Melissa Goodwin, Justice

FROM THE COUNTY COURT AT LAW NO. 1 OF BELL COUNTY
NO. 83535 , HONORABLE JEANNE PARKER, JUDGE PRESIDING MEMORANDUM OPINION

Kenneth Leo Buholtz, acting pro se, appeals from the trial court's orders granting summary judgment in favor of Misti Dawn Field and Ronnie Ray. Buholtz sued Field and Ray alleging breach of fiduciary duty. Field and Ray filed separate no-evidence motions for summary judgment, which the trial court granted. See Tex. R. Civ. P. 166a(i). For the reasons that follow, we affirm the trial court's orders.

BACKGROUND

In 2011, while Buholtz was an active-duty lieutenant colonel stationed at Fort Hood, Field lived at Buholtz's home in McKinney. Buholtz states that Field acted as "a caretaker of sorts" in exchange for room and board. Ray asserts that Field was Buholtz's girlfriend and that Ray was a neighbor. On June 13, 2011, Buholtz was arrested and held without bond under a federal indictment. On June 18, 2011, Buholtz executed a general durable power of attorney naming Field as his attorney-in-fact and granting her broad authority, including the power to sell personal property, write checks, and make withdrawals from Buholtz's bank account. The power of attorney also provided that the attorney-in-fact would not be personally liable for any act done under the authority of the power of attorney "except for acts constituting gross misconduct or fraud." According to Field, Buholtz named Field his attorney-in-fact so that she could dispose of his property because he needed money while awaiting disposition of the criminal case. In early 2012, Field notified Buholtz that she had gotten married and was moving from Buholtz's McKinney property. Field also informed Buholtz that she had sold the "homestead/ranch implements" and "other barn contents" to Ray for $1,500 but that Ray had refused to issue a receipt or inventory of items. According to Buholtz, he asked Ray to return the property, but Ray refused, instead offering to sell it back to Buholtz for a "tidy profit to Mr. Ray."

On February 9, 2016, Buholtz filed suit asserting level 2 discovery under Texas Rule of Civil Procedure 190.3 and seeking to recover the barn contents and funds Field had allegedly "stolen" from Buholtz's bank account. Buholtz alleged that Field had breached her fiduciary duty through unauthorized and fraudulent transactions. He alleged that Ray "participated in [Field's] breach of fiduciary duty and [was] therefore liable as a joint tortfeasor." In May 2016, the case was set for trial on August 8, 2016. On August 3, 2016, Ray filed a no-evidence motion for summary judgment. Ray argued that there was no evidence that Ray shared any fiduciary duty with Field or that Ray had any duty to Buholtz and that there was therefore no breach. He also argued that there was no evidence of a breach of fiduciary by Field but that if Field breached any duty, Buholtz's remedy was against Field, and not against Ray, who was a bona fide purchaser. Buholtz did not file a response to Ray's motion but on November 16, 2016, participated in the hearing on the motion telephonically and informed the trial court that he had not received a copy of the motion for summary judgment but had received notice of the hearing from the clerk's office. The trial court granted Ray's motion for summary judgment, finding that Buholtz had received proper service of the motion and notice of hearing and had participated in the hearing. Buholtz filed a motion to set aside the order granting Ray's summary judgment motion asserting that he had not received proper notice. After a hearing on February 16, 2017, at which, according to Buholtz, Ray's attorney testified that he had mailed a copy of the motion to Buholtz on August 19, 2016, the motion to set aside was overruled.

On January 24, 2017, Buholtz served written discovery on Field. Field did not respond to the discovery but on February 28, 2017, filed a no-evidence motion for summary judgment. Field argued that there was no evidence that she had breached her fiduciary duty and that the power of attorney, attached to Buholtz's petition, established that she was authorized to make the transactions in question. Field also stated in the motion that she had not responded to Buholtz's discovery requests because they fell outside the discovery period under Texas Rule of Civil Procedure 190. On March 3, 2017, Buholtz filed a Motion for Default Judgment, asking the trial court to strike Field's pleadings and enter a default judgment against her as a sanction for failing to respond to discovery. On March 20, 2017, Buholtz filed a response to Field's motion for summary judgment in which he asserted, among other arguments, that his filing of discovery on January 24, 2017, was "well within the 30 days before the date of trial of 6 Mar '17," as required by Rule 190. A hearing was held on March 29, 2017, after which the trial court denied Buholtz's motion for default judgment and granted Field's motion for summary judgment. This appeal followed.

DISCUSSION

Ray's No-Evidence Motion for Summary Judgment

In his first issue, Buholtz challenges the trial court's order granting Ray's no-evidence motion for summary judgment. Buholtz argues that he did not receive notice of Ray's motion for summary judgment until he received notice of the hearing on the motion from the clerk's office. He states that in response to the notice, he requested a copy of the motion from the clerk but did not receive the copy until eleven days after the hearing. Buholtz points out that Ray's motion for summary judgment lacked a certificate of service, contends that his failure to file a response was the result of Ray's failure to properly serve the motion on him, and argues that the clerk's notice of hearing did not cure Ray's error. Buholtz states that he raised this lack of service at the hearing and that the trial court "offer[ed] no reasoning" for continuing with the hearing after he announced that he had not received the motion.

Because Buholtz was timely served with notice of the hearing but alleges that he was not served with the motion prior to the hearing, on the specific facts before us, we apply the case law on untimely service, rather than that concerning no service. See Caudle v. Oak Forest Apts., No. 02-14-00308-CV, 2015 Tex. App. LEXIS 12803, at *9-10 (Tex. App.—Fort Worth Dec. 17, 2015, pet. denied) (mem. op.) (stating that court was unable to locate other case in which nonmovant had not received service of no-evidence summary judgment motion but had received timely notice of hearing and applying case law on untimely service to such facts); see also Tex. R. Civ. P. 166a(c) (requiring that summary judgment motion be filed and served at least 21 days prior to hearing), R. 21a(c) (extending minimum notice by three days when motion is served by mail). "Untimely notice of a summary judgment hearing is a nonjurisdictional defect." Edwards v. Phillips, No. 04-13-00725-CV, 2015 Tex. App. LEXIS 4330, at *10 (Tex. App.—San Antonio Apr. 29, 2015, no pet.) (mem. op.). "If a party receives notice that is untimely, but sufficient to enable to the party to attend the summary judgment hearing, the party must file a motion for continuance or raise the complaint of late notice in writing, supported by affidavit evidence, and raise the issue before the trial court during the summary judgment hearing." Nguyen v. Short, How, Frels & Heitz, P.C., 108 S.W.3d 558, 560 (Tex. App.—Dallas 2003, pet. denied); accord Edwards, 2015 Tex. App. LEXIS 4330, at *10; Hatler v. Moore Wallace N. Am., Inc., No. 01-07-00181-CV, 2010 Tex. App. LEXIS 777, at *4-5 (Tex. App.—Houston [1st Dist.] Feb. 4, 2010, no pet.) (mem. op.); Fertic v. Spencer, 247 S.W.3d 242, 247 (Tex. App.—El Paso 2007, pet. denied).

A nonmovant who receives untimely notice and does not file a motion for continuance or otherwise raise the complaint in writing, supported by affidavit evidence, prior to the hearing waives any complaint regarding notice. See Edwards, 2015 Tex. App. LEXIS 4330, at *10-11; Hatler, 2010 Tex. App. LEXIS 777, at *4-5 (holding that complaint of late notice was not preserved in post-trial motion); Fertic, 247 S.W.3d at 248 & n.4 (holding that where nonmovant appeared at hearing but did not file motion for continuance or otherwise raise issue of late notice in writing and raised issue for first time in motion for new trial, error was not preserved); Bell v. Citibank (S.D.) N.A., No. 06-06-000037-CV, 2006 Tex. App. LEXIS 9474, at *4-5 (Tex. App.—Texarkana Nov. 2, 2006, no pet.) (mem. op) (holding that nonmovant, acting pro se, who appeared at hearing but did not file motion for continuance or affidavit in support of complaint of deficient notice failed to preserve error); Veal v. Veterans Life Ins. Co., 767 S.W.2d 892, 895 (Tex. App.—Texarkana 1989, no writ) (stating that 21-day notice requirement may be waived if nonmovant receives notice, appears at hearing, and does not file affidavit under Rule 166a(f)).

Here, Buholtz received notice of the motion and hearing prior to the hearing and requested a copy of the motion but did not file a motion for continuance or otherwise complain in writing of the untimely notice prior to the hearing. He appeared at the hearing telephonically and complained that he had not received the motion, but there is nothing in the appellate record to indicate that he filed a motion for continuance or otherwise requested a continuance. The first time Buholtz raised the issue of notice in writing was in a post-hearing motion in which he asked the trial court to set aside the summary judgment. We conclude that Buholtz has not preserved his complaint concerning notice for our review. See Wheeler v. Green, 157 S.W.3d 439, 444 (Tex. 2005) (stating that pro se litigant is held to same standards as licensed attorneys and must comply with applicable laws and rules of procedure); see also Edwards, 2015 Tex. App. LEXIS 4330, at * 10-11 (holding that nonmovant waived complaint regarding insufficient notice where he attended hearing telephonically while incarcerated and raised issue but did not file motion for continuance or otherwise raise complaint in writing supported by affidavit evidence); Hatler, 2010 Tex. App. LEXIS 777, at *4-5; Fertic, 247 S.W.3d at 248 & n.4; Bell, 2006 Tex. App. LEXIS 9474, at *4-5; May v. Nacogdoches Mem'l Hosp., 61 S.W.3d 623, 626 (Tex. App.—Tyler 2001, no pet.) (concluding that nonmovant waived notice issue where she participated in hearing but failed to object in writing prior to hearing); Negrini v. Beale, 822 S.W.2d 822, 823 (Tex. App.—Houston [14th Dist.] 1992, no writ) (stating that nonmovant waived complaint concerning 21-day notice requirement where nonmovant received notice of hearing, appeared at hearing, filed no controverting affidavit, and did not ask for continuance).

Buholtz also argues that the trial court's disposition of his claims against Ray on summary judgment when he had requested a jury trial constitutes a violation of his due process rights. However, "a no-evidence summary judgment under Rule 166a(i) does not violate the right to a jury trial because, by presenting no evidence in support of one's claim, a party has failed to show that there is a material fact issue for a jury to consider." Springer v. American Zurich Ins. Co., 115 S.W.3d 582, 585 (Tex. App.—Waco 2003, pet. denied); accord Boring v. City of Dayton, No. 09-04-00168-CV, 2005 Tex. App. LEXIS 1795, at *3 (Tex. App.— Beaumont Mar. 10, 2005, pet. denied) (mem. op.); Wade v. Girsh, No. 10-03-00218-CV, 2004 Tex. App. LEXIS 8735, at *1 (Tex. App.—Waco Sept. 29, 2004, no pet.) (mem. op.). Therefore, we conclude that the trial court's disposition of this case by summary judgment did not violate Buholtz's right to a jury trial.

Finally, Buholtz argues that Ray's motion for summary judgment was premature and was based on Ray's bad faith in not responding to discovery requests. First, we observe that the record contains no evidence that Buholtz served any discovery requests on Ray, and it appears that Buholtz is referring to his informal requests to Ray made prior to suit for receipts and an inventory of the property Ray purchased from Field. As for Buholtz's argument that Ray's motion was "premature," to the extent Buholtz complains that there had not been adequate time for discovery, see Tex. R. Civ. P. 166a(i) (permitting party to file no-evidence motion for summary judgment after adequate time for discovery), Buholtz has failed to preserve this argument for appeal. Buholtz did not conduct any discovery or file an affidavit explaining the need for more time to conduct discovery or a verified motion for continuance of the hearing on Ray's motion. See Tenneco, Inc. v. Enterprise Prods. Co., 925 S.W.2d 640, 647 (Tex. 1996) (stating that when party contends he has not had adequate opportunity for discovery before summary judgment hearing, he must file either affidavit explaining need for more discovery or verified motion for continuance); Lewis v. Rucker, No. 12-16-00254-CV, 2017 Tex. App. LEXIS 8970, at *4 (Tex. App.—Fort Worth Sept. 21, 2017, pet. filed) (mem. op.) (stating that party who fails to file affidavit explaining need for further discovery or verified motion for continuance cannot complain on appeal that he was denied sufficient time to conduct discovery).

Even if Buholtz had preserved this argument, we would not find it persuasive. We review a trial court's determination of whether adequate time for discovery has passed for abuse of discretion. Madison v. Williamson, 241 S.W.3d 145, 155 (Tex. App.—Houston [1st Dist.] 2007, pet. denied). "[T]he rules do not mandate a minimum period of time a case must be pending before a motion may be filed, as long as there was adequate time for discovery." Restaurant Teams Int'l, Inc. v. MG Sec. Corp., 95 S.W.3d 336, 340 (Tex. App.—Dallas 2002, no pet.); see Singleterry v. Etter, No. 01-16-00700-CV, 2017 Tex. App. LEXIS 5345, at *5 (Tex. App.—Houston [1st Dist.] June 13, 2017, no pet.) (listing factors to consider in determining whether trial court has permitted adequate time for discovery). Rule 166a(i) provides that a party may file a no-evidence motion for summary judgment after adequate time for discovery. Tex. R. Civ. P. 166a(i). Ray filed his motion six months after Buholtz filed suit—during which time Buholtz filed no discovery—and five days before the then-current trial setting, and the motion was not heard until almost a year after Buholtz filed suit. Even assuming this issue was preserved, we would conclude that Buholtz had adequate time for discovery, that Ray's motion was not "premature," and that the trial court did not abuse its discretion in hearing and ruling on Ray's motion for summary judgment when it did. See Mulcahy v. Wal-Mart Stores, Inc., No. 02-10-00074-CV, 2010 Tex. App. LEXIS 9955, at *6-7 (Tex. App.—Fort Worth Dec. 16, 2010, no pet.) (mem. op.) (holding there was adequate time for discovery where case had been on file 15 months before motion was filed and 18 months before hearing); Madison, 241 S.W.3d at 155-56 (holding there was adequate time for discovery where case had been pending for 10 months when motion was filed and for "over one year" when summary judgment was granted); Restaurant Teams Int'l, 95 S.W.3d at 339-41 (holding there was adequate time where case had been on file seven months and motion had been on file 26 days before it was granted); McClure v. Attebury, 20 S.W.3d 722, 730 (Tex. App.—Amarillo 1999, no pet.) (concluding there was adequate time for discovery where motion was filed seven months after suit was filed and hearing was held nine months after suit was filed). We overrule Buholtz's first issue.

Default Judgment as Sanction against Field

In his second issue, Buholtz argues that the trial court erred in declining to render a default judgment against Field as a discovery sanction. Buholtz contends that he filed the discovery requests on January 24, 2017, and properly served them; that any issues with service on Field were the result of her attorney's not properly updating his address; and that, in any event, Field's attorney testified that he received a copy "at the end of January" after requesting one from the clerk. Because Field failed to respond to the discovery requests, Buholtz urges that the trial court should have stricken her pleadings and rendered a default judgment against her.

In his petition, Buholtz indicated his intention to conduct discovery under Level 2, which is the default discovery level when there is no order adopting a discovery control plan, as appears to be the case here. See Tex. R. Civ. P. 190.3. Rule 190.3 provides, in relevant part, that all discovery must be conducted during the discovery period, which begins when suit is filed and continues until 30 days before the date set for trial. See id. R. 190.3(b)(1)(B)(i). Comment 4 to Rule 190 states that, "[a]s other rules make clear," parties "must serve requests sufficiently far in advance of the end of the discovery period that the deadline for responding will be within the discovery period." Id. R. 190.3, cmt. 4. Buholtz argues that his discovery requests were not untimely because the August 2016 trial date had been vacated and no new trial date had been set until after he filed his discovery requests. Although the August 2016 trial date had passed when Buholtz filed his discovery requests, the appellate record Buholtz has brought forward contains no evidence as to when the trial date was re-set. In her motion for summary judgment, Field alleged that Buholtz had filed the discovery requests within 40 days of trial, and in his response to Field's motion for summary judgment, Buholtz did not dispute that assertion but cited a trial date of March 6, 2017, and argued that the discovery filing date of January 24, 2017, was "well within the 30 days before the date of trial." However, Field's responses would not have been due until February 24, 2017, less than 30 days before the trial date of March 6, 2017. Therefore, Buholtz's discovery requests fell outside the discovery period as provided by Rule 190.3. See id. R. 190.3(b)(1)(B)(i).

Further, even assuming Buholtz's discovery requests were timely, Buholtz did not file a motion seeking to compel Field to respond to the discovery or seek a lesser sanction, and there is nothing in the record to indicated that the "death penalty sanction" would have been justified on these facts. See Cire v. Cummings, 134 S.W.3d 835, 840-41 (Tex. 2004) ("[C]ase-determinative sanctions may only be imposed in 'exceptional cases' where they are 'clearly justified' and it is 'fully apparent that no lesser sanctions would promote compliance with the rules.'" (quoting GTE Commc'ns Sys. Corp. v. Tanner, 856 S.W.2d 725, 729-30 (Tex. 1993))). A sanction "should be no more severe than necessary to satisfy its legitimate purposes" and "must not be excessive." TransAmerican Nat. Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex. 1991). Sanctions that are so severe as to preclude presentation of the merits of a party's case "should not be assessed absent a party's flagrant bad faith or counsel's callous disregard for the responsibilities of discovery under the rules." Id. at 918. Here, there is no evidence that Field exhibited bad faith or that her attorney disregarded the rules of discovery. Moreover, the "death penalty" sanction should not be used unless a party's actions justify a presumption that the case lacks merit. See id. On this record, we cannot conclude that Field's actions justify such a presumption, as discussed in our consideration of Buholtz's third issue. We overrule Buholtz's second issue.

Field's No-Evidence Motion for Summary Judgment

In his third issue, Buholtz argues that the trial court erred in granting Field's no-evidence motion for summary judgment. He complains that the court never "considered the case on the merits" but "has simply been reactive to all Motions filed by Defendant(s) and has systematically ruled against [him] at every turn . . . in derogation of the Court's duty and mandate to remain impartial to the proceedings." He contends that if he were given the right to present his case to a jury, "there is no doubt that a verdict in his favor would be reached with simply the presentation of all available evidence." Buholtz further complains that the trial court "never entertained or ruled on" his response to Field's motion. He also re-urges the argument made in his first issue that summary judgment when he had requested a jury trial violated his due process rights.

For the reasons stated in our discussion of Buholtz's first issue, we conclude that the trial court's grant of Field's no-evidence motion for summary judgment did not violate Buholtz's due process rights. See Schied v. Merritt, No. 01-15-00466-CV, 2016 Tex. App. LEXIS 7356, at *12-13 (Tex. App.—Houston [1st Dist.] July 12, 2016, no pet.) (mem. op.) (holding that where trial court did not err in granting no-evidence summary judgment, trial court's disposition of case did not violate nonmovant's right to jury trial). Nor do we agree that the trial court was "simply reactive" to Field's motion or acted improperly in hearing the motion. As discussed above, the Texas Rules of Civil Procedure contemplate disposition before trial; Rule 166a(i) specifically provides that a party may file a no-evidence motion for summary judgment after adequate time for discovery. Tex. R. Civ. P. 166a(i). Field filed her motion more than a year after Buholtz filed suit, during which time the only discovery Buholtz conducted was his untimely discovery requests served on Field after the trial court had granted summary judgment to Ray and within 40 days of the trial date. We conclude that Buholtz had adequate time for discovery and that the trial court did not "simply react" or abuse its discretion in hearing Field's motion for summary judgment when it did. See Mulcahy, 2010 Tex. App. LEXIS 9955, at *6-7; Madison, 241 S.W.3d at 155-56; Restaurant Teams Int'l, 95 S.W.3d at 339-41; McClure, 20 S.W.3d at 730.

More importantly, the trial court acted in accordance with Rule 166a(i) when it granted Field's motion for summary judgment. Rule 166a(i) provides that the trial court must grant the motion unless the nonmovant produces summary judgment evidence raising a genuine issue of material fact. See Tex. R. Civ. P. 166a(i). In the motion, Field argued that there was no evidence that she had breached her fiduciary duty and that the power of attorney, attached to Buholtz's petition, established that she was authorized to make the transactions in question. In his response to Field's motion, Buholtz enumerated a series of "objections" to background statements contained in the motion, primarily those concerning Buholtz's arrest and other lawsuits, and objected to the motion "on its face" on the ground that Field sought to cause him to "marshal all evidence prior to trial." However, the procedure for a no-evidence summary judgment motion does not require the nonmovant to produce "all evidence" but does require that he present evidence sufficient to raise a genuine issue of material fact. See id.; Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006) (stating that once no-evidence motion for summary judgment is filed asserting that there is no evidence to support essential element of nonmovant's claim on which nonmovant would have burden at trial, burden shifts to nonmovant to present evidence raising genuine issue of material fact as to each element challenged in motion). Despite having the opportunity to present some evidence pursuant to the summary judgment procedure, Buholtz did not attach any summary judgment evidence to his response or even assert what that evidence was or what it might prove. Thus, we conclude that the trial court did not err in determining that there was no evidence that Field breached her fiduciary duty to Buholtz and in granting Field's no-evidence motion for summary judgment. See Tex. R. Civ. P. 166a(i); Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013) (stating that in response to no-evidence motion for summary judgment, nonmovant has burden to produce summary judgment evidence raising genuine issue of material fact as to each challenged element of cause of action and that no-evidence challenge will be sustained when there is complete absence of evidence of vital fact). We overrule Buholtz's third issue.

CONCLUSION

Having overruled Buholtz's issues, we affirm the trial courts orders granting summary judgment in favor of Ray and Field.

/s/_________

Melissa Goodwin, Justice Before Chief Justice Rose, Justices Pemberton and Goodwin Affirmed Filed: January 31, 2018