Affirmed and Memorandum Opinion filed January 27, 2004.
In The
Fourteenth Court of Appeals
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NO. 14-02-01260-CV
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HENRY P. MASSEY, Appellant
V.
DONALD R. ROYALL AND THE ROYALLS, A.P.C., Appellees
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On Appeal from the 55th District Court
Harris County, Texas
Trial Court Cause No. 95-48091
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M E M O R A N D U M O P I N I O N
In this legal malpractice action,[1] Henry P. Massey appeals a take-nothing summary judgment in favor of Donald R. Royall and the Royalls, A.P.C. (collectively, “Royall”) on various grounds. We affirm.
Massey’s first issue is “Was it or is it an abuse of discretion when previous attorney misplaces the letters between [the parties].” However, because this issue is incomprehensible and not supported by citation to authorities or the record,[2] it presents nothing for our review and is overruled.
Massey’s second issue contends that material facts had not been litigated. However, Massey’s brief does not identify any such fact issues or explain how they were raised, but supports this issue only by providing the page numbers of some 100 pages of the clerk’s record. A brief must contain a clear and concise argument for the contentions made. Tex. R. App. P. 38.1(h). Citations to the record must be provided to substantiate such arguments, but do not take their place. See id. Because Massey’s second issue thus affords no basis for relief, it is overruled.
Massey’s third issue states that the trial court’s own docket control order provides for continued discovery and time to modify the expert opinion. However, Massey cites no authority prohibiting a summary judgment from being granted while discovery or development of expert opinions is ongoing. Rather, if a party contends that it has not had adequate opportunity for discovery before a summary judgment hearing, it must either file an affidavit explaining the need for further discovery or a verified motion for continuance.[3] Because Massey made no such showing in this case, this contention presents nothing for our review and is overruled.
Massey also contends that the docket control order prohibits motions for summary judgment from being set before December 30, 2002 whereas the summary judgment being appealed was signed on November 8, 2002. However, the record does not reflect that Massey raised this issue in the trial court in his summary judgment responses or otherwise. Therefore, it presents nothing for our review. See Tex. R. Civ. P. 166a(c).
In addition, the docket control order states that “If no date is given [in the order], the item is governed by the Texas Rules of Civil Procedure.” The relevant portion of the order then provides:
7. DISPOSITIVE MOTIONS AND PLEAS. Must be set for hearing or submission as follows:
(a) Dispositive motions or pleas subject to an interlocutory appeal must be set by this date.
(b) 12/30/02 Summary judgment motions not subject to an interlocutory appeal must be set by this date.
(c) Rule 166a(i) motions may not be set before this date.
Massey apparently interprets the 12/30/02 date inserted for item (b) as also applying to item (c). However, each of these items, (a), (b), and (c) is distinct, and the absence of a date next to item (c) indicates that no date was set.[4] Therefore, the docket control order did not provide a time before which no-evidence motions for summary judgment could not be set, Massey’s third issue is overruled, and the judgment of the trial court is affirmed.
/s/ Richard H. Edelman
Justice
Judgment rendered and Memorandum Opinion filed January 27, 2004.
Panel consists of Justices Edelman, Frost, and Guzman.
[1] Royall represented Massey in a divorce action.
[2] See Tex. R. App. P. 38.1(h).
[3] Tenneco Inc. v. Enter. Prods. Co., 925 S.W.2d 640, 647 (Tex. 1996).
[4] Nor is there any apparent reason that the same date would have been selected as the latest time for setting summary judgment motions subject to interlocutory appeal but the earliest time for setting no-evidence motions for summary judgment.