Preview
FILED
11/14/2023 1:46 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS.
Debra Clark DEPUTY
CAUSE NO. DC-22-17006
KAMY REAL PROPERTY TRUST, § IN THE DISTRICT COURT
PLAINTIFF, §
vs. 8 134 JUDICIAL DISTRICT
THOMAS IBARRA 8
DEFENDANT, § OF DALLAS COUNTY, TEXAS
PLAINTIFF’S RESPONSE TO DEFENDANT’S NO-EVIDENCE MOTION FOR
SUMMARY JUDGEMENT
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, KAMY Real Property Trust, (“Plaintiff”) in the above
matter who files their response to Thomas Ibarra’s, (“Defendant”) No-Evidence
Motion for Summary Judgment (the “Motion”) and in support thereof, states
the following:
I
Objections
Plaintiff objects to Defendant’s no evidence motion for summary
judgment to the extent that there has not been adequate time for discovery.
Plaintiff had previously served Defendant with Requests for Production,
Requests for Admissions, and Interrogatories on September 27, 2023, thus
Defendant’s answers were due on October 27, 2023. On or about October 24,
2023, Defendant’s counsel contacted counsel for Plaintiff and requested an
extension of two weeks, until November 10, 2023. On or about October 31,
2023, Defendant had the audacity to file the Motion while still not having
provided answers to Plaintiff's discovery requests. The production requests and
the interrogatories are central to Plaintiff's claims.
Additionally, on or about November 1, 2023, Defendant served Plaintiff
with requests for production and interrogatories. Plaintiff's responses are not
due until December 1, 2023.
Defendant’s filing of a motion for summary judgment is premature, as
discovery is still open, and responses are still outstanding. The Motion should
be denied on the basis of its untimeliness.
Il.
Introduction
1 Plaintiff sued Defendant for Trespass onto Plaintiffs property
claiming that Defendant and or agents of Defendant physically, intentionally,
and voluntarily been crossing Plaintiff's Property to gain access to Defendant’s
property causing damage in the form of tracks, ruts, potholes, etc. to Plaintiff's
property. Furthermore, Plaintiff believes that the actions of trespass have
further damaged Plaintiff's property by lessening the potential resale value of
the property and that compensation by the Defendant is appropriate for the
use and damage to said property.
2 Defendant answered asserting that they are entitled to summary
judgment Pursuant to Tex. R. Civ. P. 166a (i), in which there has been an
adequate time for discovery and the elements claiming trespass by Plaintiff has
not been substantiated or provided proof of the essential elements such as (1).
Evidence that the Defendant trespassed on Plaintiff’s land and the entry was
physical, intentional, and voluntary; and (2) Evidence that the Defendant’s
alleged trespass caused injury to the Plaintiff.
Ill.
Background
3 Defendant physically, intentionally, and voluntarily utilized
Plaintiff's property by clearing the trees to incorporate a road to get access to
their property causing irreparable damage in the process. Without permission
or consent from Plaintiff, Defendant continually operates commercial
machinery on the property and making improvements.
4 Plaintiff further cannot access the property as Defendant erected a
fence that only can be accessible by Defendant and their agents. Furthermore,
as indicated on the Fence reveals a sign saying “Keep Out”. This action results
in Plaintiff from utilizing the property to the fullest extent possible for business
and commercial purposes.
5 On September 27", 2023, Plaintiff served their First Set of
Discovery Request to Defendant. Defendant’s counsel of record requested an
extension to supplement Discovery and Plaintiff's Counsel permitted such.
However, on October 31*, 2023, Defendant filed their No-Evidence Summary
Judgment Motion even though Plaintiff requested Discovery over a month in
advance with the deadline being December 3", 2023. Prior to the filing of their
response, Plaintiff has not been received answers or responses to their
Discovery requests.
IV.
Standard of Review - No Evidence
A court may not grant a no evidence motion for summary judgment if the
respondent presents more than a scintilla of evidence supporting the elements
of its claims that are specifically challenged by the movant. Forbes, Inc. v.
Granada Biosciences, Inc., 124 S.W.3d 167, 172 (Tex. 2003).
V.
Summary Judgment Evidence
6 To support the facts in this response, plaintiff offers the following
summary-judgment evidence attached to this response and incorporates the
evidence into this response by reference:
EXHIBIT 1: Photograph of Fence on Plaintiffs Property
EXHIBIT 2: Aerial View of Road and Construction Vehicle
EXHIBIT 3: Defendant’s Agent’s Vehicle
EXHIBIT 4: Gate Opened revealing the roadway to Defendant’s Property
EXHIBIT 5: Catalyst Real Estate Developments report on Damages
caused by Defendant’s Trespass
VI.
Response to No-Evidence Summary Judgment; Plaintiff's Cause of Action
for Trespass
A Plaintiff has sufficient evidence to raise fact issue on their cause of
action
7 In a no-evidence motion for summary judgment, a defendant can
challenge a plaintiff to produce evidence to support one or more elements of
the plaintiffs cause of action on which the plaintiff would have the burden of
proof at trial after an adequate time for discovery has passed. Tex. R. Civ. P.
166a(i). To avoid a no-evidence summary judgment, the plaintiff is not required
to marshal its proof; the plaintiff only needs to point out evidence that raises a
fact issue on the elements challenged in the defendant's motion. Hamilton v.
Wilson, 249 S.W.3d 425, 426 (Tex. 2008); see Tex. R. Civ. P. 166a(i); Boerjan v.
Rodriguez, 436 S.W.3d 307, 310 (Tex. 2014). To raise a genuine issue of
material fact, the plaintiff must produce more than a scintilla of evidence in
support of the challenged elements. Smith v. O'Donnell, 288 S.W.3d 417, 424
(Tex. 2009); Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004); see
Boerjan, 436 S.W.3d at 312. More than a scintilla of evidence is produced if the
evidence is sufficient to allow reasonable and fair-minded people to differ in
their conclusions on whether the challenged fact exists. Forbes, Inc. v.
Granada Biosciences, Inc., 124 S.W.3d 167, 172 (Tex. 2003); see First United
Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214, 220 (Tex. 2017).
In evaluating whether more than a scintilla of evidence exists, the court must
view the evidence in the light most favorable to the plaintiff, crediting evidence
favorable to the plaintiff if reasonable jurors could, and disregarding contrary
evidence unless reasonable jurors could not. Boerjan, 436 S.W.3d at 311-12;
Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009).
8 Defendant alleged that there is no evidence supporting essential
elements of plaintiff's cause of action for trespass. The elements of the cause of
action are the following: The Defendant entered the Plaintiff's land and the
entry was physical, intentional, and voluntary; and the Defendant’s trespass
caused injury to the Plaintiff. Defendant contends that there is no evidence to
support those two elements.
9 The Court should deny defendant's no-evidence motion for
summary judgment because plaintiff has produced sufficient evidence to raise
a fact issue on Defendant’s entry was physical, intentional and Voluntary; and
the Defendant’s trespass caused injury to the Plaintiff challenged by defendant.
B. Defendant’ Tr was Physi Intentional nd Volun:
10. The plaintiff must prove that the trespassing was “physical,
intentional, voluntary, and unauthorized.” Pentagon Enterprises v.
Southwestern Bell Telephone Co., 540 S.W.2d 477, 478 (Tex.App.- Houston
[14th Dist.] 1976, writ ref'd. n.r.e.)
11. Defendant’s Trespass was “physical” as Defendant and their
representatives entered the property, constructed a road, and applied a fence
unto the property without Plaintiff's permission See Environmental Processing
Systems, L.C. V. FPL Farming Ltd. 457 S.W. 3d 414 (Tex. 2015) See Wilen v.
Falkenstein, 191 S.W.3d 791 (Tex. 2006) (See Exhibits 1, 2 and 3).
12. Concerning the “intent” element of the trespass requires only proof
of the interference with the right of possession of real property. Accord Trinity
Universal Ins. Co. v. Cowan, 945 S.W.2d 819, 827 (Tex.1997) Defendant and
their representatives and Agents erected a fence preventing Plaintiff from
entering their own property. A person likewise trespasses when he intentionally
causes a third person to enter land in the possession of another.
RESTATEMENT (SECOND) OF TORTS § 158 cmt. j (1977). (See also Exhibits 2,
3 and 4). The Restatement (Second) of Torts explains agency liability in a
trespass suit as follows:
Causing entry of a third person. If, by any act of his, the actor
intentionally causes a third person to enter land, he is fully liable as
though he himself enters. Thus, if the actor has commanded or
requested a third person to enter land in the possession of another, the
actor is responsible for the third person's entry, if it be a trespass. This is
an application of the general principle that one who intentionally causes
another to do an act is under the same liability as though he himself
does the act in question.
13. Defendant further “Voluntarily” trespassed on Plaintiff's property
by willingly and intentionally entering, constructing, and entering Plaintiff's
property See Wilen v. Falkenstein, 191 S.W.3d 791 (Tex. 2006) (See Exhibits 1
through 4).
Defend I d Inj Plaintiff
Cc.
14. In Catalyst Real Estate Developments report on the Damages
sustained to Plaintiff's Property (See Exhibit 5), the creation of the road by
clearing the trees has diminished the value of the land as a result of the alleged
trespass See Cummer-Graham Co. v. Maddox, 155 Tex. 284, 291, 285 S.W.2d
932, 936 (1956) Wilen v. Falkenstein, 191 S.W.3d 791 (Tex. 2006).
15. Defendant’s actions were “Malicious” and caused irreparable harm
to Plaintiff. Wilen V. Falkenstein, 191 S.W. 3d 791 (Tex. 2006). Plaintiff did not
permit anyone either the Defendant or it’s representatives from entering the
property. The erection of the fence, preventing access onto Plaintiff’s property,
and construction of the road. Furthermore, as indicated in Plaintiff's Exhibit 5,
the damage is irreversible and cannot be undone.
D. Plaintiff has did not obtain Defendant’s original answers to
discovery until after the Motion was filed, five days prior to the Response
being due.
16. Under Texas Rule of Civil Procedure 166a(g), a court can grant a
continuance of a summary-judgment hearing if the party opposing summary
judgment can establish by affidavit or verified motion that it has not had an
adequate time for discovery. Tenneco Inc. v. Enter. Prods. Co., 925 S.W.2d 640,
647 (Tex. 1996). To seek a continuance under Rule 166a(g), the affidavit or
verified motion must identify the evidence sought, explain why it is material,
and state with particularity the diligence used to obtain the evidence. West v.
SMG, 318 S.W.3d 430, 443 (Tex. App.—Houston [1st Dist.] 2010, no pet.);
Rocha v. Faltys, 69 S.W.3d 315, 319 (Tex. App.—Austin 2002, no pet.); Dozier
v. AMR Corp., No. 2-09-186-CV, 2010 WL 3075633 (Tex. App.—Fort Worth
2010, no pet.) (memo op.; 8-5-10); In re Estate of Mask, No. 04-07-00667-CV,
2008 WL 4595027 (Tex. App.—San Antonio 2008, pet. denied) (memo op.;
10-15-08). If the basis for continuance is the need to take additional
depositions, the affidavit or verified motion must also meet the additional
requirements of Texas Rule of Civil Procedure 252. Tri-Steel Structures, Inc. v.
Baptist Found., 166 S.W.3d 443, 448 (Tex. App.—Fort Worth 2005, pet.
denied); Gundermann v. Buehring, No. 13-05-278-CV, 2006 WL 240517 (Tex.
App.—Corpus Christi 2006, pet. denied) (memo op.; 2-2-06). To meet the
additional requirements of Rule 252, the affidavit or verified motion must (1)
explain the reasons for not obtaining the discovery earlier, if known, and (2)
show that the discovery cannot be obtained from any other source if the party
had previously applied for a continuance. Tex. R. Civ. P. 252; see Mulcahy v.
Wal-Mart Stores, Inc., No. 02-10-00074-CV, 2010 WL 5118199 (Tex. App.—Fort
Worth 2010, no pet.) (memo op.; 12-16-10); Gundermann, No. 13-05-278-CV,
2006 WL 240517 (memo op.).
17. If the affidavit or verified motion meets the requirements for a
continuance, the court should consider the following nonexclusive factors for
determining whether an adequate time for discovery has passed: (1) the nature
of the suit, (2) the evidence necessary to controvert the motion, (3) the length of
time the case has been on file, (4) the length of time the motion has been on
file, (5) the amount of discovery that has already taken place, (6) whether the
movant requested stricter deadlines for discovery, and (7) whether the
discovery deadlines in place were specific or vague. Cmty. Initiatives, Inc. v.
Chase Bank, 153 S.W.3d 270, 278 (Tex. App.—El Paso 2004, no pet.); see
McInnis v. Mallia, 261 S.W.3d 197, 201 (Tex. App.—Houston [14th Dist.] 2008,
no pet.).
18. Plaintiff would need additional time to obtain the following
evidence more specifically: Requests for Interrogatories, Admissions, and
Depositions. Defendant only answered on November 10, 2023, merely five days
prior to Plaintiff's deadline to respond to the Motion.
19. Evidence is material to opposition because the identity of the
individuals and documents regarding the Trespass is crucial for Plaintiff’s
Trespass Claim.
20. Plaintiff has been unable to obtain this evidence earlier even
though they diligently used the discovery process. On September 27", 2023,
Plaintiff served Discovery upon Defendant via their Counsel of record (See
Exhibit 6). On or about October 24, 2023, Defendant requested an extension
until November 10, 2023. However, on October 31*', 2023, Defendant filed their
No-Evidence Motion for Summary Judgement, prior to complying with the
discovery requests
VII.
CONCLUSION
21. Plaintiff has met the Summary Judgment Evidence of the
aforementioned elements of its claim for trespass. Furthermore, Plaintiff has
demonstrated that they have supported each element of the motion and
provided a scintilla of evidence supporting the finding, as a whole that “rises to
a level that would enable reasonable and fair-minded people to differ in their
conclusions.”
22. Plaintiff has only just received Discovery responses by Defendant;
the deadline for Plaintiff to respond to Defendant’s discovery responses has not
passed, and the discovery phase is still open.
PRAYER
WHEREFORE, WITH PREMISE, Plaintiff respectfully requests that this
Court deny Defendant’s No-Evidence Motion for Summary Judgment, award
Plaintiff for the cost of filing their motion, and for all such other and further
relief, both at law and in equity to which Plaintiff may show itself justly
entitled.
Respectfully submitted,
NICHOLAS R. SMITH LAW FIRM,
PLLC
1650 S. John King Blvd., Ofc Ste
Rockwall, Texas 75032
(T): (972) 656-0065
(F): (972) 656-0064
By: /s/ Nicholas R. Smith
Bar. No. 24063226
nicholassmithattorney@gmail.com
ATTORNEY FOR PLAINTIFF
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the above was served in
accordance with the Texas Rules of Civil Procedure on November 14", 2023 via
Electronic Service to all parties and counsels.
/s/ Nicholas Smith
Nicholas Smith
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Preview
FILED 11/14/2023 1:46 PM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS. Debra Clark DEPUTY CAUSE NO. DC-22-17006 KAMY REAL PROPERTY TRUST, § IN THE DISTRICT COURT PLAINTIFF, § vs. 8 134 JUDICIAL DISTRICT THOMAS IBARRA 8 DEFENDANT, § OF DALLAS COUNTY, TEXAS PLAINTIFF’S RESPONSE TO DEFENDANT’S NO-EVIDENCE MOTION FOR SUMMARY JUDGEMENT TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW, KAMY Real Property Trust, (“Plaintiff”) in the above matter who files their response to Thomas Ibarra’s, (“Defendant”) No-Evidence Motion for Summary Judgment (the “Motion”) and in support thereof, states the following: I Objections Plaintiff objects to Defendant’s no evidence motion for summary judgment to the extent that there has not been adequate time for discovery. Plaintiff had previously served Defendant with Requests for Production, Requests for Admissions, and Interrogatories on September 27, 2023, thus Defendant’s answers were due on October 27, 2023. On or about October 24, 2023, Defendant’s counsel contacted counsel for Plaintiff and requested an extension of two weeks, until November 10, 2023. On or about October 31, 2023, Defendant had the audacity to file the Motion while still not having provided answers to Plaintiff's discovery requests. The production requests and the interrogatories are central to Plaintiff's claims. Additionally, on or about November 1, 2023, Defendant served Plaintiff with requests for production and interrogatories. Plaintiff's responses are not due until December 1, 2023. Defendant’s filing of a motion for summary judgment is premature, as discovery is still open, and responses are still outstanding. The Motion should be denied on the basis of its untimeliness. Il. Introduction 1 Plaintiff sued Defendant for Trespass onto Plaintiffs property claiming that Defendant and or agents of Defendant physically, intentionally, and voluntarily been crossing Plaintiff's Property to gain access to Defendant’s property causing damage in the form of tracks, ruts, potholes, etc. to Plaintiff's property. Furthermore, Plaintiff believes that the actions of trespass have further damaged Plaintiff's property by lessening the potential resale value of the property and that compensation by the Defendant is appropriate for the use and damage to said property. 2 Defendant answered asserting that they are entitled to summary judgment Pursuant to Tex. R. Civ. P. 166a (i), in which there has been an adequate time for discovery and the elements claiming trespass by Plaintiff has not been substantiated or provided proof of the essential elements such as (1). Evidence that the Defendant trespassed on Plaintiff’s land and the entry was physical, intentional, and voluntary; and (2) Evidence that the Defendant’s alleged trespass caused injury to the Plaintiff. Ill. Background 3 Defendant physically, intentionally, and voluntarily utilized Plaintiff's property by clearing the trees to incorporate a road to get access to their property causing irreparable damage in the process. Without permission or consent from Plaintiff, Defendant continually operates commercial machinery on the property and making improvements. 4 Plaintiff further cannot access the property as Defendant erected a fence that only can be accessible by Defendant and their agents. Furthermore, as indicated on the Fence reveals a sign saying “Keep Out”. This action results in Plaintiff from utilizing the property to the fullest extent possible for business and commercial purposes. 5 On September 27", 2023, Plaintiff served their First Set of Discovery Request to Defendant. Defendant’s counsel of record requested an extension to supplement Discovery and Plaintiff's Counsel permitted such. However, on October 31*, 2023, Defendant filed their No-Evidence Summary Judgment Motion even though Plaintiff requested Discovery over a month in advance with the deadline being December 3", 2023. Prior to the filing of their response, Plaintiff has not been received answers or responses to their Discovery requests. IV. Standard of Review - No Evidence A court may not grant a no evidence motion for summary judgment if the respondent presents more than a scintilla of evidence supporting the elements of its claims that are specifically challenged by the movant. Forbes, Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167, 172 (Tex. 2003). V. Summary Judgment Evidence 6 To support the facts in this response, plaintiff offers the following summary-judgment evidence attached to this response and incorporates the evidence into this response by reference: EXHIBIT 1: Photograph of Fence on Plaintiffs Property EXHIBIT 2: Aerial View of Road and Construction Vehicle EXHIBIT 3: Defendant’s Agent’s Vehicle EXHIBIT 4: Gate Opened revealing the roadway to Defendant’s Property EXHIBIT 5: Catalyst Real Estate Developments report on Damages caused by Defendant’s Trespass VI. Response to No-Evidence Summary Judgment; Plaintiff's Cause of Action for Trespass A Plaintiff has sufficient evidence to raise fact issue on their cause of action 7 In a no-evidence motion for summary judgment, a defendant can challenge a plaintiff to produce evidence to support one or more elements of the plaintiffs cause of action on which the plaintiff would have the burden of proof at trial after an adequate time for discovery has passed. Tex. R. Civ. P. 166a(i). To avoid a no-evidence summary judgment, the plaintiff is not required to marshal its proof; the plaintiff only needs to point out evidence that raises a fact issue on the elements challenged in the defendant's motion. Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex. 2008); see Tex. R. Civ. P. 166a(i); Boerjan v. Rodriguez, 436 S.W.3d 307, 310 (Tex. 2014). To raise a genuine issue of material fact, the plaintiff must produce more than a scintilla of evidence in support of the challenged elements. Smith v. O'Donnell, 288 S.W.3d 417, 424 (Tex. 2009); Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004); see Boerjan, 436 S.W.3d at 312. More than a scintilla of evidence is produced if the evidence is sufficient to allow reasonable and fair-minded people to differ in their conclusions on whether the challenged fact exists. Forbes, Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167, 172 (Tex. 2003); see First United Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214, 220 (Tex. 2017). In evaluating whether more than a scintilla of evidence exists, the court must view the evidence in the light most favorable to the plaintiff, crediting evidence favorable to the plaintiff if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not. Boerjan, 436 S.W.3d at 311-12; Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009). 8 Defendant alleged that there is no evidence supporting essential elements of plaintiff's cause of action for trespass. The elements of the cause of action are the following: The Defendant entered the Plaintiff's land and the entry was physical, intentional, and voluntary; and the Defendant’s trespass caused injury to the Plaintiff. Defendant contends that there is no evidence to support those two elements. 9 The Court should deny defendant's no-evidence motion for summary judgment because plaintiff has produced sufficient evidence to raise a fact issue on Defendant’s entry was physical, intentional and Voluntary; and the Defendant’s trespass caused injury to the Plaintiff challenged by defendant. B. Defendant’ Tr was Physi Intentional nd Volun: 10. The plaintiff must prove that the trespassing was “physical, intentional, voluntary, and unauthorized.” Pentagon Enterprises v. Southwestern Bell Telephone Co., 540 S.W.2d 477, 478 (Tex.App.- Houston [14th Dist.] 1976, writ ref'd. n.r.e.) 11. Defendant’s Trespass was “physical” as Defendant and their representatives entered the property, constructed a road, and applied a fence unto the property without Plaintiff's permission See Environmental Processing Systems, L.C. V. FPL Farming Ltd. 457 S.W. 3d 414 (Tex. 2015) See Wilen v. Falkenstein, 191 S.W.3d 791 (Tex. 2006) (See Exhibits 1, 2 and 3). 12. Concerning the “intent” element of the trespass requires only proof of the interference with the right of possession of real property. Accord Trinity Universal Ins. Co. v. Cowan, 945 S.W.2d 819, 827 (Tex.1997) Defendant and their representatives and Agents erected a fence preventing Plaintiff from entering their own property. A person likewise trespasses when he intentionally causes a third person to enter land in the possession of another. RESTATEMENT (SECOND) OF TORTS § 158 cmt. j (1977). (See also Exhibits 2, 3 and 4). The Restatement (Second) of Torts explains agency liability in a trespass suit as follows: Causing entry of a third person. If, by any act of his, the actor intentionally causes a third person to enter land, he is fully liable as though he himself enters. Thus, if the actor has commanded or requested a third person to enter land in the possession of another, the actor is responsible for the third person's entry, if it be a trespass. This is an application of the general principle that one who intentionally causes another to do an act is under the same liability as though he himself does the act in question. 13. Defendant further “Voluntarily” trespassed on Plaintiff's property by willingly and intentionally entering, constructing, and entering Plaintiff's property See Wilen v. Falkenstein, 191 S.W.3d 791 (Tex. 2006) (See Exhibits 1 through 4). Defend I d Inj Plaintiff Cc. 14. In Catalyst Real Estate Developments report on the Damages sustained to Plaintiff's Property (See Exhibit 5), the creation of the road by clearing the trees has diminished the value of the land as a result of the alleged trespass See Cummer-Graham Co. v. Maddox, 155 Tex. 284, 291, 285 S.W.2d 932, 936 (1956) Wilen v. Falkenstein, 191 S.W.3d 791 (Tex. 2006). 15. Defendant’s actions were “Malicious” and caused irreparable harm to Plaintiff. Wilen V. Falkenstein, 191 S.W. 3d 791 (Tex. 2006). Plaintiff did not permit anyone either the Defendant or it’s representatives from entering the property. The erection of the fence, preventing access onto Plaintiff’s property, and construction of the road. Furthermore, as indicated in Plaintiff's Exhibit 5, the damage is irreversible and cannot be undone. D. Plaintiff has did not obtain Defendant’s original answers to discovery until after the Motion was filed, five days prior to the Response being due. 16. Under Texas Rule of Civil Procedure 166a(g), a court can grant a continuance of a summary-judgment hearing if the party opposing summary judgment can establish by affidavit or verified motion that it has not had an adequate time for discovery. Tenneco Inc. v. Enter. Prods. Co., 925 S.W.2d 640, 647 (Tex. 1996). To seek a continuance under Rule 166a(g), the affidavit or verified motion must identify the evidence sought, explain why it is material, and state with particularity the diligence used to obtain the evidence. West v. SMG, 318 S.W.3d 430, 443 (Tex. App.—Houston [1st Dist.] 2010, no pet.); Rocha v. Faltys, 69 S.W.3d 315, 319 (Tex. App.—Austin 2002, no pet.); Dozier v. AMR Corp., No. 2-09-186-CV, 2010 WL 3075633 (Tex. App.—Fort Worth 2010, no pet.) (memo op.; 8-5-10); In re Estate of Mask, No. 04-07-00667-CV, 2008 WL 4595027 (Tex. App.—San Antonio 2008, pet. denied) (memo op.; 10-15-08). If the basis for continuance is the need to take additional depositions, the affidavit or verified motion must also meet the additional requirements of Texas Rule of Civil Procedure 252. Tri-Steel Structures, Inc. v. Baptist Found., 166 S.W.3d 443, 448 (Tex. App.—Fort Worth 2005, pet. denied); Gundermann v. Buehring, No. 13-05-278-CV, 2006 WL 240517 (Tex. App.—Corpus Christi 2006, pet. denied) (memo op.; 2-2-06). To meet the additional requirements of Rule 252, the affidavit or verified motion must (1) explain the reasons for not obtaining the discovery earlier, if known, and (2) show that the discovery cannot be obtained from any other source if the party had previously applied for a continuance. Tex. R. Civ. P. 252; see Mulcahy v. Wal-Mart Stores, Inc., No. 02-10-00074-CV, 2010 WL 5118199 (Tex. App.—Fort Worth 2010, no pet.) (memo op.; 12-16-10); Gundermann, No. 13-05-278-CV, 2006 WL 240517 (memo op.). 17. If the affidavit or verified motion meets the requirements for a continuance, the court should consider the following nonexclusive factors for determining whether an adequate time for discovery has passed: (1) the nature of the suit, (2) the evidence necessary to controvert the motion, (3) the length of time the case has been on file, (4) the length of time the motion has been on file, (5) the amount of discovery that has already taken place, (6) whether the movant requested stricter deadlines for discovery, and (7) whether the discovery deadlines in place were specific or vague. Cmty. Initiatives, Inc. v. Chase Bank, 153 S.W.3d 270, 278 (Tex. App.—El Paso 2004, no pet.); see McInnis v. Mallia, 261 S.W.3d 197, 201 (Tex. App.—Houston [14th Dist.] 2008, no pet.). 18. Plaintiff would need additional time to obtain the following evidence more specifically: Requests for Interrogatories, Admissions, and Depositions. Defendant only answered on November 10, 2023, merely five days prior to Plaintiff's deadline to respond to the Motion. 19. Evidence is material to opposition because the identity of the individuals and documents regarding the Trespass is crucial for Plaintiff’s Trespass Claim. 20. Plaintiff has been unable to obtain this evidence earlier even though they diligently used the discovery process. On September 27", 2023, Plaintiff served Discovery upon Defendant via their Counsel of record (See Exhibit 6). On or about October 24, 2023, Defendant requested an extension until November 10, 2023. However, on October 31*', 2023, Defendant filed their No-Evidence Motion for Summary Judgement, prior to complying with the discovery requests VII. CONCLUSION 21. Plaintiff has met the Summary Judgment Evidence of the aforementioned elements of its claim for trespass. Furthermore, Plaintiff has demonstrated that they have supported each element of the motion and provided a scintilla of evidence supporting the finding, as a whole that “rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.” 22. Plaintiff has only just received Discovery responses by Defendant; the deadline for Plaintiff to respond to Defendant’s discovery responses has not passed, and the discovery phase is still open. PRAYER WHEREFORE, WITH PREMISE, Plaintiff respectfully requests that this Court deny Defendant’s No-Evidence Motion for Summary Judgment, award Plaintiff for the cost of filing their motion, and for all such other and further relief, both at law and in equity to which Plaintiff may show itself justly entitled. Respectfully submitted, NICHOLAS R. SMITH LAW FIRM, PLLC 1650 S. John King Blvd., Ofc Ste Rockwall, Texas 75032 (T): (972) 656-0065 (F): (972) 656-0064 By: /s/ Nicholas R. Smith Bar. No. 24063226 nicholassmithattorney@gmail.com ATTORNEY FOR PLAINTIFF CERTIFICATE OF SERVICE I certify that a true and correct copy of the above was served in accordance with the Texas Rules of Civil Procedure on November 14", 2023 via Electronic Service to all parties and counsels. /s/ Nicholas Smith Nicholas Smith & a Ps eX ee = oF “a a Bes. mt = Se ms / iP. (aa ee ot 7) SS SS hr ES vs ats — = SS ae SENAS ee} hy oY saao es a ren ak ea SS EE eer ocean ae Sai ipa oe aA 1a eee ot ee arm, sprode BF ay — pe ee a o aae ————. e re Sate Ty * os. 7 ie te ay gee a ed ‘ tb: pee == SpA ware