Court of Appeals of Texas, Fifth District, Dallas
Appeal from the 160th Judicial District Court Dallas County,
Texas Trial Court Cause No. DC-16-11111
Justices Lang, Fillmore, and Schenck
J. SCHENCK JUSTICE
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.
and Procedural Background
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
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.
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.
trial court heard and granted appellee's motion for
traditional summary judgment on July 7, 2017. This appeal
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).
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.