                                                                                        ACCEPTED
                                                                                   03-14-00546-CV
                                                                                          3940906
                                                                         THIRD COURT OF APPEALS
                                                                                    AUSTIN, TEXAS
                                                                              1/28/2015 9:40:57 PM
                                                                                 JEFFREY D. KYLE
                                                                                            CLERK
                            NO. 03-14-00546-CV
 _______________________________________________________________
                                                                   FILED IN
                                                            3rd COURT OF APPEALS
                    IN THE THIRD COURT OF APPEALS               AUSTIN, TEXAS
                                                            1/28/2015 9:40:57 PM
                           AUSTIN, TEXAS                      JEFFREY D. KYLE
                                                                    Clerk
 _______________________________________________________________

                  JAMES A. DAVIS & VERONICA L. DAVIS
                               Appellants,

                                       v.

                        STATE FARM LLOYDS
                              Appellee.
 _______________________________________________________________

             From the 345th District Court of Travis County, Texas;
                        Cause No. D-1-GN-12-004077

                           BRIEF OF APPELLEE
                          STATE FARM LLOYDS

J. Hampton Skelton
State Bar No. 18457700
Edward F. Kaye
State Bar No. 24012942
SKELTON & WOODY
248 Addie Roy, Bldg. B, Suite 302
Austin, Texas 78746
Telephone: (512) 651-7000
Facsimile: (512) 651-7001

Counsel for Appellee                        ORAL ARGUMENT REQUESTED
                                            TABLE OF CONTENTS

TABLE OF CONTENTS ........................................................................................... I

INDEX OF AUTHORITIES ................................................................................... IV

     I.        Statement of the Case .................................................................................1

     II.       Statement Concerning Jurisdiction .............................................................2

     III. Statement Regarding Oral Argument .........................................................2

     IV. Issue Presented ............................................................................................2

     V.        Statement Of Facts ......................................................................................3

           A. Contradiction of Appellants’ Statement of Facts .......................................3

           B. Statement of Facts .......................................................................................4

     VI. Summary of the Argument .........................................................................6

     VII. Standard Of Review ...................................................................................9

     VIII. Argument and Authorities ........................................................................10

           A. Appellants Waived Almost Every Argument Presented in their Brief ....10

            1. Tex. R. Civ. P. 41 allows a trial court to grant a severance on its own
            initiative .......................................................................................................13

            2. Judge Triana’s May 22, 2013 order granted the relief requested in State
            Farm’s Motion to Sever and Abate Extra Contractual Claims. The only
            claims abated by the order were claims against State Farm in the auto case.
                 ...............................................................................................................13

                a. State Farm unambiguously moved for the original case to be severed
                into an auto case and a homeowner’s case ..............................................14

                b. The May 22, 2013 order abated claims against State Farm in the auto
                case only. .................................................................................................15


                                                                i
     c. The record confirms Judge Triana only abated claims in the auto case. .
         ............................................................................................................16

     d. At the October 24, 2013 hearing on State Farm’s Motion for Entry of
     Scheduling Order, Judge Jenkins explained that there was no abatement
     of any part of the homeowner’s case .......................................................17

C. Appellants’ Second Issue: Whether a Scheduling Order which is in all
things void may control deadlines emanating from said order. ....................19

D. Appellant’s Third Issue: Whether the refusal to grant an extension of
time to designate experts, or modify a docket control order or abate a matter
constitutes an abuse of discretion or denial of equal protection under the law.
      ...............................................................................................................22

E. Appellants’ Fourth Issue: Whether a court may refuse to grant a
rehearing on a case in which Appellant has not been allowed the opportunity
to be heard......................................................................................................25

F. Appellants’ Fifth Issue: Whether the court committed reversible error
in granting summary judgment to Appellee. .................................................25

 1. The hearing was properly noticed, Appellants admit they received notice
 of the hearing and, after receipt of notice, Appellants’ agreed that the hearing
 could proceed as noticed..............................................................................26

     a. Defendant’s Motion for Summary Judgment was timely filed and
     served .......................................................................................................26

     b. There was No conflict Preventing Veronica Davis from Attending the
     June 5, 2014 Summary Judgment hearing. In fact, she agreed to that
     hearing date. ............................................................................................27

 2. Inability to Participate/Denial of Due process refusal to grant
 Continuance. ................................................................................................28

     a. Appellant’s Contention that She Tried to “Call in” to the hearing is
     irrelevant ..................................................................................................28




                                                     ii
              b. Appellants’ Motion to set aside grant of summary judgment did not
              contain any evidence or seek leave to file an untimely response to State
              Farm’s summary judgment. .....................................................................29

              c. Appellants failed to allege or demonstrate a need for additional time to
              produce the evidence required to controvert State Farm’s Motion. ........30

          3. Improper Summary Judgment Evidence...............................................34

          4. Party Admission. ...................................................................................35

          5. Attorneys affidavit in support of summary judgment. ..........................37

         G. Appellants’ Sixth issue: Whether the court erred in allowing irrelevant
         information to support a denial of an extension when said information,
         pleadings, and argument are violative of the Rules of Professional Conduct
         for Attorneys. .................................................................................................37

CONCLUSION ........................................................................................................38

CERTIFICATE OF COMPLIANCE .......................................................................40




                                                            iii
                                           INDEX OF AUTHORITIES

   Cases

Bendigo v. City of Houston, 178 S.W.3d 112, (Tex. App.-Houston [1st Dist.] 2005, no
 pet.).......................................................................................................................9, 12

Brainard v. Trinity Universal Ins. Co., 216 S.W.3d 809 (Tex. 2006) ........................14

Brewer & Pritchard, P.C. v. Johnson, 167 S.W.3d 460 (Tex.App.--Houston [14th
 Dist.] 2005, pet. denied) ...........................................................................................31

Comsys Information Technology Services, Inc. v. Twin City Fire Ins. Co., 130 S.W.3d
 181, 198 (Tex.App.–Houston [14 Dist.] 2003, review denied). ..............................36

Cire v. Cummings, 134 S.W.3d 835 (Tex. 2004)........................................................20

Davis v. West, 317 S.W.3d 301 (Tex. App.-Houston [1st Dist.] 2009, no pet.) .........33

Dickey v. Jansen, 731 S.W.2d 581, 583 (Tex.App.—Houston [1st Dist.] 1987, writ
 ref’d n.r.e.)................................................................................................................34

Dunn v. Dunn, 439 S.W.2d 830 (Tex.1969) ...............................................................20

Ex parte Benitez, 590 S.W.2d 704 (Tex.1979) ...........................................................20

Farrell v. Crossland, 706 S.W.2d 158 (Tex.App.—El Paso 1986, writ dism'd) ........34

Flores v. Flores, 225 S.W.3d 651, 654-55 (Tex. App.—El Paso 2006, pet. denied) .33

Garcia v. Martinez, 988 S.W.2d 219 (Tex.1999) .......................................................10

In re Bill Heard Chevrolet, 209 S.W.3d 311(Tex. App.-Houston [1st Dist.] 2006, no
  pet.).................................................................................................................... 18, 20

In Re Lexington Insurance Co., 2004 WL 210576, *5 (Tex. App. – Houston [14th
  Dist.], orig. proceeding [mand. denied]). .................................................................22

In Re State Farm Mutual Automobile Insurance Company, 395 S.W.3d 229, 236-37
  (Tex. App. – El Paso, 2012, orig. proceeding). .......................................................22

Jackson v. Fiesta Mart, 979 S.W.2d 68 (Tex. App.-Austin 1998, no pet.) ..................9

                                                                 iv
King Ranch, Inc. v. Chapman, 118 S.W.3d 742 (Tex. 2003) .......................................9

Laidlaw Waste Sys. (Dallas), Inc. v. City of Wilmer, 904 S.W.2d 656 (Tex.1995) ...36

Lochabay v. Southwestern Bell Media, Inc., 828 S.W.2d 167(Tex. App.-Austin 1992,
 no writ) .....................................................................................................................12

Lone Star Cement Corp. v. Fair, 467 S.W.2d 402 (Tex.1971)...................... 13, 16, 18

Madison v. Williamson, 241 S.W.3d 145 (Tex. App.-Houston [1st Dist.] 2007, pet.
 denied). ........................................................................................................ 10, 31, 32

Martinez v. City of San Antonio, 40 S.W.3d 587 (Tex. App.-San Antonio 2001, pet.
 denied) ......................................................................................................................31

McConnel v. Southside ISD, 858 S.W.2d 337 (Tex. 1993) ................................. 11, 12

McCord v. Dodds, 69 S.W.3d 230 (Tex. App.-Corpus Christi 2001, pet. denied) .....12

McMahan v. Greenwood, 108 S.W.3d 467 (Tex.App.--Houston [14th Dist.] 2003, pet.
 denied); .....................................................................................................................31

Mercier v. Southwestern Bell Yellow Pages, Inc., 214 S.W.3d 770 (Tex. App.-Corpus
 Christi 2007, no pet.),...............................................................................................12

Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706(Tex.1997). .....................9, 10

Nichols v. Nichols, 331 S.W.3d 800 (Tex. App.—Fort Worth 2010, no pet.)............19

Point Lookout West v. Whorton, 742 S.W.2d 277 (Tex. 1988) ..................................16

Rest. Teams Int'l, Inc. v. MG Sec. Corp., 95 S.W.3d 336 (Tex.App.-Dallas 2002, no
 pet.)...........................................................................................................................31

Risner v. McDonald's Corp., 18 S.W.3d 903 (Tex. App.--Beaumont 2000, pet. denied)
  ..................................................................................................................................22

Schronk v. Laerdal Medical Corp., 440 S.W.3d 250 (Tex. App.--Waco 2013, review
  denied) ......................................................................................................................23

Specialty Retailers, Inc. v. Fuqua, 29 S.W.3d 140 (Tex. App.-Houston [14th Dist.]
  2000, pet. denied) .....................................................................................................31

                                                                   v
UMC, Inc. v. Arthur Bros., Inc., 626 S.W.2d 819, 820 (Tex.App.-Corpus Christi 1981),
 writ ref'd n.r.e., 647 S.W.2d 244 (Tex.1982) ...........................................................20

Veronica L. Davis v. Toyota Motor Credit a/k/a Toyota Financial Services, Civil
 Action No. H-12-0287 in the United States District Court for the Southern District
 of Texas (Houston Division) ....................................................................................28

  Rules

Tex. R. App. P. 33.1 ....................................................................................... 11, 19, 22

Tex. R. App. P. 38.1 ......................................................................................................3

Tex. R. App. P. 38.2 ......................................................................................................3

Tex. R. Civ. P. 166a ............................................................................................ passim

Tex. R. Civ. P. 190.3 ...................................................................................................21

Tex. R. Civ. P. 195.2 ...................................................................................................21

Tex. R. Civ. P. 21a ............................................................................................... 26, 27

Tex. R. Civ. P. 329 ............................................................................................... 19, 25

Tex. R. Civ. P. 41 ................................................................................................. 13, 19

Tex. R. Civ. P. Rule 193.6 ..........................................................................................23

Tex.R. Civ. P. 252 .......................................................................................................22

  *** Because the reporters record was filed in this court as four separate volumes
  each marked Volume I, Appellee refers to the reporter’s record from each hearing
  as follows: May 22, 2013 is referred to as 052213RR; October 24, 2014 is referred
  to as 102413RR; April 17, 2014 is referred to as 041714RR; and October 16, 2014
  is referred to as 101614RR.




                                                              vi
TO THE HONORABLE JUSTICES OF THE THIRD COURT OF APPEALS:

       Appellee State Farm Lloyds (“State Farm”) respectfully submits this brief in

response to the brief of Appellants James A. Davis and Veronica L. Davis

(“Appellants”).


I.     STATEMENT OF THE CASE

       This is an appeal from a summary judgment in an insurance coverage and bad

faith case. Appellants filed suit on December 28, 2012, combining complaints about

the handling of claims under their home insurance policy (a 2002 mold claim) and

their auto insurance policy (underinsured motorist claims stemming from three auto

accidents in 2010 and 2011). The auto-related claims complained of the conduct of

both State Farm and an allegedly at-fault driver, Gerald Krouse. On May 22, 2013,

the auto claims were severed into a separate lawsuit and assigned a new cause

number: Cause No. D-1-GN-13-001724 (referred to herein as “the auto case”) in the

250th Travis County District Court. (C.R. 48-50). The auto case has not proceeded

to judgment and is not before this Court. The case on appeal (“the homeowner’s

case”) concerns a 2002 mold claim under a homeowner’s policy.1 After well over a

year of discovery and motion practice, State Farm moved for summary judgment on


1
  Suit was filed on December 28, 2012, after James Davis reached majority age but before
limitations on his claim ran. James was not the policyholder, so his narrow claim would require
proof that he suffered injury not simply because of mold, but due to State Farm’s handling of
Veronica Davis’s 2002 mold claim.

                                               1
May 14, 2014. (C.R. 462-608). Appellants failed to timely respond to the summary

judgment motion and failed to appear at the June 5, 2014 hearing on that motion.

Summary judgment was granted in State Farm’s favor on June 5, 2014. (C.R. 683).

This appeal followed.

II.    STATEMENT CONCERNING JURISDICTION
       Appellants moved in this Court to consolidate this matter with cause No. D-

1-GN-13-001724 in the 250th Travis County District Court. This Court dismissed

Appellants’ motion as moot on November 26, 2014. This Court lacks jurisdiction

over Cause No. D-1-GN-13-001724.2

III.   STATEMENT REGARDING ORAL ARGUMENT
       State Farm requests oral argument because of the potential for confusion

stemming from Appellants’ briefing directed at auto claims that have been severed

and because oral argument would be beneficial in explaining the circumstances that

led to the granting of summary judgment.

IV.    ISSUE PRESENTED

       Is summary judgment proper seventeen months after suit was filed when

plaintiffs failed to adduce any evidence to support their claims, failed to timely



2
  On October 16, 2014, a month after perfecting this appeal and moving this Court to consolidate
this case with Cause No. D-1-GN-13-001724 (the auto case), Appellants set a hearing in the Travis
County District Court on Plaintiffs’ motion to set aside grant of summary judgment and motion
for sanctions in Cause No. D-1-GN-12-004077 (the homeowner’s case). The motions in the trial
court were denied. (RR 101614 at 1-10).
                                               2
respond to a summary judgment motion, and failed to appear for the summary

judgment hearing?

V.    STATEMENT OF FACTS
      A.      Contradiction of Appellants’ Statement of Facts

      Pursuant to Tex. R. App. P. 38.1(g) and 38.2 (a)(1)(B), State Farm contradicts

the following statements in Appellants’ Statement of Facts:

      (1)     Complaints about the handling of auto policy claims

      Appellants’ Statement of facts discusses insurance claims relating to

automobile accidents. Those auto policy-related claims were severed into a new

cause number. They are the subject of Cause No. D-1-GN-13-001724 in the 250th

Travis County Judicial District Court. The auto case against State Farm has been

inactive and has not proceeded to judgment. State Farm contradicts the statements

at pages 3-5 of Appellants’ brief relating to the severed auto policy claims as those

claims are not properly before this Court.

      (2)     Complaints without any record support

      TRAP 38.1(g) provides that the statement “must be supported by record

references.” The last paragraph of page 4 and the first paragraph on page 5 of

Appellant’s brief makes the following complaints without citing any record support:

             State Farm Lloyds failed to pay legitimate claims of the
              Appellants, including mold claims which physically injured
              Appellant James Davis;
                                         3
             Appellants submitted a mold claim in 2002;

             mold damaged Appellants’ home;

             Appellee cancelled other insurance policies on Appellants’
              home, vehicle and life.

State Farm contradicts these statements because there is no record citation or record

support for any of these contentions.

       B.      Statement of Facts

       Appellants sued State Farm for allegedly mishandling Appellants’ 2002 mold

claim, resulting in injuries to James Davis.3 The record, however, contains no

evidence of an insurance policy, a denial or underpayment of a claim, injury or

damages from the handling of such a claim or any acts or omissions by State Farm.

So there are no facts to recite concerning the factual basis for Appellants’

contentions. This appeal turns on whether the trial court should have granted

summary judgment after Appellants failed to introduce evidence to support their

claims. After answering the suit, State Farm attempted to learn the factual basis for

Appellants’ claims through discovery requests.            State Farm agreed to several

extensions, providing Appellants extra time to respond to State Farm’s Request for



3
  Appellants’ Original Petition contained a vague reference to a 2008 wind claim as well.
However, in the hearing on the motion to sever, Appellants’ counsel, Veronica Davis, clarified
that the only homeowner’s claim at issue in the case was a 2002 mold claim. 052213 RR 14:13-
25.
                                              4
Disclosure (C.R. 47, 139, 142, 151, 157). When complete answers were not

forthcoming, State Farm filed two motions to compel (C.R. 41, 55). The motions

were set for hearing but State Farm passed the hearings based on Veronica Davis’s

assurance that complete discovery responses would be provided. (C.R. 175). When

Appellants still did not produce pertinent evidence, including any medical evidence

of mold-related injury, State Farm filed a motion for entry of scheduling order that

had a deadline for producing medical evidence. (C.R. 63). Appellants, who had

chosen to sue in Travis County, responded by filing a motion to transfer venue to

Brazoria County. (C.R. 69-72). Appellants’ Motion to transfer venue was denied

on October 24, 2013. (C.R. 97). State Farm’s motion for entry of scheduling order

was granted that same day. The scheduling order specified a January 15, 2014

deadline -- more than a year after suit was filed -- for Appellants to produce expert

affidavits in support of mold injury claims. (C.R. 95-96 and 102413RR at 01:19 and

18:10-13). After the expiration of this deadline, Appellants filed both a Motion for

Extension of time to designate experts (C.R. 101-110) and a motion to abate the case

for six months. (C.R. 103). Appellants, who had never sent any discovery requests

to State Farm, failed to offer any evidence to establish good cause for missing their

expert deadline or justifying additional time to designate their experts. 041714RR

at 30:22-39:21. Appellants’ motions to extend and to abate were denied on April

18, 2014. (C.R. 311-312). State Farm moved for summary judgment on May 14,


                                          5
2014, providing Appellants with timely and proper notice. (C.R. 643-649).

Appellants neither responded to the motion nor attended the hearing on June 5, 2014.

Summary judgment was granted on June 5, 2014.


VI.   SUMMARY OF THE ARGUMENT

      Veronica Davis, serving as counsel for both herself and her son, James, filed

this case on December 28, 2012. The suit alleged both auto policy and homeowner’s

policy claims. The auto claims were severed into a separate cause number and are

not before this Court. Appellants failed to diligently pursue their mold-related

homeowner’s policy claims. They sent no discovery whatsoever to State Farm.

Instead, Appellants concentrated their efforts on resisting discovery, seeking

extensions, moving to transfer venue and moving to abate. For seven months

between February and September of 2013, State Farm repeatedly sought answers to

discovery from Appellants as to the facts supporting the mold claims, such as

medical records or the identity of experts who would testify that James Davis had

suffered any mold-related illness. Appellants produce no such evidence. State Farm

then sought and the trial court entered a scheduling order on October 24, 2014 that

required Appellants to produce evidence to support their claims by January 15, 2014.

Despite having over a year from when they filed suit to introduce any evidence to

support their claims, Appellants missed the deadline and failed to offer a good faith

excuse. State Farm timely served Appellants with a motion for summary judgment

                                         6
and notice of hearing on May 14, 2014, but Appellants failed to timely respond to

the summary judgment motion. Appellants also failed to appear at the June 5, 2014

hearing and summary judgment was entered. Appellants filed an untimely response

to the summary judgment motion, but in neither that response nor a subsequent

motion to set aside the summary judgment, did Appellants offer or point to any proof

to support their claims. The record conclusively demonstrates that despite having

sued State Farm for the mishandling of a mold claim under a homeowners policy,

Appellants failed to place in the record any evidence of:

    a homeowners insurance policy or its terms;

    submission of a claim for mold damages under a homeowners policy;

    denial or wrongful denial of an insurance claim by State Farm;

    failure to pay a claim when liability had become reasonably clear;

    any statements made by anyone at State Farm to Appellants;

    any injury or damages flowing from the handling of an insurance claim;

    any wrongful conduct attributable to State Farm.

Accordingly, summary judgment was the appropriate way to end this case.

      On appeal, rather than argue that there was a fact issue that should have

precluded summary judgment, Appellants argue that they should not have been

required to produce summary judgment proof to controvert State Farm’s motion

because (1) Appellants thought the case was abated due to an allegedly ambiguous

                                          7
severance order, or (2) due process concerns required that more extensions should

have been granted to Appellants to produce evidence, or (3) Appellants did not have

proper notice of the summary judgment hearing. In support of their argument that

the case was abated, Appellants argue that the May 23, 2013 severance order is

ambiguous and failed to conform to the motion to sever. This argument does not

present a basis for reversing the summary judgment and, in any event, is wrong. At

the October 24, 2013 hearing on State Farm’s Motion for entry of scheduling order,

when Appellants argued that the case was abated as a basis to opposed the entry of

a scheduling order requiring them to produce proof of mold-related injury, the Hon.

Scott Jenkins explained in detail to Appellants’ counsel that (a) the homeowners case

had not been abated and (b) that the only claims subject to abatement were

Appellants’ claims against State Farm in the severed auto case.             Tellingly,

Appellants demonstrated that they knew the homeowner’s case was not abated when

they filed a motion to abate it on February 3, 2014. Appellants’ arguments relating

to due process and untimely notice are equally baseless. Issues 1, 2, 3, 4, and 6 in

Appellants’ brief were never raised in the trial court and were thus waived.

Appellants also failed to complain about nearly all of the arguments they include

under their issue 5. Appellants’ brief fails to raise any legal basis for reversing the

summary judgment. In fact, the arguments in Appellants’ brief that seek to excuse




                                          8
their failure to bring forward proof only serve to emphasize that Appellants failed to

controvert State Farm’s summary judgment motion.

VII. STANDARD OF REVIEW
      Rule 166a of the Texas Rules of Civil Procedure governs the standard for

traditional summary judgment and provides that summary judgment shall be

rendered if the interrogatory answers, pleadings, admissions, and affidavits show

“there is no genuine issue as to any material fact and the moving party is entitled to

a judgment as a matter of law.” Tex. R. Civ. P. 166a(c).

      In a Rule 166a (i) no-evidence summary judgment motion, the movant

represents that no evidence exists as to one or more essential elements of the non-

movant's claims, on which the non-movant would have the burden of proof at trial.

TEX.R. CIV. P. 166a (i). The non-movant then must present evidence raising a

genuine issue of material fact on the challenged elements. Id. A no-evidence

summary judgment is essentially a pre-trial directed verdict. Bendigo v. City of

Houston, 178 S.W.3d 112, 113–14 (Tex. App.-Houston [1st Dist.] 2005, no pet.);

Jackson v. Fiesta Mart, 979 S.W.2d 68, 70–71 (Tex. App.-Austin 1998, no pet.). On

review, the court of appeals ascertains whether the non-movant produced more than

a scintilla of probative evidence to raise a genuine issue of material fact. Jackson,

979 S.W.2d at 70–71. More than a scintilla of evidence exists if the evidence “‘rises

to a level that would enable reasonable and fair-minded people to differ in their


                                          9
conclusions.’” King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex.2003)

(quoting Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997)).

If the evidence does no more than create a mere surmise or suspicion of fact, less

than a scintilla of evidence exists. Havner, 953 S.W.2d at 711.

        A trial court's determination of whether an adequate time for discovery has

passed is reviewed under an abuse of discretion standard. Madison v. Williamson,

241 S.W.3d 145, 155-156 (Tex. App.-Houston [1st Dist.] 2007, pet. denied). A trial

court abuses its discretion if it acts in an arbitrary or unreasonable manner “without

reference to any guiding rules or principles.” Madison v. Williamson, 241 S.W.3d

145, 155-156 (Tex. App.-Houston [1st Dist.] 2007, pet. denied), quoting Garcia v.

Martinez, 988 S.W.2d 219, 222 (Tex.1999).


VIII.     ARGUMENT AND AUTHORITIES

        A.    Appellants Waived Almost Every Argument Presented in their Brief

        Appellants waived the arguments in their issues 1, 2, 3, 4, 6 and most of 5, by

failing to raise these issues at all in the trial court. They never complained or

obtained a ruling about the wording of the severance order. They never argued that

the severance order was ambiguous or failed to conform to the pleadings. They

never alleged that statements in the summary judgment motion constitute

admissions. They never sought to introduce proof controverting the summary

judgment motion, explain why an adequate time for discovery had not passed, or

                                           10
explain why they needed more time to conduct discovery. They never argued that

the summary judgment motion was vague or that State Farm should have preceded

the summary judgment motion with special exceptions. Tex. R. App. P. 33.1 states:

      (a) In General. As a prerequisite to presenting a complaint for appellate
      review, the record must show that:

      (1) the complaint was made to the trial court by a timely request,
      objection, or motion that:

      (A) stated the grounds for the ruling that the complaining party sought
      from the trial court with sufficient specificity to make the trial court
      aware of the complaint, unless the specific grounds were apparent from
      the context; and

      (B) complied with the requirements of the Texas Rules of Civil or
      Criminal Evidence or the Texas Rules of Civil or Appellate Procedure;
      and

      (2) the trial court:

      (A) ruled on the request, objection, or motion, either expressly or
      implicitly; or

      (B) refused to rule on the request, objection, or motion, and the
      complaining party objected to the refusal.

In McConnel v. Southside ISD, 858 S.W.2d 337, 343 (Tex. 1993) quoting Tex. R.

Civ. P. 166a(c), the Texas Supreme Court explained: “Issues not expressly presented

to the trial court by written motion, answer or other response shall not be considered

on appeal as grounds for reversal.” The Texas Supreme Court also made clear that

a party who claims that a motion for summary judgment is unclear must file a special

exception to it:
                                          11
      An exception is required should a non-movant wish to complain on
      appeal that the grounds relied on by the movant were unclear or
      ambiguous. See Lochabay v. Southwestern Bell Media, Inc., 828
      S.W.2d 167, 170 n. 2 (Tex. App.-Austin 1992, no writ) (“Lochabay did
      not except to the motion for summary judgment, as he was required to
      do if he wished to claim lack of specificity.”).

McConnel v. Southside ISD, 858 S.W.2d 337, 343 (Tex. 1993). In Mercier v.

Southwestern Bell Yellow Pages, Inc., 214 S.W.3d 770, 774 (Tex.

App.-Corpus Christi 2007, no pet.), the court of appeals elaborated as follows:

      The supreme court has made it clear, that, rigorous as it may seem, rule
      166a(c) must be applied as written and we are not allowed to review the
      summary judgment evidence to determine whether grounds (or “issues”
      when, as in the present case, referring to a non-movant's response) are
      expressly presented; instead, they must be stated in the written
      response. Id.; Garrod Invs., Inc. v. Schlegel, 139 S.W.3d 759, 765 (Tex.
      App.-Corpus Christi 2004, no pet.) (following McConnell ); McCord v.
      Dodds, 69 S.W.3d 230, 232 (Tex. App.-Corpus Christi 2001, pet.
      denied) (same). Because Mercier failed to specifically address the
      elements of each cause of action on which he claimed fact issues existed
      and because he failed to expressly present any issues precluding
      summary judgment in his written response, Mercier did not raise any
      fact issues precluding summary judgment.

Under well-settled Texas law, Appellants waived their Issues 1, 2, 3, 4, 6 and most

of 5. The specific circumstances of each instance of waiver are discussed below.

      B.     Appellants’ First Issue: Whether a court may issue an order when
             relief granted does not comport with relief requested.

      Appellants’ brief challenges Judge Triana’s severance order as being vague,

indefinite and exceeding the scope of the relief State Farm sought, but does not


                                         12
articulate why summary judgment should be reversed on the mold claim. Moreover,

even if the complaint about severing claims was pertinent here, Appellants failed to

raise these issues issue in their motion for continuance (C.R. 628-632) or motion to

set aside grant of summary judgment (C.R. 716-721). They waived this issue by

failing to raise it in the trial court. Appellants are also simply wrong about the order

being fatally vague and not complying with the relief sought.

      1.     Tex. R. Civ. P. 41 allows a trial court to grant a severance on its
             own initiative

      The argument that the severance order varies from the relief sought does not

state a ground for reversal of a separate summary judgment order. Tex. R. Civ. P. 41

allows a trial court to grant a severance on its own initiative. Therefore, even if

Judge Triana’s May 22, 2013 severance order did not “conform” to the relief State

Farm sought (which, as demonstrated below, is not the case), Appellants have no

basis for complaint.

      2.     Judge Triana’s May 22, 2013 order granted the relief requested in
             State Farm’s Motion to Sever and Abate Extra Contractual
             Claims. The only claims abated by the order were claims against
             State Farm in the auto case.

      In Lone Star Cement Corp. v. Fair, the Texas Supreme Court made clear that

construction of an order should be based upon the pleading upon which the disputed

order was issued as well as conduct of the parties and the trial court after the issuance

of the order: “We hold that the order and record considered as a whole as well as

                                           13
the conduct of the parties and trial court subsequent to the order dictate a

construction contrary to that of the Court of Civil Appeals.” Id. at 405. As shown

below, the record of the May 22, 2013 hearing (see 052213 RR 07:14-08:03 &

23:02-07) and the October 24, 2013 hearing (See 102413RR 13:02-15:19), as well

as Appellants’ subsequent conduct in this suit (filing their own motion to abate (C.R.

103-110)) all demonstrate that the only matters abated by the May 22, 2013 order

were claims against State Farm in the auto case.

               a.     State Farm unambiguously moved for the original case to be
                      severed into an auto case and a homeowner’s case
       Nothing in State Farm’s motion to sever could be read as seeking abatement

of any portion of the mold claim. Faced with unrelated claims about auto accidents

in 2010-2011 and a 2002 mold claim, State Farm asked that the case be severed into

two causes: an auto case and a homeowner’s case. Because the liability and

underinsured status of the other driver had not yet been established, State Farm

requested an abatement of the contractual and extra-contractual claims against State

Farm in the auto case only, relying on the Texas Supreme Court’s holding that

UM/UIM claims are not even “presented” until a policyholder had established that

the other driver (in this instance, Gerald Krouse) was both liable and underinsured.4


4
  Brainard v. Trinity Universal Ins. Co., 216 S.W.3d 809, 818-19 (Tex. 2006) (“under
Chapter 38, a claim for UIM benefits is not presented until the trial court signs a judgment
establishing the negligence and underinsured status of the other motorist.”)


                                                14
      The Prayer of State Farm’s Motion to Sever and Abate Extra Contractual

Claims asked:

             WHEREFORE, PREMISES CONSIDERED, State Farm
      requests that this Court sever the Auto claims of Plaintiffs (specifically
      the tort action to determine the liability and damages under Plaintiffs’
      UM/UIM coverage and the breach of contract and extra-contractual
      claims related to the automobile claims), and make those severed claims
      the subject of a separate lawsuit. By granting this part of the motion
      the Court would separate the case into one action involving the
      homeowners claims and one action involving the auto claims. Finally,
      State Farm asks that within that severed lawsuit (involving the auto
      claims) the Court abate the breach of contract and extra-contractual
      claims related to the automobile claims. State Farm also asks for such
      other and further relief to which it may show itself justly entitled.

(C.R. 36).

There can be no question as to what State Farm sought in its motion.

             b.    The May 22, 2013 order abated claims against State Farm in
                   the auto case only.
      The trial court’s May 23, 2013 Order reads as follows:

                                      ORDER

      On this date came on to be considered Defendant State Farm Lloyds
      Motion to Sever and Abate Plaintiffs’ Extra-Contractual Claims. The
      Court has considered the Motion and the authorities cited therein, and
      is of the opinion that the Motion should in all things be GRANTED.

      Accordingly, it is hereby ORDERED that Defendant’s Motion to Sever
      and Abate Plaintiffs’ Extra-Contractual claims is Granted.

      It is further ORDERED that Plaintiffs’ “Auto Claims” (specifically the
      tort action to determine the liability and damages under Plaintiffs’
      UM/UIM coverage and the breach of contract and extra-contractual
      claims related to the automobile claims) shall be severed and made the
      subject of a separate lawsuit. Defendant further requests that as part of
                                         15
      the severance, this Court abate the breach of contract and extra-
      contractual claims within the “Auto claims” suit until after the Court
      has rendered a judgment in this cause which concerns solely the suit to
      determine the amounts owing under the UM/UIM coverage in
      Plaintiffs’ auto policies.

      Accordingly, Plaintiff’s “Auto claims” are SEVERED and shall be
      docketed separately by the Clerk of the Court and assigned the Cause
      No. D-1-GN-13-001724. The items to be included in the new cause are
      identified in Exhibit #1 to this order and the cause [sic] of severance is
      taxed against Defendant State Farm Lloyds.

      It is further ORDERED that the contract and extra-contractual
      claims within the “Auto claims” suit are hereby abated until the
      judgment on the UM/UIM coverage has been determined.

(C.R. 49). [emphasis added].

As shown in bold above, the only claims abated by the May 22, 2013 order are within

the auto suit. The order granted the relief State Farm sought.

             c.    The record confirms Judge Triana only abated claims in the
                   auto case.
      State Farm agrees that “The pleadings and order must be interpreted together.”

See Appellants’ brief at page 11. State Farm likewise agrees that “Generally, an

ambiguous order may be construed in light of the motion upon which it was granted

. . . .”Id. citing Lone Star Cement Corp. v. Fair, 467 S.W.2d 402, 404 (Tex. 1971).

See also Point Lookout West v. Whorton, 742 S.W.2d 277, 278 (Tex. 1988) (“The

entire content of the written instrument and the record should be considered.”). The

record of the May 22, 2013 hearing shows that Judge Triana only abated claims in

the auto case:

                                         16
     MR. KAYE: Three different autos. And so what we're asking the Court to do
     is separate these into two lawsuits, the homeowners lawsuit and an auto
     lawsuit.
     THE COURT: Okay.
     MR. KAYE: And --
     THE COURT: And what would I abate?
     MR. KAYE: So within the auto lawsuit, we would ask that the
     extracontractual claims be abated until the straightforward personal injury
     action against Mr. Krouse, liability and damages, be resolved.
052213 RR 07:14-08:03.
                                          ***
      THE COURT: So at this time as to the motion -- State Farm's Motion to Sever
      and Abate, I am going to grant the Motion to Sever the one homeowners mold
      case from the three auto accident cases. And then I will order that the
      extracontractual claims be abated until after we have the regular auto accident
      cases.

052213 RR 23:02-07

              d.    At the October 24, 2013 hearing on State Farm’s Motion for
                    Entry of Scheduling Order, Judge Jenkins explained that
                    there was no abatement of any part of the homeowner’s
                    case
      During the October 24, 2013 hearing on State Farm’s Motion for entry of

Scheduling Order, when Appellants’ counsel argued that no discovery was allowed

because the homeowner’s case was abated, (102413 RR 10:19-13:01), the Hon. Scott

Jenkins explained that Judge Triana’s severance Order did not abate anything in the

homeowner’s case.       Appellants’ counsel, Veronica Davis, indicated that she

understood:

      THE COURT: Okay. Thank you. I think there has been a misreading of
      the order actually -- and I don't mean to pick on you, Ms. Davis -- but
      by you. And frankly, the first time I read it, I did not understand it either,

                                           17
      but now I'm rereading it in light of your argument and I believe I do
      understand it. Do you have it in front of you?

      MS. DAVIS: Yes, Your Honor, I do.

      THE COURT: You see, what they did was they severed all of the auto
      claims into the other case, and they severed both the underlying extent of
      injury claim and the breach of contract and extracontractual claims in the
      auto claim; in other words, that any claim you have for bad faith or violations
      of the Insurance Code for failure to properly process the auto claim, they are
      still together in the same lawsuit. And the judge, Judge Triana, signed an
      order which put all of those claims, the underlying extent of injury in the
      auto accident and the additional breach of contract and extracontractual
      claims about that auto accident and State Farm's responsibility to pay in that
      other lawsuit keeping all of the mold claims and other claims you have
      against State Farm in this lawsuit. And what Judge Triana abated was not
      all of these claims about mold, et cetera in this lawsuit, but I see here she
      abated only a portion of the other lawsuit. So neither suit is completely
      abated. Only the other suit is partially abated. And the portion that is
      abated is the breach of contract and extracontractual claims that are
      within the auto claims lawsuit.

See 102413 RR at 13:02-14:06 (C.R. 231-233).

      State Farm’s interpretation of the order is consistent with the holding in Lone

Star Cement:

      We hold that the order and record considered as a whole as well as the
      conduct of the parties and trial court subsequent to the order dictate a
      construction contrary to that of the Court of Civil Appeals.

Lone Star Cement Corp. v. Fair, 467 S.W.2d 402, 405 (Tex.1971). See also In re

Bill Heard Chevrolet, 209 S.W.3d 311, 315 (Tex. App.-Houston [1st Dist.] 2006, no

pet.)(“Therefore, to be effective, all orders and rulings must be made on the record

either in writing or in open court transcribed by the court reporter. See TEX.R.APP.


                                            18
      P. 33.1(a)(2)”)5.        Appellants’ complaints about the severance order, while

      incredulous in light of the dialogue at the October 24, 2013 hearing, are merely a

      sideshow. They have nothing to do with whether the summary judgment entered in

      State Farm’s favor should be affirmed or reversed. They are also completely lacking

      in merit.

               C.     Appellants’ Second Issue: Whether a Scheduling Order which is in
                      all things void may control deadlines emanating from said order.

               Appellants second issue seizes upon an obvious typograpical error in arguing

      that the October 24, 2013 scheduling order is void. Judge Jenkins accidentally dated

      his signature October 24, 2014 (a year into the future at the time it was signed). No

      reasonable party could have been confused by this error. Appellants have not even

      alleged confusion, surprise, or harm resulting from the typographical error.

      Appellants failed to raise this issue in their motion for continuance (C.R. 628-632)

      or motion to set aside grant of summary judgment. (C.R. 716-721). They have failed

      5
          Even if the May 22, 2013 severance order was ambiguous, Judge Jenkins’ ruling cured any

ambiguity:

               In contrast to Rule 329b, Rule 41 has no such requirement that a severance be
               determined “by written order.” Tex. R. Civ. P. 41, 329b (emphasis added).
               Furthermore, unlike Rule 329b, which requires a motion for new trial to be granted
               in writing before the relevant time period expires, nothing in Rule 41 requires a
               severance order to be in writing and signed before the remaining case is submitted
               to the trier of fact.

      Nichols v. Nichols, 331 S.W.3d 800, 804 (Tex. App.—Fort Worth 2010, no pet.).



                                                      19
to preserve error under T.R.A.P. 33.1 and Tex. R. Civ. P. 166a (c) and have waived

this complaint. Independently, a trial court's minor clerical error does not render an

otherwise valid discovery order void. Cire v. Cummings, 134 S.W.3d 835, 844 (Tex.

2004). An obvious clerical error does not void an other wise valid order. Ex parte

Benitez, 590 S.W.2d 704, 707 (Tex.1979).

      Regardless of the enforceability of the written order itself, the record of the

hearing (102413 RR at 13:02-15:19 & C.R. 231-233) is itself enforceable:

      One exception to the general rule exists. An order pronounced in open
      court is considered “rendered” when it is officially announced, and it is
      valid from that time forward, so that formal entry is only a ministerial
      act. Dunn v. Dunn, 439 S.W.2d 830, 832 (Tex.1969); UMC, Inc. v.
      Arthur Bros., Inc., 626 S.W.2d 819, 820 (Tex.App.-Corpus Christi
      1981), writ ref'd n.r.e., 647 S.W.2d 244 (Tex.1982). Therefore, to be
      effective, all orders and rulings must be made on the record either in
      writing or in open court transcribed by the court reporter. See
      TEX.R.APP. P. 33.1(a)(2).

In re Bill Heard Chevrolet, 209 S.W.3d 311, 314-15 (Tex.App.—Houston [1st Dist.]

2006, no pet.).

      Further, in the absence of a valid scheduling order, the case would have been

governed by Level 2 discovery deadlines, under which both the discovery period and

Appellants’ expert deadline would have passed by the time of the hearing on State

Farm’s Motion for Summary Judgment. Appellants have never argued, in the trial

court or in the briefing in this Court that they were prevented from taking discovery

or faced any impediment to marshalling their proof.


                                         20
     State Farm sent Appellants a Request for disclosure on February 23, 2013.

Appellants’ response was due on April 1, 2013. (C.R. 41). Tex. R. Civ. P.

190.3(b)(1)(B) states:

      All discovery must be conducted during the discovery period, which
      begins when suit is filed and continues until:

      (A) 30 days before the date set for trial, in cases under the Family Code;
      or

      (B) in other cases, the earlier of

      (i) 30 days before the date set for trial, or

      (ii) nine months after the earlier of the date of the first oral
      deposition or the due date of the first response to written discovery.

                                         ***

Tex. R. Civ. P. 195.2 states:

      195.2. Schedule for Designating Experts

      Unless otherwise ordered by the court, a party must designate experts-
      -that is, furnish information requested under Rule 194.2(f)--by the later
      of the following two dates: 30 days after the request is served, or-
      (a) with regard to all experts testifying for a party seeking affirmative
      relief, 90 days before the end of the discovery period;
      (b) with regard to all other experts, 60 days before the end of the
      discovery period.
      Even if the typo rendered the scheduling order void, the discovery period

ended on January 1, 2014 (prior to the discovery cutoff in the order that Appellants

now contend is void). Last, Appellants failed to articulate any harm from the


                                           21
allegedly void order or point out how the summary judgment is improper if the

scheduling order is void.

       D.      Appellant’s Third Issue: Whether the refusal to grant an extension of
               time to designate experts, or modify a docket control order or abate a
               matter constitutes an abuse of discretion or denial of equal protection
               under the law.

       Appellants failed to raise the matters presented in their third issue in their

motion for continuance (C.R. 628-632) or motion to set aside grant of summary

judgment (C.R. 716-721). They failed to preserve error under T.R.A.P. 33.1 and

Tex. R. Civ. P. 166a (c)6. Further, Appellants have not shown any harm from the

trial court’s refusal to extend time to designate experts, modify the docket control

order or abate the lawsuit. Appellants never presented evidence supporting their

medical claims as ordered by Judge Jenkins in his October 24, 2013 scheduling

order. Therefore, the refusal of the trial court to extend their deadline, even if error,

would be harmless:

       Neither on appeal nor in their motion do appellants explain that they
       exercised due diligence in obtaining the additional discovery needed.
       See TEX.R. CIV. P. 252; see also Risner v. McDonald's Corp., 18
       S.W.3d 903, 909 (Tex. App.--Beaumont 2000, pet. denied). In fact, any
       due diligence argument is likely undermined by the amount of time that

6
 In addition, because orders on motions to abate are not final appealable orders, mandamus is the
appropriate avenue by which a party may seek review of a trial court’s order denying abatement. In
Re State Farm Mutual Automobile Insurance Company, 395 S.W.3d 229, 236-37 (Tex. App. – El
Paso, orig. proceeding). In this case, Davis did not seek the remedy of mandamus in connection
with her complaint of the trial court’s ruling on her motion to abate (or the May 22, 2013 order
granting State Farm’s abatement request). Consequently, failure to timely seek the remedy of
mandamus constitutes waiver of these issues. In Re Lexington Insurance Co., 2004 WL 210576,
*5 (Tex. App. – Houston [14th Dist.], orig. proceeding [mand. denied]).
                                               22
      passed between the exclusion of the expert testimony and the trial
      court's final judgment.

Schronk v. Laerdal Medical Corp., 440 S.W.3d 250, 264 (Tex. App.--Waco 2013,

review denied).

      But there was no error in the first place. Tex. R. Civ. P. Rule 193.6 provides:

      (a) Exclusion of Evidence and Exceptions. A party who fails to make,
      amend, or supplement a discovery response in a timely manner may not
      introduce in evidence the material or information that was not timely
      disclosed, or offer the testimony of a witness (other than a named party)
      who was not timely identified, unless the court finds that:
      (1) there was good cause for the failure to timely make, amend, or
      supplement the discovery response; or
      (2) the failure to timely make, amend, or supplement the discovery
      response will not unfairly surprise or unfairly prejudice the other
      parties.

TEX. R. CIV. P. 193.6(a).

      Appellants repeatedly failed to produce evidence in support of their claims

(C.R. 41, 47, 55) and failed to comply with the trial court’s October 24, 2013 Order

directing them to produce evidence in support of their claims by January 15, 2014.

On January 15, 2014 Appellants filed a Motion for Extension of Time to Designate

Experts, seeking two additional months. (C.R. 101-102). Appellants did not set

their motion for hearing. Two months passed and Appellants still failed to disclose

their experts or produce expert affidavits. On March 28, 2014 State Farm filed a

Motion to enforce scheduling order, pointing out that Appellants had not offered any



                                         23
evidence establishing good cause for their failure to comply with the Court’s

scheduling order. (C.R. 132-137).

      At the April 17, 2014 hearing on the Motion to enforce scheduling order, the

Hon. Tim Sulak questioned Veronica Davis at length about her failure to comply

with the scheduling order and whether there was good cause for her failure to

comply. She admitted that there was nothing preventing her from complying with

the order and acknowledged that the myriad excuses she offered for her failure to

produce anything in the six months that followed Judge Jenkins’ order were all

hypothetical concerns about future medical events she thought “might” happen.

041714RR 30:22-39:21. Judge Sulak’s April 18, 2014 order denying Appellants’

motion to extend time and motion to abate was not an abuse of discretion.

      Appellants next argue, at page 16 of their brief:

      Although the Appellee cites that Appellant produced no records with
      respect to its claims, Appellant produced a medical authorization
      allowing the production of records. The docket control sheet lists a
      myriad of records obtained by Appellee in connection with said
      authorization.

Appellants failed to raise this issue in their motion for continuance (C.R. 628-632)

or motion to set aside grant of summary judgment. (C.R. 716-721). Appellants

failed to show the existence of any records raising a fact question to defeat summary

judgment. (C.R. 715-719). Appellants failed to produce an expert disclosure, expert

affidavits or any evidence to support their damages claim. The record does not


                                         24
contain a medical authorization. Appellants waived any complaint based on the

existence of a “medical authorization.” Moreover, a medical authorization is not

evidence of damages and would not create a fact question. The “docket control

sheet” that “lists a myriad of records obtained by Appellee” (See Appellants brief at

16) does not demonstrate the contents of those records and is insufficient to create a

fact question to defeat summary judgment.

      E.     Appellants’ Fourth Issue: Whether a court may refuse to grant a
             rehearing on a case in which Appellant has not been allowed the
             opportunity to be heard.

      Appellants failed to raise this issue in their motion for continuance (628-632)

or their motion to set aside grant of summary judgment. (C.R. 715-719). They

waived this complaint. Appellants fail to cite to the record to support their fourth

point. Appellants fail to articulate the error in the trial court’s rulings and although

Appellants complain about manner in which the Travis County’s central docketing

system works, they fail to show that the system is in violation of Tex. R. Civ. P.

329(b) or why the matter they complain of requires reversal.

      F.     Appellants’ Fifth Issue: Whether the court committed reversible error
             in granting summary judgment to Appellee.

      Appellants failed to raise in the trial court and therefore waived the arguments

that: (1) the grounds for summary judgment were actually pleading deficiencies and

should have been objected to my special exception; (b) the argument in the motion

for summary judgment constitutes an admission that shows the existence of an
                                          25
insurance policy; (c) adequate time for discovery had not passed and they needed

additional time to conduct discovery; (d) the summary judgment proof was

improper. The arguments that they did raise -- inadequate notice of the hearing, a

conflict preventing Veronica Davis from appearing at the hearing, and an inability

to participate at the hearing constituting a denial of due process -- are meritless.

               1.     The hearing was properly noticed, Appellants admit they
                      received notice of the hearing and, after receipt of notice,
                      Appellants’ agreed that the hearing could proceed as noticed

               a.     Defendant’s Motion for Summary Judgment was timely filed
                      and served
         Defendant’s motion was timely filed and electronically served on Plaintiff via

e-file on May 14, 2014. (C.R. 643-644). This method of service completed proper

service under Tex. R. Civ. P. 21a(a)(1) and 21a(b)(3)(“electronic service is complete

on transmission of the document to the serving party’s electronic filing service

provider. The electronic filing manager will send confirmation of service to the

serving party.”) This proof of electronic service is alone sufficient to resolve this

issue.

         Further, State Farm went to the added expanse of having a process server hand

deliver the Motion for Summary Judgment to Veronica Davis’s office. (C.R. 645-

649)7. As explained by the process server’s affidavit, the motion was delivered to


7
 This additional precaution was taken because for a year and a half of litigation, Appellants’ fax
machine almost never accepted faxes from State Farm’s counsel (although it was capable of
                                                26
the address shown on Plaintiffs’ pleadings on May 14, 2014. (C.R. 645-649). Tex.

R. Civ. P. 21a states that “the affidavit of any person showing service of a notice

shall be prima facie evidence of the fact of service.” The rule also states “nothing

herein shall preclude any party from offering proof that the notice or instrument was

not received . . .and upon so finding, the court may extend the time for taking the

action required . . .” Id.

       Appellants failed to offer proof that they had not received the notice (C.R.

628-634) or to obtain a finding by the trial court that they had not received timely

notice. Therefore, even if the process server’s affidavit was the only method of

service, Appellants failed to rebut State Farm’s prima facie evidence of service 8.

Ms. Davis was timely served with notice of the hearing by two independently

sufficient methods. Appellants’ arguments to the contrary defy reason.

               b.     There was No conflict Preventing Veronica Davis from
                      Attending the June 5, 2014 Summary Judgment hearing. In
                      fact, she agreed to that hearing date.




sending faxes frequently). It was apparent that the machine was turned off so that service could
not be accomplished by fax. Appellants likewise evaded certified mail throughout this entire
case. After having called the number listed on Plaintiffs’ petition, asking when someone would
be available to accept the motion and being told at 3 p.m, the process server went to the address
at 3 p.m. and knocked on the door. He waited for thirty minutes, but nobody answered the door,
so he left the package containing the motion at the address. (C.R. 645-649).
8
  Even if Appellants had rebutted the prima facie evidence, the rule allows, but does not require,
the trial court to extend time if it makes the requisite finding.
                                                27
       Because Appellants’ own motion for continuance (C.R. 628-634) included an

attachment showing that Appellants had agreed to the hearing date, there is no basis

for Appellants’ contention that the court’s refusal to grant the continuance was an

abuse of discretion. After receiving timely notice of the June 5, 2014 hearing as

detailed above, Ms. Davis initially contended she was unavailable due to a trial

setting in Federal Court on June 4. When State Farm’s counsel asked Ms. Davis to

provide the case style of the federal court case9, Ms. Davis refused to do so and

instead consented in writing to the summary judgment hearing date:

       “you may proceed with SJ.”

See May 29, 2014 Veronica Davis email to Edward Kaye, attached to Appellants’

Motion for continuance. (C.R. 634 and C.R. 641-642).

               2.      Inability to Participate/Denial of Due process refusal to grant
                       Continuance.

               a.      Appellant’s Contention that She Tried to “Call in” to the
                       hearing is irrelevant

       State Farm moved for summary judgment on “no evidence” grounds.

Appellants neither timely filed a response nor attached controverting proof to their

9
  The public records of the United States District Clerk for the Southern District of Texas (Houston
Division) show that a judgment was entered against Veronica Davis on June 2, 2014. See June 2,
2014 Judgment in Veronica L. Davis v. Toyota Motor Credit a/k/a Toyota Financial Services, Civil
Action No. H-12-0287 in the United States District Court for the Southern District of Texas. Thus,
there was no conflict preventing Ms. Davis from appearing at the hearing in this case three days
later on June 5, 2014.


                                                28
motion for continuance or stated in the continuance motion why they had not been

afforded adequate time for discovery. (C.R. 628-634). Thus, there was no error in

granting the summary judgment or failing to continue the hearing.

             b.     Appellants’ Motion to set aside grant of summary judgment
                   did not contain any evidence or seek leave to file an untimely
                   response to State Farm’s summary judgment.


      Appellants failed to present any evidence to controvert State Farm’s Motion

for Summary Judgment. Appellants cite to an affidavit that alleges Ms. Davis

attempted to “call in” to the summary judgment hearing on June 5. See Appellants’

brief at 29. Her affidavit does not contain any evidence controverting the summary

judgment proof offered by State Farm, nor does it allege that she would have sought

leave at the hearing to introduce controverting evidence. Since the hearing itself was

not an evidentiary proceeding, Davis’s affidavit does not support reversal. “The

court must grant the motion unless the respondent produces summary judgment

evidence raising a genuine issue of material fact.” Tex. R. Civ. P. 166a (i).

      Davis’s affidavit also states

      “I called back and spoke with a person named Abthy [sic]. I asked what
      was the court designation that the matter would be heard in. She asked
      why I was calling and I told her for phone participation in the hearing.
      She put me on hold to check which courtroom the case would be heard
      in after advising me of the central docket system. I was on hold from
      1:57 p.m. to 2:15. No one ever came back to the telephone. At 2:15, I
      hung up and called back. I got no answer.”



                                          29
(C.R. 731). The record does not reflect any conference or agreement for Appellant

to participate in the hearing by telephone. Veronica Davis’s affidavit attached to the

motion to set aside grant of summary judgment shows a lack of diligence. Calling a

busy courthouse a few minutes before a hearing without having previously arranged

with the court to participate by telephone (and without even telling opposing

counsel), yet expecting to be put directly through to a hearing is neither reasonable

nor prudent. The affidavit admits facts showing that the courthouse staff was

attempting to put her through to the courtroom, but Ms. Davis hung up. Finally,

although the affidavit (sworn almost month after the hearing date) states that she was

“calendared” for a trial in Federal court (C.R. 731), Appellants’ brief admits that

Appellant did not have a matter set for trial in federal court on June 5, 2014. See

Appellants’ Brief at 28.

             c.    Appellants failed to allege or demonstrate a need for
                   additional time to produce the evidence required to
                   controvert State Farm’s Motion.

      Appellants argue that they could not respond to the summary judgment

because they did not have adequate time for discovery and that refusal to grant a

continuance was error. Appellants failed to raise this argument in their motion for

continuance (C.R. 628-632); in that motion, they sought additional time, but did not

allege or demonstrate that they had not already had adequate time for discovery, or

in their Motion to set aside grant of summary judgment. (C.R. 716-719). Therefore,


                                         30
they waived this complaint. Moreover, Appellants are simply incorrect.

      Texas Rule of Civil Procedure 166a(i) provides

      After adequate time for discovery, a party without presenting summary
      judgment evidence may move for summary judgment on the ground
      that there is no evidence of one or more essential elements of a claim
      or defense on which an adverse party would have the burden of proof
      at trial. The motion must state the elements as to which there is no
      evidence. The court must grant the motion unless the respondent
      produces summary judgment evidence raising a genuine issue of
      material fact.
Id

      In Madison v. Williamson, 241 S.W.3d 145, 155 (Tex. App.-Houston [1st

Dist.] 2007, pet. denied), the First Court of Appeals discussed the factors used to

evaluate whether adequate time for discovery had passed:

      “Whether a nonmovant has had adequate time for discovery under rule
      166a(i) is case specific.” Rest. Teams Int'l, Inc. v. MG Sec. Corp., 95
      S.W.3d 336, 339 (Tex.App.-Dallas 2002, no pet.). Rule 166a (i) does
      not require that discovery must have been completed, only that there
      was “adequate time.” Specialty Retailers, Inc. v. Fuqua, 29 S.W.3d 140,
      145 (Tex. App.-Houston [14th Dist.] 2000, pet. denied). To determine
      whether adequate time for discovery has elapsed, we examine such
      factors as: (1) the nature of the case; (2) the nature of evidence
      necessary to controvert the no-evidence motion; (3) the length of time
      the case was active; (4) the amount of time the no-evidence motion was
      on file; (5) whether the movant had requested stricter deadlines for
      discovery; (6) the amount of discovery already completed; and (7)
      whether the discovery deadlines in place were specific or vague.
      Brewer & Pritchard, P.C. v. Johnson, 167 S.W.3d 460, 467 (Tex.App.-
      -Houston [14th Dist.] 2005, pet. denied); Rest. Teams Int'l, Inc., 95
      S.W.3d at 339; McMahan v. Greenwood, 108 S.W.3d 467, 498
      (Tex.App.--Houston [14th Dist.] 2003, pet. denied); Martinez v. City of
      San Antonio, 40 S.W.3d 587, 591 (Tex. App.-San Antonio 2001, pet.
      denied). We review a trial court's determination of whether an adequate
      time for discovery has passed under an abuse of discretion standard.
                                        31
       Fuqua, 29 S.W.3d at 145. A trial court abuses its discretion if it acts in
       an arbitrary or unreasonable manner “without reference to any guiding
       rules or principles.” Garcia v. Martinez, 988 S.W.2d 219, 222
       (Tex.1999).

       Madison's lawsuit had been on file for over one year at the time the trial
       court granted summary judgment. The trial court also extended the
       discovery period on one occasion, and allowed Madison to file
       additional summary judgment evidence late. Furthermore, Madison
       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. See TEX.R.APP. P. 166a(i) cmt (“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.”).

Madison v. Williamson, 241 S.W.3d at 155-156.
       Appellants’ lawsuit had been on file for a year and a half when the summary

judgment was granted. The scheduling order they complain about was entered eight

months before the date of the summary judgment. Appellants failed to seek leave to

introduce any evidence in their motion for continuance (C.R. 628-634) or their

motion to set aside grant of summary judgment (C.R. 716-732). They likewise failed

to specify the evidence they needed or articulate any barrier to obtaining the evidence

they needed to raise a fact question.10 Appellants’ motion for continuance merely

stated:




10
   The chronology of the case in State Farm’s Response in opposition to Appellants Motion for
Continuance is illustrative of the ample opportunity Appellants had to produce evidence to raise a
fact question. (C.R. 636-639).
                                               32
       Continuance should be granted so that further Plaintiff may further
       participate in the discovery process. Additional discovery is needed by
       Plaintiff in this cause to respond to the allegations contained in
       Defendant’s summary judgment motion.

(C.R. 632)11.

       In Davis v. West, 317 S.W.3d 301, 313-14 (Tex. App.-Houston [1st Dist.]

2009, no pet.), the court affirmed summary judgment against Veronica Davis,

overruling the same argument she urges here:

       Davis also argues on appeal that Rule 166a (i) states that a no-evidence
       motion for summary judgment may be filed “after an adequate time for
       discovery.” TEX.R. CIV. P. 166a (i). Davis contends that she did not
       have an adequate time for discovery in light of health problems she
       encountered while the case was on file. However, Davis waived any
       objection to an inadequate time for discovery by failing to file an
       affidavit explaining the need for further discovery or a verified motion
       for continuance.




11
  Appellants’ Motion for Continuance was not properly verified. Appellant swore to the content
of the verification, but not that the information in the motion was true and correct:

       “My name is Veronica L. Davis. I am Plaintiff Pro Se and attorney for Plaintiff
       James A. Davis. I have read the information contained in this Verification and the
       information contained herein is true and correct to the best of my knowledge.”

(C.R. 633). The facts alleged in the motion for continuance are not verified and Appellants have
waived their complaint. See Flores v. Flores, 225 S.W.3d 651, 654-55 (Tex. App.—El Paso 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. Plaintiffs did not file either one. Plaintiffs have
waived their argument regarding an adequate time for discovery.)

Flores v. Flores, 225 S.W.3d 651, 654-55 (Tex. App.—El Paso 2006, pet. denied).



                                                33
Appellants here likewise failed to explain the need for further discovery in their

motion for continuance (C.R. 628-634).

             3.     Improper Summary Judgment Evidence.

      Appellants complain at page 33 of their brief that the attachment of hearing

transcripts and orders in this case is a violation of Tex. R. Civ. P. 166(a)(d).

Appellants failed to raise this issue in the trial court. (C.R. 628-32 and C.R. 716-

721). Further, because those transcripts and orders are not discovery products and

are on file with the clerk, Appellants’ complaint is wrong. Appellants further

complain that “Most of the documents attached . . .is [sic] not referenced in the

motion and has nothing whatsoever to do with the motion itself.” See Appellants’

brief at 33. Appellants fail to articulate how there could be any harm from any such

attachments, regardless to their relevance to the relief sought.

      Appellants argue that when State Farm’s motion for summary judgment

pointed out the items on which Appellants failed to meet their burden of proof, all

State Farm was doing was complaining of “pleading deficiencies” and that State

Farm should have specially excepted to them rather than moving for summary

judgment. (See Appellants’ brief at 33). This objection, too, was waived. Texas law

is clear that if a defendant files a motion for summary judgment when it should have

filed special exceptions, the plaintiff must object to the motion for summary




                                          34
judgment on the ground that it is an attempt to circumvent the special exception

practice. If the plaintiff does not object, the issue is waived:

      [t]here being no complaint in the trial court that the attack upon the pleading
      defect came in the form of a motion for summary judgment rather than special
      exception,” this matter could not be raised for the first time on appeal. Farrell
      v. Crossland, 706 S.W.2d 158, 160 (Tex.App.—El Paso 1986, writ dism'd).
      The trial court must be given a fair opportunity to correct any error. Appellants
      have waived their special exceptions and verified pleadings arguments by
      their failure to preserve these arguments for review.

Dickey v. Jansen, 731 S.W.2d 581, 583 (Tex.App.—Houston [1st Dist.] 1987, writ

ref’d n.r.e.) Appellants failed to raise this issue in their Response in opposition to

summary judgment (C.R. 628-633) or in their Motion to set aside grant of summary

judgment (C.R. 716-720). The argument is also substantively wrong. As plaintiffs

with the burden of proof, Appellants had an affirmative obligation to bring forth

evidence in order to controvert State Farm’s “no evidence” summary judgment

motion. They failed to do so. Appellants sued State Farm, contending its handing of

their mold claim injured James Davis; State Farm was under no obligation to

specially except to this allegation as a predicate to asking Appellants to show more

than a scintilla of evidence to support such a claim.

             4.     Party Admission.
      Appellants argue that State Farm’s motion for summary judgment itself is an

admission that Appellants had a State Farm homeowner’s policy. Appellants failed

to raise these issues issue in their motion for continuance (C.R. 628-632) or motion


                                           35
to set aside grant of summary judgment (C.R. 716-721). Thus they have waived this

complaint. Substantively, whether Appellants had a State Farm policy in 2002 does

not state a reason for reversal because Appellants failed to adduce any evidence that

State Farm denied a claim under a policy. In fact, Appellants admit at page 34 of

their brief that there is no evidence State Farm denied James Davis’s claim:

      Appellee acknowledges that James was a minor at the time and thereby
      states that he had two years from that date to file suit. He provides no
      summary judgment evidence, however, of the alleged denial of the
      claim.
See Appellants’ brief at 34.
      Finally, a judicial admission that a policy existed would not satisfy

Appellants’ burden of proof: “An insured cannot recover under an insurance policy

unless facts are pleaded and proved showing that damages are covered by his

policy.” Comsys Information Technology Services, Inc. v. Twin City Fire Ins. Co.,

130 S.W.3d 181, 198 (Tex.App.–Houston [14 Dist.] 2003, review denied).;Laidlaw

Waste Sys. (Dallas), Inc. v. City of Wilmer, 904 S.W.2d 656, 660 (Tex.1995)

(pleadings are not summary judgment evidence). Appellants failed to offer proof of

the terms of the policy, a denial or underpayment of a claim, injury or damages from

the handling of such a claim or any acts or omissions by State Farm.




                                         36
             5.     Attorneys affidavit in support of summary judgment.
      Appellants argue at page 39 of their brief that State Farm’s counsel should “in

all things be disqualified.” They fail to argue how the affidavit they complain about

harmed them or show that its existence requires reversal of the summary judgment.

      G.     Appellants’ Sixth issue: Whether the court erred in allowing
             irrelevant information to support a denial of an extension when said
             information, pleadings, and argument are violative of the Rules of
             Professional Conduct for Attorneys.


      Appellants failed to raise this topic in a response to the motion for summary

judgment, in their motion for continuance (C.R. 628-632) or motion to set aside grant

of summary judgment (C.R. 716-721). Thus they have waived this complaint.

Appellants also fail to show how this mater creates a fact question defeating

summary judgment. The information Appellants’ complain about is correspondence

between Eddie Kaye and Veronica Davis regarding a hearing date and a filing from

a case in Brazoria County that was attached to State Farm’s Response to Appellants’

Motion to Abate. (C.R. 249). The filing was a matter of public record. It

demonstrated that Veronica Davis misrepresented her medical condition as an

excuse to seek an abatement and as a reason to refuse to agree to any hearing date

for the motion for extension of time to designate experts and that this was part of a

pattern of delay:

        -Feb. 20-21, 2014 Plaintiff has a trial setting and prepares a brief on a
                   motion for reconsideration in Cause No.CIO48098 Leroy

                                          37
                   Stroman vs. Robert Tautenhan in Harris County Court at
                   Law no. 1. See Exh. “A”;
        -Feb 25, 2014 Veronica Davis sets hearing on March 10, 2014 in
                  her client’s Motion for Reconsideration and
                  application for attorneys fees in Cause No.CIO48098
                  Leroy Stroman vs. Robert Tautenhan in Harris County
                  Court at Law no. 1;
        -Feb. 26, 2014 State Farm’s counsel sends letter to Veroncia Davis
                   seeking agreement to a date for a hearing on Plaintiffs’
                   Motion for Extension of time to designate experts during
                   the week of March 17, 2014. See Exh. “B.” Veronica
                   Davis responds in a letter stating (in part) “if you will
                   review my request to abate this action, you will see that
                   I am scheduled for cervical spine surgery on March 10,
                   2014. My motion further states that I had a couple of
                   other surgeries that I was scheduling. I have no idea
                   how you think I will be able to travel that soon after
                   spinal surgery.” See Exh “C.”
See State Farm’s Response in opposition to Plaintiffs’ Motion to Abate. (C.R.
249). [emphasis in original]
      Like all of Appellants’ arguments, Issue 6 fails to present any legal basis for
reversing the trial court’s judgment.

                             CONCLUSION
      Appealing from a summary judgment, Appellants take the unusual approach

of not even arguing that (a) fact issues should have precluded summary judgment or

(b) that the trial court erred as a matter of law on how it evaluated the competing

legal arguments. Appellants do not cite any evidence that they say should have

precluded summary judgment. Instead, Appellants argue that they should not have


                                         38
been required to introduce evidence or marshal proof in response to a “no evidence”

motion for summary judgment, for a variety of bizarre and difficult to follow

reasons. Despite Appellants’ attempts to inject severed claims into this appeal and

to portray themselves as victims of injustice at the hands of four Travis County

district court judges, the record is conclusive that: Appellants filed claims they could

not prove, fought every attempt to force them to reveal the basis for their claims,

tried to change venue from the forum they selected when the noose began to tighten,

failed to respond to a properly noticed motion for summary judgment, failed to

appear at the hearing, and as a result had summary judgment granted against them.

Their real complaint is that they failed in their attempt to extract a settlement without

making a case. Their arguments on appeal defy even the most liberal sense of good

faith advocacy. State Farm respectfully requests that the summary judgment be

affirmed.




                                           39
                                              Respectfully submitted,

                                       By:    /s/ Edward F. Kaye
                                              J. Hampton Skelton
                                              State Bar No. 18457700
                                              hskelton@skeltonwoody.com
                                              Edward F. Kaye
                                              State Bar No. 24012942
                                              ekaye@skeltonwoody.com
                                              SKELTON & WOODY
                                              248 Addie Roy, Bldg. B, Suite 302
                                              Austin, Texas 78746
                                              Telephone: (512) 651-7000
                                              Facsimile: (512) 651-7001

                                              Counsel for Appellee State Farm
                                              Lloyds



                          CERTIFICATE OF COMPLIANCE

             I certify that this brief complies with Texas Rule of Appellate Procedure
9.4 because the brief contains 10,260 words, excluding the parts of the brief exempted
by Texas Rule of Appellate Procedure 9.4(i)(1).


                                              s/ Edward F. Kaye
                                              Edward F. Kaye




                                         40
                        CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the foregoing document has
been forwarded by certified mail, return receipt requested on January 28, 2015, to
the following counsel of record:

      Veronica L. Davis
      Attorney for Appellants
      226 N. Mattson
      West Columbia, Texas 77486
      Facsimile: (979) 345-5461
                                             /s/ Edward F. Kaye
                                             Edward F. Kaye




                                        41
                              NO. 03-14-00546-CV
 _______________________________________________________________

                    IN THE THIRD COURT OF APPEALS
                           AUSTIN, TEXAS
 _______________________________________________________________

                  JAMES A. DAVIS & VERONICA L. DAVIS
                               Appellants,

                                         v.

                        STATE FARM LLOYDS
                              Appellee.
 _______________________________________________________________

              From the 345th District Court of Travis County, Texas;
                         Cause No. D-1-GN-12-004077

                                 APPENDIX
                               CASE HISTORY


-2002             Plaintiff submits mold claim to State Farm. State Farm pays over
                  $17,000.00 to remediate Plaintiff’s mold claim;
-Dec. 30, 2010    Veronica Davis involved in auto accident with Gerald Krouse;
-Dec. 28, 2012    Veronica Davis and James Davis file suit against State Farm
                  Lloyds and Gerald Krouse alleging damages related to 2002
                  Homeowners policy claim as well as 3 separate auto policy
                  claims arising out of accidents in 2010 & 2011;
-Feb. 23, 2013.   State Farm’s answers and propounds a Request for Disclosure.
                  Plaintiffs fail to respond and seek additional time. State Farm
                  agrees and grants extension. Plaintiff fails to disclose expert
                  evidence of damages related to mold or persons with knowledge
                  of relevant facts related to mold related injuries; State Farm files
                                         1
                   a “Motion to Sever and Abate Extracontractual Claims.” The
                   Motion seeks to sever the case into two lawsuits—a homeowners
                   case and an auto case. The Motion on seeks abatement of claims
                   in the auto case. It does not seek abatement of anything in the
                   homeowners case.
-May 22, 2013      Judge Gisela Triana grants State Farm Lloyds motion to sever
                   lawsuit into “auto” case and “homeowners” case. Plaintiffs’
                   extra-contractual claims for damages against State Farm in the
                   auto case are abated until her UIM injury allegations against
                   Gerald Krouse are decided; Plaintiffs’ lawsuit against State Farm
                   in homeowners case proceeds forward;
- June-Aug. 2013 State Farm continues to ask Plaintiff to produce evidence of
                 damages related to mold. Plaintiff fails to identify any healthcare
                 providers. Plaintiff says she is “gathering’ information;
-August 2013       State Farm files a motion to compel Plaintiffs’ responses to
                   Request for Disclosure. Plaintiff agrees to produce evidence of
                   damages related to mold and State Farm agrees to pass setting on
                   motion to compel. Plaintiff fails to identify any healthcare
                   providers related to mold;
- Sept. 26, 2013   State Farm files motion for entry of scheduling order requiring
                   plaintiff to produce affidavit proof from healthcare providers
                   supporting Plaintiffs’ injury allegations in homeowners suit by
                   Nov. 29, 2013. (C.R. 63-65);
- Oct. 24, 2013    Hearing before Judge Scott Jenkins on State Farm’s motion for
                   entry of scheduling order. Veronica Davis first argues that the
                   entire lawsuit is abated until the Auto case is tried. She does not
                   want to produce any evidence. Judge Jenkins explains to
                   Veronica Davis that the abatement is only in the Auto case and
                   that the Homeowners case is a separate lawsuit and none of her
                   claims are abated. Veronica Davis next argues that she is “still
                   in the gathering phase” of obtaining her own medical records.
                   Veronica Davis argues she is going to have a medical procedure
                   in early December that will incapacitate her. Judge Jenkins asks
                   Veronica Davis to identify a date by which she can comply with


                                         2
                   his order and designate experts.       Veronica Davis responds
                   “January 15, 2014”;
-Dec. 16-20, 2013 Veronica Davis appears as counsel and tries a case in the matter
                  Cause No.CIO48098 Leroy Stroman vs. Robert Tautenhan in
                  Harris County Court at Law no. 1. (C.R. 253-60).
-January 15, 2014 Plaintiffs fail to comply with Judge Jenkins’ order; Plaintiffs file
                  Motion for Extension of time to designate experts seeking two
                  additional months to produce evidence. Plaintiffs do not argue
                  that the case is abated or that Judge Triana’s severance order is
                  void.
-February 1, 2014 Plaintiffs file Motion to Abate seeking 6 month abatement to
                  “recuperate” from medical procedures. (C.R. 103-05). Veronica
                  Davis attached (1) an affidavit in support of abatement stating
                  that she has “announced her retirement” (C.R. 109) and (2) a
                  “Procedural Consent Form” (C.R. 107) for a discectomy to be
                  performed on March 10, 2014;
-Feb. 20-21, 2014 Plaintiff has a trial setting and prepares a brief on a motion for
                  reconsideration in Cause No.CIO48098 Leroy Stroman vs.
                  Robert Tautenhan in Harris County Court at Law no. 1. (C.R.
                  254, 283);
-Feb 25, 2014      Veronica Davis sets hearing on March 10, 2014 in her client’s
                   Motion for Reconsideration and application for attorneys
                   fees in Cause No.CIO48098 Leroy Stroman vs. Robert
                   Tautenhan in Harris County Court at Law no. 1. The file
                   stamp shows she filed it on Feb. 25, 2014. (C.R. 543);
-Feb. 26, 2014     State Farm’s counsel sends letter to Veronica Davis seeking
                   agreement to a date for a hearing on Plaintiffs’ Motion for
                   Extension of time to designate experts during the week of March
                   17, 2014. (C.R. 296). Veronica Davis responds in a letter
                   stating (in part) “if you will review my request to abate this
                   action, you will see that I am scheduled for cervical spine
                   surgery on March 10, 2014. My motion further states that I
                   had a couple of other surgeries that I was scheduling. I have


                                          3
                   no idea how you think I will be able to travel that soon after
                   spinal surgery.” (C.R. 299).
-March 11, 2014    State Farm’s counsel sets Plaintiffs’ Plaintiffs’ Motion for
                   Extension of time to designate experts for hearing at 2:00 p.m.
                   on March 27, 2014. Notice is sent to Plaintiff via email and
                   certified mail return receipt requested.
-March 27, 2014    Plaintiff fails to appear at hearing on Plaintiffs’ Motion for
                   Extension of time to designate experts. Plaintiff supplied a
                   phone number to the Court administrator’s office in the morning
                   of March 27 and stated that she would be available at that number
                   to attend the hearing by telephone. Plaintiff’s counsel fails to
                   answer three separate attempts by Judge Triana’s courtroom
                   deputy to call her phone. Judge Triana orders hearing continued
                   to March 11;
-April 11, 2014    State Farm’s counsel agrees to reset hearing on Plaintiff’s
                   Motion for Extension of time, State Farm’s Motion to Enforce
                   Scheduling Order and Plaintiffs’ Motion to abate to April 17,
                   2014.
--April 17, 2014   Veronica Davis admits under questioning from Judge Tim Sulak
                   that she has not had any medical procedures that prevent her from
                   participating in the case. Instead, she is still “considering”
                   having procedures at some time in the future.
--April 18, 2014   Plaintiffs’ Motion for Extension of Time to designate experts and
                   Motion to abate denied. Defendant’s Motion to Enforce
                   Scheduling Order granted.
--May 14, 2014     Defendant’s First Amended Motion for Summary Judgment filed
                   and served on Appellee by electronic service and hand delivery
                   during business hours to the address on Plaintiff’s pleadings.
--May 4, 2014      Plaintiffs’ Response to Summary Judgment/Motion for
                   continuance filed
--May 5, 2014      Summary Judgment Granted.
--July 3, 2014     Plaintiffs’ Motion to set aside grant of summary judgment filed


                                         4
--August 2, 2014 Plaintiffs Motion to set aside grant of summary judgment denied.
--Sept. 2, 2014   Appellants’ Notice of Appeal filed.
--Oct. 9, 2014    Appellants set Motion to set aside grant of summary
                  judgment/Motion for Sanctions for hearing in the Travis County
                  District Court in Cause No. D-1-GN-12-004077 (the
                  homeowners case which at the time was already on appeal.). See
                  RR 101714, p1-10. Appellee’s counsel sends an email objecting
                  to the hearing and stating that if Veronica Davis proceeds State
                  Farm will seek its fees.
--Oct. 16, 2014   Hearing on Appellants set Motion to set aside grant of summary
                  judgment/Motion for Sanctions for hearing in the Travis County
                  District Court in Cause No. D-1-GN-12-004077 (the
                  homeowners case which at the time was already on appeal.). See
                  RR 101714, p1-10. Appellants’ motion is denied for lack of
                  jurisdiction. Id.




                                        5
