Arthur Armijo v. OVP Hospitality, Inc. ( 2022 )

AFFIRMED and Opinion Filed March 10, 2022
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-20-00727-CV
ARTHUR ARMIJO, Appellant
V.
OVP HOSPITALITY, INC., Appellee
On Appeal from the 471st Judicial District Court
Collin County, Texas
Trial Court Cause No. 471-03313-2019
MEMORANDUM OPINION
Before Justices Pedersen, III, Goldstein, and Smith
Opinion by Justice Smith
Appellant Arthur Armijo appeals from the trial court’s grant of appellee OVP
Hospitality, Inc.’s no-evidence motion for summary judgment. Because we
conclude the trial court did not abuse its discretion in finding that an adequate time
for discovery had passed prior to the hearing on the no-evidence motion, we affirm.
Background
Armijo brought suit against OVP on June 20, 2019, concerning injuries he
suffered at Comfort Suites in Plano, Texas, when he slipped on a shampoo bottle in
the shower, fell, hit his head, and lost consciousness. While unconscious, hot water
from the shower ran over his body. He sustained third-degree burns along the left
side of his body and suffered septic shock. Armijo underwent extensive medical
treatment, including skin graft surgery.
In his suit against OVP, Armijo asserted claims of negligence, gross
negligence, negligence per se, and premises liability regarding the installation and
maintenance of the hot water heater and OVP’s failure to warn of the extreme
temperature of the hot water in the shower. He alleged that OVP owned, managed,
or operated Comfort Suites.
OVP filed a no-evidence motion for summary judgment on June 2, 2020, one
month before the close of discovery. OVP argued that Armijo’s negligence claims
were subsumed by his premises liability claim and there was no evidence a condition
posed an unreasonable risk of harm, OVP knew or reasonably should have known
of the dangerous condition before the incident occurred, OVP breached its duty of
ordinary care, or any breach proximately caused Armijo’s injury. As to Armijo’s
gross negligence claim, OVP argued there was no evidence to show that OVP’s
actions or omissions demonstrated a conscious indifference to the rights, safety, or
welfare of others, or involved an extreme degree of risk. OVP also filed a motion to
strike Armijo’s liability experts.
Armijo responded that OVP’s actions denied him the opportunity to conduct
adequate discovery. Specifically, he asserted he did not learn the identifies of four
individuals who were working at Comfort Suites on the day of the incident until
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approximately ten months after he filed suit, and he had been unable to take their
depositions because OVP had not provided available dates. He further contended
that OVP did not produce a legible copy of an invoice for the hot water heaters,
which contained new persons with relevant knowledge of the system and other new
information, until June 23, 2020, less than two weeks before the close of discovery.
Armijo also sought a 120-day continuance of trial.
After a July 6 hearing, the trial court orally granted Armijo’s motion for a trial
continuance but denied his request to extend discovery. The trial court then advised
the parties that the scheduling order would be amended only if the parties agreed.
The parties did not agree. Thereafter, on July 10, 2020, the trial court granted OVP’s
no-evidence motion for summary judgment and OVP’s motion to strike Armijo’s
experts.
Armijo filed a notice of appeal from the trial court’s July 10 orders granting
OVP’s motion to strike and no-evidence motion for summary judgment. However,
in his brief on appeal, Armijo challenges only the trial court’s order granting
summary judgment in favor of OVP on the basis that he was denied an adequate time
for discovery.
Adequate Time for Discovery
“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
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party would have the burden of proof at trial.” TEX. R. CIV. P. 166a(i). To determine
whether an “adequate time for discovery” has passed, we look to the nature of the
case, the nature of the evidence necessary to controvert the no-evidence motion, the
length of time the case was active, the amount of time the motion was on file,
whether the movant requested stricter deadlines for discovery, the amount of
discovery conducted, and whether the discovery deadlines were specific or vague.
Rest. Teams Int’l, Inc. v. MG Sec. Corp., 95 S.W.3d 336, 339 (Tex. App.—Dallas
2002, no pet.).
“A discovery period set by pretrial order should be adequate opportunity for
discovery unless there is a showing to the contrary.” TEX. R. CIV. P. 166(a) cmt.
1997. Ordinarily, a no-evidence motion “would be permitted after the period but not
before.” Id. However, there is not a bright-line requirement that the discovery
period be completed before a no-evidence motion can be filed; the determination is
case specific. Dishner v. Huitt-Zollars, Inc., 162 S.W.3d 370, 376 (Tex. App.—
Dallas 2006, no pet.).
We review a trial court’s determination that there has been an adequate time
for discovery under an abuse of discretion standard. Rest. Teams, 95 S.W.3d at 339.
A trial court abuses its discretion when it acts arbitrarily or without regard to any
guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d
238, 241–42 (Tex. 1985).
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“When a party contends that he has not had an adequate opportunity for
discovery before the consideration of a no-evidence summary judgment, he ‘must
file either an affidavit explaining the need for further discovery or a verified motion
for continuance.’” Killingsworth v. Hous. Auth. of City of Dallas, 447 S.W.3d 480,
495 (Tex. App.—Dallas 2014, pet. denied) (quoting Tenneco Inc. v. Enter. Prods.
Co., 925 S.W.2d 640, 647 (Tex. 1996)); see also TEX. R. CIV. P. 166a(g) (“Should
it appear from the affidavits of a party opposing the motion that he cannot for reasons
stated present by affidavit facts essential to justify his opposition, the court may
refuse the application for judgment or may order a continuance to permit affidavits
to be obtained or depositions to be taken or discovery to be had or make such other
order as is just.”).
Armijo attached to his response a sworn affidavit from his attorney stating the
need for further discovery. His attorney claimed Armijo had not had the opportunity
to conduct adequate discovery as to OVP’s actions and knowledge with regard to
Armijo’s premises liability claims and specifically sought to conduct the
“previously-requested depositions of OVP’s employees present on the day in
question and OVP’s corporate representative.” In the response itself, Armijo
claimed that the depositions had not occurred because OVP had provided only one
date for its corporate representative—a date on which Armijo’s attorney was
unavailable—and had not provided any available dates for the four employees who
were present at the hotel on the date of the incident. Armijo also argued that OVP
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did not produce a legible copy of an invoice for the hot water heaters, which
contained new persons with relevant knowledge of the system and other new
information, until June 23, 2020. However, Armijo’s attorney did not detail this
information in his sworn affidavit or detail what evidence he believed these
witnesses might provide or how such evidence would be material to the case.
On appeal, OVP argues that Armijo failed to diligently pursue discovery and
failed to explain how the supplementation of any purportedly deficient discovery
responses could create a fact issue. We agree. OVP also notes that Armijo never
filed a motion to compel and that, in granting summary judgment in favor of OVP,
the trial court explained:
[Armijo] did not seek the Court’s assistance to acquire any additional
discovery before the discovery deadline expired, and further, [Armijo]
failed to explain how any additional discovery would relate to any
challenged element of [Armijo]’s claims, such that the record does not
support the granting of a continuance.
Armijo responds that he did not file a motion to compel because OVP misled
him into thinking a legible copy of the invoice was not available when OVP’s
counsel previously represented to him that a darker copy of the invoice could not be
provided. He contends that, while the contact information may have been legible on
the invoice, he had no way of knowing that it was a relevant invoice regarding the
installation of the commercial water heaters. When he received the legible invoice,
he learned for the first time the type of water heaters installed, who installed them,
when they were installed, the names of the technicians, and the work performed
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along with installation. The late disclosure—approximately one week before his
response was due and two weeks before the summary judgment hearing—prevented
him from seeking information from the plumbing company and its employees
regarding the work they performed and their recommendations to OVP concerning
the maintenance and proper use of the hot water system. However, as discussed
above, this information was not set forth in the affidavit presented to the trial court
in response to the no-evidence motion. The trial court declined Armijo’s request at
the hearing for leave to file a supplemental response detailing why the sought-after
discovery was important.
Additionally, although OVP filed its motion one month before the discovery
period ended, the trial court did not conduct a hearing on the motion or rule on the
motion until after the discovery period concluded. See Chamie v. Mem’l Hermann
Health Sys., 561 S.W.3d 253, 257 (Tex. App.—Houston [14th Dist.] 2018, no pet.)
(“The pertinent date for determining whether a no-evidence motion was made
prematurely is not the date on which the motion was filed but the final date on which
the motion was presented to the trial court for ruling.”). And, while Armijo’s claims
may be dependent on the testimony of experts and OVP employees to prove that the
hot water in the shower was an unreasonable risk of harm of which OVP knew or
reasonably should have known, Armijo had the burden to diligently pursue discovery
during the pendency of the case and failed to do so. See State v. Wood Oil Distrib.,
Inc., 751 S.W.2d 863, 865 (Tex. 1988) (“the failure of a litigant to diligently utilize
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the rules of procedure for discovery purposes will not authorize the granting of a
continuance”); Rivera v. Countrywide Home Loans, Inc., 262 S.W.3d 834, 843 (Tex.
App.—Dallas 2008, no pet.) (relying on Wood Oil and concluding nonmovant failed
to describe efforts to obtain discovery or explain why discovery could not be
conducted in the six-month period before the no-evidence motions for summary
judgment were filed), abrogated on other grounds by Wood v. HSBC Bank USA,
N.A., 505 S.W.3d 542, 548 (Tex. 2016). Here, Armijo did not show that he diligently
pursued discovery while the case was pending for over a year or that he sought any
further discovery during the month in which the no-evidence motion was on file.
Nor did Armijo file a motion to compel OVP to make its representative or employees
available for deposition.
Moreover, the discovery deadlines were not vague; the discovery period
ended on July 3, 2020. And, according to OVP at the hearing, it was Armijo who
requested the specific trial date and date for the close of discovery, after initially
seeking an even earlier trial date. Armijo did not dispute that he requested and
agreed to those dates. Although we are mindful of the hardships that Covid-19 has
placed on the community, including the trial bar, over the past two years, Armijo has
not argued or urged that Covid-19 prevented him from setting depositions or
conducting further discovery. Considering Armijo requested the initial trial setting
and accompanying discovery deadline, he could not have been surprised that the
deadline was approaching and that he had not taken any depositions.
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The record does not support Armijo’s contention that an adequate time for
discovery had not passed. Given a trial court’s broad discretion in matters of
discovery, we cannot conclude that the trial court acted arbitrarily, unreasonably,
and without regard to any guiding principles by finding that an adequate time for
discovery had passed and granting OVP’s no-evidence motion for summary
judgment. We overrule Armijo’s sole issue.
Conclusion
We affirm the trial court’s no-evidence summary judgment in favor of OVP.
/Craig Smith/
CRAIG SMITH
JUSTICE
200727F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
ARTHUR ARMIJO, Appellant On Appeal from the 471st Judicial
District Court, Collin County, Texas
No. 05-20-00727-CV V. Trial Court Cause No. 471-03313-
2019.
OVP HOSPITALITY, INC., Opinion delivered by Justice Smith.
Appellee Justices Pedersen, III and Goldstein
participating.
In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED.
It is ORDERED that appellee OVP HOSPITALITY, INC. recover its costs
of this appeal from appellant ARTHUR ARMIJO.
Judgment entered this 10th day of March 2022.
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