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CAUSE NO. -286906
DOMINIC KION DAVIS IN THE DISTRICT COURT OF
Plaintiff,
V. FORT BENDCOUNTY, TEXAS
PATRICK WAYNE ELY AND TEXAS
TRANSEASTERN, INC.,
Defendant JUDICIAL DISTRICT
PLAINTIFF DOMINIC DAVIS’ RESPONSE TO
DEFENDANTS’ TRADITIONAL AND NO EVIDENCE MOTION
FORPARTIAL SUMMARY JUDGMENT
Plaintiff, Dominic Davis files his Response to Defendants’ Motion for Summary Judgment,
and would respectfully show unto the Court the following:
Defendants’ Motion is premature;
Additional discovery is pending and needs to be conducted in this case;
The Court should allow the parties to conduct and complete discovery; and,
As a practical matter, with no meaningful discovery of relevant facts, the Court need not
address this issue at the current state of this proceeding as it can simply defer its ruling to
avoid the potential need for a second trial post-appeal on issue.
INTRODUCTION
Plaintiff, Dominic Davis filed a lawsuit for negligence arising out of an automobile
accident against Defendants Patrick Wayne Ely (“Ely”) and Texas Transeastern Inc. (“TT ”).
The accident which occurred on March 25, 2021, while Plaintiff was traveling Southbound on FM
1463 approaching S. Firethorn Road, when Defendant Ely, while operating a vehicle owned by
E failed to yield the right of way while exiting a gas station and struck Plaintiff’s vehicle.
Plaintiff’s Original Petition, Sep. 2, 2021.
On February 23, 2022, Defendants filed theirOriginal Answer.
On January 2, 2023, the Court signed an Agreed Scheduling Order, setting this case for
trial beginning November 14, 2023.
The Parties completed mediation on April 10, 2023. Mediation was ultimately
unsuccessful, but the parties continued trying to settle the matter informally.
After additional settlement talks failed, on July 26, 2023, the parties agreed to conduct
additional discovery and depositions. The parties have been diligently working to schedule
additional depositions but have yet to solidify dates through no fault of their own.
On September 2023, Defendants’ filed their Motion for Summary Judgment prior to
the discovery cutoff date outlined in this Court’s Docket Control Order.
On October 4, 2023, the parties filed an Agreed Motion for Continuance in order to conduct
additional discovery and depositions as agreed. This is the first continuation in this matter. This
was also filed prior to the discovery cutoff date outlined in this Court’s Docket Control Order.
There are relevant and material facts that are yet to be discovered or determined.
Defendants' motion for summary judgment is premature. Thus, Plaintiffs respectfully request that
the Court deny Defendant’s motion. Alternatively, Plaintiffs request that this Court continue
consideration of this motion to allow discovery to be conducted and completed.
SUMMARY JUDGMENT STANDARD
-Evidence Summary Judgment
In Texas, courts have adopted the no evidence procedure to challenge the sufficiency of claims
remaining after discovery has been completed. See Tex. R. Civ. P. 166a(i). The procedure is not
preemptive and was never intended to be used to summarily dispose of claims without any meaningful
Def Ely and TTI’s Original Answer Feb , 202 2.
discovery of relevant facts. Indeed, Texas Rule of Civil Procedure 166a(i) expressly mandates
adequate discovery before an evidentiary challenge. “After adequate time for discovery a party
without presenting summary judgment evidence may move for summary judgment . . . .” . (emphasis
added). The comments to the rules make the importance of discovery clear:
“Paragraph (i) authorizes a motion for summary judgment based on the assertion that,
after adequate time for discovery, there is no evidence to support one or more
specified elements of an adverse party's claim or defense. 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.” 1997 Comment to Tex. R. Civ. P. 166a(i) (emphasis
added).
Following the mandate for adequate discovery, Texas courts deny noevidence motions
for summary judgment because adequate time for discovery has not passed. See
Tempay Inc. v. TNT Concrete & Constr., Inc., 37 S.W.3d 517, 520, 523 (Tex. App.
Austin 2001, pet. denied) (holding that failure to grant continuance before examining
the merits of summary judgment motion was an abuse of discretion); Creative Thinking
Sources, Inc. v. Creative Thinking, Inc., 74 S.W.3d 504, 515 (Tex. App.Corpus
Christi 2002, n.p.h.) (noting on remand that “a no evidence summary judgment is
restricted in that it cannot be granted prior to the passage of an ‘adequate time for
discovery’”); see also Specialty Retailers, Inc. v. Fuqua, 29 S.W.3d 140, 145 (Tex.
App.Houston [14th Dist.] 2000, pet. denied) (there had been adequate time for
discovery when case had been on file 16 months, court had granted one discovery
extension, and there was no evidence of abuse of discovery).
“Whether a nonmovant has had an adequate time for discovery for the purposes of Rule
166a(i) is ‘casespecific.’” Tempay, 37 S.W.3d at 522 (citation and footnote omitted).
Where, as in this case, the motion is filed before the deadline for the completion of
discovery, the movant bears “the burden of proving that a no evidence motion for
summary judgment was not premature.” Creative Thinking, 74 S.W.3d at 515
The Tempay court outlined the factors courts may consider in determining whether
there has been adequate time for discovery, including: the nature of the cause of action
and the evidence necessary to controvert the motion; the length of time the case has
been active in the trial court; the amount of discovery that has already taken place; and
the amount of time the no evidence motion has been on file. Tampay, 37 S.W. 3d at
522 (citations omitted). The Tempay court also held that in no circumstance should a
party “be able to abuse the discovery process, withhold key evidence from its
opponents, and then use that lack of evidence to win a judgment.” . (citation omitted).
Applied here, these factors make it clear that Defendants motion for noevidence
summary judgment should be denied. It is premature. Plaintiffs need time to depose
additional fact witnesses as agreed by the parties. This is the very purpose of discovery.
For these reasons, this Court should deny Defendant’s NoEvidence Summary
Judgment Motion.
B. Traditional Summary Judgment
Likewise, Plaintiffs respectfully urge this Court to deny Defendants Traditional Motion
for Summary Judgment. The Texas Rules of Civil Procedure provide that traditional summary
judgment can only be appropriate when “there is no genuine issue as to any material fact and the
moving party is entitled to judgment as a matter of law on the issues expressly set out in the motion
or in an answer or any other response.” Tex. R. Civ. P. 166a(c). In addition, “in summary judgment
proceedings, courts are not to weigh the evidence or determine its credibility. It is the court’s duty
to determine if there are any fact issues to be tried.” White v. Cooper, 415 S.W. 2d 246 (Tex.
App.—Amarillo 1967) (citation omitted). This is an impossible task for the Court to undertake at
this time as the parties have not yet conducted the necessary discovery.
Thus, Plaintiffs urge this Court to deny Defendant’s traditional motion for summary
judgment.
MOTION FOR CONTINUANCE
In the alternative, Plaintiff requests that the Court continue consideration of this motion to
allow discovery to commence and to be completed. Plaintiff and Defendants agreed to conduct
additional fact witness depositions in this case. Furthermore, a continuance and new scheduling
order has been requested by the Parties’ First Agreed Motion for continuance.
Deferring a decision on this motion will not interfere with the case. No party will be subject
to unfair prejudice. Rule 166a(g) provides that the Court, “may order a continuance to permit
affidavits to be obtained or depositions to be taken or discovery to be had or may make such other
order as may be just.” A trial court may continue a trial or summary judgment hearing based on a
party’s need for additional discovery. Rule 166a(g) of the Texas Rules of Civil Procedure provides
that a court may grant a continuance when a party in opposition to motions for summary judgment
shows the need for additional discovery in order to properly oppose such motions.
Plaintiff does not seek a continuance for the purposes of delay but so that justice may be
done and that the Court can consider the motion on a complete evidentiary record. Thus, the
Court—at a minimumshould defer ruling so that the parties may begin and complete discovery.
PRAYER
Plaintiff prays that Defendants’ Motion be denied in its entirety, or, alternatively, the
Court should defer its decision to allow additional time for discovery.
Respectfully submitted,
HE AW FFICES MAR HAWAJA
By: /S/ Lorin R. George
ORIN EORGE
Texas Bar No. 00785489
lorin@attorneyomar.com
MAR HAWAJA
Texas Bar No. 24072181
omar@attorneyomar.com
5177 Richmond, Suite 1065
Houston, Texas 77056
Tel. (281) 888-2339
Fax. (713) 969-4837
TTORNEYS OR LAINTIFF
***R 21A SERVICE BY E ONLY BE DELIVERED TO
SERVICE ATTORNEYOMAR MAIL
ADDRESS IS NOT ACCEPTED ***
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing has been served in compliance
with Rules 21 and 21a of the Texas Rules of Civil Procedure on the 27 day of October 2023, to
all counsel of record.
/S/ Lorin R. George
ORIN EORGE
Preview
CAUSE NO. -286906 DOMINIC KION DAVIS IN THE DISTRICT COURT OF Plaintiff, V. FORT BENDCOUNTY, TEXAS PATRICK WAYNE ELY AND TEXAS TRANSEASTERN, INC., Defendant JUDICIAL DISTRICT PLAINTIFF DOMINIC DAVIS’ RESPONSE TO DEFENDANTS’ TRADITIONAL AND NO EVIDENCE MOTION FORPARTIAL SUMMARY JUDGMENT Plaintiff, Dominic Davis files his Response to Defendants’ Motion for Summary Judgment, and would respectfully show unto the Court the following: Defendants’ Motion is premature; Additional discovery is pending and needs to be conducted in this case; The Court should allow the parties to conduct and complete discovery; and, As a practical matter, with no meaningful discovery of relevant facts, the Court need not address this issue at the current state of this proceeding as it can simply defer its ruling to avoid the potential need for a second trial post-appeal on issue. INTRODUCTION Plaintiff, Dominic Davis filed a lawsuit for negligence arising out of an automobile accident against Defendants Patrick Wayne Ely (“Ely”) and Texas Transeastern Inc. (“TT ”). The accident which occurred on March 25, 2021, while Plaintiff was traveling Southbound on FM 1463 approaching S. Firethorn Road, when Defendant Ely, while operating a vehicle owned by E failed to yield the right of way while exiting a gas station and struck Plaintiff’s vehicle. Plaintiff’s Original Petition, Sep. 2, 2021. On February 23, 2022, Defendants filed theirOriginal Answer. On January 2, 2023, the Court signed an Agreed Scheduling Order, setting this case for trial beginning November 14, 2023. The Parties completed mediation on April 10, 2023. Mediation was ultimately unsuccessful, but the parties continued trying to settle the matter informally. After additional settlement talks failed, on July 26, 2023, the parties agreed to conduct additional discovery and depositions. The parties have been diligently working to schedule additional depositions but have yet to solidify dates through no fault of their own. On September 2023, Defendants’ filed their Motion for Summary Judgment prior to the discovery cutoff date outlined in this Court’s Docket Control Order. On October 4, 2023, the parties filed an Agreed Motion for Continuance in order to conduct additional discovery and depositions as agreed. This is the first continuation in this matter. This was also filed prior to the discovery cutoff date outlined in this Court’s Docket Control Order. There are relevant and material facts that are yet to be discovered or determined. Defendants' motion for summary judgment is premature. Thus, Plaintiffs respectfully request that the Court deny Defendant’s motion. Alternatively, Plaintiffs request that this Court continue consideration of this motion to allow discovery to be conducted and completed. SUMMARY JUDGMENT STANDARD -Evidence Summary Judgment In Texas, courts have adopted the no evidence procedure to challenge the sufficiency of claims remaining after discovery has been completed. See Tex. R. Civ. P. 166a(i). The procedure is not preemptive and was never intended to be used to summarily dispose of claims without any meaningful Def Ely and TTI’s Original Answer Feb , 202 2. discovery of relevant facts. Indeed, Texas Rule of Civil Procedure 166a(i) expressly mandates adequate discovery before an evidentiary challenge. “After adequate time for discovery a party without presenting summary judgment evidence may move for summary judgment . . . .” . (emphasis added). The comments to the rules make the importance of discovery clear: “Paragraph (i) authorizes a motion for summary judgment based on the assertion that, after adequate time for discovery, there is no evidence to support one or more specified elements of an adverse party's claim or defense. 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.” 1997 Comment to Tex. R. Civ. P. 166a(i) (emphasis added). Following the mandate for adequate discovery, Texas courts deny noevidence motions for summary judgment because adequate time for discovery has not passed. See Tempay Inc. v. TNT Concrete & Constr., Inc., 37 S.W.3d 517, 520, 523 (Tex. App. Austin 2001, pet. denied) (holding that failure to grant continuance before examining the merits of summary judgment motion was an abuse of discretion); Creative Thinking Sources, Inc. v. Creative Thinking, Inc., 74 S.W.3d 504, 515 (Tex. App.Corpus Christi 2002, n.p.h.) (noting on remand that “a no evidence summary judgment is restricted in that it cannot be granted prior to the passage of an ‘adequate time for discovery’”); see also Specialty Retailers, Inc. v. Fuqua, 29 S.W.3d 140, 145 (Tex. App.Houston [14th Dist.] 2000, pet. denied) (there had been adequate time for discovery when case had been on file 16 months, court had granted one discovery extension, and there was no evidence of abuse of discovery). “Whether a nonmovant has had an adequate time for discovery for the purposes of Rule 166a(i) is ‘casespecific.’” Tempay, 37 S.W.3d at 522 (citation and footnote omitted). Where, as in this case, the motion is filed before the deadline for the completion of discovery, the movant bears “the burden of proving that a no evidence motion for summary judgment was not premature.” Creative Thinking, 74 S.W.3d at 515 The Tempay court outlined the factors courts may consider in determining whether there has been adequate time for discovery, including: the nature of the cause of action and the evidence necessary to controvert the motion; the length of time the case has been active in the trial court; the amount of discovery that has already taken place; and the amount of time the no evidence motion has been on file. Tampay, 37 S.W. 3d at 522 (citations omitted). The Tempay court also held that in no circumstance should a party “be able to abuse the discovery process, withhold key evidence from its opponents, and then use that lack of evidence to win a judgment.” . (citation omitted). Applied here, these factors make it clear that Defendants motion for noevidence summary judgment should be denied. It is premature. Plaintiffs need time to depose additional fact witnesses as agreed by the parties. This is the very purpose of discovery. For these reasons, this Court should deny Defendant’s NoEvidence Summary Judgment Motion. B. Traditional Summary Judgment Likewise, Plaintiffs respectfully urge this Court to deny Defendants Traditional Motion for Summary Judgment. The Texas Rules of Civil Procedure provide that traditional summary judgment can only be appropriate when “there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law on the issues expressly set out in the motion or in an answer or any other response.” Tex. R. Civ. P. 166a(c). In addition, “in summary judgment proceedings, courts are not to weigh the evidence or determine its credibility. It is the court’s duty to determine if there are any fact issues to be tried.” White v. Cooper, 415 S.W. 2d 246 (Tex. App.—Amarillo 1967) (citation omitted). This is an impossible task for the Court to undertake at this time as the parties have not yet conducted the necessary discovery. Thus, Plaintiffs urge this Court to deny Defendant’s traditional motion for summary judgment. MOTION FOR CONTINUANCE In the alternative, Plaintiff requests that the Court continue consideration of this motion to allow discovery to commence and to be completed. Plaintiff and Defendants agreed to conduct additional fact witness depositions in this case. Furthermore, a continuance and new scheduling order has been requested by the Parties’ First Agreed Motion for continuance. Deferring a decision on this motion will not interfere with the case. No party will be subject to unfair prejudice. Rule 166a(g) provides that the Court, “may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as may be just.” A trial court may continue a trial or summary judgment hearing based on a party’s need for additional discovery. Rule 166a(g) of the Texas Rules of Civil Procedure provides that a court may grant a continuance when a party in opposition to motions for summary judgment shows the need for additional discovery in order to properly oppose such motions. Plaintiff does not seek a continuance for the purposes of delay but so that justice may be done and that the Court can consider the motion on a complete evidentiary record. Thus, the Court—at a minimumshould defer ruling so that the parties may begin and complete discovery. PRAYER Plaintiff prays that Defendants’ Motion be denied in its entirety, or, alternatively, the Court should defer its decision to allow additional time for discovery. Respectfully submitted, HE AW FFICES MAR HAWAJA By: /S/ Lorin R. George ORIN EORGE Texas Bar No. 00785489 lorin@attorneyomar.com MAR HAWAJA Texas Bar No. 24072181 omar@attorneyomar.com 5177 Richmond, Suite 1065 Houston, Texas 77056 Tel. (281) 888-2339 Fax. (713) 969-4837 TTORNEYS OR LAINTIFF ***R 21A SERVICE BY E ONLY BE DELIVERED TO SERVICE ATTORNEYOMAR MAIL ADDRESS IS NOT ACCEPTED *** CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing has been served in compliance with Rules 21 and 21a of the Texas Rules of Civil Procedure on the 27 day of October 2023, to all counsel of record. /S/ Lorin R. George ORIN EORGE