Opinion
01-21-00529-CV
08-25-2022
ANTHONY J. VILLA, Appellant v. GREGG C. GEBETSBERGER, Appellee
On Appeal from the 246th District Court Harris County, Texas Trial Court Case No. 2020-67091
Panel consists of Justices Landau, Guerra, and Farris.
MEMORANDUM OPINION
April L. Farris, Justice
In this divorce proceeding, appellant Anthony J. Villa alleged the existence of an informal marriage to appellee Gregg C. Gebetsberger. Gebetsberger denied the existence of an informal marriage and moved for traditional and no-evidence summary judgment on this issue. Villa moved for a continuance, requesting time to conduct additional discovery. The trial court granted summary judgment in favor of Gebetsberger, denied Villa's motion for continuance, and dismissed Villa's divorce petition with prejudice.
In two issues on appeal, Villa contends that (1) the trial court erred by granting summary judgment in favor of Gebetsberger because Gebetsberger's summary judgment evidence did not conclusively negate the elements of an informal marriage; and (2) the trial court abused its discretion by denying Villa's motion for continuance. We affirm.
Background
In October 2020, Villa initiated divorce proceedings, alleging that he and Gebetsberger had been informally married since May 2011. Villa requested that the trial court divide the parties' community estate, reimburse the community estate for expenditures to improve Gebetsberger's separate estate, and award spousal maintenance.
Gebetsberger filed a verified answer on January 4, 2021. In his answer, he alleged that "there is no existing marriage between the parties." Gebetsberger served Villa with discovery requests in April 2021, and Villa responded to these requests on June 16, 2021.
Gebetsberger filed a combined traditional and no-evidence motion for summary judgment on August 6, 2021. Gebetsberger argued that Villa had no evidence to support his informal marriage claim and that the parties had never been married. Specifically, he argued that Villa had no evidence to support the elements of an informal marriage: (1) that Villa and Gebetsberger agreed to be married; (2) that they lived together in Texas as spouses; and (3) that they represented to others in Texas that they were married or had a reputation for being married.
In addition to asserting no-evidence grounds for summary judgment, Gebetsberger also asserted traditional grounds, arguing that evidence established, as a matter of law, that he did not agree to be married, he had never cohabitated as a married man, and he consistently holds himself out as single. As supporting evidence, Gebetsberger attached federal income tax returns identifying himself as single; work-related documents referring to Villa as Gebetsberger's "domestic partner"; Gebetsberger's will executed in 2013, which stated that he was single; and a 2015 Facebook post that stated that Gebetsberger and Villa had "no marriage plans." Gebetsberger also relied on his own affidavit as well as affidavits from thirteen friends to support his argument that Villa could not satisfy any of the elements of an informal marriage. Additionally, Gebetsberger attached and referenced Villa's discovery responses, which included statements like "We talked about being married and then agreed to be married," but he argued that these statements were "unsupported and non-specific" and did not establish the elements of an informal marriage.
Gebetsberger set his summary judgment motion for hearing by submission on August 27, 2021.
On August 10, 2021, Villa filed a request for disclosure and a request for production and inspection. He moved for a continuance of the summary judgment hearing on August 24, 2021, and sought at least sixty additional days to respond. Villa argued that there had not been an adequate time for discovery, and he "needs additional time to secure discovery and summary judgment affidavits." He also stated that he "will be unable to fully respond to the [summary judgment] motion by August 27, 2021." He stated that "discovery necessary to fully respond to the motion is outstanding" and that "[m]uch of the necessary discovery is necessary as a result of the summary judgment evidence submitted with [Gebetsberger's] motions for summary judgment."
In support of his request for a continuance, Villa attached the affidavit of his counsel, Kevin Hicks. Hicks averred that the case had been on file since October 20, 2020, and he was served with Gebetsberger's summary judgment motion on August 6, 2021. No scheduling order had been issued, no trial date had been set, the discovery period did not have a set ending date, and the parties had not attended mediation. Hicks averred that he served discovery requests on Gebetsberger on August 9, 2021, and "[t]he requested discovery is likely to contain evidence showing the parties agreed to be married and held each other out as such." Hicks further averred that he intended to seek records from Gebetsberger's employer which were "likely to be probative of the parties' intent at the time of making." He stated that he needed additional time to contact the individuals who provided affidavits on Gebetsberger's behalf "and likely schedule depositions." He also stated that the COVID-19 pandemic had impeded his efforts "to move the substantial discovery process forward," and he was working with Villa "to begin the process of contacting and securing statements from multiple witnesses, including family friends, relatives, and associates of the parties, who have testimony that the parties agreed to be married and held themselves out as such."
Hicks's affidavit contained in the clerk's record is corrupted and illegible. Villa attached a copy of the affidavit to his brief, and Gebetsberger attached an identical copy of the affidavit as an appendix to his brief.
Villa did not file a response to Gebetsberger's summary judgment motion.
The trial court denied Villa's motion for continuance on September 13, 2021. On that same date, the court granted Gebetsberger's summary judgment motion in a separate order. This order stated, "After considering the motions, the pleadings, the response, the affidavits, and other evidence on file, the court: GRANTS Gregg Gebetsberger's motion for summary judgment." The court dismissed Villa's divorce petition with prejudice. This appeal followed.
Summary Judgment
In his first issue, Villa argues that the trial court erred by granting summary judgment in favor of Gebetsberger. Villa contends that the court granted only the traditional portion of Gebetsberger's summary judgment motion, but Gebetsberger's summary judgment evidence did not conclusively establish that no informal marriage existed.
A. Standard of Review
We review a trial court's summary judgment ruling de novo. Odyssey 2020 Acad., Inc. v. Galveston Cent. Appraisal Dist., 624 S.W.3d 535, 540 (Tex. 2021). When a party moves for both traditional and no-evidence summary judgment, we consider the no-evidence motion first. First United Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214, 219 (Tex. 2017). If the non-movant fails to meet his burden under the no-evidence motion, there is no need to address a challenge to the traditional motion, as it necessarily fails. Id. Any claims that survive no-evidence review are then reviewed under the traditional standard. Id. at 219-20.
After an adequate time for discovery, a party may move for no-evidence summary judgment. See Tex. R. Civ. P. 166a(i). No-evidence summary judgment is proper when there is no evidence of one or more essential elements of a claim or defense on which the adverse party bears the burden of proof at trial. JLB Builders, L.L.C. v. Hernandez, 622 S.W.3d 860, 864 (Tex. 2021); Tex.R.Civ.P. 166a(i). The no-evidence motion must specifically state the element or elements for which there is no evidence. Cmty. Health Sys. Pro. Servs. Corp. v. Hansen, 525 S.W.3d 671, 695 (Tex. 2017); Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009) (stating that no evidence motion must be specific in challenging evidentiary support for element of claim).
A proper no-evidence summary judgment motion shifts the burden to the nonmovant to present evidence raising a genuine issue of material fact on each element challenged in the motion. JLB Builders, 622 S.W.3d at 864. The nonmovant presents more than a scintilla of evidence, and thus raises a fact issue, when the evidence rises to a level that would enable reasonable and fair-minded people to differ in their conclusions. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003). If the evidence is so weak that it does no more than create a mere surmise or suspicion of a fact, the evidence is not more than a scintilla. Id. When reviewing a summary judgment ruling, we take as true all evidence favorable to the nonmovant, and we indulge every reasonable inference and resolve any doubts in the nonmovant's favor. Hillis v. McCall, 602 S.W.3d 436, 440 (Tex. 2020) (quoting Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005)). If the nonmovant does not meet his burden to present evidence raising a genuine issue of material fact, "then the court 'must' grant summary judgment." B.C. v. Steak N Shake Operations, Inc., 598 S.W.3d 256, 259 (Tex. 2020) (per curiam) (quoting Tex.R.Civ.P. 166a(i)).
To be entitled to traditional summary judgment, the moving party must demonstrate that no genuine issue of material fact exists and the party is entitled to judgment as a matter of law. JLB Builders, 622 S.W.3d at 864; see Tex. R. Civ. P. 166a(c). If the moving party carries this burden, the burden shifts to the nonmovant to raise a genuine issue of material fact precluding summary judgment. Lujan v. Navistar, Inc., 555 S.W.3d 79, 84 (Tex. 2018). As with no-evidence summary judgments, we view the evidence in the light most favorable to the nonmovant. Town of Shady Shores v. Swanson, 590 S.W.3d 544, 551 (Tex. 2019).
B. Analysis
A party may combine in a single motion a request for traditional summary judgment and a request for no-evidence summary judgment. Binur v. Jacobo, 135 S.W.3d 646, 650 (Tex. 2004); see Draughon v. Johnson, 631 S.W.3d 81, 88 n.2 (Tex. 2021) ("Parties may combine traditional and no-evidence motions in a single hybrid filing and attach evidence so long as they clearly set forth their grounds and otherwise meet the requirements for each motion."). The fact that the movant attaches evidence to a traditional summary judgment motion "does not foreclose a party from also asserting that there is no evidence with regard to a particular element." Binur, 135 S.W.3d at 651. If a party attaches evidence to a summary judgment motion, trial courts should not disregard a request for no evidence summary judgment. Id. When we review a no-evidence summary judgment, "we ignore evidence attached to a combined summary-judgment motion and offered in support of traditional-summary-judgment grounds, unless the non-movant directed the trial court to that evidence in the response to the movant's no-evidence motion." Stettner v. Lewis & Maese Auction, LLC, 611 S.W.3d 102, 109 (Tex. App.-Houston [14th Dist.] 2020, no pet.).
When a party files a no-evidence summary judgment motion, the burden shifts to the nonmovant to specifically point out evidence that raises a fact issue. Martinez v. Leeds, 218 S.W.3d 845, 849 (Tex. App.-El Paso 2007, no pet.); Tex.R.Civ.P. 166a(i) ("The court must grant the [no-evidence] motion unless the respondent produces summary judgment evidence raising a genuine issue of material fact."). The nonmovant may rely on evidence attached to a movant's combined traditional and no-evidence summary judgment motion, but the nonmovant bears the burden to specifically point out to the trial court which evidence raises a fact issue on the challenged elements. Martinez, 218 S.W.3d at 849; Tex.R.Civ.P. 166a(i) cmt. ("To defeat a motion made under paragraph (i), the respondent is not required to marshal its proof; its response need only point out evidence that raises a fact issue on the challenged elements.").
"Absent a timely response, a trial court must grant a no-evidence motion for summary judgment that meets the requirements of Rule 166a(i)." Imkie v. Methodist Hosp., 326 S.W.3d 339, 343 (Tex. App.-Houston [1st Dist.] 2010, no pet.). Generally, the failure to respond to a no-evidence summary judgment motion is "fatal to the nonmovant's ability to assert on appeal that the trial court erred in granting the motion." Patidar v. Bank of Am., N.A., 442 S.W.3d 789, 793 (Tex. App.-Houston [14th Dist.] 2014, no pet.). If the nonmovant fails to respond to a no-evidence summary judgment motion, the nonmovant is limited on appeal to arguing the legal sufficiency of the grounds presented in the motion. Id.; Viasana v. Ward Cnty., 296 S.W.3d 652, 655 (Tex. App.-El Paso 2009, no pet.) (concluding that because nonmovant did not file response to combined no-evidence and traditional summary judgment motion attaching evidence or pointing out existence of fact issue in evidence attached to traditional motion, nonmovant was restricted to challenging sufficiency of summary judgment motion).
For a no-evidence motion to be sufficient under Rule 166a(i), the motion must specifically state the element or the elements of the nonmovant's claims for which there is no evidence. Hansen, 525 S.W.3d at 695; Timpte Indus., 286 S.W.3d at 310; Tex.R.Civ.P. 166a(i). A motion that lists the elements of the plaintiff's claim and generally asserts that the plaintiff has no evidence to support "one or more" or "any of" the elements is insufficient to support no-evidence summary judgment. Hansen, 525 S.W.3d at 695-96.
Here, Gebetsberger filed a combined traditional and no-evidence summary judgment motion. After setting out the general law concerning both no-evidence and traditional summary judgment motions, he stated the three statutory elements for establishing an informal marriage. See Tex. Fam. Code § 2.401(a)(2). He stated:
Anthony Villa and Gregg Gebetsberger have never been married, ceremonially or otherwise. Villa has completely failed to support his allegation of a May 2011 marriage by producing a marriage license (as required by Texas Family Code § 2.001) or declaration of informal marriage (as required by Texas Family Code §§ 2.401(a)(1) and 2.402). Villa has also produced no evidence that he and Gebetsberger (1) agreed to be married, (2) lived together as spouses, in Texas or another state, or (3) represented to others in Texas that they were a married couple, or had a reputation for being married (as required by Texas Family Code § 2.401(a)(2)). Conversely, Gebetsberger can show that he did not agree to be married, never lived with Villa as spouses, and affirmatively represented to others that they were not married.
Gebetsberger attached evidence in support of the traditional portion of his motion, including Villa's discovery responses and fourteen affidavits from Gebetsberger and friends of his. Villa did not file a response to Gebetsberger's summary judgment motion, and the trial court granted summary judgment in Gebetsberger's favor.
On appeal, Villa argues that the trial court granted only Gebetsberger's traditional summary judgment motion, pointing out that the order stated that the court considered the evidence and affidavits. The trial court's summary judgment order stated: "After considering the motions, the pleadings, the response, the affidavits, and other evidence on file, the court: GRANTS Gregg Gebetsberger's motion for summary judgment." This order did not use the words "traditional" or "no evidence," and it did not state that the trial court was granting only the traditional portion of Gebetsberger's summary judgment motion. We therefore disagree with Villa that because the order recited that the court considered "evidence," the court necessarily granted only traditional summary judgment and either denied or failed to consider the no-evidence portion of Gebetsberger's motion.
Gebetsberger's motion specifically identified the elements of Villa's informal marriage claim as to which there is no evidence. See Hansen, 525 S.W.3d at 695. The motion did not generally assert that Villa had no evidence to support "one or more" or "any of" the elements of an informal marriage claim, and therefore the motion was a legally sufficient no-evidence motion. See id. at 695-96. Villa did not file a response that either attached his own summary judgment evidence or point to any evidence filed by Gebetsberger that, in Villa's view, raised a fact issue. See Martinez, 218 S.W.3d at 849.
Moreover, Villa does not argue on appeal that the no-evidence portion of Gebetsberger's summary judgment motion failed to comply with Rule 166a(i) or was otherwise insufficient.
Because Gebetsberger's motion met the requirements of Rule 166a(i) and Villa did not file a response, the trial court was required to grant no-evidence summary judgment in favor of Gebetsberger. See Imkie, 326 S.W.3d at 343; Tex.R.Civ.P. 166a(i) ("The court must grant the [no-evidence] motion unless the respondent produces summary judgment evidence raising a genuine issue of material fact."). We therefore hold that the trial court properly rendered summary judgment in favor of Gebetsberger. See Imkie, 326 S.W.3d at 343.
To the extent Villa argues that the trial court's recitation that it considered "the motions, the pleadings, the response, the affidavits, and other evidence on file" requires us to consider the evidence attached to the traditional portion of Gebetsberger's combined motion in reviewing the propriety of granting no-evidence summary judgment, Villa has not cited any authority to support this argument. However, even if we were required to review the evidence Gebetsberger attached to the traditional portion of his combined motion, we would nevertheless conclude that the evidence does not raise a fact issue on each of the challenged elements of an informal marriage claim.
To establish an informal marriage, the petitioner must prove: (1) the parties agreed to be married; (2) they lived together in Texas as spouses after the agreement; and (3) they represented to others in Texas that they were married. Tex. Fam. Code § 2.401(a)(2); Smith v. Deneve, 285 S.W.3d 904, 909 (Tex. App.-Dallas 2009, no pet.); Eris v. Phares, 39 S.W.3d 708, 713 (Tex. App.-Houston [1st Dist.] 2001, pet. denied). The third element is "also described as 'holding out to the public'" and "requires more than occasional references to each other" as spouses. Smith, 285 S.W.3d at 909-10. "[A] 'couple's reputation in the community as being married is a significant factor in determining the holding out element.'" Id. at 910 (quoting Danna v. Danna, No. 05-05-00472-CV, 2006 WL 785621, at *1 (Tex. App.-Dallas Mar. 29, 2006, no pet.) (mem. op.)). This element requires "both parties to have represented themselves as married." Small v. McMaster, 352 S.W.3d 280, 285 (Tex. App.-Houston [14th Dist.] 2011, pet. denied); Smith, 285 S.W.3d at 910. Proving a reputation for being married requires evidence that the couple "consistently conducted themselves as [spouses] in the public eye or that the community viewed them as married." Small, 352 S.W.3d at 285 (quoting Danna, 2006 WL 785621, at *2).
With respect to the "holding out" element, Gebetsberger averred that he and Villa referred to each other as "boyfriend" or "partner," but they never used "husband" or "spouse." He also averred that friends and colleagues had met Villa, but "[n]one of them believed us to be married." Thirteen of Gebetsberger's friends executed supporting affidavits. None of them believed Gebetsberger and Villa were married, and none of them heard Gebetsberger and Villa refer to each other as husbands or spouses. Several of Gebetsberger's friends averred that, when asked about marriage, both Gebetsberger and Villa stated either that they did not want to be married or that they had not considered marriage. Gebetsberger attached several years of federal income tax returns and a will executed in 2013, all of which identified him as "single." On two documents utilized by Gebetsberger's employer for health insurance benefits, Villa was identified as a "domestic partner," but not as a spouse. Gebetsberger and Villa had a "family" membership to the Museum of Fine Arts Houston and a "family" membership in a neighborhood association, but the rules for both memberships did not require a marriage to obtain a "family" membership.
Gebetsberger also attached Villa's discovery responses. Villa produced a calendar entitled "Gebetsberger Family Days," which included a notation of "Gregg Gebetsberger & AJ Villa (A)" on February 2, 2011. Villa was also included in a list of "Gebetsberger Family Addresses." Villa was also a signatory on Gebetsberger's bank account and was listed as a named insured on Gebetsberger's car insurance. In an interrogatory answer, Villa stated, "We moved to live together in Texas and we held out as spouses on or about May 1, 2011." In that answer, Villa pointed to the document filed with Gebetsberger's employer, the family membership in the neighborhood association, their sending of Christmas cards "as spouses do," an article in the Houston Chronicle that featured them, and the Gebetsberger Family Days calendar as evidence that they held themselves out as a married couple.
Although the calendar does not state what "(A)" means, Gebetsberger averred that he and Villa went on their first date on February 2, 2011. "(A)" therefore likely refers to anniversary.
In an interrogatory answer, Villa stated that he and Gebetsberger were featured in an article in the Houston Chronicle, and the author referred to them as "partners/'significant other.'" The article is included in the record, but it is difficult to read the print, and not all the article is readable. In his affidavit, Gebetsberger disputed that the article referred to him and Villa as "partners" or "significant others."
None of the documentation attached to Gebetsberger's summary judgment motion referred to Gebetsberger and Villa as husbands or spouses. At most, the evidence reflects that they were in a long-term, committed relationship. Gebetsberger's friends testified by affidavit that Gebetsberger and Villa never referred to themselves as married. No witness testified to the contrary. The only evidence in the record that Gebetsberger and Villa represented to others that they were married or that they held themselves out as married is Villa's statement in his interrogatory answers that "we held out as spouses on or about May 1, 2011." "[S]tanding alone, occasional references to each other as [spouses] and the like are insufficient to establish an informal marriage." Small, 352 S.W.3d at 285; see Smith, 285 S.W.3d at 910 (concluding that no fact issue was raised on "holding out" element even though contracts listed parties as married because no evidence existed that respondent knew of contractual representations or that anyone in community saw those representations, and only other evidence was petitioner's affidavit testimony that parties introduced each other as "husband" and "wife" with no objection from other party, but petitioner did not state "whether these events were common or rare" and petitioner did not present evidence that parties had reputation in community for being married).
We conclude that the evidence attached to Gebetsberger's summary judgment motion did not raise a fact issue on whether the parties represented to others in Texas that they were married, an essential element of an informal marriage claim. See Tex. Fam. Code § 2.401(a)(2); Mott v. Red's Safe & Lock Servs., Inc., 249 S.W.3d 90, 95 (Tex. App.-Houston [1st Dist.] 2007, no pet.) ("Although the non-movant need not marshal its proof, it must present evidence that raises a genuine issue of material fact on each of the challenged elements.") (emphasis added). The trial court therefore properly granted no-evidence summary judgment in favor of Gebetsberger.
We overrule Villa's first issue.
Motion for Continuance
In his second issue, Villa argues that the trial court abused its discretion by denying his motion to continue the summary judgment hearing. He contends that Gebetsberger moved for summary judgment before an adequate time for discovery had passed, and a continuance was necessary so Villa could conduct discovery and respond to the summary judgment motion.
The trial court may order the continuance of a summary judgment hearing if it appears "from the affidavits of a party opposing the [summary judgment] 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)). We review a trial court's denial of a motion for continuance for an abuse of discretion. Id.; Cypress Creek EMS v. Dolcefino, 548 S.W.3d 673, 687 (Tex. App.-Houston [1st Dist.] 2018, pet. denied). A trial court abuses its discretion if its decision is so arbitrary and unreasonable that it amounts to a clear and prejudicial error of law. Joe, 145 S.W.3d at 161. When conducting an abuse of discretion review, we consider the evidence in the light most favorable to the trial court's ruling and indulge every presumption in favor of the ruling. Cypress Creek EMS, 548 S.W.3d at 687.
We consider the following non-exclusive factors when determining whether the trial court abused its discretion by denying a motion for continuance seeking additional time to conduct discovery: the length of time the case has been on file; the nature of the evidence needed to controvert the no-evidence motion; the materiality and purpose of the discovery sought; the amount of discovery that has already taken place; and whether the party seeking a continuance has exercised due diligence to obtain the discovery sought. See Joe, 145 S.W.3d at 161; Cypress Creek EMS, 548 S.W.3d at 687. The affidavit or verified motion for continuance must show why the continuance is necessary, and conclusory allegations are not sufficient. Cardenas v. Bilfinger TEPSCO, Inc., 527 S.W.3d 391, 404 (Tex. App.-Houston [1st Dist.] 2017, no pet.). Generally, it is not an abuse of discretion to deny a motion for continuance when the nonmovant has received the 21-days' notice required by Rule 166a(c). Cypress Creek EMS, 548 S.W.3d at 687.
A motion for continuance that seeks additional time to conduct discovery must be supported by an affidavit showing that the party requesting the continuance has used due diligence to timely obtain the evidence. Landers v. State Farm Lloyds, 257 S.W.3d 740, 747 (Tex. App.-Houston [1st Dist.] 2008, no pet.). The affidavit "must state with particularity what diligence was used." Id. "A party who fails to diligently use the rules of discovery is not entitled to a continuance." Id.; see State v. Wood Oil Distrib., Inc., 751 S.W.2d 863, 865 (Tex. 1988) ("It is also well established that the failure of a litigant to diligently utilize the rules of civil procedure for discovery purposes will not authorize the granting of a continuance.").
Here, Villa filed his petition for divorce asserting the existence of an informal marriage in October 2020. Gebetsberger was served with citation in December 2020, and he answered on January 4, 2021, expressly denying that the parties were married. Gebetsberger served written discovery-including requests for production, requests for Rule 194 disclosures, and interrogatories-on Villa in April 2021, and Villa responded in June 2021.
Gebetsberger moved for traditional and no-evidence summary judgment on August 6, 2021, approximately ten months after Villa filed for divorce. This motion was set for hearing by submission on August 27, 2021. On August 10, 2021, four days after Gebetsberger moved for summary judgment, Villa served requests for Rule 194 disclosures and requests for production and inspection.
On August 24, 2021, three days before the summary judgment hearing, Villa moved for a continuance of at least sixty days. He argued that there had not been an adequate time for discovery, he would not be able to fully respond to the summary judgment motion by the submission date, and he needed "additional time to secure discovery and summary judgment affidavits." He argued that necessary discovery requests were outstanding, and "[m]uch of the necessary discovery is necessary as a result of the summary judgment evidence" submitted by Gebetsberger. In support of his motion for continuance, Villa attached the affidavit of his counsel, Kevin Hicks.
Hicks averred that the trial court had not issued a scheduling order, no trial date had been set, no deadline for the end of the discovery period had been set, and the parties had not attended mediation. Hicks averred that he sent discovery requests to Gebetsberger on August 9, 2021, three days after Gebetsberger moved for summary judgment. Hicks averred that the requested discovery would likely "contain evidence showing the parties agreed to be married and held each other out as such." Hicks further averred that he intended to seek records from Gebetsberger's employer, which "are likely to be probative of the parties' intent at the time of making," and he needed additional time to contact the individuals who provided affidavits on Gebetsberger's behalf "and likely schedule depositions." Finally, Hicks averred that he was working with Villa "to begin the process of contacting and securing statements from multiple witnesses, including family friends, relatives, and associates of the parties, who have testimony that the parties agreed to be married and held themselves out as such."
This affidavit demonstrated that although Villa had filed his petition in October 2020, he did not seek any discovery from Gebetsberger until August 9, 2021, after Gebetsberger moved for summary judgment. The affidavit also demonstrated that Hicks was working with Villa "to begin the process of contacting and securing statements from multiple witnesses," even though Gebetsberger had filed his verified answer challenging the existence of a marriage in January 2021. Villa had thus been on notice for more than seven months that the existence of a marriage between the parties was a contested issue in the case, but it was not until after Gebetsberger sought discovery and moved for summary judgment that Villa filed his own discovery requests and stated that he needed additional time to contact witnesses to provide statements. Villa has not cited any authority holding that an affidavit such as the one he relied upon to support his request for a continuance is sufficient to establish diligence in obtaining discovery.
"A party who fails to diligently use the rules of discovery is not entitled to a continuance." See Landers, 257 S.W.3d at 747. We conclude that, when faced with an affidavit that did not demonstrate that Villa had used diligence in obtaining discovery, the trial court did not abuse its discretion in denying Villa's request for a continuance to conduct additional discovery to respond to the summary judgment motion. See Joe, 145 S.W.3d at 161 (considering, among other factors in determining whether trial court abused its discretion in denying request for continuance, whether party seeking continuance had used due diligence to obtain discovery sought); Landers, 257 S.W.3d at 747.
We overrule Villa's second issue.
Conclusion
We affirm the judgment of the trial court.