
COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS



MARGIE ORTEGA,

                           Appellant,

v.

ART GONZALEZ, JR. AND JAMES
RASCOE, INDIVIDUALLY AND
D/B/A GROC., INC., D/B/A DELL
MINI MART, 

                            Appellees.

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No. 08-03-00432-CV

Appeal from the

394th District Court

of Hudspeth County, Texas

(TC#3696-394)



 
O P I N I O N

           This is an appeal from the trial court’s granting of a “no-evidence” summary judgment
against Appellant.  For the reasons stated herein, we affirm.
                         I.  FACTUAL AND PROCEDURAL BACKGROUND
           Appellant filed a lawsuit against Appellees alleging various torts related to a business
partnership that purportedly existed among the parties.  Appellant contends that she had
entered into a business relationship with Appellees where the parties had agreed to purchase
a grocery business.  At some time after, not reflected in the record, the parties had a
disagreement over the arrangement.  Appellant filed suit on August 13, 2002, alleging causes
of action based in fraud and forgery, loss of business opportunities, breach of fiduciary duty,
intentional infliction of emotional distress, and tortious interference with prospective
business relationship.  The parties filed requests for disclosure and proceeded with other
written discovery.  Appellee Gonzalez, individually and d/b/a Groc. Inc. d/b/a Dell Mini Mart
filed special exceptions to Appellant’s original petition.  The appellate record reflects an
order granting the special exceptions and providing Appellant with sixty days to replead. 
The record does not reflect the filing of any amended pleadings if any were filed.
           The parties continued to exchange written discovery.  Appellee Gonzalez et al, filed
a “no-evidence” motion for summary judgment pursuant to Texas Rules of Civil Procedure
166a(i) on May 5, 2003.  On May 12, 2003, Appellee Rascoe filed his “no-evidence” motion
for summary judgment.  Both motions were considered by the court on May 29, 2003.    At
the hearing, Appellee Gonzalez apparently presented written objections to the timeliness of
Appellant’s response to the motion for summary judgment and to the form of the affidavit. 
Appellee Gonzalez also argued the basis for the objections to the court.  The written
objection was not included in the appellate record but the order sustaining all the objections 
is included and provides that the trial court sustained all the objections.  Thereafter, the trial
court granted the motions for summary judgment in favor of both Appellees.  Appellant filed
a notice of appeal.  We note that Appellant included as an attachment to her brief a copy of
a document requesting findings of fact and conclusions of law from the trial court.  No
proposed findings were included in the record.  The copy of the request is not file stamped
and no file stamped copy is included in the clerk’s record provided.  We also note that if the
request was properly filed and presented to the trial court, no proposed findings were
provided and no notice of past due findings of fact and conclusions of law was filed. 
Further, we note that normally, findings of fact and conclusions of law have no place in
summary judgment proceedings.  Linwood v. NCNB Texas, 885 S.W.2d 102, 103 (Tex.
1994); Besing v. Moffitt, 882 S.W.2d 79, 82 (Tex.App.--Amarillo 1994, no writ); State v.
Easley, 404 S.W.2d 296, 297 (Tex. 1966).  The failure to make such findings is not error and,
if made, they are correctly disregarded by the appellate court.  Cotton v. Ratholes, Inc., 699
S.W.2d 203, 204 (Tex. 1985).
           Appellant has appealed, raising one issue.
II.  DISCUSSION
           In her sole issue on appeal, Appellant complains that the “trial court erred and abused
its discretion under the circumstances of this case by granting [Appellees’] Motion for
Summary Judgement [sic], as an adequate and reasonable time to conduct discovery was not
allowed.”  The issue does not clearly complain of the erroneous action of the trial court.  It
appears to complain that the trial court’s holding of the hearing was error because Appellant
had not had sufficient time to conduct discovery, implying that the hearing should have been
postponed or continued.  The issue as worded and argued does not attack the merits of the
granting of the motions for summary judgment.  We note that no motion for continuance was
filed and Appellant’s response was struck and apparently not considered by the trial court. 
Further, we observe that any complaint on the merits of the granting of the summary
judgment is not briefed nor argued.  Appellant’s brief only challenges the trial court’s failure
to allow more time to continue the discovery process.  Appellant’s brief does not present any
argument regarding the substantive reasons why the trial court should have granted her
additional time nor does it articulate any evidence to rebut Appellees’ motions.  Appellant’s
argument is, in essence, a contention that the “result reached by the trial court is manifestly
unfair to [Appellant].”
           The brief “must contain a succinct, clear, and accurate statement of the arguments
made in the body of the brief.”  Tex. R. App. P. 38.1(g).  Rule 38 requires Appellant to
provide us with such discussion of the facts and the authorities relied upon as may be
requisite to maintain the point at issue.  See Tesoro Petroleum Corp. v. Nabors Drilling USA,
Inc., 106 S.W.3d 118, 128 (Tex.App.--Houston [1st Dist.] 2002, pet. denied); Franklin v.
Enserch, Inc., 961 S.W.2d 704, 711 (Tex.App.--Amarillo 1998, no pet.).  This is not done
by merely uttering brief conclusory statements, unsupported by legal citations.  Tesoro
Petroleum Corp., 106 S.W.3d at 128.  Appellant does not present any case law or argument
to support her contention that a continuance was requested and improperly denied.  The only
cases included in her brief identify the standard of review applicable to a “no-evidence”
motion for summary judgment.  By presenting such attenuated, unsupported argument,
Appellant waives her complaints.
           The argument cites to a few cases regarding the general standard of review applicable
to a summary judgment but no cases that address Appellant’s contention that sufficient time
for discovery had not passed.  See Tex. R. App. P. 38.1(h); Stephens v. Dolcefino, 126
S.W.3d 120, 125-26 (Tex.App.--Houston [1st Dist.] 2003, pet. filed); Franz v. Katy Indep.
Sch. Dist., 35 S.W.3d 749, 755 (Tex.App.--Houston [1st Dist.] 2000, no pet.).
           Clearly, in order to complain of the denial of a motion for continuance, the party
complaining must have actually requested that a continuance be granted.  Here, there is no
evidence that Appellant requested a continuance and as such, any complaint regarding the
same on appeal is waived.  To preserve a complaint for appellate review, a party must present
to the trial court a timely request, objection, or motion stating the specific grounds for the
ruling sought.  Tex. R. App. P. 33.1(a).  Issue No. One is thus waived for inadequate briefing
and a fail to file a motion below.
           Despite determining that Appellant’s issue should be overruled as waived, we note,
turning to the substantive question of the granting of the no-evidence summary judgments
by the trial court, we affirm the trial court’s decision.  Initially we note that Appellant’s
minimal response was struck and not considered.  We do not know on what basis the trial
court struck the response but the order reflects that Appellee’s objections were sustained as
filed.  Appellant does not complain of this ruling on appeal.Standard of Review
           We apply the usual standard of review for an order granting summary judgment
without specifying grounds and find ample evidence to affirm the trial court’s decision. 
Stated conversly, we find no evidence in record that raises a genuine issue of material fact. 
See Tex. R. Civ. P. 166a(i).  See Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex.
2001).  Furthermore, when a trial court’s order granting summary judgment does not specify
the ground or grounds relied on for the ruling, summary judgment will be affirmed on appeal
if any of the theories advanced are meritorious.  State Farm Fire & Cas. Co. v. S.S., 858
S.W.2d 374, 380 (Tex. 1993); Rogers v. Ricane Enter. Inc., 772 S.W.2d 76, 79 (Tex. 1989). 
           The orders granting Appellees’ motions do not set out any grounds or make any
findings, they merely grant Appellees’ motions.  Because Appellant’s responses to
Appellees’ motions for summary judgment were struck as untimely, Appellant did not raise
any challenges to the motions for summary judgment and therefore may not raise any on
appeal.  Tex. R. Civ. P. 166a.
           Additionally, Appellant contends that she “requested the Court to file Findings of
Facts and Conclusions of Law along with a notation in the pleading for then Court’s
consideration [sic].  The Court failed and refused to comply with the request.”
           Findings of fact and conclusions of law have no place in summary judgment
proceedings.  Linwood, 885 S.W.2d at 103; Besing, 882 S.W.2d at 82; Easley, 404 S.W.2d
at 297.  The failure to make such findings is not error and, if made, they are correctly
disregarded by the appellate court.  Cotton, 699 S.W.2d at 204.  Consequently, any failure
to file the findings is irrelevant to this appeal.
           Under the “no-evidence summary judgment” rule, the movant may move for summary
judgment if, after adequate time for discovery, there is no evidence of one or more essential
elements of a claim or defense on which the nonmovant would have the burden of proof at
trial.  See Tex. R. Civ. P. 166a(i).  The motion must state the elements as to which there is
no evidence and the reviewing court must grant the motion unless the nonmovant produces
summary judgment evidence raising a genuine issue of material fact.  See id.  Under the no-
evidence summary judgment standard, the party with the burden of proof at trial will have
the same burden of proof in a summary judgment proceeding.  See, e.g., Esco Oil & Gas, Inc.
v. Sooner Pipe & Supply Corp., 962 S.W.2d 193, 197 n.3 (Tex.App.--Houston [1st Dist.]
1998, pet. denied) (commenting that under Rule 166a(i) “the plaintiff as the nonmovant [has]
the burden to raise a triable issue on each element essential to the plaintiff’s case against each
defendant”).
            A no-evidence summary judgment is essentially a pretrial directed verdict, and we
apply the same legal sufficiency standard in reviewing a no-evidence summary judgment as
we apply in reviewing a directed verdict.  Marsaglia v. University of Texas, El Paso, 22
S.W.3d 1, 3-4 (Tex.App.--El Paso 1999, pet. denied); see also Hon. David Hittner &
Lynne Liberato, Summary Judgments in Texas, 34 Hous. L. Rev. 1303, 1356 (1998).
A no-evidence summary judgment is properly granted if the nonmovant fails to bring forth
more than a scintilla of probative evidence to raise a genuine issue of material fact as to an
essential element of the nonmovant’s claim on which the nonmovant would have the burden
of proof at trial.  See Tex. R. Civ. P. 166a(i); Merrell Dow Pharmaceuticals, Inc. v. Havner,
953 S.W.2d 706, 711 (Tex. 1997), cert. denied, 523 U.S. 1119, 118 S.Ct. 1799, 140 L.Ed.2d
939 (1998).  If the evidence supporting a finding rises to a level that would enable
reasonable, fair-minded persons to differ in their conclusions, then more than a scintilla of
evidence exists.  Havner, 953 S.W.2d at 711.  Less than a scintilla of evidence exists when
the evidence is “so weak as to do no more than create a mere surmise or suspicion” of a fact,
and the legal effect is that there is no evidence.  Kindred v. Con/Chem, Inc., 650 S.W.2d 61,
63 (Tex. 1983).
           In the case before us, Appellant filed a petition complaining of the conduct of
Appellees and alleging various business-related torts.  After several months of discovery,
Appellees filed their “no-evidence” motions for summary judgment.  Appellant did not file
any summary judgment evidence to controvert the “no-evidence” motions for summary
judgment filed by Appellees.  Her response was merely a succession of paragraphs which
argued that evidence exists on each issue without stating what evidence exists.  The only
evidence presented consisted of an affidavit prepared by Appellant consisting of one
paragraph that merely articulates that, in Appellant’s opinion, the Appellees did certain things
that harmed her.  If the response had been timely, the affidavit as attached is not sufficient
evidence to rebut Appellees’ motions.  Under Texas Rule of Civil Procedure 166a(i),
Appellant has failed to meet her burden to defeat Appellees’ “no-evidence” motions for
summary judgment.  In this case, Appellant, the nonmovant below presented no evidence of
the liability of either Appellee in response to the motions filed.  The minimal response, even
if considered by the trial court, was not sufficient.  For the reasons stated, we affirm the
judgment of the trial court and overrule Appellant’s issue.
           Having overruled Appellant’s issue on review, we affirm the judgment of the trial
court.
                                                                  RICHARD BARAJAS, Chief Justice
June 30, 2005

Before Panel No. 2
Barajas, C.J., McClure, and Chew, JJ.
