AFFIRM; and Opinion Filed March 5, 2014.




                                          S   In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-12-01735-CV

                  JUANITA J. GAROFALO, Appellant
                                V.
    CHANDLER MANAGEMENT D/B/A MCCALLUM CROSSING APARTMENTS,
                              Appellee

                       On Appeal from the County Court at Law No. 5
                                   Collin County, Texas
                           Trial Court Cause No. 05-01979-2012

                              MEMORANDUM OPINION
                         Before Justices Francis, Lang-Miers, and Lewis
                                 Opinion by Justice Lang-Miers
       Juanita J. Garofalo, pro se below and on appeal, appeals from the trial court’s take-

nothing judgment against her and awarding Chandler Management d/b/a McCallum Crossing

Apartments its attorney’s fees. The parties are familiar with the facts of this case and we limit

our recitation of the facts to those necessary for resolution of the appeal. Because the issues are

settled, we issue this memorandum opinion. TEX. R. APP. P. 47.4. We affirm the trial court’s

judgment.

       Garofalo filed a lawsuit in small claims court against Chandler, her landlord, alleging

discrimination, harassment, threatening behavior, misrepresentation, breach of contract, and

threatening the rights of comfort, health, and safety of herself and her child. In a separate action,

Chandler sought to evict Garofalo for nonpayment of rent, after which Garofalo amended her
lawsuit to add claims for intentional infliction of mental and emotional distress and unlawful

retaliation. After a bench trial on Garofalo’s claims, the justice court granted a take-nothing

judgment against her and awarded attorney’s fees to Chandler.

         Garofalo appealed to the county court at law. Chandler filed a no-evidence motion for

partial summary judgment asserting that Garofalo had no evidence to support specific elements

of her breach of contract and fraud claims. See TEX. R. CIV. P. 166a(i). The motion also stated

“there is no evidence as to every element on any of the claims asserted by Plaintiff in Plaintiff’s

Original Petition and/or as subsequently amended.” Chandler notified Garofalo of the date the

trial court would hear the motion “by submission (no oral argument),” and Garofalo filed a

motion, titled “Motion to Repeal Judgement on Defendants No-Evidence Motion for Partial

Summary Judgement,” in which she asked the trial court to remove the setting from the court’s

docket. She said the court had granted her an extension in which to respond to Chandler’s

discovery requests, and, as a result, the summary judgment motion was “not applicable at this

time.”

         Meanwhile, Garofalo did not file a response to the summary judgment motion, and the

trial court considered the motion as scheduled. The court signed an interlocutory order granting

Chandler’s summary judgment motion and denying Garofalo’s “Motion to Repeal.” The sole

remaining issue was Chandler’s request for attorney’s fees. A few months later, the court

rendered a final take-nothing judgment against Garofalo and awarded Chandler attorney’s fees,

interest, and court costs.

         On appeal to this Court, Garofalo argues that the final judgment is erroneous and prays

that we will render a take-nothing judgment against Chandler. She complains that the summary

judgment motion should not have been considered at all because the court granted her an

extension in which to file responses to Chandler’s discovery requests. Chandler states that

                                               –2–
Garofalo’s “Motion to Repeal” is more like a motion for continuance of the summary judgment

setting and argues that the motion did not satisfy the requirements of a motion for continuance.

Garofalo argues in reply that her “Motion to Repeal” was not a motion for continuance and

should be construed only as a request to remove the summary judgment setting from the trial

court’s docket.

          A trial court has broad discretion to manage and control its docket, and the complainant

must show that the court clearly abused its discretion. Thomas v. Clayton, No. 04-10-00188-CV,

2010 WL 3505141, at *1 (Tex. App.—San Antonio Sep. 8, 2010, no pet.) (mem. op.) (citing

Clanton v. Clark, 639 S.W.2d 929, 931 (Tex. 1982)). A trial court abuses its discretion when it

acts arbitrarily or unreasonably, without reference to guiding rules or principles. Id. (citing

Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985)).

          The record here shows that at the time the trial court considered the summary judgment

motion, all responses to discovery had been served at least two weeks before and there were no

discovery requests pending. 1 The record also shows that at the time of the hearing Garofalo had

not filed a response to the summary judgment motion. See TEX. R. CIV. P. 166a(i). And

although she had asked the court to remove the setting from its docket, she stated as her reason

that the motion was “not applicable at this time.” She did not ask for additional time in which to

respond to the motion or state that she had inadequate time for discovery. See TEX. R. CIV. P.

166a(g), (i) & cmt. 1997. We conclude that Garofalo has not shown that the trial court clearly

abused its discretion by refusing to remove the summary judgment setting from its docket solely

because the court had granted Garofalo an extension in which to file her discovery responses.




     1
        The record shows that Garofalo filed her “First Set of Discovery Requests” a second time about three weeks before the scheduled setting
on the summary judgment motion, but those requests were duplicates of her initial discovery requests.



                                                                    –3–
           Rule 166a(i) “requires the nonmoving party to present evidence raising a genuine issue of

material fact supporting each element contested in the motion.” 2 Timpte Indus., Inc. v. Gish, 286

S.W.3d 306, 310 (Tex. 2009). If the nonmovant fails to satisfy its burden, the trial court “must

grant the motion[.]” TEX. R. CIV. P. 166a(i). Because Garofalo did not file a response to

Chandler’s no-evidence summary judgment motion, we conclude that the trial court did not err

by granting the motion. See id.; see also P-K Charter, Inc. v. Tumche Corp., No. 2-06-350-CV,

2007 WL 3037743, at *2–3 (Tex. App.—Fort Worth Oct. 18, 2007, no pet.) (mem. op.).

           We affirm the trial court’s judgment.




                                                                          /Elizabeth Lang-Miers/
                                                                          ELIZABETH LANG-MIERS
                                                                          JUSTICE



121735F.P05




           2
              We note that Chandler’s summary judgment motion identified specific elements of Garofalo’s breach of contract and fraud claims
for which it contended there was no evidence, but it did not identify any specific elements for which it contended there was no evidence on her
other claims. See TEX. R. CIV. P. 166a(i) & cmt. 1997. However, Garofalo does not complain about the sufficiency of Chandler’s motion.




                                                                    –4–
                                         S
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                        JUDGMENT

JUANITA J. GAROFALO, Appellant                        On Appeal from the County Court at Law
                                                      No. 5, Collin County, Texas
No. 05-12-01735-CV          V.                        Trial Court Cause No. 05-01979-2012.
                                                      Opinion delivered by Justice Lang-Miers,
CHANDLER MANAGEMENT D/B/A                             Justices Francis and Lewis participating.
MCCALLUM CROSSING
APARTMENTS, Appellee

      In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
      It is ORDERED that appellee Chandler Management d/b/a McCallum Crossing
Apartments recover its costs of this appeal from appellant Juanita J. Garofalo.


Judgment entered this 5th day of March, 2014.




                                                      /Elizabeth Lang-Miers/
                                                      ELIZABETH LANG-MIERS
                                                      JUSTICE




                                                –5–
