NUMBER 13-13-00615-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
SANDEEP NANDA, Appellant,
v.
COREY HUINKER, Appellee.
On appeal from the 201st District Court of Travis County, Texas.
MEMORANDUM OPINION Before Justices Benavides, Perkes, and Longoria Memorandum Opinion by Justice Perkes1
Appellant Sandeep Nanda filed a breach of contract action against appellee Corey
Huinker in relation to Nanda’s purported agreement to purchase real property from
1 Pursuant to a docket-equalization order issued by the Supreme Court of Texas, this appeal has
been transferred to this Court from the Third Court of Appeals in Austin, Texas. See TEX. GOV'T CODE ANN. § 73.001 (West, Westlaw through Ch. 46 2015 R.S.). Huinker. The trial court granted summary judgment in favor of Huinker on the basis of
the statute of frauds. See TEX. BUS. & COM. CODE ANN. § 26.01(a), (b)(4) (West, Westlaw
through Ch. 46 2015 R.S.). By three issues, Nanda argues: (1) the trial court erred in
granting summary judgment; (2) the trial court erred in “refusing discovery and evidence”;
and (3) the trial court’s denial of appellant’s motion for new trial was an abuse of
discretion. We affirm.
I. BACKGROUND
The summary judgment record establishes the following facts: Nanda sought to
purchase from Huinker a condominium unit located in downtown Austin, Texas. Over
the course of approximately one month, the parties negotiated various terms through e-
mail correspondence, including: sales price; earnest money deposit; option fee; and
closing date. As the parties neared an agreement, Nanda completed and signed a
“Residential Condominium Contract” form promulgated by the Texas Real Estate
Commission (“TREC” form) and submitted it to Huinker by e-mail. Huinker responded,
requesting clarification of various terms. Huinker closed his e-mail by stating “[l]et me
know how we can fix these issues and I can have it back to you tonight or tomorrow
morning.” Following further e-mail discussions, Huinker e-mailed “Ok, I’ll get you the
paperwork shortly.”2
2 Nanda alleges in his petition that Huinker confirmed by phone that he signed the TREC form and
they reached a deal. However, allegations in a petition are not summary judgment evidence. Santiago v. Novastar Mortgage, Inc., 443 S.W.3d 462, 473 n.11 (Tex. App.—Dallas 2014, pet. denied) (citing City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979)).
2 Before returning the TREC form, Huinker informed Nanda by phone that he was
not prepared to finalize the transaction and would not continue any further negotiations.
In the meantime, Huinker signed a contract to sell the property to a different buyer.
Nanda later e-mailed stating, “I am glad we were able to agree on terms. I am sending
the option fee now in order to comply with my obligations under the contract.” Huinker
responded “I am not ready to sign a contract at this time. Do not send money. Any
money sent will be refunded.” After further inquiry from Nanda, Huinker e-mailed again
stating, “[t]here is no signed contract. No one has any obligations at this time. I wish
you well in your business endeavors, but do not wish to continue negotiating with you at
this time.”
Nanda filed suit alleging breach of contract and seeking specific performance,
declaratory and injunctive relief, and attorney’s fees. Huinker filed an answer asserting
the statute of frauds as an affirmative defense and bringing counter-claims for declaratory
relief and attorney’s fees. Huinker filed a traditional motion for summary judgment
seeking partial summary judgment on his statute of frauds defense. The motion was
accompanied by Huinker’s affidavit in which he acknowledges he signed the TREC form
but never delivered it to Nanda because he did not wish to finalize the sale.3 Nanda filed
a motion for expedited discovery, or alternatively, a motion for the continuance of the
summary judgment hearing, which was denied by the trial court. After hearing oral
argument, the trial court entered an order granting Huinker’s motion for partial summary
3 Huinker’s affidavit acknowledges his “reluctance to deliver the signed Sales Contract” to Nanda.
Huinker’s attorney also acknowledged to the trial court and in his appellee brief that Huinker signed the contract but did not deliver it to Nanda. 3 judgment, and declaring that “the real estate contract for sale of real property . . . is
unenforceable for failing to satisfy the statute of frauds.”
The matter was set for a final hearing on Huinker’s claim for attorney’s fees.
During this hearing, the trial court clarified its earlier ruling as follows:
[I]t is this Court's belief, having read significant contract and real estate contract opinions and cases under the law, that it is irrelevant whether or not Mr. Huinker signed this contract because it is not the law of the State of Texas that signing something and then tearing it up or signing something and then giving it to your lawyer before it's ever delivered to the other side is a binding contract.
...
If a signed sales contract exists, if it does, if it was never delivered to [Nanda], the Court does not believe it is an executed contract.
The trial court entered a final judgment incorporating its earlier order and awarding
Huinker attorney’s fees in the amount of $7,500. This appeal followed.
II. SUMMARY JUDGMENT
By his first issue, Nanda argues the trial court erred in granting summary judgment.
Specifically, Nanda contends that Huinker did not sustain his burden on the affirmative
defense of the statute of frauds. Nanda further contends that there is evidence Huinker
signed the contract, and that the delivery of the contract to Nanda is not required to satisfy
the statute of frauds.
A. Standard of Review
We review a grant of traditional summary judgment de novo. Valence Operating
Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). We take as true all evidence in favor
of the non-movant, and we indulge every reasonable inference and resolve any doubts in
4 the non-movant’s favor. Id. Where, as here, the trial court expressly states in its order
the ground on which it granted summary judgment, we must determine if the trial court
was correct in granting summary judgment on that basis. Cincinnati Life Ins. Co. v.
Cates, 927 S.W.2d 623, 625–26 (Tex. 1996). In the interest of judicial economy, we may
consider other grounds that were raised and preserved by the movant but not explicitly
ruled on by the trial court to decide if they support summary judgment. Id.
In a traditional motion for summary judgment, the movant bears the burden of
showing that no genuine issue of material fact exists and that it is entitled to judgment as
a matter of law. TEX. R. CIV. P. 166a(c). A defendant who conclusively negates at least
one of the essential elements of a cause of action or conclusively establishes an
affirmative defense is entitled to summary judgment. Frost Nat'l Bank v. Fernandez, 315
S.W.3d 494, 508 (Tex. 2010).
B. Applicable Law
Under the statute of frauds, a contract for the sale of real estate “is not enforceable
unless the promise or agreement, or a memorandum of it, is (1) in writing; and (2) signed
by the person to be charged with the promise or agreement or by someone lawfully
authorized to sign for him.” TEX. BUS. & COM. CODE ANN. § 26.01(a), (b)(4). The written
memorandum must, within itself or by reference to other writings and without resort to
parol evidence, contain all the elements of a valid contract, including an identification of
both the subject matter of the contract and the parties to the contract. Dobson v. Metro
Label Corp., 786 S.W.2d 63, 65 (Tex. App.—Dallas 1990, no pet.) (citing Cohen v.
McCutchin, 565 S.W.2d 230, 232 (Tex. 1978); Walker Ave. Realty Co. v. Alaskan Fur Co.,
5 131 S.W.2d 196, 198 (Tex. Civ. App.—Galveston 1939, writ ref'd)). The elements of an
enforceable contract are: (1) an offer; (2) an acceptance in strict compliance with the
terms of the offer; (3) a meeting of the minds; (4) a communication that each party
consented to the terms of the contract; and (5) execution and delivery of the contract with
an intent it become mutual and binding on both parties. Goldman v. Olmstead, 414
S.W.3d 346, 354 (Tex. App.—Dallas 2013, pet. denied).
C. Analysis
It is undisputed that Huinker never delivered the TREC form to Nanda.
Nevertheless, Nanda argues that evidence Huinker signed the contract but kept it in his
possession is sufficient to satisfy the statute of frauds. We disagree.
Language showing the parties’ assent to a particular agreement must be included
within a written memorandum to satisfy the statute of frauds. Big Dog Logistics, Inc. v.
Strategic Impact Corp., 312 S.W.3d 122, 133 (Tex. App.—Houston [14th Dist.] 2010, pet.
denied) (citing Osborne v. Moore, 247 S.W. 498, 498–500 (Tex. 1923); Birenbaum v.
Option Care, Inc., 971 S.W.2d 497, 501 (Tex. App.—Dallas 1997, pet. denied)).
Evidence of mutual assent in written contracts generally consists of signatures of the
parties and delivery with the intent to bind. Baylor Univ. v. Sonnichsen, 221 S.W.3d 632,
635 (Tex. 2007); see also Koukhtiev v. Hiner, No. 01-13-00356-CV, 2014 WL 4952430,
at *5 (Tex. App.—Houston [1st Dist.] Oct. 2, 2014, no pet.) (mem. op.) (“When the law
requires the parties' agreement to be in writing, the contract must be signed, and a copy
must be delivered to each party with the intent that it be mutual and binding.”)
6 The e-mail correspondence between the parties depict on-going negotiations
concerning the terms of an agreement to sell real estate. Following Nanda’s delivery of
the TREC form, Huinker continues to seek clarification of multiple terms. Huinker then
e-mails Nanda, stating “Ok, I’ll get you the paperwork shortly.”4 However, it is undisputed
that Huinker never delivered the TREC form to Nanda. Huinker later indicates he does
not assent to the terms of the TREC form when he e-mails, “I am not ready to sign a
contract at this time[,]” and “I wish you well in your business endeavors, but do not wish
to continue negotiating with you at this time.” We conclude as a matter of law that absent
delivery of the TREC form to Nanda, there exists no written memorandum showing
Huinker’s assent to the agreement. See Sonnichsen, 221 S.W.3d at 635 (holding there
was no mutual agreement where employer prepared and signed draft of employment
contract, but never delivered it to employee); Biko v. Siemens Corp., 246 S.W.3d 148,
161 (Tex. App.—Dallas 2007, pet. denied) (holding revised contract did not satisfy statute
of frauds where it was never signed by the party to be charged or delivered to party
seeking to enforce the contract); Baccus v. Plains Cotton Co-op. Ass’n, 515 S.W.2d 401,
402 (Tex. Civ. App—Amarillo 1974, no writ) (explaining that although a party admitted to
signing an instrument, his “verified denial of delivery constituted a denial of the very
existence of a contract performable by him, for until there has been a delivery, either
4 While an electronic signature may be sufficient to satisfy the statute of frauds, we note that Huinker’s e-mail stating “Ok, I’ll get you the paperwork shortly[,]” was not signed by Huinker, electronically or otherwise. See TEX. BUS. & COM. CODE ANN. §§ 322.005(b), 322.007(d) (West, Westlaw through Ch. 46 2015 R.S.). Huinker did not sign the e-mail using his name, nor did the e-mail include his signature block. Therefore, the unsigned e-mail does not meet the statute of frauds’ requirement of a written memorandum signed by the party to be charged. See Cunningham v. Zurich American Ins. Co., 352 S.W.3d 519, 530 (Tex. App.—Fort Worth 2011, pet. denied) (concluding that unsigned e-mail did not meet the requirements of a signed writing for purposes of Texas Rule of Civil Procedure 11). 7 actual or constructive, a contract is not effected”); see also W. Tex. Hospitality, Inc. v.
Enercon Int’l, Inc., No. 07-09-0213-CV, 2010 WL 3417845, at *5 (Tex. App.—Amarillo
Aug. 31, 2010, no pet.) (mem. op.) (holding contract was unenforceable because of
corporation's failure to sign and deliver original agreement as explicitly required in
agreement).
Nanda relies primarily on Central Power and Light Company v. Del Mar
Conversation District to support his argument that a document signed, but not delivered,
is sufficient to satisfy the statute of frauds. 594 S.W.2d 782, 789 (Tex. Civ. App.—San
Antonio 1980, writ ref'd n.r.e.). In that case, the court determined a collection of written
letters satisfied the statute of frauds when they were signed by the party to be charged
and delivered to others, including the party seeking to enforce the agreement. Id. 786–
88. The documents clearly confirmed an agreement which the parties had both honored
for seventeen years. Id. In contrast, the TREC form prepared by Nanda and sent to
Huinker was never returned but kept in Huinker’s sole possession. Furthermore, Huinker
received the TREC form while negotiations were on-going. He never assented to its
terms, and expressly informed Nanda that he did not wish to continue negotiating with
him. The remaining cases relied on by Nanda are similarly distinguishable, in that in
each case the statute of frauds was satisfied through the delivery or exchange of written
documents indicating the parties’ assent to the contract. See Adams v. Abbott, 151 Tex.
601, 603–04, 254 S.W.2d 78, 79 (1952) (holding statute of frauds was satisfied where a
contract to sell certain property was established through a series of letters between the
buyer’s agent and the seller, which contained a clear offer, counteroffer, and unqualified
8 acceptance); Simpson v. Green, 231 S.W. 375, 377–78 (Tex. Comm’n App. 1921,
judgment adopted) (concluding that deed delivered in escrow contained recitals sufficient
to meet the requirements of the statute of frauds when it was deposited under a mutual
agreement between the vendor and vendee pursuant to a prior verbal contract of sale).
Absent a written memorandum establishing Huinker’s assent to the contract, the statute
of frauds is not satisfied.
Nanda also argues in a footnote that deemed admissions establish the existence
of a contract. The record reflects that summary judgment was entered on Huinker’s
statute of frauds defense prior to the deadline to respond to Nanda’s request for
admissions. Following entry of partial summary judgment, the parties’ counsel agreed
by e-mail correspondence that it was not necessary to respond to the outstanding
discovery requests.5 The e-mail correspondence was filed with the trial court as required
by Rule 11 of the Texas Rules of Civil Procedure. See Tex. R. Civ. P. 11. Where parties
have entered into a Rule 11 agreement respecting pre-trial deadlines, courts view them
as controlling. See State v. Bristol Hotel Asset Co., 65 S.W.3d 638, 651-52 (Tex. 2002)
(holding that Rule 11 agreement setting discovery deadline was valid and enforceable
where State did not repudiate or object to agreement in trial court). Assuming arguendo,
that Huinker’s failure to respond to discovery resulted in deemed admissions, the
evidence was not properly before the trial court, because it was not part of the summary
judgment record. See Wales v. Williford, 745 S.W.2d 455, 457 (Tex. App.—Beaumont
5 Huinker’s Counsel e-mailed: “I presume you agree that the discovery which is due you Monday
is now moot, and that we do not need to respond?” Nanda’s counsel responded: “Agreed. If the Court reconsiders its ruling we can talk about a reasonable response period at that time.” The attorneys signed the respective e-mails electronically. 9 1988, writ denied) (stating trial court is not authorized to hear or receive oral or written
evidence or give consideration to material not before it in record in summary judgment
proceeding). The scope of our summary-judgment review is restricted to the evidence
properly before the trial court at the time of the hearing on the motion. See TEX. R. CIV.
P. 166a(c).
We overrule Nanda’s first point.
III. DISCOVERY AND EVIDENCE
By his second issue, Nanda argues “the trial court committed harmful error in
refusing discovery and evidence.” By two sub-issues, Nanda maintains: (1) the trial
court abused its discretion when it refused to grant a continuance prior to granting
summary judgment, because the ruling deprived him “of any time for discovery[;]” and (2)
the trial court erred in sustaining Huinker’s objections to evidence concerning the real
estate agreement at the hearing on attorney’s fees.
A. Continuance
1. Standard of Review and Applicable Law
Rule 166a(a) permits a party to file a traditional motion for summary judgment “at
any time after the adverse party has appeared or answered.” TEX .R. CIV. P. 166a(a), (i);
Reynolds v. Murphy, 188 S.W.3d 252, 258 n. 8 (Tex. App.—Fort Worth 2006, pet. denied).
When a party contends that it has not had an adequate opportunity for discovery before
a summary judgment hearing, it must file either an affidavit explaining the need for further
discovery or a verified motion for continuance. Tenneco Inc. v. Enter. Products Co., 925
S.W.2d 640, 647 (Tex. 1996) (citing TEX. R. CIV. P. 166a(g)). The movant must show
10 why the continuance is necessary; conclusory allegations are not sufficient. Carter v.
MacFadyen, 93 S.W.3d 307, 310 (Tex. App.—Houston [14th Dist.] 2002, pet. denied)
(citing Nat'l Union Fire Ins. Co. of Pittsburgh, Pa. v. CBI Indus., Inc., 907 S.W.2d 517,
520–22 (Tex. 1995)); see TEX. R. CIV. P. 252. A party seeking more time to oppose a
summary judgment motion must describe the evidence sought, explain its materiality, and
show the diligence used to obtain the evidence. Joe v. Two Thirty Nine Joint Venture,
145 S.W.3d 150, 161 (Tex. 2004). When considering a continuance request, a trial court
can presume that a plaintiff has investigated its case prior to filing the petition. Dallas
Indep. Sch. Dist. v. Finlan, 27 S.W.3d 220, 234–35 (Tex. App.—Dallas 2000 pet. denied);
White v. Mellon Mortgage Co., 995 S.W.2d 795, 803 (Tex. App.—Tyler 1999 no pet.);
McAllister v. Samuels, 857 S.W.2d 768, 773 (Tex. App.—Houston [14th Dist.] 1993, no
writ).
We review a trial court's order denying a motion for continuance under an abuse
of discretion standard. Joe, 145 S.W.3d at 161. 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. When deciding whether a trial court abused its discretion in denying a
motion for continuance seeking additional time to conduct discovery, we consider 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. It is generally not an abuse of discretion to deny a
motion for continuance if the party moving for a continuance has received 21 days' notice
11 of the hearing as required by Rule 166a(c). Carter, 93 S.W.3d at 310; see TEX. R. CIV.
2. Analysis
In his brief, Nanda fails to identify the evidence sought or explain its materiality.
Nanda simply argues that “by depriving [him] of any time for discovery, the trial court
committed reversible error.” Rule 38.1(i) requires appellate briefs to “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). “Bare assertions of error without argument or
authority waive error.” In re J.A.M.R., 303 S.W.3d 422, 425 (Tex. App.—Dallas 2010, no
pet.). “We have no duty to perform an independent review of the record and applicable
law to determine whether there was error.” Arellano v. Magana, 315 S.W.3d 576, 577
(Tex. App.—El Paso 2010, no pet.). By failing to adequately brief this issue, Nanda has
waived his complaints. See Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d
279, 284 (Tex. 1994) (noting long-standing rule that point may be waived due to
inadequate briefing)
Even if we were to consider Nanda’s complaint, we note that Nanda’s motion for
continuance also failed to adequately identify the needed discovery or explain how it
would be material to the statute of frauds defense. Instead, Nanda’s motion generally
asserts that he “would be severely prejudiced without opportunity to present full picture
of the facts, communications, and documents to the [trial court,]” and that the requested
discovery is “crucial to the prosecution of this case[.]” Nanda’s motion further states that
he is entitled to discovery concerning Huinker’s “course of dealing and intent,” and his
12 communications with others “to provide a fair picture of the parties’ intent of the
agreement.” Nanda does not adequately explain how evidence concerning the parties’
course of dealing and intent would aid in responding to the statute of frauds issue.6
A party cannot simply complain that additional discovery is required and describe
in a conclusory fashion the additional discovery he believes is needed; the party must
also explain the substance of the requested discovery and how the discovery would aid
him in responding to the summary judgment motion. See Retzlaff v. Mendieta–Morales,
356 S.W.3d 676, 681 (Tex. App.—El Paso 2011, no pet.) (holding that appellant was not
entitled to continuance where appellant failed to identify the needed discovery or its
materiality); Brown v. Brown, 145 S.W.3d 745, 749 (Tex. App.—Dallas 2004, pet. denied)
(affirming denial of request for continuance where appellant failed to explain need for
further discovery); Martinez v. Flores, 865 S.W.2d 194, 197–98 (Tex. App.—Corpus
Christi 1993, writ denied) (determining that request for more time “to complete discovery”
was not sufficient). We overrule this sub-issue.
B. Evidentiary Ruling
Nanda further argues the trial court abused its discretion in ruling at the hearing on
attorney’s fees “that questions about the contract were ‘irrelevant.’” Following the trial
court’s summary judgment ruling, the matter was set for a final hearing on attorney’s fees.
During the hearing, Nanda cross-examined Huinker’s counsel concerning the existence
6 We note that Nanda argued the promissory estoppel exception to the statute of frauds in his summary judgment response, while also making reference to the argument in his motion for continuance. See Nagle v. Nagle, 633 S.W.2d 796, 799 (Tex. 1982) (noting that promissory estoppel is an exception to the statute of frauds). However, Nanda has not raised a promissory estoppel argument on appeal; therefore, the issue is waived. See Valadez v. Avitia, 238 S.W.3d 843, 845 (Tex. App.—El Paso 2007, no pet.) (“In the review of a civil case, appellate court has no discretion to consider issue not raised in appellant's brief[.]”). 13 of the signed contract. The trial court thereafter sustained Huinker’s relevancy objection
to the question.
We review the trial court's evidentiary rulings for abuse of discretion. Rhey v.
Redic, 408 S.W.3d 440, 457 (Tex. App.—El Paso 2013, no pet.). We may only reverse
a judgment based on an erroneous evidentiary ruling “if the error was harmful, i.e., it
probably resulted in an improper judgment.” Id.; see TEX. R. APP. P. 44.1. “Relevant
evidence” means evidence having any tendency to make the existence of any fact that is
of consequence to the determination of the action more or less probable than it would be
without the evidence. See TEX. R. EVID. 401. “If there is some logical connection either
directly or by inference between the evidence and a fact to be proved, the evidence is
relevant.” PPC Transp. v. Metcalf, 254 S.W.3d 636, 642 (Tex. App.—Tyler 2008, no
pet.).
As we note above, the fact that Huinker signed the contract was not disputed and
was not relevant to the trial court’s ruling on summary judgment. Even if the issue of
Huinker’s signature was disputed and relevant to the trial court’s summary judgment
ruling, it would have no relevance to the trial court’s consideration of Huinker’s claim for
attorney’s fees. Huinker’s claim for attorney’s fees was brought pursuant to the
Declaratory Judgment Act, which requires that any fees awarded be reasonable and
necessary, and that fees be equitable and just. TEX. CIV. PRAC. & REM. CODE ANN. §
37.009 (West, Westlaw through Ch. 46 2015 R.S.); Mandell v. Mandell, 214 S.W.3d 682,
690 (Tex. App.—Houston [14th Dist.] 2007, no pet.). Therefore, questions concerning
14 Huinker’s signature had no logical connection to the trial court’s consideration of
attorney’s fees.
C. Summary
We conclude that Nanda waived his complaint concerning the denial of his motion
for continuance, and that the trial court did not abuse its discretion in sustaining Huinker’s
relevancy objection. We overrule Nanda’s second issue.
IV. MOTION FOR NEW TRIAL
By his third issue, Nanda argues the trial court abused its discretion by failing to
grant a new trial. Nanda’s argument relies on statements made by Huinker’s counsel to
the trial court following the entry of summary judgment. While Nanda’s argument
primarily restates points one and two, we will address whether he was entitled to a new
trial based on newly discovered evidence.
A. Standard of Review and Applicable Law
A party seeking a new trial based on newly discovered evidence must show the
trial court: (1) the party did not discover the evidence until after trial; (2) the failure to
discover the evidence was not due to lack of diligence; (3) the evidence is not cumulative
or merely for impeachment; and (4) the evidence is so material that it would probably
produce a different result if a new trial were granted. See Jackson v. Van Winkle, 660
S.W.2d 807, 809 (Tex. 1983), overruled on other grounds by Moritz v. Preiss, 121 S.W.3d
715, 720–21 (Tex. 2003). We review a trial court's disposition of a motion for new trial
for abuse of discretion. Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922, 926 (Tex.
2009).
15 B. Analysis
Nanda’s motion for new trial relies on a statement made by Huinker’s counsel at
the hearing on attorney fees that Huinker signed the TREC form but decided not to deliver
it to Nanda. Nanda describes this “judicial admission” as “new evidence” warranting a
new trial. However, as discussed above, evidence that Huinker signed the contract was
already before the trial court by way of Huinker’s summary judgment affidavit in which he
acknowledges he signed, but did not deliver, the TREC form. Therefore, the evidence is
cumulative of other evidence. Furthermore, the evidence would not have produced a
different result if a new trial were granted. The trial court considered evidence that the
contract was signed, but ruled that this fact was “irrelevant” to its ruling. We conclude
Nanda was not entitled to a new trial on the basis of newly discovered evidence.
Finally, we note that the remainder of Nanda’s argument under this issue simply
restates his contentions under issues one and two—the admission of a signed contract
precludes summary judgment, and he was denied an opportunity for adequate discovery.
Having already resolved those issues against Nanda, we overrule his third issue.
V. CONCLUSION
The judgment of the trial court is affirmed.
GREGORY T. PERKES Justice Delivered and filed the 24th day of September, 2015.