Opinion
NO. 14-18-00715-CV
09-01-2020
MIGUEL A. SARAVIA, Appellant v. JI LI, Appellee
On Appeal from the 269th District Court Harris County, Texas
Trial Court Cause No. 2016-82969
MEMORANDUM OPINION
Appellant Miguel A. Saravia appeals from the trial court's granting of a no-evidence summary judgment favoring appellee Ji Li in this automobile collision case. The trial court granted the no-evidence summary judgment just two days after having granted Saravia's unopposed motion for a continuance. In three issues, Saravia contends that (1) the trial court abused its discretion by considering the motion for summary judgment before adequate time for discovery had passed, (2) the motion was legally insufficient, and (3) the motion adopted facts from Saravia's petition which precluded summary judgment. We affirm.
Background
Saravia filed suit against Li on December 1, 2016, alleging that Li had run a red light and crashed into one vehicle and then into Saravia's vehicle. Saravia asserted negligence and negligence per se against Li. Saravia also sued the driver of the other vehicle but subsequently nonsuited his claims against her. In her answer, Li generally denied the allegations and asserted several defenses.
The trial court signed a docket control order on May 25, 2017, setting February 16, 2018 as the deadline for discovery and March 5, 2018 as the trial date. The court signed a second docket control order on March 6, 2018, extending the discovery deadline to May 18, 2018 and setting the trial date as June 4, 2018.
On April 19, 2018, Li filed her no-evidence motion for summary judgment, asserting essentially that Saravia could not produce any evidence on any of the specified elements of negligence or negligence per se. In his response to the motion, Saravia argued that the motion was premature and that Saravia still needed to take Li's deposition. A hearing on the motion was set for May 25, 2018.
On May 2, 2018, Saravia filed an unopposed and verified motion for continuance and entry of a new docket control order. The trial court granted a continuance on May 23, 2018 and reset trial for February 4, 2019. On May 25, 2018, the trial court held a hearing on Li's motion for summary judgment and signed an order granting the motion that same day. On May 30, the trial court entered a new docket control order specifying January 18, 2019 as the discovery deadline. Saravia subsequently filed a motion to reconsider the summary judgment ruling, and the trial court denied this motion.
No-Evidence Motions for Summary Judgment
We review a trial court's granting of summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). A no-evidence motion for summary judgment is essentially a motion for a pretrial directed verdict. Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009). After an adequate time for discovery, a party without the burden of proof may, without presenting evidence, seek summary judgment on the ground that there is no evidence to support one or more essential elements of the non-movant's claim or defense. Tex. R. Civ. P. 166a(i). The rule does not require that discovery must have been completed, only that there was "adequate time." Specialty Retailers, Inc. v. Fuqua, 29 S.W.3d 140, 145 (Tex. App.—Houston [14th Dist.] 2000, pet. denied).
To defeat a no-evidence motion for summary judgment, the responding party must present evidence raising a genuine issue of material fact supporting each element contested in the motion. See Tex. R. Civ. P. 166a(i); Timpte Indus., 286 S.W.3d at 310. When reviewing a trial court's grant of such a motion, we consider the evidence presented in the light most favorable to the party against whom summary judgment was rendered, crediting evidence favorable to that party if reasonable jurors could and disregarding contrary evidence unless reasonable jurors could not. Id.
Adequate Time for Discovery
In his first issue, Saravia contends that the trial court erred in granting summary judgment before an adequate time had passed for discovery. In granting a no-evidence motion for summary judgment, a trial court implicitly holds that an adequate time for discovery passed before its consideration of the motion. Chamie v. Mem'l Hermann Health Sys., 561 S.W.3d 253, 256-57 (Tex. App.—Houston [14th Dist.] 2018, no pet.). We review a trial court's determination that there has been an adequate time for discovery on a case-by-case basis, under an abuse-of-discretion standard. Id. at 257. The pertinent date for determining whether a no-evidence motion was made prematurely is not the date on which the motion was filed but the final date on which the motion was presented to the trial court for ruling. Id.
In considering whether the trial court permitted an adequate time for discovery, we consider the following nonexclusive factors: (1) the nature of the case, (2) the nature of the evidence necessary to controvert the no-evidence motion, (3) the length of time the case was active, (4) the amount of time the no-evidence motion was on file, (5) whether the movant had requested stricter deadlines for discovery, (6) the amount of discovery that already had taken place, and (7) whether the discovery deadlines in place were specific or vague. McInnis v. Mallia, 261 S.W.3d 197, 201 (Tex. App.—Houston [14th Dist.] 2008, no pet.).
Saravia argues that the trial court's consideration of Li's motion on May 25 was premature because the trial court had granted a motion for a continuance just two days before. In making this argument, Saravia relies on a comment to Rule of Civil Procedure 166a and the majority opinion in Castillo v. Mizpah Residential Care, No. 13-12-00719-CV, 2014 WL 2159255 (Tex. App.—Corpus Christi May 22, 2014, pet. denied) (mem. op.).
The 1997 comment to Rule 166a reads in pertinent part: "A discovery period set by pretrial order should be adequate opportunity for discovery unless there is a showing to the contrary, and ordinarily a motion under paragraph (i) would be permitted after the period but not before." Tex. R. Civ. P. 166a cmt. (1997). This comment, unlike other notes and comments in the rules of civil procedure, was specifically intended to inform the construction and application of the rule. Id.; Specialty Retailers, Inc. v. Fuqua, 29 S.W.3d 140, 145 (Tex. App.—Houston [14th Dist.] 2000, pet. denied).
Saravia asserts based on this comment that an adequate time for discovery had not passed in this case because the trial court granted a continuance two days before granting the motion for summary judgment and the trial court subsequently issued a new docket control order extending the discovery deadline. At the time the trial court signed the summary judgment order, however, the discovery deadlines set in two prior docket control orders had already passed and no new order was in place. See Chamie, 561 S.W.3d at 257 n.7 (rejecting argument that court's granting of a continuance of the trial date shortly before ruling on the summary judgment motion meant that consideration of the motion was premature and holding adequate time for discovery had passed in part because two separate discovery periods under two different docket control orders had expired). It could be said that under the terms of the comment, the first discovery period set by the court provided adequate opportunity for discovery barring extenuating circumstances. Tex. R. Civ. P. 166a cmt ("A discovery period set by pretrial order should be adequate . . . .").
Moreover, we have consistently held that while ordinarily a discovery period set in a docket control order is "a strong indicator of adequate time" for discovery, a trial court does not necessarily abuse its discretion by granting a no-evidence motion for summary judgment before that deadline has passed. McInnis, 261 S.W.3d at 203; see also Zimmerman v. Farias, No. 14-12-00531-CV, 2013 WL 5026248, at *3 (Tex. App.—Houston [14th Dist.] Sept. 12, 2013, no pet.) (mem. op.); Carter v. MacFadyen, 93 S.W.3d 307, 311 (Tex. App.—Houston [14th Dist.] 2002, pet. denied). In making that determination, we look to the factors set forth above and considered below. See McInnis, 261 S.W.3d at 201.
In Castillo, the other authority Saravia relies upon, the trial court had granted a motion for continuance before granting a no-evidence motion for summary judgment. 2014 WL 2159255, at *6-7. Under the circumstances presented, the majority in Castillo reasoned that the grant of a continuance included an implied finding that there had not been adequate time for discovery. Id. at *7. But see id. at *17-18 (Perkes, J., dissenting) (rejecting the majority's reasoning). The majority then concluded—based on that implied finding and the lack of evidence regarding the relevant factors for determining whether an adequate time for discovery has passed—the trial court abused its discretion in granting the no-evidence motion before adequate time for discovery had passed. Id. at 7-11.
A trial court may grant a motion for continuance for many reasons, including for the convenience of the parties, to manage the court's own docket, and to allow for further discovery even when adequate time has already been provided. See generally Yowell v. Piper Aircraft Corp., 703 S.W.2d 630, 635 (Tex. 1986) ("The trial court has broad discretion to grant or deny motions for continuance."). Nothing in this record suggests that the trial court's grant of a continuance in this case implied the court determined that an inadequate time for discovery had passed. To the contrary, as we have previously held, in granting the no-evidence motion for summary judgment, the court implicitly held that an adequate time for discovery had passed before the court's consideration of the motion. See, e.g., Chamie, 561 S.W.3d at 256-57. This is particularly true here, where Saravia argued in his response to the motion that he needed more time for discovery. The trial court rejected that argument in granting the motion.
We now turn to the relevant factors to assess whether an adequate time for discovery had passed. McInnis, 261 S.W.3d at 201. First, there is nothing in the pleadings or elsewhere in the record to suggest that this case was any more complex than a typical auto collision case. Second, it should not have required much evidence to at least create a fact issue in response to the no-evidence motion. Saravia asserted in his petition that Li committed negligence by running a red light and striking Saravia's car. Evidence could have come from an affidavit by Saravia himself; a deposition of Li; deposition testimony or an affidavit from the other driver involved, a police officer, or a bystander; or a video recording. There is no indication in the record that such evidence would have been difficult to come by if in fact Li had run a red light and thereby caused the collision.
Third, by the time the trial court considered the no-evidence motion, this case had been on file for 541 days and gone through two docket control orders. This is not a case in which the court rushed into considering and granting summary judgment. Fourth, by the time the court considered the motion, it had been on file for 37 days, which was 16 days longer than the minimum required under Rule 166a. Tex. R. Civ. P. 166a(c). Fifth, there is no indication in the record that the movant had requested stricter deadlines for discovery. Sixth, there is limited indication in the record regarding how much discovery had taken place before consideration of the motion. Saravia filed a few documents with the court, including a police officer's "crash report" and business record affidavits from medical providers. He also filed copies of an email exchange in which a paralegal working for his attorney requested dates for Li's deposition and Li's attorney responded that the requested dates were outside the discovery period, he would be unavailable during that time, and he did not agree to a deposition outside of the discovery period. And, seventh, the discovery deadlines set by the trial court in the two docket control orders were quite specific. These factors are all either neutral, as in the case of the length of time the motion was on file and the amount of discovery that had occurred, or favor the determination that adequate time had passed for discovery. Particularly given the apparent simplicity of the case, the length of time the case was on file, and the fact that the discovery periods in two consecutive docket control orders had expired, we cannot say that the trial court considered the no-evidence motion for summary judgment before adequate time for discovery had passed. See Chamie, 561 S.W.3d at 256-57; McInnis, 261 S.W.3d at 201. Accordingly, we overrule Saravia's first issue.
In each of the docket control orders preceding consideration of the motion for summary judgment, the court gave a specific date for when the discovery period ended and stated:
All discovery must be conducted before the end of the discovery period. Parties seeking discovery must serve requests sufficiently far in advance of the end of the discovery period that the deadline for responding will be within the discovery period. Counsel may conduct discovery beyond this deadline by agreement. Incomplete discovery will not delay the trial.
Sufficiency of the Motion
In his second issue, Saravia contends that Li's motion for summary judgment was legally insufficient. Under this issue, Saravia attacks two facets of Li's motion: the language used to challenge the elements of Saravia's negligence claim and the fact that the motion does not separately list and challenge elements for negligence per se. We find merit in neither argument.
A no-evidence motion for summary judgment must expressly state the elements of a claim on which the movant asserts the nonmovant can produce no evidence. Tex. R. Civ. P. 166a(c); Town of Shady Shores v. Swanson, 590 S.W.3d 544, 551 (Tex. 2019). The rules do not authorize "conclusory motions or general no-evidence challenges to an opponent's case." Tex. R. Civ. P. 166a cmt. (1997). The purpose of the specificity requirement is to provide the nonmovant with fair notice of the matters on which it must produce some evidence. E.g., Williams v. Bell, 402 S.W.3d 28, 36 (Tex. App.—Houston [14th Dist.] 2013, pet. denied). The arguments may be restated in different ways within the no-evidence motion so long as they provide fair notice and adequate information for opposing the motion. Rogers v. Houston Cmty. Coll., No. 14-18-00591-CV, 2020 WL 3967944, at *2 (Tex. App.—Houston [14th Dist.] July 14, 2020, no pet. h.).
In her motion, Li stated that Saravia alleged claims for negligence and negligence per se. She then properly set forth the elements of negligence as (1) "Defendant owed Plaintiff a legal duty," (2) "Defendant breached that legal duty," and (3) "[d]amages were proximately caused by Defendant's breach," citing Nabors Drilling, U.S.A., Inc. v. Escoto, 288 S.W.3d 401, 404 (Tex. 2009). She further stated that:
Negligence per se is a tort concept by which the civil courts adopt a legislatively imposed standard of conduct as defining the conduct of a reasonably prudent person. Liability arises from the violence [sic] of a statute, ordinance, or regulation only if the violation is a proximate cause of the injury complained of [citing Moughon v. Wolf, 576 S.W.2d 603 (Tex. 1978) and Nixon v. Mr. Property Management Co., 690 S.W.2d 546 (Tex. 1985)].
Li further stated that "Plaintiff has not been able to produce evidence of elements of a breach or damages proximately caused by a breach for a negligence cause of action against Defendant Li. Therefore, Defendant Li cannot be held liable for negligence or negligence per se and her Motion should be granted." Additionally, Li stated in the conclusion section of the motion that "Plaintiff has no evidence of each and every element of the causes of action he has pled against Defendant Li for negligence and negligence per se." And in the preamble and summary of the argument sections, Li stated that Saravia had no evidence on each and every element of his causes of action. Li further provided background information regarding the case as well as boilerplate governing law, and she stated that an adequate time had passed for discovery.
In his first argument under this issue, Saravia criticizes the language Li used in her motion to challenge Saravia's ability to produce evidence on the elements of negligence. As set forth above, Li stated that Saravia "has not been able to produce evidence of elements of a breach or damages proximately caused by a breach for a negligence cause of action" (emphasis added). Saravia points out that he was not required to produce evidence until Li filed her no-evidence motion for summary judgment, thus, it was improper to say he "has not been able to produce evidence" in the motion. Saravia concedes, however, that this language provided him with "fair notice" of the elements on which he had to produce evidence. And, as stated above, fair notice is the standard by which we judge no-evidence motions for summary judgment. See, e.g., Rogers, 2020 WL 3967944, at *2; Williams, 402 S.W.3d at 36. Saravia urges, however, that Rule 166a(i) requires more than fair notice in such motions, that it requires the movant to expressly "allege that there is no evidence of an essential element of the adverse party's cause of action." Saravia does not cite any authority supporting the proposition that fair notice is insufficient to meet the requirements of the rule. Regardless, absent a decision from a higher court or this court sitting en banc, we are constrained to follow the dictates of our own precedent. See, e.g., Chase Home Fin., L.L.C. v. Cal W. Reconveyance Corp., 309 S.W.3d 619, 630 (Tex. App.—Houston [14th Dist.] 2010, no pet.). Accordingly, we find no merit in Saravia's first argument.
In his second argument, Saravia criticizes the fact that Li did not separately list and challenge elements for negligence per se in her motion. As explained above, Li pointed out in her motion that "negligence per se is a tort concept by which the civil courts adopt a legislatively imposed standard of conduct as defining the conduct of a reasonably prudent person." See Carter v. William Sommerville & Son, Inc., 584 S.W.2d 274, 278 (Tex. 1979). In other words, negligence per se is not a separate cause of action; it is a method of proving a breach of duty as a requisite element of a common law negligence claim. E.g., Starkey v. Enri, No. 14-17-00224-CV, 2018 WL 4136876, at *2 (Tex. App.—Houston [14th Dist.] Aug. 28, 2018, no pet.) (mem. op.). Li made this clear in her motion and just as clearly asserted that Saravia could produce no evidence of a breach of a duty or damages proximately caused by a breach and thus Li could not be held liable for negligence or negligence per se. Li's motion was sufficient. Accordingly, we overrule Saravia's second issue.
Admission
In issue three, Saravia asserts that Li's motion adopted facts from Saravia's petition and such adoption constituted a judicial admission or quasi-judicial admission precluding summary judgment. Li maintains that the motion merely contains a quote from Saravia's petition that was indicated by quotation marks and a citation to Saravia's petition. We agree with Li and find no merit in this issue.
A judicial admission is a formal waiver of proof usually found in pleadings or parties' stipulations. E.g., E.S.F. v. D.J.F., No. 14-18-00850-CV, 2020 WL 1808907, at *4 (Tex. App.—Houston [14th Dist.] Apr. 9, 2020, no pet.) (mem. op.). A quasi-admission is a testimonial declaration contrary to a party's position. Id. While a judicial admission is conclusive against the party making it, a quasi-admission merely constitutes some evidence and is not conclusive against the person making it. Id.
The language Saravia points to was in the "Introduction" section of Li's motion and stated: "'On or about December 2, 2014, Plaintiff, MIGUEL A. SARAVIA was travelling southbound on Wilcrest in Harris County, Texas, when Defendant Ji LI [sic] failed to comply with a traffic control device and crashed into Defendant Gregory's vehicle and then into Plaintiffs vehicle.'" A footnote placed immediately after this sentence contained a citation to Saravia's original petition, which was attached to the motion as exhibit A.
The language in question was clearly a quotation from Saravia's petition as it copies verbatim language from the petition, it was contained within quotation marks, and it was followed by a citation to the petition. These facts, along with the fact that the sentence was contained in the "Introduction" section of the motion and the fact the statement runs contra to Li's general denial in her answer and her interests in the case, clearly indicate that the sentence was not made or intended as a statement of fact. Accordingly, even assuming a statement such as this in a motion for summary judgment could constitute a judicial admission or quasi-judicial admission, it did not do so under these circumstances. We therefore overrule Saravia's third issue.
Conclusion
Having overruled each of Saravia's issues, we affirm the trial court's judgment.
/s/ Frances Bourliot
Justice Panel consists of Justices Jewell, Bourliot, and Zimmerer.