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Murtha v. Savvy's, Inc.

Court of Appeals of Texas, Second District, Fort Worth

June 6, 2019

Jeffrey Murtha, James Brewer, Larry Berkman, and Chasin Jason, Inc., Appellants
v.
Savvy's, Inc., Icie Berkman, and Wendie M. Kricker, Appellees

          On Appeal from the 342nd District Court Tarrant County, Texas Trial Court No. 342-284263-16

          Before Sudderth, C.J.; Pittman and Womack, JJ.

          MEMORANDUM OPINION

          Dana Womack Justice.

         I. Introduction

         Appellants Jeffrey Murtha, James Brewer, Larry Berkman, and Chasin Jason, Inc., ("Murtha") appeal the trial court's order granting appellees Savvy's, Inc., Icie Berkman, and Wendie M. Kricker's ("Savvys") no-evidence summary judgment motion. In one issue, Murtha argues that the trial court erred by not continuing the no-evidence summary judgment hearing, thereby not allowing them to conduct sufficient discovery to respond to the motion. Because we hold that Murtha never sought a continuance nor requested a ruling regarding a continuance of the no-evidence summary judgment hearing, we will affirm.

         II. Background

         In March 2016, Murtha sued Savvys, and other defendants no longer a part of this suit, for breach of contract, fraud, negligent misrepresentation, breach of fiduciary duty, negligence, conversion, and conspiracy. Judge Wade Birdwell, then sitting as the trial court judge of the 342nd Judicial District of Tarrant County, signed this case's first scheduling order on December 2, 2016, and set a trial date for April 10, 2017. Later, Judge Birdwell signed a second scheduling order on January 24, 2017, and reset the trial date for July 17, 2017. Judge Birdwell reset the trial date again for December 11, 2017. The record before this court does not contain any motions for continuance regarding the twice resetting of the trial date, but the record indicates that the continuances were granted based on Murtha's having filed verified motions for continuance.

         During discovery wherein Murtha deposed each of the selected defendants and propounded interrogatories to each of the defendants, Murtha learned that Savvys's computer, which they utilized to conduct accounting of the business, had been stolen. On November 2, 2017, Judge Birdwell held a hearing regarding Savvys's motion for protective order and motion to quash further discovery regarding Murtha's request that Savvys produce all phones, texts, and email accounts related to the stolen computer. Judge Birdwell granted Savvys's motion in part but ordered that subpoenas be served upon two email providers related to email accounts that may have been used on the stolen computer.

         Also during the discovery period, Savvys filed an amended, no-evidence summary judgment motion on October 18, 2017, at 2:30 p.m.[1] Earlier that same day, at 9:02 a.m., Murtha filed "Plaintiffs' Motion for Continuance," wherein Murtha stated that they were making a "third, verified motion for continuance on the grounds that [Murtha] are not able [to] go to trial in this case at its present setting." The continuance motion did not specify the December 11, 2017 trial date, but Murtha did state in the motion the need to complete subpoenas of email providers, presumably including the emails that Judge Birdwell later ordered discoverable. It also stated that if certain evidence was not obtained, Murtha may have to "request an adverse inference from the trier of fact." Murtha responded to Savvys's no-evidence summary judgment motion on November 9, 2017.

         On November 16, 2017, visiting Judge John Weeks conducted a hearing.[2] Initially, the hearing was regarding several motions including Murtha's continuance motion and Savvys's no-evidence summary judgment motion.[3] At the beginning of the hearing, Judge Weeks inquired of Murtha's trial counsel about the continuance motion. The following exchange occurred:

THE COURT: And I have a list -- I have here, it says -- of what's supposed to be done today. And you filed a motion for continuance, and then someone wrote on my docket sheet here, it's hard for me to read, but of trial, of the trial; is that --
[Murtha's Trial Counsel]: Yes, Your Honor, motion for continuance of trial date.
THE COURT: When is the case set for ...

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