Affirmed and Memorandum Opinion filed December 31, 2019.




                                     In the

                    Fourteenth Court of Appeals

                             NO. 14-18-00589-CV

                      ASHANTI MCKINNEY, Appellant

                                       v.

 HP FANNIN PROPERTIES, L.P., AND MIDWAY COMPANIES, L.L.C.,
                         Appellees

                   On Appeal from the 270th District Court
                           Harris County, Texas
                     Trial Court Cause No. 2017-38802

                         MEMORANDUM OPINION

      In this personal-injury case, the trial court rendered a no-evidence summary
judgment against appellant Ashanti McKinney on all her claims against appellees
HP Fannin Properties, L.P., and Midway Companies, L.L.C. The summary judgment
became final and appealable when the trial court severed all McKinney’s claims
against HP Fannin and Midway. In a single issue, McKinney argues that the trial
court abused its discretion in rendering summary judgment because “there had not
been adequate time for discovery.” We affirm.

                                    I.     BACKGROUND

       McKinney alleged that she was seriously injured when, as she was entering
an elevator, the doors slammed shut and struck her. McKinney alleged that the
incident occurred at a building owned or occupied by HP Fannin and managed by
Midway. On June 9, 2017, McKinney, an employee for one of the building’s tenants,
sued HP Fannin and Midway, asserting negligence under various theories.
McKinney also sued Schindler Elevator Corporation, alleged to be the maintenance
contractor for the elevator.1

       HP Fannin, Midway, and Schindler answered suit. On August 23, 2017, the
trial court signed a docket-control order, including deadlines for the oral hearing or
submission of dispositive motions and pleas. No-evidence summary-judgment
motions could not be heard before June 1, 2018. The docket-control order was sent
to all counsel of record, including counsel for McKinney.

       On April 4, 2018, Schindler filed a no-evidence motion for summary
judgment asserting McKinney could not produce evidence to support that Schindler
breached its duty of care regarding the elevator or that any breach proximately
caused her injuries. McKinney filed a “response and/or [in] the alternative motion
to co[n]tinue the hearing on Defendant Schindler Elevator Corporation’s
no-evidence motion for summary judgment.”2 Specifically, McKinney requested
that the trial court continue the hearing on Schindler’s summary-judgment motion

       1
         McKinney also sued ThyssenKrupp Elevator Corporation, alleged to be the designer,
manufacturer, installer, and service contractor for the elevator. However, McKinney dismissed her
claims as to ThyssenKrupp.
       2
          To her response, McKinney attached: excerpts from her deposition, an affidavit from her
co-trial counsel, Schindler’s responses to ThyssenKrupp’s requests for admissions, and a copy of
her motion to continue the trial as supported by her lead trial counsel’s affidavit.

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until after the trial court ruled on McKinney’s pending motion to continue the trial.3

       On May 4, 2018, HP Fannin and Midway filed a no-evidence motion for
summary judgment asserting that McKinney could not produce evidence to support
they owed her a legal duty, they breached that duty, a premises defect or dangerous
condition existed, they knew or should have known of any dangerous condition, and
any breach proximately caused her injuries. McKinney did not file a response to HP
Fannin’s and Midway’s summary-judgment motion. McKinney did not request a
continuance of the hearing on HP Fannin’s and Midway’s no-evidence
summary-judgment motion. On May 10, 2018, McKinney filed a verified motion to
continue the trial with an affidavit in support by her lead trial counsel.

       On June 1, 2018, the trial court held a hearing4 and signed an order granting
HP Fannin’s and Midway’s no-evidence motion for summary judgment. In its
summary-judgment order, the trial court ordered that McKinney take nothing against
HP Fannin and Midway. That same day, the trial court also signed an order granting
McKinney’s motion to continue the trial. On June 7, 2018, McKinney filed a motion
to sever her claims against HP Fannin and Midway. On July 12, 2018, the trial court
signed an order granting this severance motion. McKinney timely appealed.

                                     II.    ANALYSIS

       In a single issue, McKinney argues that the trial court abused its discretion in
granting HP Fannin’s and Midway’s no-evidence summary judgment because “there
had not been adequate time for discovery.” McKinney primarily relies on her motion


       3
        Our record does not contain a ruling on Schindler’s summary-judgment motion or on
McKinney’s “alternative” motion to continue the hearing on Schindler’s summary-judgment
motion.
       4
       The record does not contain a transcript of this summary-judgment hearing. According to
HP Fannin and Midway, McKinney did not appear at the hearing.

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for continuance and on the trial court’s granting of such motion.

      “After adequate time for discovery,” a party may file a “no-evidence” motion
for summary judgment if “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.” Tex. R. Civ. P. 166a(i). “The trial court may order a continuance of a
summary-judgment hearing if it appears ‘from the affidavits of a party opposing the
motion that he cannot for reasons stated present by affidavit facts essential to justify
his opposition.’” Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex.
2004) (quoting Tex. R. Civ. P. 166a(g)). “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.” Tenneco Inc. v. Enterprise Prods. Co., 925 S.W.2d 640, 647 (Tex.
1996) (citing Tex. R. Civ. P. 166a(g), 251, 252). This requirement applies in both
the traditional and the no-evidence summary-judgment context. Id. (traditional);
Lindsey Constr., Inc. v. AutoNation Fin. Servs., LLC, 541 S.W.3d 355, 360 (Tex.
App.—Houston [14th Dist.] 2017, no pet.) (no evidence); Berry v. Covarrubias, No.
14-03-01137-CV, 2004 WL 1631117, at *4 (Tex. App.—Houston [14th Dist.] July
22, 2004, no pet.) (mem. op.) (both). Whether to grant a party additional time to
conduct discovery before summary judgment is a matter for the trial court’s
discretion. Tenneco, 925 S.W.2d at 647; see Joe, 145 S.W.3d at 161 (outlining
nonexclusive factors).

      Here, McKinney filed neither a motion for continuance of the hearing on HP
Fannin’s and Midway’s no-evidence motion for summary judgment nor an affidavit
explaining the need for further discovery before the hearing on such motion.
McKinney did not ask the trial court to defer ruling on HP Fannin’s and Midway’s
no-evidence summary-judgment motion. Indeed, McKinney filed nothing in

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response to HP Fannin’s and Midway’s no-evidence motion. Therefore, McKinney
waived any complaint based on the need for discovery. See, e.g., Murtha v. Savvy’s,
Inc., No. 02-18-00065-CV, 2019 WL 2432150, at *3 (Tex. App.—Fort Worth June
6, 2019, pet. denied) (mem. op.) (“[A]t no time did Murtha ever bring to the attention
of the trial court an affidavit or verified motion for continuance of the no-evidence
summary judgment hearing.”); Berry, 2004 WL 1631117, at *4 (appellant waived
complaint that inadequate existed time for discovery when he did not file motion for
continuance or affidavit explaining need for further              discovery before
summary-judgment hearing).

      In addition, McKinney’s reliance on her verified motion to continue the trial
and on the trial court’s trial-continuance ruling to preserve her issue is misplaced.
“[A] motion for continuance of a trial setting does not preserve error for our review
of the granting of a no-evidence summary judgment motion when no continuance of
the no-evidence summary judgment hearing was sought.” Murtha, 2019 WL
2432150, at *3 (citing Chamie v. Memorial Hermann Health Sys., 561 S.W.3d 253,
257 (Tex. App.—Houston [14th Dist.] 2018, no pet.)).

      Nevertheless, McKinney argues that the trial court abused its discretion in
ruling on HP Fannin’s and Midway’s summary-judgment motion. McKinney
contends that the trial court’s order on the same day granting her motion to continue
the trial was “an implied finding that there had not been adequate time for discovery”
and it “necessarily follows that there could not have been adequate time for
discovery at the time HP Fannin and Midway moved for summary judgment.” But
McKinney misinterprets the trial court’s trial-continuance ruling.

      The record instead demonstrates the trial court’s granting of McKinney’s
motion for continuance was clearly a resetting of the trial only and did not imply any
finding that McKinney did not have adequate time to respond to HP Fannin’s and

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Midway’s no-evidence summary-judgment motion. In her verified motion to
continue the trial, McKinney requested that trial be continued for 120 days. In her
motion, McKinney did not request anything with regard to summary-judgment
motions or hearings. Although she requested that the trial court extend the pretrial
deadlines, in its order granting the motion for trial continuance, the trial court only
ordered that the trial be reset. In fact, the trial court expressly crossed out the
following portion of McKinney’s proposed order: “In addition, it is ORDERED that
discovery is reopened during the period that trial is continued and in accordance with
the proposed deadline extensions.” The order resetting the trial did not affect or reset
any other deadline in the docket-control order. See Chamie, 561 S.W.3d at 257
(interpreting same language that “[a]ll previous pre-trial deadlines remain in
effect”).

      We rejected an appellant’s similar argument in Chamie when the issue
concerned whether “the trial court erred in granting [no-evidence] summary
judgment because [the] motion was filed prematurely,” i.e., because there had not
been adequate time for discovery. Id. at 256–57. There, the appellant argued “that
the trial court erred in granting summary judgment when a continuance of the trial
date was granted shortly before the court ruled on the summary judgment motion.”
Id. at 257. We concluded that “[t]he trial court did not abuse its discretion in ruling
on the motion for summary judgment at the time it did” when the appellant did not
request a continuance of the hearing on the motion for summary judgment and, in
the order resetting the trial date, the trial court did not otherwise reset any pretrial
date or deadline. Id. at 256–57.

      We overrule McKinney’s sole issue.




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                                III.   CONCLUSION

      Accordingly, we affirm the trial court’s judgment.




                                       /s/       Charles A. Spain
                                                 Justice


Panel consists of Chief Justice Frost and Justices Spain and Poissant.




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