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McKinney v. HP Fannin Properties, L.P.

Court of Appeals of Texas, Fourteenth District

December 31, 2019

ASHANTI MCKINNEY, Appellant
v.
HP FANNIN PROPERTIES, L.P., AND MIDWAY COMPANIES, L.L.C., Appellees

          On Appeal from the 270th District Court Harris County, Texas Trial Court Cause No. 2017-38802

          Panel consists of Chief Justice Frost and Justices Spain and Poissant.

          MEMORANDUM OPINION

          CHARLES A. SPAIN, JUSTICE

         In this personal-injury case, the trial court rendered a no-evidence summary judgment against appellant Ashanti McKinney on all her claims against appellees HP Fannin Properties, L.P., and Midway Companies, L.L.C. The summary judgment became final and appealable when the trial court severed all McKinney's claims against HP Fannin and Midway. In a single issue, McKinney argues that the trial court abused its discretion in rendering summary judgment because "there had not been adequate time for discovery." We affirm.

         I. Background

         McKinney alleged that she was seriously injured when, as she was entering an elevator, the doors slammed shut and struck her. McKinney alleged that the incident occurred at a building owned or occupied by HP Fannin and managed by Midway. On June 9, 2017, McKinney, an employee for one of the building's tenants, sued HP Fannin and Midway, asserting negligence under various theories. McKinney also sued Schindler Elevator Corporation, alleged to be the maintenance contractor for the elevator.[1]

         HP Fannin, Midway, and Schindler answered suit. On August 23, 2017, the trial court signed a docket-control order, including deadlines for the oral hearing or submission of dispositive motions and pleas. No-evidence summary-judgment motions could not be heard before June 1, 2018. The docket-control order was sent to all counsel of record, including counsel for McKinney.

         On April 4, 2018, Schindler filed a no-evidence motion for summary judgment asserting McKinney could not produce evidence to support that Schindler breached its duty of care regarding the elevator or that any breach proximately caused her injuries. McKinney filed a "response and/or [in] the alternative motion to co[n]tinue the hearing on Defendant Schindler Elevator Corporation's no-evidence motion for summary judgment."[2] Specifically, McKinney requested that the trial court continue the hearing on Schindler's summary-judgment motion until after the trial court ruled on McKinney's pending motion to continue the trial.[3]

         On May 4, 2018, HP Fannin and Midway filed a no-evidence motion for summary judgment asserting that McKinney could not produce evidence to support they owed her a legal duty, they breached that duty, a premises defect or dangerous condition existed, they knew or should have known of any dangerous condition, and any breach proximately caused her injuries. McKinney did not file a response to HP Fannin's and Midway's summary-judgment motion. McKinney did not request a continuance of the hearing on HP Fannin's and Midway's no-evidence summary-judgment motion. On May 10, 2018, McKinney filed a verified motion to continue the trial with an affidavit in support by her lead trial counsel.

         On June 1, 2018, the trial court held a hearing[4] and signed an order granting HP Fannin's and Midway's no-evidence motion for summary judgment. In its summary-judgment order, the trial court ordered that McKinney take nothing against HP Fannin and Midway. That same day, the trial court also signed an order granting McKinney's motion to continue the trial. On June 7, 2018, McKinney filed a motion to sever her claims against HP Fannin and Midway. On July 12, 2018, the trial court signed an order granting this severance motion. McKinney timely appealed.

         II. Analysis

         In a single issue, McKinney argues that the trial court abused its discretion in granting HP Fannin's and Midway's no-evidence summary judgment because "there had not been adequate time for discovery." McKinney primarily relies on her motion for continuance and on the trial court's granting of such motion.

         "After adequate time for discovery," a party may file a "no-evidence" motion for summary judgment if "there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial." Tex.R.Civ.P. 166a(i). "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.'" Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004) (quoting Tex.R.Civ.P. 166a(g)). "When a party contends that it has not had an adequate opportunity for discovery before a summary judgment hearing, it must file either an affidavit explaining the need for further discovery or a verified motion for continuance." Tenneco Inc. v. Enterprise Prods. Co., 925 S.W.2d 640, 647 (Tex. 1996) (citing Tex.R.Civ.P. 166a(g), 251, 252). This requirement applies in both the traditional and the no-evidence summary-judgment context. Id. (traditional); Lindsey Constr., Inc. v. AutoNation Fin. Servs., LLC, 541 S.W.3d 355, 360 (Tex. App.-Houston [14th Dist.] 2017, no pet.) (no evidence); Berry v. Covarrubias, No. 14-03-01137-CV, 2004 WL 1631117, at *4 (Tex. App.-Houston [14th Dist.] July 22, 2004, no pet.) (mem. op.) (both). Whether to grant a party additional time to conduct discovery before summary judgment is a matter for the trial court's discretion. Tenneco, 925 S.W.2d at 647; see Joe, 145 S.W.3d at 161 (outlining nonexclusive factors).

         Here, McKinney filed neither a motion for continuance of the hearing on HP Fannin's and Midway's no-evidence motion for summary judgment nor an affidavit explaining the need for further discovery before the hearing on such motion. McKinney did not ask the trial court to defer ruling on HP Fannin's and Midway's no-evidence summary-judgment motion. Indeed, McKinney filed nothing in response to HP Fannin's and Midway's no-evidence motion. Therefore, McKinney waived any complaint based on the need for discovery. See, e.g., Murtha v. Savvy's, Inc., No. 02-18-00065-CV, 2019 WL 2432150, at *3 (Tex. App.-Fort Worth June 6, 2019, pet. denied) (mem. op.) ("[A]t no time did Murtha ever bring to the attention of the trial court an affidavit or verified motion for continuance of the no-evidence summary judgment hearing."); Berry, 2004 ...


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