Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-13-00227-CV
Elizabeth GUPTA,
Appellant
v.
MIDLAND FUNDING
MIDLAND FUNDING LLC,
Appellee
From the 341st Judicial District Court, Webb County, Texas
Trial Court No. 2012CVF000115 D3
Honorable Rebecca Ramirez Palomo, Judge Presiding
Opinion by: Catherine Stone, Chief Justice
Sitting: Catherine Stone, Chief Justice
Sandee Bryan Marion, Justice
Rebeca C. Martinez, Justice
Delivered and Filed: July 23, 2014
AFFIRMED
Elizabeth Gupta appeals a summary judgment awarding Midland Funding LLC damages
based on Gupta’s failure to pay credit card debt which Midland acquired from Chase Bank USA,
N.A. Gupta contends the trial court erred in granting summary judgment before ruling on her
motion to compel discovery. We affirm the trial court’s judgment.
PROCEDURAL BACKGROUND
Midland filed its petition in the underlying cause on January 30, 2012, and filed its motion
for summary judgment on August 3, 2012. Attached to Midland’s motion is a business records
04-13-00227-CV
affidavit and the last credit card statement sent to Gupta by Chase. On August 27, 2012, Gupta
filed a motion in opposition to Midland’s motion for summary judgment, asserting that Midland’s
motion is “prematurely before the court” because Midland had failed to produce documents Gupta
had requested through discovery. No summary judgment evidence was attached to Gupta’s
response. 1 Both parties appeared before the trial court for a hearing on Midland’s motion on March
27, 2013, and the trial court signed an order granting Midland’s motion the same day.
DISCUSSION
Gupta asserts that the trial court erred in failing to rule on her motion to compel discovery
before granting the motion for summary judgment. Gupta contends that the documents she
requested in discovery would have raised a genuine issue of material fact regarding the validity of
the credit card debt.
“If a party is not satisfied with an opposing party’s discovery objections or responses to
discovery inquiries, that party may move the trial court to compel discovery.” U. Lawrence Boze’
& Assoc., P.C. v. Harris Cnty. Appraisal Dist., 368 S.W.3d 17, 32 (Tex. App.—Houston [1st Dist.]
2011, no pet.); see also TEX. R. CIV. P. 215.1. “To preserve error on a discovery dispute, the
appealing party must obtain a ruling by the trial court on the discovery issue.” U. Lawrence Boze’
& Assoc., P.C., 368 S.W.3d at 32. Moreover, “[w]hen a party contends it has not had an adequate
opportunity for discovery before a summary judgment hearing, it must file either an affidavit
explaining the need for further discovery or a verified motion for continuance.” Tenneco, Inc. v.
Enter. Prods. Co., 925 S.W.2d 640, 647 (Tex. 1996); see also Kaldis v. Aurora Loan Servs., 424
S.W.3d 729, 736 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (same).
1
The law is well-settled that a pleading, including a response to a motion for summary judgment, is not evidence that
a court may consider in ruling on a motion for summary judgment. See Laidlaw Waste Sys. (Dallas), Inc. v. City of
Wilmer, 904 S.W.2d 656, 660-61 (Tex. 1995).
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04-13-00227-CV
Although the trial court’s docket sheet reflects that Gupta filed a motion to compel
discovery, 2 the clerk’s record in this appeal does not contain a copy of any such motion filed by
Gupta. Midland does not dispute that Gupta filed a motion to compel. Nonetheless, even assuming
Gupta filed such a motion, the record does not show that Gupta set the motion for a hearing and
obtained a ruling on the motion, which would be necessary to preserve her complaint for our
review. Although the clerk’s record does contain a motion for continuance filed by Gupta on
September 25, 2012, that motion was granted by the trial court and the hearing, which had been
set for October 1, 2012, was reset to October 22, 2012. Although the record does not contain any
additional motions for continuance, the hearing on Midland’s motion for summary judgment was
not held until March 27, 2013. At that hearing, Gupta did not make any reference to a pending
motion for continuance, and the trial court did not rule on either a motion to compel or a motion
for continuance. Finally, the trial court’s order contains no ruling on any such motion.
Accordingly, Gupta failed to preserve her complaint for our review. See Corona v. Pilgrim’s Pride
Corp., 245 S.W.3d 75, 84 (Tex. App.—Texarkana 2008, pet. denied) (holding complaint relating
to motion to compel not preserved where party failed to request hearing, failed to present the
motion to compel until the summary judgment hearing, and did not request a ruling on the motion
at the hearing or file a motion for continuance).
CONCLUSION
The trial court’s judgment is affirmed.
Catherine Stone, Chief Justice
2
“[A] docket entry ‘forms no part of the record we may consider; it is a memorandum made for the trial court and
clerk’s convenience. This rule results, in part, from the inherent unreliability of docket entries.’” SP Terrace, L.P. v.
Meritage Homes of Tex., LLC, 334 S.W.3d 275, 282 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (quoting Miller
v. Kendall, 804 S.W.2d 922, 944 (Tex. App.—Houston [1st Dist.] 1990, no writ)).
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