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Date: 12-21-2017

Case Style: Wayne M. English and James D. Colling v. Costa Bajjali

Case Number: 01-17-00093-CV

Judge: Laura Carter Higley

Court: Texas Court of Appeals, First District on appeal from the 165th District, Harris County

Plaintiff's Attorney: Wayne M. English and James D. Colling

Defendant's Attorney: Simon Hughes

Description: Wayne M. English and James D. Colling sued Costa Bajjali, alleging damages from an investment with one of Bajjali’s businesses. Bajjali filed a no-evidence motion for summary judgment. The trial court granted the motion. In six issues, English and Colling argue that (1) the trial court erred by granting summary
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judgment because there had been inadequate time for discovery; and (2) the trial court erred by striking portions of English and Colling’s summary judgment evidence.
We affirm.
Background
English and Colling each into entered into a limited partnership agreement in the Wallace Bajjali Investment Fund II, LP (“the Limited Partnership”). The Limited Partnership was formed in 2006 for the purposes of purchasing, developing, and selling real estate. Pursuant to the partnership agreement, English and Colling each invested $100,000 in the Limited Partnership in or around 2007. Bajjali, a licensed real estate broker, was a corporate officer of WBIF II GP, LLC, f/k/a Perry Properties Investments, LLC (“the General Partner”), which was the general partner of the Limited Partnership. The Limited Partnership and the General Partner both filed for bankruptcy in 2015.
English and Colling filed suit against Bajjali in 2016, alleging that various acts and omissions by Bajjali led to the “elimination of [their] investment[s].” In the suit, English and Colling alleged: (1) “Violations of the Texas Real Estate License Act sections 1101.602, 1101.652(b), 1101.653(1)-(4)”; (2) breach of contract; (3) fraud (fraud in the inducement, fraud by misrepresentation, and fraud by nondisclosure); and (4) breach of fiduciary duty (“Breach of Fiduciary Duties,
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Breach of Duty of Good Faith and Fair Dealing, and Defalcation”). On September 12, 2016, Bajjali filed a no-evidence motion for summary judgment, which was set for submission on October 3, 2016, the last day for consideration of dispositive motions under the docket control order.
English and Colling filed a response to Bajjali’s motion for summary judgment on September 23, 2016, in which they stated, “There has not been adequate time for discovery”; Bajjali’s trial counsel’s “actions and unresponsiveness has [sic] cause [sic] delays in Plaintiffs [sic] discovery”; and “Plaintiffs should be entitled to complete their discovery, file their Motion to Compel and initiate subpoenas.” In the following paragraph, English and Colling asserted that they had “volumes of documents, evidence . . . to support each and every allegation in their complaint.” English and Colling attached two written statements, both titled “Affidavit,” to the response. The statements asserted, in part, “We have served Bajjali with Interrogatories and Production Request [sic] which [sic] he has refused to comply,” as support for their claim that Bajjali “violat[ed] the Texas Real Estate Act.” On September 29, Bajjali filed a reply in support of his summary judgment motion, along with his objections to English and Colling’s summary-judgment evidence.
On October 5, 2016, two days after the submission date, English and Colling filed a response to Bajjali’s objections and an amended response to Bajjali’s summary judgment motion. English and Colling attached additional summary-
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judgment evidence to their amended response without requesting or obtaining leave to do so. On November 1, 2016, the trial court sustained several of Bajjali’s objections to the summary judgment evidence attached to English and Colling’s original response to the summary judgment motion and rendered a summary judgment in favor of Bajjali on all of English and Colling’s causes of action. This appeal followed.
Adequate Time for Discovery
In their first issue, English and Colling allege that the trial court erred by granting summary judgment in favor of Bajjali because there had been inadequate time for discovery.
A. Standard of Review
After an adequate time for discovery, the party without the burden of proof may move for a no-evidence summary judgment on the basis that there is no evidence to support an essential element of the non-moving party’s claim. TEX. R. CIV. P. 166a(i); see Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex. 2008). We review a trial court’s determination that an adequate time for discovery has passed for an abuse of discretion. Specialty Retailers, Inc. v. Fuqua, 29 S.W.3d 140, 145 (Tex. App.—Houston [14th Dist.] 2000, pet. denied).
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B. Analysis
English and Colling contend that the trial court erred by ruling on Bajjali’s no-evidence summary judgment motion before an adequate time for discovery had passed. English and Colling argue that there was inadequate time for discovery because the trial court granted summary judgment on November 1, 2016, four days before the November 5 discovery deadline set by the docket control order.
“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 (Notes & Comments 1997). A party contending that it has not had adequate time for discovery before a summary judgment hearing must file either an affidavit explaining the need for further discovery or a verified motion for continuance. See Tenneco, Inc. v. Enterprise Prods. Co., 925 S.W.2d 640, 647 (Tex. 1996); TEX. R. CIV. P. 251, 252. “The affidavit or motion must describe the evidence sought, state with particularity the diligence used to obtain the evidence, and explain why the continuance is necessary.” West v. SMG, 318 S.W.3d 430, 443 (Tex. App.—Houston [1st Dist.] 2010, no pet.).
Here, English and Colling asserted in their response that “[t]here has not been adequate time for discovery”; that Bajjali’s counsel’s “actions and unresponsiveness has [sic] cause [sic] delays in Plaintiffs [sic] discovery”; and that “Plaintiffs should
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be entitled to complete their discovery, file their Motion to Compel and initiate subpoenas.” In the following paragraph, however, English and Colling asserted that they had “volumes of documents, evidence . . . to support each and every allegation in their complaint.” English and Colling’s response to Bajjali’s summary judgment motion, therefore, did not adequately explain the need for further discovery, nor did it state what evidence English and Colling sought. See id. The written statements attached to the response were similarly ineffective to request a continuance or additional time for discovery, stating only, “We have served Bajjali with Interrogatories and Production Request [sic] which [sic] he has refused to comply.” Neither statement addresses the specific evidence sought nor why a continuance was necessary. Id.
Because they did not file an affidavit explaining the need for further discovery or a verified motion for continuance, English and Colling cannot show that the trial court abused its discretion by ruling on the motion for summary judgment. Dishner v. Huitt-Zollars, Inc., 162 S.W.3d 370, 377 (Tex. App.—Dallas 2005, no pet.). Under these circumstances, we hold that the trial court did not abuse its discretion in concluding that an adequate time for discovery had passed. See Jaimes v. Fiesta Mart, Inc., 21 S.W.3d 301, 304 (Tex. App.—Houston [1st Dist.] 1999, pet. denied) (rejecting issue of inadequate time for discovery when neither sworn motion nor affidavit explaining need was filed).
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We overrule English and Colling’s first issue.
Summary Judgment Evidence
In their five remaining issues, English and Colling argue that the trial court erred in excluding evidence attached to their amended response to Bajjali’s motion for summary judgment. In our review of summary judgment, we must determine whether issues raised on appeal were “actually presented to and considered by the trial judge.” City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 677 (Tex. 1979). We are not “free to search . . . materials not cited to or relied on by the trial court.” Blake v. Intco Invs. of Tex., Inc., 123 S.W.3d 521, 525 (Tex. App.—San Antonio 2003, no pet.) (citing City of Houston, 589 S.W.2d at 678; Nicholson v. Naficy, 747 S.W.2d 3, 4 n.1 (Tex. App.—Houston [1st Dist.] 1987, no writ)).
Summary judgment evidence may be filed late, but only with leave of court. TEX. R. CIV. P. 166a(c). “It is well-established . . . that unless there is a basis in the record to conclude that untimely material was filed with leave of court, we presume that the trial court did not consider it.” Envtl. Procedures, Inc. v. Guidry, 282 S.W.3d 602, 612 (Tex. App.—Houston [14th Dist.] 2009, pet. denied); see also INA of Tex. v. Bryant, 686 S.W.2d 614, 615 (Tex. 1985) (holding, where nothing appears of record to indicate that late filing of summary judgment response was with leave of court, it is presumed that trial court did not consider the response).
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English and Colling argue that the trial court erred in excluding evidence attached to their amended response to Bajjali’s summary judgment motion. There is no indication in the record, however, that English and Colling’s amended response or attached evidence was ever properly before the trial court. Their amended response was filed on October 5, two days after the October 3 submission date. English and Colling did not request leave to amend. See TEX. R. CIV. P. 166a(c) (“Except on leave of court, the adverse party, not later than seven days prior to the day of hearing may file and serve opposing affidavits or other written response.”).
Because the record does not indicate that English and Colling requested, or obtained, leave to late-file the amended response, “we presume that the trial court considered only [their] initial response to the motions for summary judgment.” Frankoff v. Norman, 448 S.W.3d 75, 82 (Tex. App.—Houston [14th Dist.] 2014, no pet.); see also INA of Tex., 686 S.W.2d at 615; Envtl. Procedures, 282 S.W.3d at 612. Because English and Colling’s amended response was not timely, the evidence attached to it was not before the trial court for consideration. Envtl. Procedures, 282 S.W.3d at 612; see also Dow v. Steward, No. 01-13-00806-CV, 2015 WL 162108, at *5 (Tex. App.—Houston [1st Dist.] Jan. 13, 2015, no pet.) (mem. op.) (“Because Dow did not obtain permission to late-file his evidence, the evidence was not properly before the trial court, and the trial court did not err in refusing to consider
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the evidence.”) (citing Benchmark Bank v. Crowder, 919 S.W.2d 657, 663 (Tex. 1996)).
We overrule English and Colling’s second through sixth issues.

Outcome: We affirm the judgment of the trial court.

Plaintiff's Experts:

Defendant's Experts:

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