Nathan D. Albert and Chisholm Trail Redi-Mix, LLC v. Fort Worth & Western Railroad Company, Davoil, Inc and William S. Davis

• Court: Court of Appeals of Texas
• Decided: February 23, 2022
• Docket: 10-19-00084-CV
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-19-00084-CV

NATHAN D. ALBERT AND CHISHOLM TRAIL REDI-MIX, LLC, Appellants v.

FORT WORTH & WESTERN RAILROAD CO., DAVOIL, INC. AND WILLIAM S. DAVIS, Appellees

From the 18th District Court Johnson County, Texas Trial Court No. DC-C201700680

MEMORANDUM OPINION

Nathan Albert and Chisholm Trail Redi-Mix, LLC appeal from a judgment that

granted a motion for summary judgment filed by Fort Worth & Western Railroad

Company, Davoil, Inc., and William S. Davis as to multiple tort claims Albert and

Chisholm had asserted against them. Albert and Chisholm argue that the trial court erred

by denying their motion for continuance because they did not have an adequate time for discovery and by granting the motion for summary judgment because their summary

judgment proof was sufficient to raise a genuine issue of material fact as to each of their

claims. Because we find no reversible error, we affirm the judgment of the trial court.

PROCEDURAL HISTORY

In April of 2016, Albert purchased a ten-acre tract that was landlocked from any

road other than a gravel railroad crossing that went across land owned by FWWR. Albert

had purchased the tract for the purpose of building a concrete plant, which was to be

operated by Chisholm, which was formed for that purpose. Albert, Friermood, and

Simpson were the owners of Chisholm. In May of 2017, Albert and Chisholm initiated

the underlying proceeding by filing a petition for a declaratory judgment against FWWR,

seeking a declaration that an easement existed across the railroad crossing owned by

FWWR. FWWR counterclaimed, seeking declaratory relief with claims for trespass and

an injunction to prevent Albert and Chisholm from using the crossing. In June of 2018,

Albert and Chisholm added Davoil and Davis as defendants and added tort claims for

fraud, tortious interference with prospective business relations, tortious interference with

contractual relations, assisting or encouraging liability against defendants, 1 and civil

conspiracy. Davoil is the owner of FWWR. Davis is the president of Davoil and the

chairman of the board of FWWR.

1FWWR, Davoil, and Davis argue that this claim has not been recognized as a valid cause of action. Because of our resolution of the issues in this proceeding, we do not reach this contention nor do we express an opinion as to the validity of this cause of action.

Albert v. Fort Worth & Western Railroad Co. Page 2 The day after Davoil and Davis filed their answers with the trial court, Albert and

Chisholm propounded discovery upon FWWR and the new parties. FWWR, Davoil, and

Davis responded to the discovery, and shortly thereafter, in late August of 2017, Albert

and Chisholm filed a motion to compel and for sanctions and attempted to schedule the

depositions of Davis and a representative of Davoil. FWWR, Davoil, and Davis attempted

to schedule the depositions of Albert, Friermood, and Simpson. Neither side would agree

to a date for the depositions. In late September of 2017, FWWR, Davoil, and Davis filed a

motion for summary judgment pursuant to Rules 166 and 166a of the Rules of Civil

Procedure as to the tort claims that had been added in June of 2017. FWWR, Davoil, and

Davis also filed a motion to sever the newer tort claims from the other claims regarding

the easement which had already been set for trial.

Albert and Chisholm filed a motion for continuance of the hearing on the motion

for summary judgment. The trial court held a hearing on the motion for continuance

which was denied. The discovery issues, the motion for summary judgment, and the

motion to sever were heard by the trial court on November 9, 2017. The trial court

deferred the discovery issues until after the motion for summary judgment. In a letter

issued a week after the hearing, the trial court granted the motion to sever and "reserved

any ruling" on the motion for summary judgment until a later date. The causes of action

that were initially filed remained in the original cause number and the later-added tort

Albert v. Fort Worth & Western Railroad Co. Page 3 claims were severed into a separate proceeding with a new cause number. 2 No further

action was taken in the trial court on the severed causes of action until the trial court sent

a dismissal notice for want of prosecution in October of 2018.

After the dismissal notice, FWWR, Davoil, and Davis set the motion for summary

judgment for a hearing. The parties entered into an agreed discovery control order and

set the tort claims for trial. The trial court conducted a second hearing on the motion for

summary judgment, and ultimately granted the motion in all respects. The trial court

signed an order sustaining the objections to Albert and Chisholm's summary judgment

evidence and granting the motion for summary judgment as to each of the tort claims.

MOTION FOR CONTINUANCE

In their first issue, Albert and Chisholm complain that the trial court erred by

denying their motion for continuance of the first summary judgment hearing because

they had not had an adequate time to conduct discovery on the tort claims and parties

that were added more than a year after the filing of the original petition. Albert and

Chisholm argue that even though the motion claims to be a traditional and no-evidence

motion for summary judgment, the motion is only a no-evidence motion for summary

judgment pursuant to Rule 166a(i) of the Rules of Civil Procedure.

2The easement claims and claims for trespass and injunctive relief were tried separately and are at issue in our Cause No. 10-18-00219-CV, Fort Worth and Western Railroad Co. v. Nathan D. Albert and Chisholm Trail Redi-Mix, LLC.

Albert v. Fort Worth & Western Railroad Co. Page 4 Rule 166a(i) states that "[a]fter adequate time for discovery, a party without

presenting summary judgment evidence may move for summary judgment on the

ground that there is no evidence of one or more essential elements of a claim or defense

on which an adverse party would have the burden of proof at trial." TEX. R. CIV. P. 166a(i).

Under Rule 166a(i), there is no specific minimum amount of time that a case must be

pending before a trial court may entertain a no-evidence motion for summary judgment;

the rule only requires an "adequate time for discovery." See id. The trial court may order

a continuance of a summary judgment hearing if it appears "from the affidavits of a party

opposing the motion that he cannot for reasons stated present by affidavit facts essential

to justify his opposition." TEX. R. CIV. P. 166a(g).

When reviewing a trial court's order denying a motion for continuance, we

consider whether the trial court committed a clear abuse of discretion. Joe v. Two Thirty

Nine Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004). 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. Id. The court considers the following nonexclusive factors when deciding

whether a 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

materiality and purpose of the discovery sought, and whether the party seeking the

continuance has exercised due diligence to obtain the discovery sought. Id.

The motion for continuance did not have an affidavit attached but was verified by

Albert v. Fort Worth & Western Railroad Co. Page 5 trial counsel for Albert and Chisholm. The motion described the timeline of the newly-

filed causes of action and parties and described the attempts to complete discovery as

well as a very limited description of the discovery sought but not produced. However,

the motion for continuance did not describe the purpose of the discovery sought or how

the discovery they sought was material to their opposition to the motion for summary

judgment. Albert and Chisholm had also been attempting to take the depositions of Davis

and a representative of Davoil, but the motion for continuance does not address what

they expected to prove with that deposition testimony. See TEX. R. EVID. 251 (if the

continuance "be for the absence of a witness, he shall state. . . what he expects to prove

by him"). Nor did Albert and Chisholm explain why Davis and the Davoil corporate

representative's deposition testimony would be material to any of their tort claims.

Albert and Chisholm's argument is limited to the contention that they were

entitled to a continuance because there had not been an adequate time for discovery. See

TEX. R. CIV. P. 166a(i) ("After adequate time for discovery, a party. . . may move for

summary judgment on the ground that there is no evidence of one or more essential

elements of a claim or defense . . . ."). Albert and Chisholm argue there had not been an

adequate time for discovery because the discovery period had not expired, although they

do not state when that time would have been. FWWR, Davoil, and Davis argue that the

discovery control period had actually expired pursuant to the original petition filed in

Albert v. Fort Worth & Western Railroad Co. Page 6 the proceeding relating to the declaratory judgment and easement claims. 3 However,

regardless of the length of the discovery period, the determination of whether there has

been an adequate time for discovery is not necessarily controlled by the discovery period.

Dishner v. Huitt-Zollars, Inc., 162 S.W.3d 370, 376 (Tex. App.—Dallas 2005, no pet.)

(Appellate court "has refused to read into the rule a bright-line requirement that the

discovery period be completed before a no-evidence motion can be filed."). Whether the

nonmovant on a motion for summary judgment has had adequate time for discovery is

case specific. Id. "When a party contends he has not had an adequate opportunity for

discovery before a no-evidence summary judgment hearing, he must file either an

affidavit explaining the need for further discovery or a verified motion for continuance."

Id. at 376-77. Albert and Chisholm's verified motion for continuance did not explain "the

need for further evidence," i.e., they did not explain the purpose or the materiality of the

discovery they sought as it related to the additional causes of action. Presumably Albert

and Chisholm had some evidence upon which to base their claims prior to filing the tort

claims and adding the additional parties after having already conducted voluminous

discovery with FWWR in the declaratory judgment action. Albert and Chisholm do not

give any description of what evidence they believed was material to any of the tort causes

3Albert and Chisholm's original petition, filed in May of 2016, asserted that discovery was to be conducted pursuant to level 2. The amended petition filed in June of 2017, asserted a level 3 discovery control plan; however, there was no agreement or court order to allow the parties to conduct discovery pursuant to level 3. Albert and Chisholm do not mention which level of discovery was being followed or provide any argument or authority that a new discovery control plan was created by the addition of the new causes of action or parties.

Albert v. Fort Worth & Western Railroad Co. Page 7 of action or the newly added parties in relation to their response to the motion for

summary judgment. Because Albert and Chisholm did not address the purpose or

materiality of the discovery, we find that the trial court did not abuse its discretion in

denying the motion for continuance. We overrule issue one.

NO-EVIDENCE SUMMARY JUDGMENT

In their second issue, Albert and Chisholm complain that the trial court erred by

granting the motion for summary judgment as to each of their tort claims because their

proof was sufficient to raise a genuine issue of material fact as to the elements of each of

their tort claims. However, on appeal, they do not challenge the trial court's sustaining of

FWWR, Davoil, and Davis's objections to their summary judgment evidence. FWWR,

Davoil, and Davis contend that Albert and Chisholm's brief was inadequate in that it had

only one reference to the record in its argument regarding its claims. We agree.

An appellant's brief "must contain a clear and concise argument for the contentions

made, with appropriate citations to authorities and to the record." TEX. R. APP. P. 38.1(i).

As stated by FWWR, Davoil, and Davis,

an appellate court is "not free to search the entire record, including materials not cited to … the trial court." Arredondo v. Rodriguez, 198 S.W.3d 236, 238 (Tex. App.—San Antonio 2006, no pet.). Instead, a party "must specifically identify the supporting proof on file that it seeks to have considered by the trial court." Id.

In addition to the failure to cite to the record, Albert and Chisholm have further

failed to identify the elements of any of their causes of action or to cite to any legal

Albert v. Fort Worth & Western Railroad Co. Page 8 authority in support of any of their contentions as they relate to the tort causes of action

in their brief or their reply brief filed in this appeal. They do not address two of their

causes of action at all.

We are not required to search the appellate record, with no guidance from the

briefing party, to determine if the record supports the party's argument. Fredonia State

Bank v. General Am. Life Ins. Co., 881 S.W.2d 279, 283 (Tex. 1994). We also "know of no

authority obligating us to become advocates for a particular litigant through performing

their research and developing their argument for them." Tello v. Bank One, N.A., 218

S.W.3d 109, 116 (Tex. App.—Houston [14th Dist.] 2007, no pet.) (internal quotation

omitted). Thus, the appellants' failure to cite legal authority or provide substantive

analysis of a legal issue results in waiver of the complaint. Fredonia State Bank, 881 S.W.2d

at 284 (observing that error may be waived by inadequate briefing). Further, we find that

Albert and Chisholm had the opportunity to address their briefing failures after FWWR,

Davoil, and Davis pointed them out in the appellee's brief; however, Albert and Chisholm

chose not to do so. We find that this issue was inadequately briefed, and therefore,

presents nothing for our review. We overrule issue two.

CONCLUSION

Having found no reversible error, we affirm the judgment of the trial court.

TOM GRAY Chief Justice Albert v. Fort Worth & Western Railroad Co. Page 9 Before Chief Justice Gray, Justice Johnson, and Justice Smith Affirmed Opinion delivered and filed February 23, 2022 [CV06]

Albert v. Fort Worth & Western Railroad Co. Page 10