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Gillham v. Sanchez

Court of Appeals of Texas, Fifth District, Dallas

May 13, 2019

JOAN L. GILLHAM, Appellant
v.
ANGELINA SANCHEZ, Appellee

          On Appeal from the 134th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-17-00889

          Before Justices Myers, Molberg, and Carlyle

          MEMORANDUM OPINION

          LANA MYERS JUSTICE

         Joan L. Gillham appeals the judgment in favor of Angelina Sanchez. Gillham sued Sanchez for violations of section 92.052 of the Property Code and breach of contract. The trial court granted Sanchez's motion for summary judgment on Gillham's claims. Following a jury trial on Sanchez's claim for attorney's fees, the trial court awarded Sanchez $73, 000 for attorney's fees through the trial of the case plus additional amounts for appeal. Gillham brings five issues on appeal contending the trial court erred by: (1) denying Gillham's first motion for continuance of the summary judgment hearing; (2) granting Sanchez's no-evidence motion for summary judgment; (3) denying Gillham's motion for continuance of the jury trial; (4) denying Gillham's motion for judgment notwithstanding the verdict; and (5) dismissing Gillham's claim for attorney's fees. We affirm the trial court's judgment.

         BACKGROUND

         Gillham leased a house from Sanchez. Gillham alleged she gave notice to Sanchez of defects in the house needing repair or remedy and that Sanchez did not repair or remedy the conditions. See Tex. Prop. Code Ann. §§ 92.052, .056, Gillham brought suit alleging a statutory claim for violations of the Property Code and a common-law breach-of-contract claim for breach of the lease. Gillham sought damages of $200, 000 to $1 million and an injunction ordering Sanchez to repair the conditions, reimburse Gillham for her expenses, and reduce Gillham's rent. See id. §§ 92.0563.

         Sanchez filed a motion for summary judgment asserting Gillham had no evidence to support her cause of action. Gillham filed motions for continuance of the summary judgment hearing, which the trial court denied. The trial court granted Sanchez's motion for summary judgment and ordered that Gillham take nothing on her claim. Gillham moved for a continuance of the jury trial on Sanchez's attorney's fees, and the trial court denied that motion to continue. After the jury trial, the trial court signed the final judgment awarding Sanchez the attorney's fees found by the jury. Gillham filed a motion for judgment notwithstanding the verdict asserting Sanchez was not entitled to attorney's fees because she did not comply with the claim-presentment requirement of section 38.002 of the Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. § 38.002. The trial court denied Gillham's motion.

         MOTION FOR CONTINUANCE OF SUMMARY JUDGMENT HEARING

         In her first issue, Gillham contends "the trial court abuse[d] its discretion in denying Gillham's first motion for continuance of the summary judgment hearing."

         First Motion for Continuance

         The trial court may order a continuance of a summary judgment hearing if it appears "from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition." Tex.R.Civ.P. 166a(g). When reviewing a trial court's order denying a motion for continuance, we consider whether the trial court committed a clear abuse of discretion. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004). A trial court abuses its discretion when it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law. Id. The court considers the following nonexclusive factors when deciding whether a trial court abused its discretion by denying a motion for continuance seeking additional time to conduct discovery: the length of time the case has been on file, the materiality and purpose of the discovery sought, and whether the party seeking the continuance has exercised due diligence to obtain the discovery sought. Id. Similarly, when a party seeks a continuance due to a "want of testimony," the party must show the materiality of the discovery sought as well as the due diligence used to procure the discovery. Tex.R.Civ.P. 252.

         Gillham's first motion for continuance and her affidavit attached to the motion did not describe how the discovery she sought was material to her opposition to the motion for summary judgment. Gillham also stated she requested the continuance to take Sanchez's deposition. However, the motion and affidavit do not state what she expected to prove with Sanchez's testimony. See id. (if the continuance "be for the absence of a witness, he shall state . . . what he expects to prove by him"). Nor did she explain why Sanchez's deposition testimony was material.[1]

         Gillham also argues she was entitled to a continuance because there had not been an adequate time for discovery. See id. 166a(i) ("After adequate time for discovery, a party . . . may move for summary judgment on the ground that there is no evidence of one or more essential elements of a claim or defense . . . ."). Gillham argues there had not been an adequate time for discovery because the discovery period extended up to the trial setting, which was after the setting for the hearing on the motion for summary judgment. Sanchez disputes that the discovery period extended for as long as Gillham asserts. However, regardless of the length of the discovery period, the determination of whether there has been an adequate time for discovery is not necessarily controlled by the discovery period. Dishner v. Huitt-Zollars, Inc., 162 S.W.3d 370, 376 (Tex. App.-Dallas 2005, no pet.) ("This Court has refused to read into the rule a bright-line requirement that the discovery period be completed before a no-evidence motion can be filed."). Whether the nonmovant on a motion for summary judgment has had adequate time for discovery is case specific. Id. As we stated in Dishner, "When a party contends he has not had an adequate opportunity for discovery before a no-evidence summary judgment hearing, he must file either an affidavit explaining the need for further discovery or a verified motion for continuance." Id. at 376-77. Gillham's first motion for continuance and the attached affidavit did not explain "the need for further evidence," i.e., she did not explain the materiality of the discovery she sought.

         Gillham asserts that she set forth the materiality of the discovery she sought in her second motion for continuance. However, she did not file the second motion for continuance until nine days after the trial court had denied her first motion for continuance. Therefore, this showing of materiality was not part of her first motion for continuance. Gillham does not bring an issue or argue that the trial court abused its discretion by denying her second motion for continuance.

         Because Gillham's first motion for continuance did not explain how the discovery she sought was material or what she expected to prove from deposing Sanchez, the trial court did not abuse its discretion by denying her first motion for continuance.

         21-Day Requirement

         Also in the argument under her first issue, Gillham argues the trial court erred by not continuing the hearing because the hearing was less than twenty-one days after Sanchez filed her motion for summary judgment. See Tex. R. Civ. P. 166a(c) (motion for summary judgment "shall be filed and served at least twenty-one days before the time specified for hearing.").

         Sanchez filed her motion for summary judgment on September 1, 2017, and the trial court set the motion for hearing twenty-four days later on September 25. The motion for summary judgment was based on Gillham's third amended petition. On September 6, five days after Sanchez filed her motion for summary judgment, Gillham amended her petition. Gillham's fourth amended petition did not assert any new causes of action. Sanchez filed an amended motion for summary judgment on September 8, and a nearly identical document styled "Defendant's First Supplement to No-Evidence Motion for Summary Judgment" on September 12. Gillham asserts the twenty-one days should be counted from September 12, not September 1. We disagree.

         The record does not show the trial court considered any motion for summary judgment other than Sanchez's original motion filed on September 1. In her response to the motion for summary judgment, Gillham objected "to all amendments and supplements to Defendant's No-Evidence Motion for Summary judgment as untimely filed. . . . All amendments and supplements to Defendant's No-Evidence Motion for Summary judgment were filed with less than 21 days notice before the hearing." The trial court's order granting the motion for summary judgment states the court granted "Defendant's Motion for Summary Judgment." The record does not show that the trial court denied Gillham's objection to the amended and supplemental motions, and nothing in the record shows the summary judgment was based on those motions.

         Even if the trial court considered the amended and supplemental motions, the record does not show the trial court erred by doing so. Sanchez's original no-evidence motion for summary judgment filed September 1 alleged Gillham had no evidence to support four elements of the statutory claim and three elements of the breach-of-contract claim. The amended and supplemental motions for summary judgment filed September 8 and 12 contained two substantive differences from the original motion for summary judgment. First, the amended and supplemental motions omitted one of the four no-evidence allegations concerning the statutory claim and instead asserted there were only three elements of that claim for which Gillham had no evidence. Second, the amended and supplemental motions contained an additional footnote, discussed below. The amended and supplemental motions also contained some non-substantive wording changes, such as referring to Gillham's fourth amended petition instead of the third amended petition and referring to "any of the property defects alleged in this case" instead of "any of the fourteen alleged property defects alleged in this case."

         The additional footnote in the amended and supplemental motions stated, "Since the time of Defendants' [sic] original MSJ, Plaintiff has amended her Petition. As such, and in an abundance of caution, Defendant is filing this amended motion. By filing this Motion, Defendant does not intend to waive any and [sic] rights to file a traditional motion for summary judgment after the conclusion of Plaintiff's deposition, which is currently set to occur on September 15, 2017." In her appellant's brief, Gillham quotes this footnote and then states, "The motion on its face shows that it is was [sic] improper because Sanchez intended to depose Gillham." Gillham cites no authority in support of this statement, nor does she provide any explanation as to why Sanchez's intent to depose her makes the motion for summary judgment "improper." Gillham had the burden to present some evidence raising a fact question. The fact that Sanchez intended to ...


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