                           COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH


                                 NO. 2-09-186-CV


CENTAVA DOZIER                                                           APPELLANT

                                            V.

AMR CORPORATION                                                          APPELLEES
AND AMERICAN AIRLINES, INC.

                                        ------------

           FROM THE 348TH DISTRICT COURT OF TARRANT COUNTY

                                        ------------

                          MEMORANDUM OPINION 1

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                                  I. INTRODUCTION

      This is a summary judgment appeal.               Appellees AMR Corporation and

American Airlines, Inc. (collectively referred to as American) filed a no-evidence

motion for summary judgment, and Appellant Centava Dozier subsequently filed a

motion to compel American to respond to certain discovery requests and filed a

motion for continuance. After a hearing on these motions, the trial court denied


      1
           See Tex. R. App. P. 47.4.
Dozier’s motion to compel and motion for continuance and granted summary

judgment for American. In two issues, Dozier argues that the trial court erred by

denying her motion for continuance and motion to compel and by granting

American’s no-evidence motion for summary judgment. For the reasons set forth

below, we will affirm.

                    II. F ACTUAL AND P ROCEDURAL B ACKGROUND

      In March 2006, Dozier was a passenger on an American flight from Dallas to

Los Angeles. The flight departed Dallas at around 11:00 p.m., and Dozier fell asleep

during the flight. During the descent into Los Angeles, Dozier awoke and noticed

that a man seated at the end of her aisle was staring at her and masturbating.

Dozier attempted to hide her face and discovered semen in her hair. The man got

up and left that seat, and Dozier told the passenger sitting in front of her what had

happened. That passenger informed a flight attendant. The captain contacted local

law enforcement and ordered that the plane’s doors remain shut until law

enforcement arrived at the gate. W hen the passengers deboarded, the man was

arrested.

      In March 2008, Dozier sued American for negligence, gross negligence, and

res ipsa loquitor. The parties filed an agreed discovery control plan in which the

discovery period would end on March 1, 2009. During the discovery period, Dozier

served American with two sets of discovery requests—which included interrogatories

and requests for disclosures, admissions, and production—on June 17, 2008 and
on October 20, 2008. American responded to both sets of discovery requests on

July 21, 2008 and on December 2, 2008, respectively.

      On February 3, 2009, one month before the end of the discovery period, and

approximately one year after Dozier filed suit, American filed a no-evidence motion

for summary judgment. Dozier filed a response, attaching as evidence her own

affidavit, the affidavit of her attorney, and copies of the incident reports of a flight

attendant and of the captain. Dozier also filed a motion to compel discovery,

asserting that American’s discovery responses were inadequate, and a motion for

continuance, requesting a continuance of the summary judgment hearing until after

her “motion to compel is heard, subsequent order complied with by [American], [and

she] has sufficient time to conduct responsive discovery.” The trial court set a

hearing on American’s summary judgment motion and both of Dozier’s motions for

March 13, 2009.

      On the day of the hearing, American filed a response to Dozier’s motion for

continuance, asserting that she had been given an adequate time to conduct

discovery and that her motion did not comply with the requirements of Texas Rule

of Civil Procedure 252.      American also filed objections to Dozier’s summary

judgment evidence.

      At the hearing, the trial court denied Dozier’s motion for continuance, stating

that it was not in proper form, and denied her motion to compel, reasoning that she

was “a little bit late.” The trial court also sustained American’s objections to Dozier’s
summary judgment evidence and granted American’s no-evidence summary

judgment. Dozier perfected this appeal.

               III. M OTION F OR C ONTINUANCE AND M OTION TO C OMPEL

      In her first issue, Dozier argues that the trial court abused its discretion by

denying her motion to compel American to respond to certain discovery requests

and by denying her motion for continuance.

                               A. Standard of Review

       W e apply an abuse of discretion standard to a trial court’s ruling on a motion

to compel. See Austin v. Countrywide Homes Loans, 261 S.W .3d 68, 75 (Tex.

App.—Houston [1st Dist.] 2008, pet. denied). W e also review a trial court’s ruling

on a motion for continuance under an abuse of discretion standard. See BMC

Software Belg., N.V. v. Marchand, 83 S.W .3d 789, 800 (Tex. 2002). W e do not

substitute our judgment for that of the trial court. In re Nitla S.A. de C.V., 92 S.W .3d

419, 422 (Tex. 2002) (orig. proceeding). Instead, we must determine whether the

trial court’s action was so arbitrary and unreasonable as to amount to a clear and

prejudicial error of law. Joe v. Two Thirty Nine Joint Venture, 145 S.W .3d 150, 161

(Tex. 2004). The test is whether the trial court acted without reference to guiding

rules or principles. Cire v. Cummings, 134 S.W .3d 835, 838–39 (Tex. 2004). An

appellate court must uphold the trial judge’s evidentiary ruling if there is any

legitimate basis for it. Owens-Corning Fiberglass Corp. v. Malone, 972 S.W .2d 35,

43 (Tex. 1998).
                                B. Motion to Compel

      Dozier filed her motion to compel on February 13, 2009—almost three months

after American had served its last responses and objections to Dozier’s discovery

requests, less than one month prior to the end of the agreed-to discovery period, and

one week after American had filed its no-evidence summary judgment motion. At

the March 13 hearing, the trial court pointed out that Dozier had the months of

“August, September, October, November, December, and January” to file a motion

to compel and did not do so. The court stated,”I don’t have a whole lot of sympathy

for you, waiting that long to ask for this, especially in view of the fact that

[American’s] summary judgment motion had been filed [one week before Dozier had

filed her motion to compel].”

      W e cannot conclude based on these facts that the trial court’s denial of

Dozier’s motion to compel was so arbitrary and unreasonable as to amount to a

clear and prejudicial error of law. See Joe, 145 S.W .3d at 161; Austin, 261 S.W .3d

at 75. Rather, the trial court could have reasonably concluded from these facts that

Dozier did not diligently pursue the discovery she now claims to need. See Piazza

v. Cinemark, USA, Inc., 179 S.W .3d 213, 216 (Tex. App.—Eastland 2005, pet.

denied) (noting, in holding that trial court did not abuse its discretion by denying

motion to compel, that plaintiff had more than ample time for discovery); see also

Fraud-Tech, Inc. v. Choicepoint, Inc., No. 02-05-00150-CV, 2006 W L 1030189, at

*3 (Tex. App.—Fort W orth Apr. 20, 2006, no pet.) (mem. op.) (holding that denial of

motion to compel was not an abuse of discretion when appellants failed to show due
diligence in requesting continuance). W e hold that the trial court did not abuse its

discretion by denying Dozier’s motion to compel. See Austin, 261 S.W .3d at 75.

                             C. Motion for Continuance

       Dozier sought a continuance of the summary judgment hearing “until after the

court has held a hearing on the motion to compel, after the date defendants are

ordered to file responses to the discovery request, and after plaintiff has sufficient

opportunity to proceed with discovery based on the defendants’ responses.” Dozier

was not entitled to a continuance for the same reasons that she was not entitled to

a motion to compel. See State v. Wood Oil Distrib., Inc., 751 S.W .2d 863, 865 (Tex.

1988) (“It is also well established that the failure of a litigant to diligently utilize the

rules of civil procedure for discovery purposes will not authorize the granting of a

continuance.”).

       Moreover, Dozier’s motion for a continuance did not satisfy the requirements

of the Texas Rules of Civil Procedure. A motion for continuance seeking time for

discovery must be supported by an affidavit that describes the evidence sought,

explains its materiality, and shows that the party requesting the continuance has

used due diligence to obtain the evidence. Tex. R. Civ. P. 251, 252; Rocha v.

Faltys, 69 S.W .3d 315, 319 (Tex. App.—Austin 2002, no pet.). The affidavit of

diligence must state with particularity what diligence was used; conclusory

allegations of diligence are not sufficient. Rocha, 69 S.W .3d at 319. A party who

fails to use the rules to diligently pursue discovery is not entitled to a continuance.

Wood Oil Distrib., 751 S.W .2d at 865.
      Here, Dozier’s motion for continuance and supporting affidavit failed to

demonstrate the diligence she used to obtain the specific discovery she sought. Her

motion merely concludes that she “was unable to secure this testimony and evidence

earlier even though she diligently used the discovery process, as detailed in her

motion to compel.” Neither her attorney’s affidavit, attached to her motion, nor her

motion to compel include any explanation of the diligence she used in discovery.

      Because Dozier failed to diligently utilize the rules of civil procedure for

discovery purposes and failed to satisfy the requirements of rule 252, we hold that

the trial court did not abuse its discretion by denying her motion for continuance.

See Joe, 145 S.W .3d at 161; BMC Software Belg., N.V., 83 S.W .3d at 800.

      Having held that the trial court did not abuse its discretion by denying Dozier’s

motion to compel and motion for continuance, we overrule her first issue.

                       IV. N O-E VIDENCE S UMMARY J UDGMENT

      In her second issue, Dozier complains that the trial court erred by granting

American’s motion for no-evidence summary judgment. American responds that

Dozier failed to produce any evidence on each element of her negligence claim and

that her remaining claims—for res ipsa loquitur and gross negligence—are not

independent causes of action. 2


      2
         As American points out, if Dozier’s negligence claim fails, her remaining
claims for gross negligence and res ipsa loquitur also must fail. See Haddock v.
Arnspiger, 793 S.W .2d 948, 950 (Tex. 1990) (“Res ipsa loquitur is simply a rule of
evidence by which negligence may be inferred by the jury; it is not a separate cause
of action from negligence.”); Sonic Sys. Int’l, Inc. v. Croix, 278 S.W .3d 377, 394–95
(Tex. App.—Houston [14th Dist.] 2008, pet. denied) (requiring finding of ordinary
                              A. Standard of Review

      After an adequate time for discovery, the party without the burden of proof

may, without presenting evidence, move for summary judgment on the ground that

there is no evidence to support an essential element of the nonmovant’s claim or

defense. Tex. R. Civ. P. 166a(i). The motion must specifically state the elements

for which there is no evidence. Id.; Timpte Indus., Inc. v. Gish, 286 S.W .3d 306, 310

(Tex. 2009). The trial court must grant the motion unless the nonmovant produces

summary judgment evidence that raises a genuine issue of material fact. See Tex.

R. Civ. P. 166a(i) & cmt.; Hamilton v. Wilson, 249 S.W .3d 425, 426 (Tex. 2008).

      W hen reviewing a no-evidence summary judgment, we examine the entire

record in the light most favorable to the nonmovant, indulging every reasonable

inference and resolving any doubts against the motion. Sudan v. Sudan, 199

S.W .3d 291, 292 (Tex. 2006). W e review a no-evidence summary judgment for

evidence that would enable reasonable and fair-minded jurors to differ in their

conclusions. Hamilton, 249 S.W .3d at 426 (citing City of Keller v. Wilson, 168

S.W .3d 802, 822 (Tex. 2005)). W e credit evidence favorable to the nonmovant if

reasonable jurors could, and we disregard evidence contrary to the nonmovant

unless reasonable jurors could not. Timpte Indus., Inc., 286 S.W .3d at 310 (quoting

Mack Trucks, Inc. v. Tamez, 206 S.W .3d 572, 582 (Tex. 2006)). If the nonmovant



negligence as prerequisite to finding of gross negligence); Seaway Prods. Pipeline
Co. v. Hanley, 153 S.W .3d 643, 659 (Tex. App.—Fort W orth 2004, no pet.) (holding
that recovery for gross negligence is not available when no evidence supports
negligence claim).
brings forward more than a scintilla of probative evidence that raises a genuine issue

of material fact, then a no-evidence summary judgment is not proper. Smith v.

O’Donnell, 288 S.W .3d 417, 424 (Tex. 2009).

          B. No-Evidence Summary Judgment for American was Proper

      American’s no-evidence motion for summary judgment asserted that no

evidence existed on each element of Dozier’s negligence claim. Thus, to overcome

American’s no-evidence motion for summary judgment, Dozier had the burden to

raise a genuine issue of material fact that American owed a legal duty to her, that

American breached that duty, and that she sustained damages proximately caused

by American’s breach. See W. Invs., Inc. v. Urena, 162 S.W .3d 547, 550 (Tex.

2005); see also Tex. R. Civ. P. 166a(i) & cmt.; Hamilton, 249 S.W .3d at 426.

      Dozier’s summary judgment evidence consists of her own affidavit, which

explained the incident and the “emotional burden” it took on her life, and three

reports made by the pilot and flight attendants describing the incident. The trial court

sustained all of American’s objections to Dozier’s summary judgment evidence. 3

Even assuming these exhibits were competent summary judgment evidence, they

are, without more, insufficient to raise a genuine issue of material fact as to the duty,

breach, and causation elements of Dozier’s negligence claim. 4

      3
       Dozier also presented an affidavit from her attorney pertaining only to her
motion for continuance and motion to compel.
      4
        Dozier complains that the trial court should have given her an opportunity
to amend her evidence, but the majority of American’s objections alleged defects of
substance, rather than form, and the trial court was not required to provide her an
opportunity to amend those defects. See Tex. R. Civ. P. 166a(f); CA Partners v.
      Dozier did not present any summary judgment evidence that American

breached any duty owed to her. The existence of a legal duty is a question of law

for the court to decide “from the facts surrounding the occurrence in question.”

Centeq Realty, Inc. v. Siegler, 899 S.W .2d 195, 197 (Tex. 1995). Generally, a

person has no legal duty to protect another from the criminal acts of a third person

absent certain special relationships or circumstances. See id.; Newsom v. B.B., 306

S.W .3d 910, 913–14 (Tex. App.—Beaumont 2010, pet. filed). Dozier contends that

American, as a common carrier, owed her a “high degree of care”; she asserts that

American employees should have patrolled the aisles of the plane and policed

passengers. But courts will not impose a duty unless the risk of harm is foreseeable.

See Tex. Home Mgmt., Inc. v. Peavy, 89 S.W .3d 30, 36 (Tex. 2002). Dozier did not

provide any evidence that American should have anticipated the dangers created by

its alleged negligent acts. See id.; see also Timberwalk Apartments, Partners, Inc.

v. Cain, 972 S.W .2d 749, 756 (Tex. 1998) (“The foreseeability of an unreasonable

risk of criminal conduct is a prerequisite to imposing a duty of care on a person who

owns or controls premises to protect others . . . from the risk.”). Dozier’s summary




Spears, 274 S.W .3d 51, 63–64 (Tex. App.—Houston [14th Dist.] 2008, pet. denied)
(“If a defect in a summary judgment affidavit is one of substance, the trial court is not
required to provide an opportunity to amend.”). To the extent that American alleged
defects of form, Dozier failed to request a continuance to amend her summary
judgment evidence or otherwise request the opportunity to cure the defects;
consequently, she failed to preserve this issue for our review. See Coleman v.
Woolf, 129 S.W .3d 744, 750 (Tex. App.—Fort W orth 2004, no pet.) (holding that
when objections are made to nonmovant’s summary judgment evidence, nonmovant
must seek an opportunity to amend).
judgment evidence does not support her contention that American owed her a duty

to prevent a fellow passenger from ejaculating on her or that it breached that duty.

      The evidence also fails to show that any breach by American was the

proximate cause of Dozier’s injury. Proximate cause consists of cause in fact and

forseeability. Marathon Corp. v. Pitzner, 106 S.W .3d 724, 727 (Tex. 2003). “The

test for cause in fact, or ‘but for causation,’ is whether the act or omission was a

substantial factor in causing the injury ‘without which the harm would not have

occurred.’” Id. (citing Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W .2d 472,

477 (Tex. 1995)).     “The test for forseeability is whether a person of ordinary

intelligence would have anticipated the danger his or her negligence creates.” Sw.

Key Program, Inc. v. Gil-Perez, 81 S.W .3d 269, 274 (Tex. 2002). In her summary

judgment response, Dozier merely recited the law on causation and made

conclusory statements that American proximately caused her damages. She failed

to present a scintilla of evidence that any act or omission by American was a

substantial factor causing injury to her or that American should have anticipated any

danger. See id.; see also U.S. Rentals, Inc. v. Mundy Serv. Corp., 901 S.W .2d 789,

794 (Tex. App.—Houston [14th Dist.] 1995, writ denied) (holding that, “by failing to

specifically direct the trial court’s attention to facts and summary judgment evidence

. . . , U.S. Rentals raised no fact question on that issue”).

       Examining the entire record in the light most favorable to Dozier as the

nonmovant, indulging every reasonable inference and resolving any doubts against

American’s motion, we hold that Dozier failed to bring forward more than a scintilla
of probative evidence that raises a genuine issue of material fact as to the duty,

breach, and causation elements of her negligence cause of action. See Smith, 288

S.W .3d at 424. Consequently, we overrule Dozier’s second issue.

                                 V. C ONCLUSION

      Having overruled Dozier’s two issues, we affirm the trial court’s judgment.



                                                   SUE W ALKER
                                                   JUSTICE

PANEL: DAUPHINOT, W ALKER, and MEIER, JJ.

DELIVERED: August 5, 2010
