Opinion issued May 7, 2013




                                   In The

                             Court of Appeals
                                  For The

                        First District of Texas
                         ————————————
                             NO. 01-12-00159-CV
                         ———————————
                    DONALD E. SPENCER, Appellant
                                     V.
  GC SERVICES LIMITED PARTNERSHIP AND ROSS, BANKS, MAY,
                CRON & CAVIN, P.C., Appellees



                  On Appeal from the 270th District Court
                           Harris County, Texas
                     Trial Court Case No. 2010-83448



                       MEMORANDUM OPINION

     Donald Spencer sued Ross, Banks, May, Cron & Cavin, P.C. (“Ross

Banks”) and GC Services Limited Partnership (“GC Services”) after the United
States Department of Education (“the Department”) denied Spencer’s hardship

application concerning repayment of his federal student loans and issued a writ of

garnishment directed to Ross Banks, his former employer. Spencer asserted causes

of action for negligence, gross negligence, fraud, negligent misrepresentation,

retaliation, discrimination, and intentional infliction of emotional distress against

Ross Banks and a cause of action for fraud against GC Services. Both Ross Banks

and GC Services moved for summary judgment, and the trial court rendered

summary judgment in favor of both defendants. In two issues, Spencer contends

that the trial court erred (1) in granting Ross Banks’s no-evidence motion for

summary judgment because Ross Banks filed its motion before an adequate time

for discovery had passed and (2) in granting GC Services’ motion for summary

judgment because he presented evidence raising material fact issues on his fraud

claim.

         We affirm.

                                   Background

         Spencer worked as a legal assistant at Ross Banks from March 2002 until

July 2009. Spencer had approximately $21,000 in outstanding federal student loan

debt, but the Department had granted him a financial hardship deferment for 2004

through 2006. On January 10, 2008, the Department issued a wage garnishment

order to Ross Banks, directing it to withhold 15% of Spencer’s disposable income

                                         2
and pay that amount to the Department to satisfy Spencer’s student loan debt.

Spencer requested a hearing on this decision, arguing that he qualified for the

hardship deferment, but the Department hearing officer upheld the original

determination.

      Spencer then sued both Ross Banks and GC Services, a company that

contracts with the Department to assist in the collection of student-loan debt, on

December 28, 2010.1 Spencer alleged that Ross Banks, “knowing that Spencer

disputed the garnishment and had qualified for hardship on two previous attempts

to garnish, continued to take disciplinary action in the form of garnishing wrong

amounts beginning in February 2008 through July 2009.” Spencer also alleged

that GC Services “intentionally failed to put Spencer’s proof of income before the

hearing officer of [the Department] and therefore received the Wage Garnishment

Order that was given and wrongly implemented by Ross Banks” and “continued to

fraudulently sabotage Spencer’s appeal process in not directing proof of income

and expenses to the appeal officer as required in a hardship application.”

      Spencer asserted causes of action for negligence, gross negligence, fraud,

retaliation, discrimination, negligent misrepresentation, and intentional infliction of

emotional distress. With respect to his fraud claim, Spencer alleged that “[t]he


1
      Spencer later amended his petition to add the Department as a defendant, but there
      is no indication in the record that citation was ever issued and served upon the
      Department.
                                          3
misrepresentations that Spencer relied upon involve believing that a hardship

would not involve the employer and therein the employer would not be burdened

with implementing a garnishment.” Spencer also alleged, with respect to his

negligent misrepresentation claim, that “GC [Services] represented to Spencer that

it would assist in Spencer’s hardship application on the garnishment issue.”

      Ross Banks answered on May 16, 2011. Ross Banks subsequently moved

for no-evidence summary judgment on August 30, 2011. In its summary judgment

motion, Ross Banks stated, “A Court may grant a no-evidence motion for summary

judgment if the Movants can show that adequate time for discovery had passed and

the Non-Movant has no evidence to support one or more essential elements of its

claim or defense. An adequate time for discovery has passed.” (Internal citations

omitted.) Ross Banks specifically identified each element of each of Spencer’s

asserted causes of action and stated that Spencer could not provide any evidence to

support any of these elements.

      Less than a month later, on September 21, 2011, Ross Banks moved for

protection from discovery, arguing that Spencer’s discovery requests were

harassing, overbroad, and not reasonably tailored to “include only relevant

matters.” Ross Banks requested that the trial court order Spencer to redraft his

discovery requests such that “only issues pertinent to this lawsuit are included in

the discovery requests.”

                                         4
      On September 29, 2011, Spencer filed a verified motion for continuance.

Spencer pointed out that the discovery period was scheduled to end on January 6,

2012, and Ross Banks had moved for no-evidence summary judgment on August

30, 2011, less than four months after it had answered. He stated that he “needs

time to conduct discovery” and that Ross Banks would not be prejudiced by a

continuance. He further stated, “With no discovery produced from the Defendant,

Plaintiff has requested discovery from the Defendant and Plaintiff needs additional

time to secure it.” Spencer requested that the trial court allow the discovery period

to continue and that it postpone a hearing on Ross Banks’s summary judgment

motion until the completion of discovery.

      The next day, on September 30, 2011, the trial court granted Ross Banks’s

motion for no-evidence summary judgment. The trial court subsequently granted

Ross Banks’s motion for protection on October 11, 2011.

      Spencer moved for a new trial and argued that the trial court erred in

granting summary judgment because the discovery period was still open when

Ross Banks filed its summary judgment motion, and Spencer had not yet served

his first set of discovery requests upon Ross Banks. He argued that Ross Banks

made no showing that the trial court should shorten the discovery period, nor did it

“show anything involving discovery time and adequacy.” The trial court denied

this motion.

                                         5
      On December 15, 2011, GC Services moved for both traditional and no-

evidence summary judgment. GC Services’ summary judgment evidence included

excerpts from Spencer’s deposition, the Department’s 2008 wage garnishment

order, the August 12, 2008 garnishment hearing decision, and an affidavit from

Denise Bolton, GC Services’ Area Manager of Garnishment.

      With respect to Spencer’s fraud claim, GC Services noted that this claim

“involves an allegation that GC Services promised [Spencer that] GC Services

would do something in the future.” Specifically, Spencer claimed in his deposition

that GC Services “made him believe” that it was going to “handle” his 2008

hardship application, and then GC Services “didn’t submit documents to the

Department of Education.” Thus, because this claim involved a promise to do a

future act, to be entitled to relief, Spencer had to prove that at the time GC Services

allegedly made this representation, it had no intention of “handling” Spencer’s

hardship application in the future. In support, GC Services argued,

      Plaintiff admits GC Services never told Plaintiff [that] GC Services
      knew at the time it allegedly represented it would handle his hardship
      application that it was not going to process Plaintiff’s application. In
      addition to not having any witness who will testify in support of
      Plaintiff’s claims, Plaintiff also admitted there are no documents
      Plaintiff claims support his subjective belief that GC Services had no
      intention of performing the promises Plaintiff claims GC Services
      promised.

GC Services also moved for no-evidence summary judgment, arguing that Spencer

could produce no evidence in support of any element of fraud.
                                          6
      In his deposition, Spencer acknowledged that he had no written evidence

from GC Services that he “sent [it] something that [it] did not send to the

Department of Education” and that he has not spoken to anyone at GC Services

who has told him that “anything other than everything [he] submitted to [it] was

submitted to the Department of Education, that is[,] that [it] withheld any

documentation.”    GC Services included, as summary judgment evidence, the

following deposition excerpt:

      [GC Services’ counsel]: Do you have any evidence in the form of
                              anything in writing or any person who
                              would testify that even if GC, as you claim,
                              negligently failed to turn things over to the
                              Department of Education that it went
                              beyond that, that when somebody told you
                              they were going to turn things over to the
                              Department of Education they knew at the
                              time they weren’t going to do it? That is
                              they committed a fraud?
      [Spencer]:                Not in so many words, no.

When later asked, “Do you have a document that you say shows that when

somebody told you they were going to turn over your documents they had no

intention of doing so?” Spencer responded, “No.” Spencer also acknowledged that

when he sent documents to GC Services to be passed along to the Department

hearing officer, he was also “sending [the relevant documents] to the Department

of Education directly.”



                                        7
      Denise Bolton averred that GC Services works with the Department on

student-loan accounts that the Department has determined are subject to

garnishment. When an account is subject to garnishment, GC Services notifies the

borrower that he must either enter repayment or apply for a hardship exception.

GC Services tells the borrower to submit “his completed application and financial

statement documents directly to” the Department, but if the borrower sends this

documentation to GC Services instead, “GC Services forwards the borrower’s

financial documents to the Department of Education when the borrower notifies

GC specifically that the borrower requests a rehearing or appeals the Department

of Education’s hearing officer’s decision.”     In those instances, GC Services

forwards the information to the assigned hearing officer “with a note instructing

the hearing officer to add the documents to the borrower’s file.” Bolton stated,

“There is no indication in GC Services’ account notes or file, as it relates to

Plaintiff’s defaulted student loan obligations, that shows GC Services failed to

forward any documents Plaintiff submitted to GC Services in order to appeal the

hearing officer’s decision on Plaintiff’s request for hardship status.” She further

averred that GC Services did not make any representations to Spencer that it was

working for him and that it did not make “any misrepresentations regarding GC

Services’ intent not to forward Plaintiff’s hardship documents” to the Department.




                                         8
      In response to GC Services’ summary judgment motion, Spencer attached

his own affidavit. He averred that GC Services notified him on July 13, 2006, that

it would be handling his hardship application. At a hearing on December 17, 2007,

his hardship application was denied, and although he had sent in “income

documentation” with his application, “[i]ncome documentation was missing from

evidence considered at the hearing.”         After he requested a rehearing of this

decision, he sent “5 letters to GC outlining hardship” and “none of [those] letters

and proof of income were considered in the [hearing officer’s] decision” to uphold

the original determination. Spencer also argued in his response that “GC’s fraud

was relied upon by Spencer in that Spencer sent 5 letters to GC in 2008. These

letters were crying out that Spencer was in hardship. Spencer knowing he is in

hardship relied upon the false misrepresentation by GC by continuing to send

letters to GC and [the Department].”

      Prior to the summary judgment hearing, Spencer non-suited all of his causes

of action against GC Services except the fraud claim. The trial court held a

hearing on GC Services’ motion and took the motion under advisement before

ultimately granting the motion.2 The summary judgment order did not specify the

grounds on which the court granted the motion. This appeal followed.


2
      In his brief, Spencer argues that, at this hearing, the trial court stated, “There are
      material fact issues that preclude summary judgment.” The record reflects that at
      the hearing, GC Services’ counsel stated at one point, “Who knows exactly what it
                                            9
                                Standard of Review

      We review de novo the trial court’s ruling on a summary judgment motion.

Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848

(Tex. 2009). When a party moves for both traditional and no-evidence summary

judgment, we first review the trial court’s ruling under the no-evidence standard of

review. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). If the trial

court properly granted the no-evidence motion, we do not consider the arguments

raised regarding the traditional summary judgment motion. Id.

      After an adequate time for discovery, a party may move for no-evidence

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

elements of a claim on which the adverse party bears the burden of proof at trial.

TEX. R. CIV. P. 166a(i); see Flameout Design & Fabrication, Inc. v. Pennzoil

Caspian Corp., 994 S.W.2d 830, 834 (Tex. App.—Houston [1st Dist.] 1999, no

pet.). The burden then shifts to the nonmovant to produce evidence raising a

genuine issue of material fact on the elements specified in the motion. TEX. R.

CIV. P. 166a(i); Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006).

The trial court must grant the motion unless the nonmovant presents more than a

scintilla of evidence raising a fact issue on the challenged elements. Flameout

Design & Fabrication, 994 S.W.2d at 834; see also Goodyear Tire & Rubber Co.

      is [the hearing officer] considered,” and the trial court responded, “[Well], when
      you start talking about [‘]who knows,[’] then you’re talking about fact issues.”
                                          10
v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007) (per curiam) (“An appellate court

reviewing a summary judgment must consider whether reasonable and fair-minded

jurors could differ in their conclusions in light of all of the evidence presented.”).

To determine if the nonmovant raises a fact issue, we review the evidence in the

light most favorable to the nonmovant, crediting favorable evidence if reasonable

jurors could do so, and disregarding contrary evidence unless reasonable jurors

could not. Fielding, 289 S.W.3d at 848 (citing City of Keller v. Wilson, 168

S.W.3d 802, 827 (Tex. 2005)). We indulge every reasonable inference and resolve

any doubts in the nonmovant’s favor. Sw. Elec. Power Co. v. Grant, 73 S.W.3d

211, 215 (Tex. 2001) (citing Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911

(Tex. 1997)).

      To prevail on a traditional summary judgment motion, the movant must

establish that no genuine issues of material fact exist and that it is entitled to

judgment as a matter of law. TEX. R. CIV. P. 166a(c); Little v. Tex. Dep’t of

Criminal Justice, 148 S.W.3d 374, 381 (Tex. 2004). When, as here, the trial

court’s summary judgment order does not state the basis for the court’s decision,

we must uphold the judgment if any of the theories advanced in the motion are

meritorious. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216

(Tex. 2003).




                                         11
                         Adequate Time for Discovery

      In his first issue, Spencer contends that the trial court erred in rendering

summary judgment in favor of Ross Banks because Ross Banks filed its no-

evidence summary judgment motion before the expiration of the discovery period.

We construe Spencer’s argument as complaining that the trial court erroneously

denied his verified motion for continuance and, thus, erroneously proceeded to rule

upon Ross Banks’s no-evidence summary judgment motion.

      Rule 166a(i) provides that a party may move for no-evidence summary

judgment “[a]fter adequate time for discovery.” TEX. R. CIV. P. 166a(i); Specialty

Retailers, Inc. v. Fuqua, 29 S.W.3d 140, 145 (Tex. App.—Houston [14th Dist.]

2000, pet. denied).   When a party contends that it has not had an adequate

opportunity for discovery before a summary judgment hearing, he must file either

an affidavit explaining the need for further discovery or a verified motion for

continuance. Tenneco Inc. v. Enter. Prods. Co., 925 S.W.2d 640, 647 (Tex. 1996).

Filing a verified motion for continuance preserves the party’s objection to the

summary judgment. See Tempay, Inc. v. TNT Concrete & Constr., Inc., 37 S.W.3d

517, 521 (Tex. App.—Austin 2001, pet. denied). An order granting a motion for

summary judgment impliedly denies the opposing party’s motion for continuance.

See West v. SMG, 318 S.W.3d 430, 436 (Tex. App.—Houston [1st Dist.] 2010, no

pet.); Williams v. Bank One, Tex., N.A., 15 S.W.3d 110, 114 (Tex. App.—Waco

                                        12
1999, no pet.) (“[W]e conclude that the trial court’s granting of Bank One’s

summary judgment creates an inference that the court implicitly overruled

Williams’s motion for continuance.”). We review questions of whether the trial

court erroneously denied a motion for continuance and of whether the trial court’s

rendition of summary judgment was improper because an adequate time of

discovery had not yet passed for an abuse of discretion. See Carter v. MacFadyen,

93 S.W.3d 307, 310–11 (Tex. App.—Houston [14th Dist.] 2002, pet. denied).

      Rule 166a(i) does not require that discovery be completed before a party

may move for no-evidence summary judgment; instead, the trial court may grant

such a motion after “adequate time” for discovery has passed. See Madison v.

Williamson, 241 S.W.3d 145, 155 (Tex. App.—Houston [1st Dist.] 2007, pet.

denied); In re Mohawk Rubber Co., 982 S.W.2d 494, 498 (Tex. App.—Texarkana

1998, orig. proceeding). When determining whether adequate time for discovery

has elapsed, we consider: (1) the nature of the cause of action; (2) the nature of the

evidence necessary to controvert the no-evidence motion; (3) the length of time the

case has been active in the trial court; (4) the amount of time the no-evidence

motion has been on file; (5) whether the movant has requested stricter time

deadlines for discovery; (6) the amount of discovery that has already taken place;

and (7) whether the discovery deadlines that are in place are specific or vague.

Madison, 241 S.W.3d at 155; Fuqua, 29 S.W.3d at 145 (citing Dickson Constr.,

                                         13
Inc. v. Fid. & Deposit Co. of Md., 5 S.W.3d 353, 356 (Tex. App.—Texarkana

1999, pet. denied)); see also Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d

150, 161 (Tex. 2004) (considering following nonexclusive factors when deciding

whether trial court abused its discretion in denying motion for continuance seeking

additional time to conduct discovery:       length of time case has been on file,

materiality and purpose of discovery sought, and whether party seeking

continuance has exercised due diligence to obtain discovery sought). When a party

moves for no-evidence summary judgment before the end of the specified

discovery period, “our principal task is to determine if [the] record provides

support for the trial court’s consideration of a no-evidence summary judgment

motion” before the end of the designated discovery period. McInnis v. Mallia, 261

S.W.3d 197, 200 (Tex. App.—Houston [14th Dist.] 2008, no pet.).

      In contending on appeal that the trial court erred in granting summary

judgment, Spencer states only that Ross Banks filed its no-evidence summary

judgment motion “long before the discovery period was complete” and that

“[t]here had not been adequate time for discovery.” Spencer does not address any

of the factors that courts consider when determining whether adequate time for

discovery has passed. 3 Spencer does not argue that his case is complex, nor does



3
      Spencer did not address these factors in his motion for continuance either.
      Instead, he stated that “[s]ome discovery has been completed,” that he “needs time
                                          14
he state what discovery was needed in order to controvert Ross Banks’s no-

evidence summary judgment motion.        He does not state what discovery had

already been conducted, nor does he identify the additional discovery yet to be

completed and why he could not obtain that discovery before submission of the

summary judgment motion. He does not argue or explain why the time that he did

have to conduct discovery was inadequate. We therefore conclude that Spencer

has failed to demonstrate that the trial court abused its discretion in implicitly

denying his motion for continuance and ruling on the merits of Ross Banks’s no-

evidence summary judgment motion.            See Madison, 241 S.W.3d at 155

(considering fact that appellant “made no effort to specify the additional evidence

she needed to respond to the motion, or the reason she could not obtain it during

the discovery period” when determining appellant had adequate time for

discovery); Robertson v. Sw. Bell Yellow Pages, Inc., 190 S.W.3d 899, 903 (Tex.

App.—Dallas 2006, no pet.) (“[A]ppellant has made no effort to discuss any of the

relevant factors. She does not state how much time she had for discovery, what

discovery was completed, what further discovery was needed or otherwise argue

why the time was not adequate. We will not make appellant’s arguments for

her.”); see also Baylor Coll. of Med. v. Camberg, 247 S.W.3d 342, 346 (Tex.



      to conduct discovery,” and that Ross Banks “will not be prejudiced by the
      continuance.”
                                        15
App.—Houston [14th Dist.] 2008, pet. denied) (“[T]he appellant bears the burden

to establish error in the trial court’s judgment.”).

      We overrule Spencer’s first issue.4

                                         Fraud

      In his second issue, Spencer contends that he presented evidence raising a

material fact issue with respect to his fraud claim against GC Services, and,

therefore, the trial court erroneously rendered summary judgment in favor of GC

Services. GC Services argues, in response, that we must affirm the summary

judgment because Spencer failed to attack all independent grounds presented in its

summary judgment motion. We agree with GC Services.

      As we noted above, when the trial court does not state the basis for its

decision in the summary judgment order, we must uphold the judgment if any of

the theories advanced in the summary judgment motion are meritorious. See

Knott, 128 S.W.3d at 216. Thus, on appeal, the appellant must negate all grounds

that support the judgment. See Leffler v. JP Morgan Chase Bank, N.A., 290

S.W.3d 384, 386 (Tex. App.—El Paso 2009, no pet.) (citing Star-Telegram, Inc. v.

4
      Spencer also contends, in his first issue, that Ross Banks violated Texas Rule of
      Civil Procedure 191.2 when it filed a discovery motion that did not include a
      certificate of conference.      See TEX. R. CIV. P. 191.2 (“All discovery
      motions . . . must contain a certificate by the party filing the motion . . . that a
      reasonable effort has been made to resolve the dispute without the necessity of
      court intervention and the effort failed.”). Spencer does not cite any authority for
      the proposition that failure to comply with Rule 191.2 provides a basis for
      reversing the rendition of summary judgment.
                                           16
Doe, 915 S.W.2d 471, 473 (Tex. 1995)). If the appellant does not negate each

ground on which the judgment may have been rendered, we must uphold the

summary judgment. See id. (citing Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.

1989)). “When a ground upon which summary judgment may have been rendered,

whether properly or improperly, is not challenged, the judgment must be

affirmed.” Id. (citing Holloway v. Starnes, 840 S.W.2d 14, 23 (Tex. App.—Dallas

1992, writ denied)); Britton v. Tex. Dep’t of Criminal Justice, 95 S.W.3d 676, 681

(Tex. App.—Houston [1st Dist.] 2002, no pet.) (“Generally speaking, an appellant

must attack all independent bases or grounds that fully support a complained-of

ruling or judgment. If an appellant does not, then we must affirm the ruling or

judgment.”).

      One of the grounds on which GC Services moved for both traditional and

no-evidence summary judgment was that Spencer could produce no evidence that

at the time GC Services allegedly told Spencer that it would “handle” his hardship

application, it did not intend to follow through and perform that promise.

      The elements of common-law fraud are:

      (1) that a material representation was made; (2) the representation was
      false; (3) when the representation was made, the speaker knew it was
      false or made it recklessly without any knowledge of the truth and as a
      positive assertion; (4) the speaker made the representation with the
      intent that the other party should act upon it; (5) the party acted in
      reliance on the representation; and (6) the party thereby suffered
      injury.

                                         17
Italian Cowboy Partners, Ltd. v. Prudential Ins. Co. of Am., 341 S.W.3d 323, 337

(Tex. 2011). When, as here, the representation at issue “involves a promise to do

an act in the future,” the plaintiff also has to prove that, at the time the defendant

made the promise, the defendant “had no intention of performing the act.” T.O.

Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 222 (Tex. 1992); see also

Formosa Plastics Corp. USA v. Presidio Eng’rs & Contractors, Inc., 960 S.W.2d

41, 48 (Tex. 1998) (“A promise of future performance constitutes an actionable

misrepresentation if the promise was made with no intention of performing at the

time it was made.”); Beal Bank, S.S.B. v. Schleider, 124 S.W.3d 640, 647 (Tex.

App.—Houston [14th Dist.] 2003, pet. denied) (“A future promise to

act . . . constitutes fraud only when made with the intent to deceive and with no

intention of performing the act.”).

      Here, the alleged misrepresentation by GC Services that Spencer relies upon

for his fraud cause of action is GC Services’ statement to Spencer that it would

“handle” his 2008 hardship application. This statement is a promise to perform a

future act; thus, to survive summary judgment, Spencer had to raise a genuine issue

of material fact on the question of whether, at the time it made that representation,

GC Services lacked the intent to perform that promise in the future. Spencer,

however, never presented any evidence to the trial court concerning this element of

his cause of action, nor did he make any argument for why the evidence that he did

                                         18
present constituted evidence of intent not to perform. Thus, because Spencer did

not raise a fact issue on this essential element of his fraud claim in response to GC

Services’ traditional and no-evidence summary judgment motion, the trial court

could have properly granted summary judgment on this basis alone. See Formosa

Plastics, 960 S.W.2d at 48 (stating promise of future performance constitutes

actionable misrepresentation when made with no intention to perform); Beal Bank,

124 S.W.3d at 647 (stating same); see also Roventini v. Ocular Scis., Inc., 111

S.W.3d 719, 722 (Tex. App.—Houston [1st Dist.] 2003, no pet.) (“If the

respondent does not produce more than a scintilla of evidence to raise a genuine

issue of material fact on the challenged element or elements, the trial court ‘must’

grant the motion.”).

      Furthermore, Spencer does not challenge this basis for granting summary

judgment on appeal.      He argues that Denise Bolton’s affidavit was “full of

misstatements,” but he does not argue that any of the summary-judgment evidence

before the trial court raised a fact issue on the question of whether GC Services

lacked the intent to perform when it made the alleged misrepresentation to him.

Thus, because Spencer has not attacked all independent grounds for granting

summary judgment on appeal, we must uphold the trial court’s summary judgment

ruling.   See Leffler, 290 S.W.3d at 386; Britton, 95 S.W.3d at 681 (“[I]f an

independent ground fully supports the complained-of ruling or judgment, but the

                                         19
appellant assigns no error to that independent ground, then (1) we must accept the

validity of that unchallenged independent ground, and thus (2) any error in the

grounds challenged on appeal is harmless because the unchallenged independent

ground fully supports the complained-of ruling or judgment.”).

      We overrule Spencer’s second issue.

                                   Conclusion

      We affirm the judgment of the trial court.




                                             Evelyn V. Keyes
                                             Justice

Panel consists of Justices Keyes, Sharp, and Huddle.




                                        20
