COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-09-186-CV
CENTAVA DOZIER APPELLANT
V.
AMR CORPORATION APPELLEES
AND AMERICAN AIRLINES, INC.
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FROM THE 348TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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I. INTRODUCTION
This is a summary judgment appeal. Appellees AMR Corporation and
American Airlines, Inc. (collectively referred to as American) filed a no-evidence
motion for summary judgment, and Appellant Centava Dozier subsequently filed a
motion to compel American to respond to certain discovery requests and filed a
motion for continuance. After a hearing on these motions, the trial court denied
1
See Tex. R. App. P. 47.4.
Dozier’s motion to compel and motion for continuance and granted summary
judgment for American. In two issues, Dozier argues that the trial court erred by
denying her motion for continuance and motion to compel and by granting
American’s no-evidence motion for summary judgment. For the reasons set forth
below, we will affirm.
II. F ACTUAL AND P ROCEDURAL B ACKGROUND
In March 2006, Dozier was a passenger on an American flight from Dallas to
Los Angeles. The flight departed Dallas at around 11:00 p.m., and Dozier fell asleep
during the flight. During the descent into Los Angeles, Dozier awoke and noticed
that a man seated at the end of her aisle was staring at her and masturbating.
Dozier attempted to hide her face and discovered semen in her hair. The man got
up and left that seat, and Dozier told the passenger sitting in front of her what had
happened. That passenger informed a flight attendant. The captain contacted local
law enforcement and ordered that the plane’s doors remain shut until law
enforcement arrived at the gate. W hen the passengers deboarded, the man was
arrested.
In March 2008, Dozier sued American for negligence, gross negligence, and
res ipsa loquitor. The parties filed an agreed discovery control plan in which the
discovery period would end on March 1, 2009. During the discovery period, Dozier
served American with two sets of discovery requests—which included interrogatories
and requests for disclosures, admissions, and production—on June 17, 2008 and
on October 20, 2008. American responded to both sets of discovery requests on
July 21, 2008 and on December 2, 2008, respectively.
On February 3, 2009, one month before the end of the discovery period, and
approximately one year after Dozier filed suit, American filed a no-evidence motion
for summary judgment. Dozier filed a response, attaching as evidence her own
affidavit, the affidavit of her attorney, and copies of the incident reports of a flight
attendant and of the captain. Dozier also filed a motion to compel discovery,
asserting that American’s discovery responses were inadequate, and a motion for
continuance, requesting a continuance of the summary judgment hearing until after
her “motion to compel is heard, subsequent order complied with by [American], [and
she] has sufficient time to conduct responsive discovery.” The trial court set a
hearing on American’s summary judgment motion and both of Dozier’s motions for
March 13, 2009.
On the day of the hearing, American filed a response to Dozier’s motion for
continuance, asserting that she had been given an adequate time to conduct
discovery and that her motion did not comply with the requirements of Texas Rule
of Civil Procedure 252. American also filed objections to Dozier’s summary
judgment evidence.
At the hearing, the trial court denied Dozier’s motion for continuance, stating
that it was not in proper form, and denied her motion to compel, reasoning that she
was “a little bit late.” The trial court also sustained American’s objections to Dozier’s
summary judgment evidence and granted American’s no-evidence summary
judgment. Dozier perfected this appeal.
III. M OTION F OR C ONTINUANCE AND M OTION TO C OMPEL
In her first issue, Dozier argues that the trial court abused its discretion by
denying her motion to compel American to respond to certain discovery requests
and by denying her motion for continuance.
A. Standard of Review
W e apply an abuse of discretion standard to a trial court’s ruling on a motion
to compel. See Austin v. Countrywide Homes Loans, 261 S.W .3d 68, 75 (Tex.
App.—Houston [1st Dist.] 2008, pet. denied). W e also review a trial court’s ruling
on a motion for continuance under an abuse of discretion standard. See BMC
Software Belg., N.V. v. Marchand, 83 S.W .3d 789, 800 (Tex. 2002). W e do not
substitute our judgment for that of the trial court. In re Nitla S.A. de C.V., 92 S.W .3d
419, 422 (Tex. 2002) (orig. proceeding). Instead, we must determine whether the
trial court’s action was so arbitrary and unreasonable as to amount to a clear and
prejudicial error of law. Joe v. Two Thirty Nine Joint Venture, 145 S.W .3d 150, 161
(Tex. 2004). The test is whether the trial court acted without reference to guiding
rules or principles. Cire v. Cummings, 134 S.W .3d 835, 838–39 (Tex. 2004). An
appellate court must uphold the trial judge’s evidentiary ruling if there is any
legitimate basis for it. Owens-Corning Fiberglass Corp. v. Malone, 972 S.W .2d 35,
43 (Tex. 1998).
B. Motion to Compel
Dozier filed her motion to compel on February 13, 2009—almost three months
after American had served its last responses and objections to Dozier’s discovery
requests, less than one month prior to the end of the agreed-to discovery period, and
one week after American had filed its no-evidence summary judgment motion. At
the March 13 hearing, the trial court pointed out that Dozier had the months of
“August, September, October, November, December, and January” to file a motion
to compel and did not do so. The court stated,”I don’t have a whole lot of sympathy
for you, waiting that long to ask for this, especially in view of the fact that
[American’s] summary judgment motion had been filed [one week before Dozier had
filed her motion to compel].”
W e cannot conclude based on these facts that the trial court’s denial of
Dozier’s motion to compel was so arbitrary and unreasonable as to amount to a
clear and prejudicial error of law. See Joe, 145 S.W .3d at 161; Austin, 261 S.W .3d
at 75. Rather, the trial court could have reasonably concluded from these facts that
Dozier did not diligently pursue the discovery she now claims to need. See Piazza
v. Cinemark, USA, Inc., 179 S.W .3d 213, 216 (Tex. App.—Eastland 2005, pet.
denied) (noting, in holding that trial court did not abuse its discretion by denying
motion to compel, that plaintiff had more than ample time for discovery); see also
Fraud-Tech, Inc. v. Choicepoint, Inc., No. 02-05-00150-CV, 2006 W L 1030189, at
*3 (Tex. App.—Fort W orth Apr. 20, 2006, no pet.) (mem. op.) (holding that denial of
motion to compel was not an abuse of discretion when appellants failed to show due
diligence in requesting continuance). W e hold that the trial court did not abuse its
discretion by denying Dozier’s motion to compel. See Austin, 261 S.W .3d at 75.
C. Motion for Continuance
Dozier sought a continuance of the summary judgment hearing “until after the
court has held a hearing on the motion to compel, after the date defendants are
ordered to file responses to the discovery request, and after plaintiff has sufficient
opportunity to proceed with discovery based on the defendants’ responses.” Dozier
was not entitled to a continuance for the same reasons that she was not entitled to
a motion to compel. See State v. Wood Oil Distrib., Inc., 751 S.W .2d 863, 865 (Tex.
1988) (“It is also well established that the failure of a litigant to diligently utilize the
rules of civil procedure for discovery purposes will not authorize the granting of a
continuance.”).
Moreover, Dozier’s motion for a continuance did not satisfy the requirements
of the Texas Rules of Civil Procedure. A motion for continuance seeking time for
discovery must be supported by an affidavit that describes the evidence sought,
explains its materiality, and shows that the party requesting the continuance has
used due diligence to obtain the evidence. Tex. R. Civ. P. 251, 252; Rocha v.
Faltys, 69 S.W .3d 315, 319 (Tex. App.—Austin 2002, no pet.). The affidavit of
diligence must state with particularity what diligence was used; conclusory
allegations of diligence are not sufficient. Rocha, 69 S.W .3d at 319. A party who
fails to use the rules to diligently pursue discovery is not entitled to a continuance.
Wood Oil Distrib., 751 S.W .2d at 865.
Here, Dozier’s motion for continuance and supporting affidavit failed to
demonstrate the diligence she used to obtain the specific discovery she sought. Her
motion merely concludes that she “was unable to secure this testimony and evidence
earlier even though she diligently used the discovery process, as detailed in her
motion to compel.” Neither her attorney’s affidavit, attached to her motion, nor her
motion to compel include any explanation of the diligence she used in discovery.
Because Dozier failed to diligently utilize the rules of civil procedure for
discovery purposes and failed to satisfy the requirements of rule 252, we hold that
the trial court did not abuse its discretion by denying her motion for continuance.
See Joe, 145 S.W .3d at 161; BMC Software Belg., N.V., 83 S.W .3d at 800.
Having held that the trial court did not abuse its discretion by denying Dozier’s
motion to compel and motion for continuance, we overrule her first issue.
IV. N O-E VIDENCE S UMMARY J UDGMENT
In her second issue, Dozier complains that the trial court erred by granting
American’s motion for no-evidence summary judgment. American responds that
Dozier failed to produce any evidence on each element of her negligence claim and
that her remaining claims—for res ipsa loquitur and gross negligence—are not
independent causes of action. 2
2
As American points out, if Dozier’s negligence claim fails, her remaining
claims for gross negligence and res ipsa loquitur also must fail. See Haddock v.
Arnspiger, 793 S.W .2d 948, 950 (Tex. 1990) (“Res ipsa loquitur is simply a rule of
evidence by which negligence may be inferred by the jury; it is not a separate cause
of action from negligence.”); Sonic Sys. Int’l, Inc. v. Croix, 278 S.W .3d 377, 394–95
(Tex. App.—Houston [14th Dist.] 2008, pet. denied) (requiring finding of ordinary
A. Standard of Review
After an adequate time for discovery, the party without the burden of proof
may, without presenting evidence, move for summary judgment on the ground that
there is no evidence to support an essential element of the nonmovant’s claim or
defense. Tex. R. Civ. P. 166a(i). The motion must specifically state the elements
for which there is no evidence. Id.; Timpte Indus., Inc. v. Gish, 286 S.W .3d 306, 310
(Tex. 2009). The trial court must grant the motion unless the nonmovant produces
summary judgment evidence that raises a genuine issue of material fact. See Tex.
R. Civ. P. 166a(i) & cmt.; Hamilton v. Wilson, 249 S.W .3d 425, 426 (Tex. 2008).
W hen reviewing a no-evidence summary judgment, we examine the entire
record in the light most favorable to the nonmovant, indulging every reasonable
inference and resolving any doubts against the motion. Sudan v. Sudan, 199
S.W .3d 291, 292 (Tex. 2006). W e review a no-evidence summary judgment for
evidence that would enable reasonable and fair-minded jurors to differ in their
conclusions. Hamilton, 249 S.W .3d at 426 (citing City of Keller v. Wilson, 168
S.W .3d 802, 822 (Tex. 2005)). W e credit evidence favorable to the nonmovant if
reasonable jurors could, and we disregard evidence contrary to the nonmovant
unless reasonable jurors could not. Timpte Indus., Inc., 286 S.W .3d at 310 (quoting
Mack Trucks, Inc. v. Tamez, 206 S.W .3d 572, 582 (Tex. 2006)). If the nonmovant
negligence as prerequisite to finding of gross negligence); Seaway Prods. Pipeline
Co. v. Hanley, 153 S.W .3d 643, 659 (Tex. App.—Fort W orth 2004, no pet.) (holding
that recovery for gross negligence is not available when no evidence supports
negligence claim).
brings forward more than a scintilla of probative evidence that raises a genuine issue
of material fact, then a no-evidence summary judgment is not proper. Smith v.
O’Donnell, 288 S.W .3d 417, 424 (Tex. 2009).
B. No-Evidence Summary Judgment for American was Proper
American’s no-evidence motion for summary judgment asserted that no
evidence existed on each element of Dozier’s negligence claim. Thus, to overcome
American’s no-evidence motion for summary judgment, Dozier had the burden to
raise a genuine issue of material fact that American owed a legal duty to her, that
American breached that duty, and that she sustained damages proximately caused
by American’s breach. See W. Invs., Inc. v. Urena, 162 S.W .3d 547, 550 (Tex.
2005); see also Tex. R. Civ. P. 166a(i) & cmt.; Hamilton, 249 S.W .3d at 426.
Dozier’s summary judgment evidence consists of her own affidavit, which
explained the incident and the “emotional burden” it took on her life, and three
reports made by the pilot and flight attendants describing the incident. The trial court
sustained all of American’s objections to Dozier’s summary judgment evidence. 3
Even assuming these exhibits were competent summary judgment evidence, they
are, without more, insufficient to raise a genuine issue of material fact as to the duty,
breach, and causation elements of Dozier’s negligence claim. 4
3
Dozier also presented an affidavit from her attorney pertaining only to her
motion for continuance and motion to compel.
4
Dozier complains that the trial court should have given her an opportunity
to amend her evidence, but the majority of American’s objections alleged defects of
substance, rather than form, and the trial court was not required to provide her an
opportunity to amend those defects. See Tex. R. Civ. P. 166a(f); CA Partners v.
Dozier did not present any summary judgment evidence that American
breached any duty owed to her. The existence of a legal duty is a question of law
for the court to decide “from the facts surrounding the occurrence in question.”
Centeq Realty, Inc. v. Siegler, 899 S.W .2d 195, 197 (Tex. 1995). Generally, a
person has no legal duty to protect another from the criminal acts of a third person
absent certain special relationships or circumstances. See id.; Newsom v. B.B., 306
S.W .3d 910, 913–14 (Tex. App.—Beaumont 2010, pet. filed). Dozier contends that
American, as a common carrier, owed her a “high degree of care”; she asserts that
American employees should have patrolled the aisles of the plane and policed
passengers. But courts will not impose a duty unless the risk of harm is foreseeable.
See Tex. Home Mgmt., Inc. v. Peavy, 89 S.W .3d 30, 36 (Tex. 2002). Dozier did not
provide any evidence that American should have anticipated the dangers created by
its alleged negligent acts. See id.; see also Timberwalk Apartments, Partners, Inc.
v. Cain, 972 S.W .2d 749, 756 (Tex. 1998) (“The foreseeability of an unreasonable
risk of criminal conduct is a prerequisite to imposing a duty of care on a person who
owns or controls premises to protect others . . . from the risk.”). Dozier’s summary
Spears, 274 S.W .3d 51, 63–64 (Tex. App.—Houston [14th Dist.] 2008, pet. denied)
(“If a defect in a summary judgment affidavit is one of substance, the trial court is not
required to provide an opportunity to amend.”). To the extent that American alleged
defects of form, Dozier failed to request a continuance to amend her summary
judgment evidence or otherwise request the opportunity to cure the defects;
consequently, she failed to preserve this issue for our review. See Coleman v.
Woolf, 129 S.W .3d 744, 750 (Tex. App.—Fort W orth 2004, no pet.) (holding that
when objections are made to nonmovant’s summary judgment evidence, nonmovant
must seek an opportunity to amend).
judgment evidence does not support her contention that American owed her a duty
to prevent a fellow passenger from ejaculating on her or that it breached that duty.
The evidence also fails to show that any breach by American was the
proximate cause of Dozier’s injury. Proximate cause consists of cause in fact and
forseeability. Marathon Corp. v. Pitzner, 106 S.W .3d 724, 727 (Tex. 2003). “The
test for cause in fact, or ‘but for causation,’ is whether the act or omission was a
substantial factor in causing the injury ‘without which the harm would not have
occurred.’” Id. (citing Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W .2d 472,
477 (Tex. 1995)). “The test for forseeability is whether a person of ordinary
intelligence would have anticipated the danger his or her negligence creates.” Sw.
Key Program, Inc. v. Gil-Perez, 81 S.W .3d 269, 274 (Tex. 2002). In her summary
judgment response, Dozier merely recited the law on causation and made
conclusory statements that American proximately caused her damages. She failed
to present a scintilla of evidence that any act or omission by American was a
substantial factor causing injury to her or that American should have anticipated any
danger. See id.; see also U.S. Rentals, Inc. v. Mundy Serv. Corp., 901 S.W .2d 789,
794 (Tex. App.—Houston [14th Dist.] 1995, writ denied) (holding that, “by failing to
specifically direct the trial court’s attention to facts and summary judgment evidence
. . . , U.S. Rentals raised no fact question on that issue”).
Examining the entire record in the light most favorable to Dozier as the
nonmovant, indulging every reasonable inference and resolving any doubts against
American’s motion, we hold that Dozier failed to bring forward more than a scintilla
of probative evidence that raises a genuine issue of material fact as to the duty,
breach, and causation elements of her negligence cause of action. See Smith, 288
S.W .3d at 424. Consequently, we overrule Dozier’s second issue.
V. C ONCLUSION
Having overruled Dozier’s two issues, we affirm the trial court’s judgment.
SUE W ALKER
JUSTICE
PANEL: DAUPHINOT, W ALKER, and MEIER, JJ.
DELIVERED: August 5, 2010