Opinion
No. 01-03-01298-CV
Opinion Issued May 26, 2005.
On Appeal from the 240th District Court, Fort Bend County, Texas, Trial Court Cause No. 01-CV-119502.
Panel consists of Justices TAFT, ALCALA, and HIGLEY.
MEMORANDUM OPINION
Appellant, Gary Gates Jr., as next friend of D.G. and M.G., his minor sons ("the Gateses"), appeals from a final summary judgment denying the Gateses' motion for partial summary judgment, granting the summary judgment motion of appellees, Fort Bend County Child Advocates, Inc. ("FBCCA"), Linda Schultz, and Bonnie Martin (together, "appellees"), and rendering a take-nothing judgment on all of the Gateses' claims against appellees. We determine whether (1) the Gateses have raised a meritorious appellate challenge to the summary judgment rendered on their claims for breach of contract; (2) the trial court erred in rendering summary judgment on the Gateses' remaining claims on the ground of lack of duty; (3) the trial court erred in failing to make the declarations that the Gateses had requested; and (4) the trial court abused its discretion in denying the Gateses' request for a continuance to take certain depositions. We affirm.
Background
FBCCA was a non-profit corporation founded in 1991 to work on behalf of abused, neglected, and abandoned children in Fort Bend County. FBCCA ran four programs under its corporate umbrella: (1) a Court-Appointed Special Advocates ("CASA") program for Fort Bend County, (2) a Children's Advocacy Center ("CAC") for Fort Bend County, (3) Diligent Search, and (4) Family Assistance. Only the first two programs are at issue in this case.
FBCCA's CAC, established in 1996, was established and operated pursuant to chapter 264 of the Family Code. See Tex. Fam. Code Ann. §§ 264.401-.411 (Vernon 2002) (providing for establishment of CACs). This CAC's goals included minimizing the number of interviews of alleged child-abuse victims, enhancing communications among investigators and agencies, facilitating abused children's timely and effective access to services, allowing for improved prosecution of child-abuse cases, providing victims and their families referrals and information, and educating community professionals involved in child abuse. FBCCA's CAC would often perform child-abuse interviews pursuant to court order and at the request of Texas Department of Family and Protective Services ("TDFPS").
FBCCA's CASA program was also established and operated pursuant to chapter 264 of the Family Code. See Tex. Fam. Code Ann. §§ 264.601-.613 (Vernon 2002) (providing for establishment of court-appointed volunteer advocate programs). This CASA program's mission was to advocate for the best interest of children in the custody of Children's Protective Services ("CPS"). Its volunteers were assigned to act as guardians ad litem for children in CPS's custody and also to gather and to provide courts with information regarding abused children.
A.G. was the daughter, and one of 13 children, of Gary and Melissa Gates. In late January 2001, a school employee noticed a bruise on A.G.'s cheek. After A.G. gave conflicting reports of how the bruise happened — A.G. may have indicated that her father, her brother (D.G.), or a classmate caused or aggravated the bruise — the school contacted TDFPS, which removed A.G. from her classroom and took her to FBCCA. Bonnie Martin, a forensic interviewer with CAC, interviewed A.G. about the bruise. A.G. told Martin that another brother, M.G., had caused the bruise. Martin did not ask A.G. any body-inventory or sexual-abuse questions.
The Gateses' petition alleged that A.G. told school officials only that a classmate had hit her and "hurt the bruise." Both sides' summary-judgment evidence, in contrast, indicated that A.G. told school officials that her father, her brother D.G., or her classmate had caused the bruise.
TDFPS then requested that Mr. Gates allow it to interview his family members. Mr. Gates refused. Accordingly, within a matter of days, TDFPS filed in district court a "petition in aid of investigation of a report of child abuse," in an attempt to obtain interviews of the Gates children and parents in support of the investigation of the possible physical abuse of A.G. Schultz, FBCCA's then-executive director, was present at the hearing, though neither she nor FBCCA was a party to the proceeding. Mr. and Mrs. Gates and TDFPS agreed in open court that TDFPS would interview Mr. and Mrs. Gates and their two sons, M.G. and D.G., and could then interview the other Gates children if it chose. The Gateses alleged and presented summary-judgment evidence that Mr. and Mrs. Gates understood that the questioning would relate only to the alleged physical abuse of A.G., that they did not know that TDFPS would ask sexual-abuse or body-inventory questions during the court-ordered interviews, and that they would not have agreed to the interviews had they known that these questions would be asked. However, the record from the hearing, which was also made part of the summary-judgment evidence, showed that the parties did not mention what questions would be asked of M.G. and D.G. The hearing record also showed that the parties agreed that neither Mr. nor Mrs. Gates would be allowed to attend the interviews and that one of the Gateses' counsel would be allowed to observe the interview from an adjacent room. The trial court adopted the parties' agreement as its order.
The CAC conducted the court-ordered interviews of M.G. and D.G. at TDFPS's request in early February 2001. FBCCA admitted that the interviews' purpose was "to discover the source of the bruise to [A.G.]." As part of the interview, Martin also asked each boy body-inventory and sexual-abuse questions. That particular aspect of Martin's questioning lasted about five minutes with M.G. and about two minutes with D.G. The Gateses alleged that both children were uncomfortable with these questions; the summary-judgment evidence indicated that at least D.G. was uncomfortable with these questions. D.G. asked toward the end of his interview if his mother could be present, which request Martin denied. Pursuant to the court's order, the Gateses' attorney, Mr. Gibson, sat in an adjacent interview room from which he could both hear and see the interviews, including the sexual-abuse and body-inventory questions, by closed-circuit television. Mr. Gibson did not try to interrupt the interviews or comment in any way about the interviews' conduct or the questioning format either during or right after the interviews.
The CASA program of FBCCA was not involved in these interviews.
Nonetheless, in June 2001, about four months after the interviews, the Gateses sued FBCCA for Martin's having asked M.G. and D.G. the standard body-inventory and sexual-abuse questions and for not having allowed their mother to be present during the questioning. The Gateses did not list separate causes of action, but instead alleged 17 duties that FBCCA breached, all of which appear to have concerned Martin's asking body-inventory and sexual-abuse questions, the mother's not having been allowed to be present at the interviews, and FBCCA's not having revealed during the hearing on TDFPS's petition that it would ask body-inventory and sexual-abuse questions. The Gateses sought only money damages, not declaratory relief.
FBCCA specially excepted to the Gateses' petition on the grounds that the 17 duties did not exist under Texas law, the petition failed to state a viable cause of action, and some of the allegations did not specify what actions of FBCCA constituted a breach of duty. The trial court sustained FBCCA's special exceptions "to the 17 duties enumerated" in the Gateses' petition and ordered them to "replead their case as to statutory and/or common law causes of action."
After that order, the Gateses amended their petition no fewer than five times. FBCCA moved for summary judgment after many of those amendments. The Gateses' "live" petition at the time of summary judgment added Martin and Schultz as individual defendants. The live petition asserted claims that appear to have been based on the following actions: (1) Martin's having asked M.G. and D.G. body-inventory and sexual-abuse questions; (2) their mother's not having been allowed to be present at the interviews; (3) FBCCA's not having revealed during the hearing on TDFPS's petition that it would ask such questions or that unnamed mental-health professionals had recently concluded that the children should not be interviewed; and (4) FBCCA's having shared the Gateses' confidential information with unnamed persons inside and outside of FBCCA's corporate umbrella. The Gateses alleged the following causes of action arising out of the four complained-of actions: (1) violations of the Family Code's "good faith/best interest standard," (2) breaches of fiduciary duty, (3) breach of contract "and agreement claims," (4) "tortious interference with familial rights," and (5) negligence. The Gateses sought declaratory relief and monetary damages.
FBCCA filed a traditional motion for summary judgment and two supplemental (traditional) motions for summary judgment, the last of which was joined by Martin and Schultz and expressly incorporated all previous summary-judgment motions and evidence. In the end, FBCCA asserted the following summary-judgment grounds: (1) FBCAA enjoyed governmental immunity from suit; (2) Martin and Schultz enjoyed absolute judicial immunity; (3) appellees lacked any duties toward the Gateses arising out of any of the complained-of actions, including a lack of any fiduciary duties, a lack of any duty arising from the parties' courtroom agreement for TDFPS to conduct the interviews, and a lack of a duty to protect the Gateses' "due process rights with their parents and . . . with their siblings" (also styled by the Gateses as tortious interference with familial rights); (4) no private cause of action for damages existed for the Gateses' claim based on FBCCA's allegedly unlawful operation of CAC and CASA programs under its corporate umbrella; (5) the Family Code's "best interest" standard did not create a fiduciary duty or a private cause of action for damages; (6) the Gateses could not recover personal-injury damages for breach of contract; and (7) the Family Code allowed FBCCA to disclose confidential information internally, and FBCCA revealed the Gateses' confidential information to no external persons. The Gateses also moved for traditional summary judgment, seeking declarations that (1) FBCCA was illegally operating CAC and CASA programs under its corporate umbrella and (2) the composition of the board of FBCCA's CAC was unlawful.
FBCCA had also, in its first and first supplemental motions for summary judgment, asserted that FBCCA, like Martin and Schultz, was immune from liability under Family Code sections 261.106, which requires good faith to apply. See Tex. Fam. Code Ann. § 261.106(a) (Vernon 2002). Appellees' second supplemental motion for summary judgment did not reassert these good-faith-immunity grounds. Unlike an amended summary-judgment motion, a supplemental summary judgment motion will add to, but not supplant, a prior motion for summary judgment. Compare State v. Seventeen Thousand and no/100 Dollars U.S. Currency, 809 S.W.2d 637, 640 n. 2 (Tex.App.-Corpus Christi 1991, no writ) (indicating that amended summary-judgment motion supersedes preceding summary-judgment motion). However, during the summary-judgment hearing, appellees advised the trial court that they had abandoned all good-faith-immunity grounds for summary judgment in their second supplemental motion, and it appears that the parties understood below, as they do on appeal, that appellees were no longer pursuing those grounds. Accordingly, we construe appellees to have abandoned all good-faith-immunity summary-judgment grounds.
Each side specially excepted to the other's summary judgment motions or responses, and both raised objections to the other's summary-judgment evidence; the trial court overruled each side's special exceptions and objections. The trial court denied the Gateses' motion for partial summary judgment, granted appellees' motion for summary judgment, and rendered a take-nothing judgment against the Gateses. The Gateses' motion for new trial was overruled by operation of law.
Summary Judgment
In their first six issues, the Gateses challenge various aspects of the summary judgment.
A. Standard of Review
Summary judgment under rule 166a(c) is proper only when a movant establishes that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995). A defendant is entitled to summary judgment if the evidence disproves as a matter of law at least one element of each of the plaintiff's causes of action or if it conclusively establishes all elements of an affirmative defense. Johnson, 891 S.W.2d at 644.
To the extent that appellees may have sought summary judgment on the pleadings, we note that "[s]ummary judgment based on a pleading deficiency is proper if a party has had an opportunity by special exception to amend and fails to do so, or files a further defective pleading." Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994). "A review of the pleadings in such case is de novo, with the reviewing court taking all allegations, facts, and inferences in the pleadings as true and viewing them in a light most favorable to the pleader." Id. "The reviewing court will affirm the summary judgment only if the pleadings are legally insufficient." Id. B. Unchallenged Grounds for Summary Judgment
One of appellees' grounds for summary judgment asserted that the Family Code allowed FBCCA to disclose confidential information internally and that FBCCA revealed the Gateses' confidential information to no external persons. The Gateses have not challenged this summary-judgment ground on appeal. Accordingly, we must affirm the summary judgment to the extent that it rendered a take-nothing judgment on any of appellants' claims based on the allegation that FBCCA improperly divulged confidential information to anyone. See Garcia v. Nat'l Eligibility Express, Inc., 4 S.W.3d 887, 889 (Tex.App.-Houston [1st Dist.] 1999, no pet.).
C. Breach-of-Contract Claims
Under their sixth issue, the Gateses assert that the trial court erred in rendering summary judgment on their breach-of-contract claims.
The Gateses pleaded that they were third-party beneficiaries of (1) FBCCA's "contract with local government to provide a service to the community and its children" and (2) the agreement in court for TDFPS to interview the Gateses. The Gateses alleged that FBCCA breached the latter agreement by asking them body-inventory and sexual-abuse questions when TDFPS had allegedly not revealed at the hearing its intention to allow these types of questions. Appellees moved for summary judgment against both of the Gateses' breach-of-contract claims on the ground that the Gateses could not recover personal-injury damages on breach-of-contract claims.
The Gateses alleged that the express and implied terms of this contract included the duty to follow the law in setting up FBCCA "and in convening the `team' prior to interviews"; to use a best-interest standard in dealing with children; to use a best-practice standard for interviewing; and to minimize trauma to children by avoiding unnecessary interviews.
On appeal, the Gateses' sole challenge to the summary judgment rendered on their two contract claims is: "Appellees assert that the Gateses are not entitled to recover as third-party beneficiaries because the Gateses are seeking personal injury damages. This assertion is inaccurate and cannot support a traditional motion for summary judgment as Appellees have proffered no summary judgment evidence in support of this assertion." (Emphasis added.) This challenge is not meritorious because it misunderstands the summary judgment ground, which presented a question of law, not one of fact. The Gateses cite no authority that would address appellees' matter-of-law summary judgment ground, and they offer no further argument.
Accordingly, we overrule this portion of the Gateses' sixth issue.
D. Duty
In their fifth issue, the Gateses assert that the trial court erred in rendering summary judgment on the premise that appellees did not owe any duty to them under any cause of action pleaded. We have already held that the Gateses (1) have waived any challenge to the summary judgment rendered on any of their claims based on disclosure of confidential information and (2) have failed to assert a meritorious challenge to the summary judgment rendered on their claims for breach of contract. Accordingly, we are concerned in this discussion with only the following actions that the petition alleged were tortious — whether framed as claims for negligence, breach of fiduciary duty, violations of the Family Code's "good faith/best interest standard," or "tortious interference with familial rights":
1. Martin asked the Gateses body-inventory and sexual-abuse questions.
2. FBCCA, whose representative was present at the court hearing at which the interviews were ordered, did not reveal during that hearing on TDFPS's petition that it would ask such questions or that unnamed mental-health professionals had recently concluded that the children should not be interviewed.
The Gateses also alleged that appellees breached their fiduciary duty to them by not allowing Mrs. Gates to be present at the interviews. However, on appeal, the Gateses' argument concerning duty does not mention or discuss this factual allegation, but instead addresses only their allegations that appellees asked M.G. and D.G. inappropriate questions. Accordingly, we hold that the Gateses have waived any challenge to the rendition of summary judgment to the extent that their tort claims were based on not allowing Mrs. Gates to be present during the interviews. See Tex.R.App.P. 38.1(h); Franz v. Katy Indep. Sch. Dist., 35 S.W.3d 749, 755 (Tex.App.-Houston [1st Dist.] 2000, no pet.).
"[T]he existence of duty is a question of law for the court to decide from the facts surrounding the occurrence in question." Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990). In determining duty, a court should consider "several interrelated factors, including the risk, foreseeability, and likelihood of injury, weighed against the social utility of the actor's conduct, the magnitude of the burden of guarding against the injury, and the consequences of placing the burden on the defendant." Id. "Where no duty is owed as a matter of law, summary judgment is proper." Kanetzky v. Murphy, 862 S.W.2d 653, 657 (Tex.App.-Austin 1993, no writ) (citing Otis Eng'g Corp. v. Clark, 668 S.W.2d 307, 309 (Tex. 1983)). Each of the Gateses' causes of action appears to have sounded in tort and thus contained duty as an element.
For purposes of this discussion, we assume without deciding that Texas would recognize a private cause of action for damages for the violation of the Family Code's "good faith/best interest standard" and "tortious interference with familial rights."
The cited allegations related to TDFPS's decision to interview M.G. and D.G. as part of the investigation of the alleged physical abuse of A.G. and to Martin's questioning of M.G. and D.G. pursuant to that investigation. Although the Gateses disputed appellees' motives in asking the sexual-abuse and body-inventory questions, one matter that was undisputed was that the questions that Martin asked were standard ones in child-abuse investigations. For example, the Gateses' own summary-judgment proof — the oral deposition of Sandra Rosinski, a CPS program director was deposed concerning the A.G. incident, albeit in a different suit — testified that the expectation that I have of the [FBCCA] CAC and what would be as a standard interview and that — my expectation of the standard interview is that you do ask those questions, the sexual abuse questions, and [A.G.] and [another sibling] should have been asked those questions.
For example, the Gateses' live petition alleged that, at the time that TDFPS decided to interview A.G., the Gates "parents were embroiled in a lawsuit with TDFPS . . . under which, Plaintiffs' parents had filed for and were seeking sanctions against TDFPS, in part, for the filing of a bad faith frivolous lawsuit." The Gateses also produced evidence that, when viewed in the required favorable light, indicated that Schultz and FBCCA harbored animosity or ill will toward the Gateses; that FBCCA interviewed M.G. and D.G., rather than the classmate whom A.G. had once indicated caused the bruise, and did not ask A.G. any sexual-abuse questions; and that FBCCA did not ask every child whom it interviewed sexual-inventory questions.
She also testified that TDFPS expected "sexual" questions be asked of the Gateses and that TDFPS expected that such questions would be asked of victims and family-member witnesses in every CAC interview. The Gateses also presented as summary-judgment evidence FBCCA's answers to the Gateses requests for admission, in which FBCCA admitted that TDFPS requested that Martin ask these particular questions of M.G. and D.G. Similarly, appellees presented evidence that CPS had requested comprehensive interviews of M.G. and D.G., meaning interviews covering potential physical abuse, sexual abuse, and drug abuse. The Gateses also presented evidence that TDFPS needed to interview A.G.'s siblings and mother in order to complete its investigation of A.G.'s case.
Given this evidence, we disagree with the Gateses' statement of the issue as whether "a children's advocacy center owes a duty to the children it serves. . . ." (Emphasis added.) Rather, the issue is whether these appellees had a duty, as part of a child-abuse investigation, not to interview children whom the alleged victim had indicated were witnesses and a duty not to ask those witnesses standard questions as part of that investigation. We answer that question in the negative. The social utility of both interviewing children whom an alleged child victim has indicated have knowledge of the incident, as well as asking such standard, investigative questions during child-abuse investigations, is great, compared to any discomfort that a witness might feel at being interviewed or being asked those questions. See Phillips, 801 S.W.2d at 525. Moreover, the Family Code requires that TDFPS (and entities like CACs, with which TDFPS contracts to aid in its investigations), make "a prompt and thorough investigation of a report of child abuse or neglect. . . ." Tex. Fam. Code Ann. § 261.301(a) (Vernon Supp. 2004-2005) (emphasis added). The Code allows TDFPS to "by rule assign priorities and prescribe investigative procedures for investigations" and provides that "[t]he primary purpose of the investigation shall be the protection of the child." Id. § 261.301(d) (Vernon Supp. 2004-2005). The Code also requires CACs to "assess victims of child abuse and their families to determine their need for services relating to the investigation of child abuse," among other matters. Id. § 264.405(1) (Vernon 2002). Disallowing a CAC from interviewing implicated witnesses or asking them standard sexual-abuse questions in any child-abuse investigation — here, in effect, allowing the Gates parents to determine whether their children could be interviewed or asked standard investigative questions — would not serve the statutory purposes of a thorough investigation or of assessing the victim's needs pursuant to an investigation.
For these reasons, we overrule the Gateses' fifth issue. Given this holding, we need not reach the Gateses' second, third, fourth issues or the remainder of their sixth issue.
Declaratory Judgment
The Gateses filed their own motion for partial summary judgment, requesting that the trial court declare the following matters:
1. [FBCCA] was and continues to field a multidisciplinary team that was and is not properly appointed by the required governing board. [FBCCA] has failed to meet the legislature's required standard by not being a properly governed multidisciplinary team. [FBCCA's] failure to comply with the statutes of the State of Texas resulted in Plaintiffs being asked improper, invasive, and abusive questions of a sexual nature.
2. [FBCCA] has failed to properly establish and operate itself as a [CAC] as required by the statutes of the State of Texas.
3. [FBCCA] and Schultz have unlawfully mixed funds, duties and files between those individuals and departments who are charged with investigation/law enforcement and those who are charged with protecting the best interest of the children.
4. It is legally impossible for [FBCCA] to hold itself out as both a [CASA program] as authorized by § 264.601, et seq., Tex. Fam. Code, and as a [CAC] as authorized by § 264.401, et seq., Tex. Fam. Code.
The Gateses also sought a declaration that appellees had "breached and/or waived all rights of confidentiality." The trial court denied appellant's motion and did not make any declarations in its final judgment. In their first issue, the Gateses argue that the trial court erred in denying their motion for partial summary judgment and in failing to make the requested declarations.
The purpose of a declaratory action is to establish existing rights, status, or other legal relations. Bonham State Bank v. Beadle, 907 S.W.2d 465, 467 (Tex. 1995); Republic Ins. Co. v. Davis, 856 S.W.2d 158, 164 (Tex. 1993). The Declaratory Judgment Act ("DJA") is "remedial" only. Bonham State Bank, 907 S.W.2d at 467. The DJA neither confers additional substantive rights upon parties, nor confers additional jurisdiction on courts. Rush v. Barrios, 56 S.W.3d 88, 105 (Tex.App.-Houston [14th Dist.] 2001, pet. denied).
A declaratory judgment is appropriate only if there is a justiciable controversy about the rights and status of the parties and the declaration will resolve the controversy. Beadle, 907 S.W.2d at 467. "To constitute a justiciable controversy, there must exist a real and substantial controversy involving genuine conflict of tangible interests and not merely a theoretical dispute." Bexar-Medina-Atascosa Counties Water Control Improvement Dist. No. 1 v. Medina Lake Prot. Ass'n, 640 S.W.2d 778, 779-80 (Tex.App.-San Antonio 1982, writ ref'd n.r.e.); Chapman v. Marathon Mfg. Co., 590 S.W.2d 549, 552 (Tex.Civ.App.-Houston [1st Dist.] 1979, no writ). Texas courts do not have jurisdiction to render purely advisory opinions. Patterson v. Planned Parenthood of Houston S.E. Tex., Inc., 971 S.W.2d 439, 443 (Tex. 1998). "An opinion is advisory when the judgment sought would not constitute specific relief to a litigant or affect legal relations." Coastal Conduit Ditching, Inc. v. Noram Energy Corp., 29 S.W.3d 282, 291 (Tex.App.-Houston [14th Dist.] 2000, no pet.).
The Gateses assert that the declarations that they requested — concerning whether FBCCA could lawfully combine CAC and CASA programs under its corporate umbrella and whether FBCCA's CAC program had an illegally constituted board — involved justiciable interests because such declarations "relate directly to the validity of Appellees' claims to judicial and/or governmental immunity. Appellees are not entitled to any immunity since Appellee [FBCCA] was unlawfully established and functioning illegally." Under their sixth issue, concerning whether the causes of action that they asserted were viable, the Gateses also argue that their declaratory requests present a justiciable controversy because "Appellants, like every other child in Fort Bend County, are subject to possible future abuse by [FBCCA]."
The Gateses do not discuss on appeal their request below that the court declare that FBCCA had breached or waived any assertion of confidentiality.
Assuming without deciding that the declarations that the Gateses sought were somehow relevant to judicial or governmental immunity, we hold that the trial court nonetheless did not err in not making the requested declarations because they would not have resolved the parties' controversy. We have already held that no duty existed under any tort claim that the Gateses alleged. A determination of whether FBCCA could properly operate both CAC and CASA programs under the same corporate umbrella would not affect that holding or the fact that no duty existed. Accordingly, the declarations that the Gateses sought "would not [have] constitute[d] specific relief to a litigant or affect[ed] legal relations" and would thus have been advisory. See Coastal Conduit Ditching, Inc., 29 S.W.3d at 291 (holding that trial court did not err in rendering summary judgment on declaratory-judgment cause of action, which sought declaration that appellee had violated federal regulations, because appellate court had already held, for unrelated reason, that appellant could not maintain underlying negligence cause of action: "Rendering declaratory judgment that Entex is in violation of either federal regulation cannot change the holding that . . . Coastal Conduit cannot ever recover economic damages from Entex."). Moreover, we note that the Gateses did not allege that the CASA program of FBCCA was in any way involved in the interviews that form the basis of their lawsuit.
We overrule the Gateses' first issue.
Continuance
In their seventh issue, the Gateses assert that the trial court erred in denying their repeated motions for continuance so that they could depose Martin, Schultz, and Candace Heiser, FBCCA's director, the affidavits of each of whom appellees offered as summary judgment proof. The Gateses also assert that, because this error prevented them from "cross-examin[ing] the affiants who offered summary judgment evidence," the trial court erred in overruling their objections to these three women's summary judgment affidavits.
The Gateses also assert that the trial court erred in overruling "each and every objection to [appellees'] affidavits," including on unnamed grounds other than that the Gateses were not permitted to depose the affiants. Below, the Gateses objected to appellees' summary judgment evidence on the grounds that the affiants' testimony was "incompetent as [it] purport[ed] to be the testimony of highly interested witnesses and aver[red] to a number of global statements"; assumed facts not in evidence; was incredulous; misstated facts; contained hearsay; represented an attempt to try to disqualify the Gateses' counsel; was speculative; referred to exhibits that were inadmissible for various reasons; and contained legal conclusions. The trial court denied all of the Gateses' objections in writing. However, on appeal, the Gateses do not assert any argument or offer any authority relating to these objections. Accordingly, any challenge to the trial court's ruling on the objections listed in this footnote is waived. See Tex. R. App. p. 38.1(h); Franz, 35 S.W.3d at 755.
"Should it appear from the affidavits of a party opposing the motion [for summary judgment] that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just." Tex. R. Civ. P. 166a(g); cf. Tex. R. Civ. P. 252 ("If the ground of such application [for continuance] be the want of testimony, the party applying therefor shall make affidavit that such testimony is material, showing the materiality thereof, and that he has used due diligence to procure such testimony, stating such diligence, and the cause of failure, if known. . . ."). We review the trial court's ruling on a motion for continuance under rule 166a(g) for abuse of discretion. J.E.M. v. Fidelity Cas. Co. of N.Y., 928 S.W.2d 668, 676 (Tex.App.-Houston [1st Dist.] 1996, no writ). In determining whether the court abused its discretion, we consider, among other criteria, the materiality of the discovery sought. Id.
On May 10, 2002, the day after FBCCA filed its first summary judgment motion, the Gateses noticed the depositions of, among others, Martin, Schultz, and Heiser. Also on May 10, 2002, FBCCA moved to quash those depositions because its summary-judgment motion "raises threshold issues of immunity that are relevant to the Court's subject matter jurisdiction. Because of these threshold issues of subject matter jurisdiction, planning for depositions to occur prior to resolution of [the summary judgment motion] is premature." FBCCA's summary-judgment motion was set for submission on June 18, 2002. On June 10, 2002, the Gateses moved for a continuance, so that they could depose Martin, Schultz, and Heiser. The Gateses argued, "Equity requires that Plaintiffs be entitled to fully discover their case before summary judgment should be considered by the Court especially in light of Defendant's reliance on the testimony of fact witnesses Bonnie Martin, Candace Heiser and Linda Schultz." At the hearing on their continuance motion, the Gateses added that the deponents "are fact witnesses. . . . They're part of the company, they know what their policies are, they know what their protocol and policy which forms the duties [sic]. . . ." The Gateses also argued, "[W]hat we want to discover is all the machinations that went into the decision to put these children in the room, isolate them from the mother, isolate them from the ad litem and the decision to do the sex questions."
The Gateses later echoed this equity argument at the June 18, 2002 hearing on their first continuance motion.
FBCCA responded that the Gateses had not stated how these potential depositions were material to their case; that the depositions were unnecessary because its summary-judgment motion was based on threshold issues of immunity and duty; that FBCCA had already answered significant written discovery; that FBCCA's motion was, at least to some extent, a challenge to the pleadings and thus assumed the validity of the live petition's factual allegations; and that, because the Gateses' attorney was present at the interviews, "the fact that he has not sworn out an affidavit in support of [the continuance motion] does not justify a continuance of the hearing." The trial court verbally denied the Gateses' continuance motion.
The Gateses then filed two amended motions for continuance, in which they reasserted the same allegations as they had in their first continuance motion, but added that the deposition testimony was necessary because appellees had at that time asserted good-faith-immunity defenses. The Gateses also filed a "motion for qualified immunity discovery," in which they sought to depose the three affiants on matters relating to good faith. The Gateses' written continuance motion offered no other explanation of why these affiants' depositions were necessary on what appellees claimed were the threshold issues of duty and immunity. The trial court denied the Gateses' amended continuance motions in writing.
We hold that the trial court did not abuse its discretion in denying the Gateses' motions for continuance. First, appellees withdrew their qualified-immunity defense in response to the Gateses' motion for qualified-immunity discovery, and, in the final summary-judgment hearing, appellees withdrew any summary-judgment ground based on good-faith qualified-immunity. Once appellees had abandoned their qualified-immunity summary-judgment grounds, the principal rationale that the Gateses had offered in their written continuance motions as to the depositions' necessity no longer applied, and the trial court would not have abused its discretion if it so concluded. Second, the trial court would not have abused its discretion if it concluded that the other specific materiality argument that the Gateses made — that they needed to explore appellees' motivations for asking M.G. and D.G. these questions — was irrelevant to resolving the summary judgment's governmental immunity and duty grounds. As for the latter ground, because all evidence indicated that the complained-of questions were a standard part of abuse investigations (and the Gateses did not complain that they needed a continuance to explore whether such questions were standard in abuse investigations), the trial court would not have abused its discretion if it concluded that it was irrelevant what motivated appellees to ask these questions of M.G. and D.G., but not A.G., in this particular case.
For these reasons, we hold that the trial court did not abuse its discretion in denying the Gateses' motions for continuance. Accordingly, we overrule the Gateses' seventh issue.
Conclusion
We affirm the judgment of the trial court.