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Date: 09-17-2022

Case Style:

Anthony J. Villa v. Gregg C. Gebetsberger

Case Number:

Judge: April L. Farris

Court:

Court of Appeals For The First District of Texas

On appeal from 246th District Court Harris County, Texas

Plaintiff's Attorney:


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Defendant's Attorney: Deborah Lawson

Description:

Houston, Texas – Divorce lawyer represented appellant with alleging the existence of an informal marriage to appellee.



In October 2020, Villa initiated divorce proceedings, alleging that he and
Gebetsberger had been informally married since May 2011. Villa requested that the
trial court divide the parties’ community estate, reimburse the community estate for
expenditures to improve Gebetsberger’s separate estate, and award spousal
maintenance.
Gebetsberger filed a verified answer on January 4, 2021. In his answer, he
alleged that “there is no existing marriage between the parties.” Gebetsberger served
Villa with discovery requests in April 2021, and Villa responded to these requests
on June 16, 2021.
3
Gebetsberger filed a combined traditional and no-evidence motion for
summary judgment on August 6, 2021. Gebetsberger argued that Villa had no
evidence to support his informal marriage claim and that the parties had never been
married. Specifically, he argued that Villa had no evidence to support the elements
of an informal marriage: (1) that Villa and Gebetsberger agreed to be married;
(2) that they lived together in Texas as spouses; and (3) that they represented to
others in Texas that they were married or had a reputation for being married.
In addition to asserting no-evidence grounds for summary judgment,
Gebetsberger also asserted traditional grounds, arguing that evidence established, as
a matter of law, that he did not agree to be married, he had never cohabitated as a
married man, and he consistently holds himself out as single. As supporting
evidence, Gebetsberger attached federal income tax returns identifying himself as
single; work-related documents referring to Villa as Gebetsberger’s “domestic
partner”; Gebetsberger’s will executed in 2013, which stated that he was single; and
a 2015 Facebook post that stated that Gebetsberger and Villa had “no marriage
plans.” Gebetsberger also relied on his own affidavit as well as affidavits from
thirteen friends to support his argument that Villa could not satisfy any of the
elements of an informal marriage. Additionally, Gebetsberger attached and
referenced Villa’s discovery responses, which included statements like “We talked
about being married and then agreed to be married,” but he argued that these
4
statements were “unsupported and non-specific” and did not establish the elements
of an informal marriage.
Gebetsberger set his summary judgment motion for hearing by submission on
August 27, 2021.
On August 10, 2021, Villa filed a request for disclosure and a request for
production and inspection. He moved for a continuance of the summary judgment
hearing on August 24, 2021, and sought at least sixty additional days to respond.
Villa argued that there had not been an adequate time for discovery, and he “needs
additional time to secure discovery and summary judgment affidavits.” He also
stated that he “will be unable to fully respond to the [summary judgment] motion by
August 27, 2021.” He stated that “discovery necessary to fully respond to the motion
is outstanding” and that “[m]uch of the necessary discovery is necessary as a result
of the summary judgment evidence submitted with [Gebetsberger’s] motions for
summary judgment.”
In support of his request for a continuance, Villa attached the affidavit of his
counsel, Kevin Hicks.1 Hicks averred that the case had been on file since October
20, 2020, and he was served with Gebetsberger’s summary judgment motion on
August 6, 2021. No scheduling order had been issued, no trial date had been set, the
1 Hicks’s affidavit contained in the clerk’s record is corrupted and illegible. Villa
attached a copy of the affidavit to his brief, and Gebetsberger attached an identical
copy of the affidavit as an appendix to his brief.
5
discovery period did not have a set ending date, and the parties had not attended
mediation. Hicks averred that he served discovery requests on Gebetsberger on
August 9, 2021, and “[t]he requested discovery is likely to contain evidence showing
the parties agreed to be married and held each other out as such.” Hicks further
averred that he intended to seek records from Gebetsberger’s employer which were
“likely to be probative of the parties’ intent at the time of making.” He stated that he
needed additional time to contact the individuals who provided affidavits on
Gebetsberger’s behalf “and likely schedule depositions.” He also stated that the
COVID-19 pandemic had impeded his efforts “to move the substantial discovery
process forward,” and he was working with Villa “to begin the process of contacting
and securing statements from multiple witnesses, including family friends, relatives,
and associates of the parties, who have testimony that the parties agreed to be
married and held themselves out as such.”
Villa did not file a response to Gebetsberger’s summary judgment motion.
The trial court denied Villa’s motion for continuance on September 13, 2021.
On that same date, the court granted Gebetsberger’s summary judgment motion in a
separate order. This order stated, “After considering the motions, the pleadings, the
response, the affidavits, and other evidence on file, the court: GRANTS Gregg
Gebetsberger’s motion for summary judgment.” The court dismissed Villa’s divorce
petition with prejudice. This appeal followed.
6
Summary Judgment
In his first issue, Villa argues that the trial court erred by granting summary
judgment in favor of Gebetsberger. Villa contends that the court granted only the
traditional portion of Gebetsberger’s summary judgment motion, but Gebetsberger’s
summary judgment evidence did not conclusively establish that no informal
marriage existed.
A. Standard of Review
We review a trial court’s summary judgment ruling de novo. Odyssey 2020
Acad., Inc. v. Galveston Cent. Appraisal Dist., 624 S.W.3d 535, 540 (Tex. 2021).
When a party moves for both traditional and no-evidence summary judgment, we
consider the no-evidence motion first. First United Pentecostal Church of Beaumont
v. Parker, 514 S.W.3d 214, 219 (Tex. 2017). If the non-movant fails to meet his
burden under the no-evidence motion, there is no need to address a challenge to the
traditional motion, as it necessarily fails. Id. Any claims that survive no-evidence
review are then reviewed under the traditional standard. Id. at 219–20.
After an adequate time for discovery, a party may move for no-evidence
summary judgment. See TEX. R. CIV. P. 166a(i). No-evidence summary judgment is
proper when there is no evidence of one or more essential elements of a claim or
defense on which the adverse party bears the burden of proof at trial. JLB Builders,
L.L.C. v. Hernandez, 622 S.W.3d 860, 864 (Tex. 2021); TEX. R. CIV. P. 166a(i). The
7
no-evidence motion must specifically state the element or elements for which there
is no evidence. Cmty. Health Sys. Pro. Servs. Corp. v. Hansen, 525 S.W.3d 671, 695
(Tex. 2017); Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009) (stating
that no evidence motion must be specific in challenging evidentiary support for
element of claim).
A proper no-evidence summary judgment motion shifts the burden to the
nonmovant to present evidence raising a genuine issue of material fact on each
element challenged in the motion. JLB Builders, 622 S.W.3d at 864. The nonmovant
presents more than a scintilla of evidence, and thus raises a fact issue, when the
evidence rises to a level that would enable reasonable and fair-minded people to
differ in their conclusions. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex.
2003). If the evidence is so weak that it does no more than create a mere surmise or
suspicion of a fact, the evidence is not more than a scintilla. Id. When reviewing a
summary judgment ruling, we take as true all evidence favorable to the nonmovant,
and we indulge every reasonable inference and resolve any doubts in the
nonmovant’s favor. Hillis v. McCall, 602 S.W.3d 436, 440 (Tex. 2020) (quoting
Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005)). If the
nonmovant does not meet his burden to present evidence raising a genuine issue of
material fact, “then the court ‘must’ grant summary judgment.” B.C. v. Steak N
8
Shake Operations, Inc., 598 S.W.3d 256, 259 (Tex. 2020) (per curiam) (quoting TEX.
R. CIV. P. 166a(i)).
To be entitled to traditional summary judgment, the moving party must
demonstrate that no genuine issue of material fact exists and the party is entitled to
judgment as a matter of law. JLB Builders, 622 S.W.3d at 864; see TEX. R. CIV. P.
166a(c). If the moving party carries this burden, the burden shifts to the nonmovant
to raise a genuine issue of material fact precluding summary judgment. Lujan v.
Navistar, Inc., 555 S.W.3d 79, 84 (Tex. 2018). As with no-evidence summary
judgments, we view the evidence in the light most favorable to the nonmovant. Town
of Shady Shores v. Swanson, 590 S.W.3d 544, 551 (Tex. 2019).
B. Analysis
A party may combine in a single motion a request for traditional summary
judgment and a request for no-evidence summary judgment. Binur v. Jacobo, 135
S.W.3d 646, 650 (Tex. 2004); see Draughon v. Johnson, 631 S.W.3d 81, 88 n.2
(Tex. 2021) (“Parties may combine traditional and no-evidence motions in a single
hybrid filing and attach evidence so long as they clearly set forth their grounds and
otherwise meet the requirements for each motion.”). The fact that the movant
attaches evidence to a traditional summary judgment motion “does not foreclose a
party from also asserting that there is no evidence with regard to a particular
element.” Binur, 135 S.W.3d at 651. If a party attaches evidence to a summary
9
judgment motion, trial courts should not disregard a request for no evidence
summary judgment. Id. When we review a no-evidence summary judgment, “we
ignore evidence attached to a combined summary-judgment motion and offered in
support of traditional-summary-judgment grounds, unless the non-movant directed
the trial court to that evidence in the response to the movant’s no-evidence motion.”
Stettner v. Lewis & Maese Auction, LLC, 611 S.W.3d 102, 109 (Tex. App.—Houston
[14th Dist.] 2020, no pet.).
When a party files a no-evidence summary judgment motion, the burden shifts
to the nonmovant to specifically point out evidence that raises a fact issue. Martinez
v. Leeds, 218 S.W.3d 845, 849 (Tex. App.—El Paso 2007, no pet.); TEX. R. CIV. P.
166a(i) (“The court must grant the [no-evidence] motion unless the respondent
produces summary judgment evidence raising a genuine issue of material fact.”).
The nonmovant may rely on evidence attached to a movant’s combined traditional
and no-evidence summary judgment motion, but the nonmovant bears the burden to
specifically point out to the trial court which evidence raises a fact issue on the
challenged elements. Martinez, 218 S.W.3d at 849; TEX.R.CIV. P. 166a(i) cmt. (“To
defeat a motion made under paragraph (i), the respondent is not required to marshal
its proof; its response need only point out evidence that raises a fact issue on the
challenged elements.”).
10
“Absent a timely response, a trial court must grant a no-evidence motion for
summary judgment that meets the requirements of Rule 166a(i).” Imkie v. Methodist
Hosp., 326 S.W.3d 339, 343 (Tex. App.—Houston [1st Dist.] 2010, no pet.).
Generally, the failure to respond to a no-evidence summary judgment motion is
“fatal to the nonmovant’s ability to assert on appeal that the trial court erred in
granting the motion.” Patidar v. Bank of Am., N.A., 442 S.W.3d 789, 793 (Tex.
App.—Houston [14th Dist.] 2014, no pet.). If the nonmovant fails to respond to a
no-evidence summary judgment motion, the nonmovant is limited on appeal to
arguing the legal sufficiency of the grounds presented in the motion. Id.; Viasana v.
Ward Cnty., 296 S.W.3d 652, 655 (Tex. App.—El Paso 2009, no pet.) (concluding
that because nonmovant did not file response to combined no-evidence and
traditional summary judgment motion attaching evidence or pointing out existence
of fact issue in evidence attached to traditional motion, nonmovant was restricted to
challenging sufficiency of summary judgment motion).
For a no-evidence motion to be sufficient under Rule 166a(i), the motion must
specifically state the element or the elements of the nonmovant’s claims for which
there is no evidence. Hansen, 525 S.W.3d at 695; Timpte Indus., 286 S.W.3d at 310;
TEX. R. CIV. P. 166a(i). A motion that lists the elements of the plaintiff’s claim and
generally asserts that the plaintiff has no evidence to support “one or more” or “any
11
of” the elements is insufficient to support no-evidence summary judgment. Hansen,
525 S.W.3d at 695–96.
Here, Gebetsberger filed a combined traditional and no-evidence summary
judgment motion. After setting out the general law concerning both no-evidence and
traditional summary judgment motions, he stated the three statutory elements for
establishing an informal marriage. See TEX. FAM. CODE § 2.401(a)(2). He stated:
Anthony Villa and Gregg Gebetsberger have never been married,
ceremonially or otherwise. Villa has completely failed to support his
allegation of a May 2011 marriage by producing a marriage license (as
required by Texas Family Code § 2.001) or declaration of informal
marriage (as required by Texas Family Code §§ 2.401(a)(1) and 2.402).
Villa has also produced no evidence that he and Gebetsberger
(1) agreed to be married, (2) lived together as spouses, in Texas or
another state, or (3) represented to others in Texas that they were a
married couple, or had a reputation for being married (as required by
Texas Family Code § 2.401(a)(2)). Conversely, Gebetsberger can show
that he did not agree to be married, never lived with Villa as spouses,
and affirmatively represented to others that they were not married.
Gebetsberger attached evidence in support of the traditional portion of his motion,
including Villa’s discovery responses and fourteen affidavits from Gebetsberger and
friends of his. Villa did not file a response to Gebetsberger’s summary judgment
motion, and the trial court granted summary judgment in Gebetsberger’s favor.
On appeal, Villa argues that the trial court granted only Gebetsberger’s
traditional summary judgment motion, pointing out that the order stated that the
court considered the evidence and affidavits. The trial court’s summary judgment
order stated: “After considering the motions, the pleadings, the response, the
12
affidavits, and other evidence on file, the court: GRANTS Gregg Gebetsberger’s
motion for summary judgment.” This order did not use the words “traditional” or
“no evidence,” and it did not state that the trial court was granting only the traditional
portion of Gebetsberger’s summary judgment motion. We therefore disagree with
Villa that because the order recited that the court considered “evidence,” the court
necessarily granted only traditional summary judgment and either denied or failed
to consider the no-evidence portion of Gebetsberger’s motion.
Gebetsberger’s motion specifically identified the elements of Villa’s informal
marriage claim as to which there is no evidence. See Hansen, 525 S.W.3d at 695.
The motion did not generally assert that Villa had no evidence to support “one or
more” or “any of” the elements of an informal marriage claim, and therefore the
motion was a legally sufficient no-evidence motion.2 See id. at 695–96. Villa did not
file a response that either attached his own summary judgment evidence or point to
any evidence filed by Gebetsberger that, in Villa’s view, raised a fact issue. See
Martinez, 218 S.W.3d at 849.
Because Gebetsberger’s motion met the requirements of Rule 166a(i) and
Villa did not file a response, the trial court was required to grant no-evidence
summary judgment in favor of Gebetsberger. See Imkie, 326 S.W.3d at 343; TEX. R.
2 Moreover, Villa does not argue on appeal that the no-evidence portion of
Gebetsberger’s summary judgment motion failed to comply with Rule 166a(i) or
was otherwise insufficient.
13
CIV. P. 166a(i) (“The court must grant the [no-evidence] motion unless the
respondent produces summary judgment evidence raising a genuine issue of material
fact.”). We therefore hold that the trial court properly rendered summary judgment
in favor of Gebetsberger. See Imkie, 326 S.W.3d at 343.
To the extent Villa argues that the trial court’s recitation that it considered
“the motions, the pleadings, the response, the affidavits, and other evidence on file”
requires us to consider the evidence attached to the traditional portion of
Gebetsberger’s combined motion in reviewing the propriety of granting no-evidence
summary judgment, Villa has not cited any authority to support this argument.
However, even if we were required to review the evidence Gebetsberger attached to
the traditional portion of his combined motion, we would nevertheless conclude that
the evidence does not raise a fact issue on each of the challenged elements of an
informal marriage claim.
To establish an informal marriage, the petitioner must prove: (1) the parties
agreed to be married; (2) they lived together in Texas as spouses after the agreement;
and (3) they represented to others in Texas that they were married. TEX. FAM. CODE
§ 2.401(a)(2); Smith v. Deneve, 285 S.W.3d 904, 909 (Tex. App.—Dallas 2009, no
pet.); Eris v. Phares, 39 S.W.3d 708, 713 (Tex. App.—Houston [1st Dist.] 2001, pet.
denied). The third element is “also described as ‘holding out to the public’” and
“requires more than occasional references to each other” as spouses. Smith, 285
14
S.W.3d at 909–10. “[A] ‘couple’s reputation in the community as being married is a
significant factor in determining the holding out element.’” Id. at 910 (quoting
Danna v. Danna, No. 05-05-00472-CV, 2006 WL 785621, at *1 (Tex. App.—Dallas
Mar. 29, 2006, no pet.) (mem. op.)). This element requires “both parties to have
represented themselves as married.” Small v. McMaster, 352 S.W.3d 280, 285 (Tex.
App.—Houston [14th Dist.] 2011, pet. denied); Smith, 285 S.W.3d at 910. Proving
a reputation for being married requires evidence that the couple “consistently
conducted themselves as [spouses] in the public eye or that the community viewed
them as married.” Small, 352 S.W.3d at 285 (quoting Danna, 2006 WL 785621, at
*2).
With respect to the “holding out” element, Gebetsberger averred that he and
Villa referred to each other as “boyfriend” or “partner,” but they never used
“husband” or “spouse.” He also averred that friends and colleagues had met Villa,
but “[n]one of them believed us to be married.” Thirteen of Gebetsberger’s friends
executed supporting affidavits. None of them believed Gebetsberger and Villa were
married, and none of them heard Gebetsberger and Villa refer to each other as
husbands or spouses. Several of Gebetsberger’s friends averred that, when asked
about marriage, both Gebetsberger and Villa stated either that they did not want to
be married or that they had not considered marriage. Gebetsberger attached several
years of federal income tax returns and a will executed in 2013, all of which
15
identified him as “single.” On two documents utilized by Gebetsberger’s employer
for health insurance benefits, Villa was identified as a “domestic partner,” but not as
a spouse. Gebetsberger and Villa had a “family” membership to the Museum of Fine
Arts Houston and a “family” membership in a neighborhood association, but the
rules for both memberships did not require a marriage to obtain a “family”
membership.
Gebetsberger also attached Villa’s discovery responses. Villa produced a
calendar entitled “Gebetsberger Family Days,” which included a notation of “Gregg
Gebetsberger & AJ Villa (A)” on February 2, 2011.3 Villa was also included in a list
of “Gebetsberger Family Addresses.” Villa was also a signatory on Gebetsberger’s
bank account and was listed as a named insured on Gebetsberger’s car insurance. In
an interrogatory answer, Villa stated, “We moved to live together in Texas and we
held out as spouses on or about May 1, 2011.” In that answer, Villa pointed to the
document filed with Gebetsberger’s employer, the family membership in the
neighborhood association, their sending of Christmas cards “as spouses do,” an
3 Although the calendar does not state what “(A)” means, Gebetsberger averred that
he and Villa went on their first date on February 2, 2011. “(A)” therefore likely
refers to anniversary.
16
article in the Houston Chronicle that featured them,4
and the Gebetsberger Family
Days calendar as evidence that they held themselves out as a married couple.
None of the documentation attached to Gebetsberger’s summary judgment
motion referred to Gebetsberger and Villa as husbands or spouses. At most, the
evidence reflects that they were in a long-term, committed relationship.
Gebetsberger’s friends testified by affidavit that Gebetsberger and Villa never
referred to themselves as married. No witness testified to the contrary. The only
evidence in the record that Gebetsberger and Villa represented to others that they
were married or that they held themselves out as married is Villa’s statement in his
interrogatory answers that “we held out as spouses on or about May 1, 2011.”
“[S]tanding alone, occasional references to each other as [spouses] and the like are
insufficient to establish an informal marriage.” Small, 352 S.W.3d at 285; see Smith,
285 S.W.3d at 910 (concluding that no fact issue was raised on “holding out”
element even though contracts listed parties as married because no evidence existed
that respondent knew of contractual representations or that anyone in community
saw those representations, and only other evidence was petitioner’s affidavit
4
In an interrogatory answer, Villa stated that he and Gebetsberger were featured in
an article in the Houston Chronicle, and the author referred to them as
“partners/‘significant other.’” The article is included in the record, but it is difficult
to read the print, and not all the article is readable. In his affidavit, Gebetsberger
disputed that the article referred to him and Villa as “partners” or “significant
others.”
17
testimony that parties introduced each other as “husband” and “wife” with no
objection from other party, but petitioner did not state “whether these events were
common or rare” and petitioner did not present evidence that parties had reputation
in community for being married).
We conclude that the evidence attached to Gebetsberger’s summary judgment
motion did not raise a fact issue on whether the parties represented to others in Texas
that they were married, an essential element of an informal marriage claim. See TEX.
FAM. CODE § 2.401(a)(2); Mott v. Red’s Safe & Lock Servs., Inc., 249 S.W.3d 90, 95
(Tex. App.—Houston [1st Dist.] 2007, no pet.) (“Although the non-movant need not
marshal its proof, it must present evidence that raises a genuine issue of material fact
on each of the challenged elements.”) (emphasis added). The trial court therefore
properly granted no-evidence summary judgment in favor of Gebetsberger.
We overrule Villa’s first issue.
Motion for Continuance
In his second issue, Villa argues that the trial court abused its discretion by
denying his motion to continue the summary judgment hearing. He contends that
Gebetsberger moved for summary judgment before an adequate time for discovery
had passed, and a continuance was necessary so Villa could conduct discovery and
respond to the summary judgment motion.
18
The trial court may order the continuance of a summary judgment hearing if
it appears “from the affidavits of a party opposing the [summary judgment] motion
that he cannot for reasons stated present by affidavit facts essential to justify his
opposition.” Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004)
(quoting TEX. R. CIV. P. 166a(g)). We review a trial court’s denial of a motion for
continuance for an abuse of discretion. Id.; Cypress Creek EMS v. Dolcefino, 548
S.W.3d 673, 687 (Tex. App.—Houston [1st Dist.] 2018, pet. denied). A trial court
abuses its discretion if its decision is so arbitrary and unreasonable that it amounts
to a clear and prejudicial error of law. Joe, 145 S.W.3d at 161. When conducting an
abuse of discretion review, we consider the evidence in the light most favorable to
the trial court’s ruling and indulge every presumption in favor of the ruling. Cypress
Creek EMS, 548 S.W.3d at 687.
We consider the following non-exclusive factors when determining whether
the trial court abused its discretion by denying a motion for continuance seeking
additional time to conduct discovery: the length of time the case has been on file;
the nature of the evidence needed to controvert the no-evidence motion; the
materiality and purpose of the discovery sought; the amount of discovery that has
already taken place; and whether the party seeking a continuance has exercised due
diligence to obtain the discovery sought. See Joe, 145 S.W.3d at 161; Cypress Creek
EMS, 548 S.W.3d at 687. The affidavit or verified motion for continuance must show
19
why the continuance is necessary, and conclusory allegations are not sufficient.
Cardenas v. Bilfinger TEPSCO, Inc., 527 S.W.3d 391, 404 (Tex. App.—Houston
[1st Dist.] 2017, no pet.). Generally, it is not an abuse of discretion to deny a motion
for continuance when the nonmovant has received the 21-days’ notice required by
Rule 166a(c). Cypress Creek EMS, 548 S.W.3d at 687.
A motion for continuance that seeks additional time to conduct discovery must
be supported by an affidavit showing that the party requesting the continuance has
used due diligence to timely obtain the evidence. Landers v. State Farm Lloyds, 257
S.W.3d 740, 747 (Tex. App.—Houston [1st Dist.] 2008, no pet.). The affidavit “must
state with particularity what diligence was used.” Id. “A party who fails to diligently
use the rules of discovery is not entitled to a continuance.” Id.; 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.”).
Here, Villa filed his petition for divorce asserting the existence of an informal
marriage in October 2020. Gebetsberger was served with citation in December 2020,
and he answered on January 4, 2021, expressly denying that the parties were married.
Gebetsberger served written discovery—including requests for production, requests
for Rule 194 disclosures, and interrogatories—on Villa in April 2021, and Villa
responded in June 2021.
20
Gebetsberger moved for traditional and no-evidence summary judgment on
August 6, 2021, approximately ten months after Villa filed for divorce. This motion
was set for hearing by submission on August 27, 2021. On August 10, 2021, four
days after Gebetsberger moved for summary judgment, Villa served requests for
Rule 194 disclosures and requests for production and inspection.
On August 24, 2021, three days before the summary judgment hearing, Villa
moved for a continuance of at least sixty days. He argued that there had not been an
adequate time for discovery, he would not be able to fully respond to the summary
judgment motion by the submission date, and he needed “additional time to secure
discovery and summary judgment affidavits.” He argued that necessary discovery
requests were outstanding, and “[m]uch of the necessary discovery is necessary as a
result of the summary judgment evidence” submitted by Gebetsberger. In support of
his motion for continuance, Villa attached the affidavit of his counsel, Kevin Hicks.
Hicks averred that the trial court had not issued a scheduling order, no trial
date had been set, no deadline for the end of the discovery period had been set, and
the parties had not attended mediation. Hicks averred that he sent discovery requests
to Gebetsberger on August 9, 2021, three days after Gebetsberger moved for
summary judgment. Hicks averred that the requested discovery would likely
“contain evidence showing the parties agreed to be married and held each other out
as such.” Hicks further averred that he intended to seek records from Gebetsberger’s
21
employer, which “are likely to be probative of the parties’ intent at the time of
making,” and he needed additional time to contact the individuals who provided
affidavits on Gebetsberger’s behalf “and likely schedule depositions.” Finally, Hicks
averred that he was working with Villa “to begin the process of contacting and
securing statements from multiple witnesses, including family friends, relatives, and
associates of the parties, who have testimony that the parties agreed to be married
and held themselves out as such.”
This affidavit demonstrated that although Villa had filed his petition in
October 2020, he did not seek any discovery from Gebetsberger until August 9,
2021, after Gebetsberger moved for summary judgment. The affidavit also
demonstrated that Hicks was working with Villa “to begin the process of contacting
and securing statements from multiple witnesses,” even though Gebetsberger had
filed his verified answer challenging the existence of a marriage in January 2021.
Villa had thus been on notice for more than seven months that the existence of a
marriage between the parties was a contested issue in the case, but it was not until
after Gebetsberger sought discovery and moved for summary judgment that Villa
filed his own discovery requests and stated that he needed additional time to contact
witnesses to provide statements. Villa has not cited any authority holding that an
affidavit such as the one he relied upon to support his request for a continuance is
sufficient to establish diligence in obtaining discovery.
22
“A party who fails to diligently use the rules of discovery is not entitled to a
continuance.” See Landers, 257 S.W.3d at 747. We conclude that, when faced with
an affidavit that did not demonstrate that Villa had used diligence in obtaining
discovery, the trial court did not abuse its discretion in denying Villa’s request for a
continuance to conduct additional discovery to respond to the summary judgment
motion. See Joe, 145 S.W.3d at 161 (considering, among other factors in
determining whether trial court abused its discretion in denying request for
continuance, whether party seeking continuance had used due diligence to obtain
discovery sought); Landers, 257 S.W.3d at 747.
We overrule Villa’s second issue.

Outcome: We affirm the judgment of the trial court.

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