texas, Fifth District, Dallas

June 21, 2018

LOU NEMETH, Appellant
v.
REPUBLIC TITLE OF TEXAS, INC., Appellee

          On Appeal from the 160th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-16-11111

          Before Justices Lang, Fillmore, and Schenck

          MEMORANDUM OPINION

          DAVID J. SCHENCK JUSTICE

         Appellant Lou Nemeth appeals the trial court's order granting summary judgment in favor of appellee Republic Title of Texas, Inc. in a suit appellant initiated in connection with certain real property. In two issues, appellant asserts the trial court erred in granting appellee's motion for summary judgment because it did so before the completion of discovery and genuine issues of fact exist. We affirm the trial court's judgment. Because all issues are settled in law, we issue this memorandum opinion. Tex.R.App.P. 47.4.

         Factual and Procedural Background

         In February of 2007, appellant and his wife bought a condominium unit in Irving. Appellee was the escrow agent for that sale and issued a title commitment to appellant and his wife. First American Title Insurance Co. wrote the insurance policy.

         In 2012, appellant and his wife decided to sell the unit. They found a buyer and sold the personal belongings they did not intend to move to their new residence. The closing date was set for March 2, 2012. On that date, appellant and his wife signed the settlement statement. Funding was to occur that same day. Funding did not occur because the buyer sought an FHA loan and the lender denied the application because the investor ratio at the condominium complex exceeded FHA's guidelines. Appellant and his wife subsequently sold the condominium unit to another buyer and that sale closed.

         Appellant sued appellee on September 2, 2016, asserting claims of breach of contract, breach of warranty, and negligent misrepresentation. The basis for appellant's claims are his assertion appellee did not tell him that the condominium development investor ratio for the condominium complex was too high, with too many of the units being owned by investors rather than owners, such that a subsequent purchaser would not be able to obtain an FHA loan.

         The trial court heard and granted appellee's motion for traditional summary judgment on July 7, 2017. This appeal followed.

         Discussion

         I. Discovery

         In his first issue, appellant urges the trial court erred in not granting him additional time for discovery. A traditional summary judgment is not subject to the same restrictions as a no-evidence summary judgment, which may not be granted until an adequate time for discovery has passed. Tex.R.Civ.P. 166a(i); Allen v. United of Omaha Life Ins. Co., 236 S.W.3d 315, 326 (Tex. App.-Fort Worth 2007, pet. denied) (adequate time for discovery provision of summary judgment rule did not apply to traditional summary judgment motions). Rule 166a(a) permits a party to file a traditional summary judgment motion "at any time after the adverse party has appeared or answered." Tex.R.Civ.P. 166a(a). When a party contends that he has not had an adequate opportunity for discovery before the consideration of a traditional summary judgment motion, such as here, the party requesting additional time must file an affidavit stating the reasons for needing additional discovery or a verified motion for continuance. Tex.R.Civ.P. 166a(g), 251, 252; Tenneco, Inc. v. Enterprise Prods. Co., 925 S.W.2d 640, 647 (Tex. 1996); Willms v. Americas Tire Co., Inc., 190 S.W.3d 796, 780 (Tex. App.-Dallas 2006, pet. denied).

         Here, on the issue of adequate time for discovery, appellant merely stated in his summary judgment response, "[f]inally, Movant filed the Summary Judgment prematurely as an adequate amount of time for discover [sic] has not elapsed." Because appellant did not file an affidavit or a verified motion, he failed to preserve his complaint concerning discovery for our review. See Tenneco, 925 S.W.2d at 647. We overrule appellant's first issue.

         II.Summary ...


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