Opinion
05-22-00337-CV
07-06-2023
RANA SHIPPING TRANSPORT INDUSTRY AND TRADE, LTD AND TR MARITIME SHIPPING, LLC, Appellants v. PAUL S. CALIXTO, Appellee
On Appeal from the 134th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-20-17955
Before Justices Partida-Kipness, Smith, and Breedlove
MEMORANDUM OPINION
ROBBIE PARTIDA-KIPNESS, JUSTICE
Appellants Rana Shipping Transport Industry and Trade, Ltd. (Rana Shipping) and TR Maritime Shipping, LLC (TR Maritime) (collectively the Rana Entities) appeal the trial court's order granting appellee Paul S. Calixto's no evidence motion for summary judgment. We affirm.
BACKGROUND
As part of their effort to raise $20 million in maritime investment funds via Terra Master USA, LLC and Terra Master, Inc. (collectively Terra Master), the Rana Entities deposited $600,000 in escrow into a trust account at Wells Fargo Bank. According to their pleadings, Calixto acted as the escrow agent and was the sole trustee on the account. The Rana Entities allege that they agreed to deposit the funds into escrow based on the professional opinion and services of Davey & Brogan, P.C., a Virginia law firm, and Virginia attorney Philip N. Davey. They maintain that Davey recommended the Rana Entities deposit the funds pursuant to a lease/purchase agreement after he had two phone conversations with Calixto, a Dallas attorney. Based on Davey's recommendation, the Rana Entities deposited the funds on April 30, 2018. They contend the lease/purchase agreement provided that they would either (1) be extended the requested $20,000,000 credit within 90 days of depositing the $600,000, or (2) the escrowed funds would be returned to the Rana Entities within fifteen days of the 90-day period if the credit was denied.
The Rana Entities allege the $20 million credit was not extended to them, and the escrow funds were not returned to them. They believe Calixto misappropriated the escrow funds by withdrawing the funds and releasing them to Terra Master's director, William R.F. Stephens. The Rana Entities filed the underlying lawsuit on December 4, 2020, and amended their petition on March 11, 2021. They sued Calixto for breach of contract, fraud, conversion, violations of the Texas Deceptive Trade Practices Act (DTPA), breach of fiduciary duty, negligence, and legal malpractice. They also sued Terra Master and its two Directors, Stephens and Mohammad Busefi, Wells Fargo & Co., and Davey & Brogan, P.C.
PROCEDURAL HISTORY
Calixto was served with the amended petition on March 23, 2021. He filed his Original Answer on April 19, 2021. The answer included a Request for Initial Disclosures. On April 27, 2021, the trial court issued a Level 2 scheduling order. The discovery period closed on December 24, 2021. Other than the exchange of initial disclosures, the Rana Entities conducted no discovery.
Calixto filed a no evidence motion for summary judgment on December 22, 2021, which was two days before the end of the discovery period. He set the hearing on the motion for January 13, 2022. The Rana Entities filed their response to the no evidence motion on January 7, 2021, six days before the hearing. Attached to the response was the affidavit of Serdar Erdogan and four supporting exhibits (Exhibits A through D). Erdogan is the managing member of TR Maritime and the business partner of Captain Mustafa Hazer, the managing director of Rana Shipping. According to his affidavit, Erdogan and Hazer sought the $20 million loan from Terra Master to purchase four cargo vessels. The exhibits to Erdogan's affidavit included a June 20, 2018 loan proposal from Terra Master USA, an April 26, 2018 email from Davey to Erdogan, a May 24, 2019 letter from Davey to Calixto, and spreadsheets created by Erdogan calculating the Rana Entities' purported lost profits.
Calixto timely-filed his reply and objections to the Rana Entities' summary judgment response and his objections to the Erdogan affidavit and the exhibits attached to the affidavit. Calixto objected to the Rana Entities' summary judgment evidence on the basis that the statements made by Erdogan in his affidavit were unsupported by evidence, and the affidavit was not based upon "personal knowledge," contained hearsay statements without valid exceptions to the hearsay rule, violated the best evidence rule, and included legal conclusions. Calixto also asserted hearsay, relevance, lack of proper authentication, and best evidence objections to the exhibits attached to the affidavit. Calixto also objected to Exhibit D and paragraph 7 of Erdogan's affidavit as inadmissible expert testimony because Erdogan was not designated as an expert witness but attempted to testify as an expert regarding the industry, profits within the industry, and the Rana Entities' purported damages.
On January 12, 2022, a day before the scheduled summary judgment hearing, the Rana Entities filed a document titled "Plaintiff's Update and Motion for Continuance." In it, the Rana Entities requested a continuance of the summary judgment hearing. They contended the continuance was necessary because they had only recently effectuated service on Davey & Brogan, PC and wanted to depose Davey. The motion was not verified, did not have an affidavit submitted in support of the motion, and was not set for hearing.
The trial court heard the no evidence summary judgment motion on January 13, 2022 as scheduled. The court granted the motion, sustained Calixto's objections to the Rana Entities' summary judgment evidence, and signed an order rendering a take nothing judgment against the Rana Entities on their claims against Calixto. The Rana Entities filed a motion for reconsideration, which was overruled by operation of law. On April 7, 2022, the trial court granted Calixto's unopposed motion to sever and severed the Rana Entities' claims against the remaining defendants into a new cause number. This appeal followed.
ANALYSIS
On appeal, the Rana Entities challenge the denial of their motion for continuance, the order sustaining Calixto's objections to their summary judgment evidence, and the order granting Calixto's no evidence motion for summary judgment. We will address each issue in turn.
I. Denial of motion for continuance
The Rana Entities first challenge the trial court's denial of their motion for continuance of the no evidence summary judgment hearing. We review an order denying a motion for continuance for abuse of discretion. BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 800 (Tex. 2002). Here, the Rana Entities argued in the motion for continuance that the summary judgment hearing should be continued to allow them to depose Davey.
When a party contends it has not had an adequate opportunity for discovery before a no evidence summary judgment hearing, the party must file either an affidavit explaining the need for further discovery or a verified motion for continuance. Brown v. Brown, 145 S.W.3d 745, 749 (Tex. App.-Dallas 2004, pet. denied). If a motion for continuance is not verified or supported by affidavit, we will presume the trial court did not abuse its discretion in denying the motion. Moreno v. Silva, 316 S.W.3d 815, 818 (Tex. App.-Dallas 2010, pet. denied). The Rana Entities' motion for continuance was not verified and was not supported by an affidavit explaining the need for further discovery. Accordingly, they cannot show an abuse of discretion by the trial court. See Dishner v. Huitt-Zollars, Inc., 162 S.W.3d 370, 376-77 (Tex. App.-Dallas 2005, no pet.) (no abuse of discretion where motion for continuance was not verified or supported by affidavit). We overrule the Rana Entities' first issue.
II. Order sustaining objections to the summary judgment evidence
In their second issue, the Rana Entities challenge the trial court's order sustaining Calixto's objections to the Rana Entities' summary judgment evidence. We review the trial court's admission or exclusion of summary judgment evidence under an abuse of discretion standard. Harris v. Showcase Chevrolet, 231 S.W.3d 559, 561 (Tex. App.-Dallas 2007, no pet.). "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.'" BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 800 (Tex. 2002).
An appellant has the burden to bring forth a record that is sufficient to show the trial court abused its discretion when it sustained the objections to summary judgment evidence. Beinar v. Deegan, 432 S.W.3d 398, 402-03 (Tex. App.-Dallas 2014, no pet.). As a prerequisite to presenting a complaint for appellate review, the record must show the complaint was made to the trial court by a timely request, objection, or motion. See Tex. R. App. P. 33.1(a). When a party fails to object to the trial court's ruling that sustains an objection to her summary judgment evidence, she has not preserved the right to complain on appeal about the trial court's ruling. Cantu v. Horany, 195 S.W.3d 867, 871 (Tex. App.-Dallas 2006, no pet.); Sw. Bell Tel. Co. v. Combs, 270 S.W.3d 249, 273 (Tex. App.-Amarillo 2008, pet. denied) (citing Cantu and noting there was nothing in the record showing written responses to objections or a motion for reconsideration of the trial court's order sustaining objections to summary judgment evidence).
Calixto objected to Erdogan's affidavit and accompanying exhibits on multiple grounds. In the order granting summary judgment, the trial court sustained Calixto's objections to the Rana Entities' response to the no evidence motion, the Erdogan affidavit, and the exhibits to the affidavit. The Rana Entities filed a motion for reconsideration of the summary judgment ruling. They did not, however, object to the trial court's sustaining of the objections to the affidavit and its exhibits or urge the trial court to reconsider its rulings on those objections. We, therefore, conclude the Rana Entities have waived their complaint as to the trial court's rulings on Calixto's objections to the Erdogan affidavit and its exhibits. See Beinar, 432 S.W.3d at 403; see also Combs, 270 S.W.3d at 273. We overrule the Rana Entities' second issue.
III. No evidence summary judgment
In their final issue, the Rana Entities challenge the order granting Calixto's no evidence summary judgment. The legal sufficiency standard that governs directed verdicts also governs no evidence summary judgment motions. RTLC AG Prods., Inc. v. Treatment Equip. Co., 195 S.W.3d 824, 829 (Tex. App.-Dallas 2006, no pet.). To defeat a no evidence motion for summary judgment, the non-movant must produce evidence regarding each challenged element of each challenged claim that "would enable reasonable and fair-minded people to differ in their conclusions." Ford Motor Co. v Ridgeway, 135 S.W.3d 598, 601 (Tex. 2004); see also King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003).
"A no evidence point will be sustained when (a) there is a complete absence of evidence of a vital fact, (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (c) the evidence offered to prove a vital fact is no more than a mere scintilla, or (d) the evidence conclusively establishes the opposite of the vital fact." King Ranch, 118 S.W.3d at 751 (internal quotation omitted). In reviewing a no evidence summary judgment, we consider evidence in the light most favorable to the non-movant, crediting evidence a reasonable jury could credit and disregarding contrary evidence and inferences unless a reasonable jury could not. De La Cruz, 526 S.W.3d at 592.
The only evidence the Rana Entities submitted in opposition to the motion for summary judgment was the Erdogan affidavit and supporting exhibits. When the trial court sustained Calixto's objections to the affidavit and supporting exhibits, no evidence remained to oppose the motion. Under this record, we conclude the no evidence motion was properly granted. We overrule the third issue.
CONCLUSION
We conclude the trial court did not err by denying the motion for continuance, sustaining Calixto's evidentiary objections, or granting the no evidence motion. Accordingly, we overrule the Rana Entities' appellate issues and affirm the trial court's judgment.
JUDGMENT
Justices Smith and Breedlove participating.
In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED.
It is ORDERED that appellee PAUL S. CALIXTO recover his costs of this appeal from appellants RANA SHIPPING TRANSPORT INDUSTRY AND TRADE, LTD AND TR MARITIME SHIPPING, LLC.