09‑0631 ELIJAH W. RATCLIFF v. LHR, INC.; from Polk County;
Ratcliff v. LHR, Inc, No. 09‑07‑00566‑CV, ___ SW3d ___, 05‑28‑09, pet. denied Oct 2009)
(debt suit, breach of retail installment contract, summary judgment for plaintiff suing as assignee affirmed, no-
evidence motion for summary judgment on counterclaim granted and affirmed, adequacy of time prior to no-
evidence summary judgment)
Elijah W. Ratcliff appeals from the trial court's final judgment in Cause Number CIV 22975. The trial court's
judgment reflects that it granted the motion for summary judgment of the plaintiff, LHR, Inc., on its breach of
contract claim against Ratcliff and granted LHR's no evidence motion for summary judgment on Ratcliff's
counterclaims. We affirm.
In July 2006, LHR sued Ratcliff for breaching a retail installment contract under which Ratcliff had purchased a
vehicle. The retail installment contract originated in November 2001, and LHR subsequently acquired it by
assignment from Bank One. Under the contract, Ratcliff promised to pay $357.95 for sixty-six months. According to
LHR, Ratcliff failed to make the promised payments and LHR claimed $17,968.76 in damages.
Ratcliff first removed the case to federal court, but that court remanded the case to state court. In August 2006,
Ratcliff filed counterclaims against LHR for "relief from credit discrimination and civil rights abuses." In his
counterclaim, Ratcliff complains about the car dealership that sold him the car, a 2001 Chrysler Sebring, and he
asserts that Bank One knew and acquiesced in "the irregularities and illegalities tainting the subject transaction[.]"
Nevertheless, Ratcliff never sought to make Bank One or the dealership, where he purchased the vehicle, parties
in the case.
On June 15, 2007, LHR filed a motion for summary judgment on its contract claim and a no evidence motion for
summary judgment on Ratcliff's counterclaims. On June 20, 2007, Ratcliff filed a "First Supplemental Motion for
Discovery Order" in which he requested the court to compel LHR "to give proper responses to [his] Rule 194
Request for Disclosures and Rule 197 Interrogatories . . . ." On July 5, 2007, LHR supplemented its answers to
interrogatories; subsequently, although Ratcliff continued to assert that LHR had not met its discovery obligation,
Ratcliff failed to secure a hearing on his Motion for Discovery.
In September 2007, LHR filed its first amended motion for summary judgment on its contract claim which it
combined with a no evidence motion for summary judgment on Ratcliff's counterclaims. On September 11, 2007,
Ratcliff filed a motion requesting sanctions against LHR for its alleged failure to "give proper responses" to his
requested discovery. Ratcliff also filed a response to LHR's combined motion for summary judgment and no
evidence motion for summary judgment. Ratcliff attached his affidavit to the response; he complained about the
adequacy of LHR's discovery responses.
The court conducted a hearing on LHR's motions for summary judgment on October 30, 2007. There is a
transcript of the hearing; it reflects that Ratcliff was present and was given an opportunity to present argument.
The trial court granted LHR's summary judgment motion and awarded LHR $17,968.76 on its contract claim and
$5,989.59 in attorney's fees. The trial court also granted LHR's no evidence motion for summary judgment on
Ratcliff's counterclaims. In eleven issues, Ratcliff appeals.
Timing of Summary Judgment Hearing
Most of Ratcliff's issues on appeal concern his complaint that the trial court erred in not compelling LHR to more
thoroughly answer his discovery requests. Although Ratcliff's complaints on appeal are not entirely clear, we
construe Ratcliff's issues to assert that the trial court should have allowed more time for discovery prior to
disposing of the case on summary judgment.
LHR sued Ratcliff in July 2006, claiming discovery would be conducted under level one of the discovery control
plan. See Tex. R. Civ. P. 190.2. Ratcliff filed his counterclaims against LHR in August 2006. Ratcliff propounded
requests for disclosure and ten interrogatories to LHR on December 9, 2006. LHR responded to Ratcliff's
discovery on January 11, 2007, and supplemented its responses to the interrogatories on July 5, 2007. LHR's
supplemental responses to the interrogatories were filed as part of the record. LHR filed its no evidence motion for
summary judgment on June 15, 2007, and its amended no evidence motion for summary judgment on September
10, 2007. In response to LHR's amended motion, Ratcliff filed objections to the motion on September 12, 2007.
The summary judgment hearing occurred on October 30, 2007. Thus, over a year expired between the time LHR
and Ratcliff filed claims against each other and the date the trial court granted LHR affirmative relief on its
summary judgment and disposed of Ratcliff's counterclaims on LHR's no evidence motion.
Appellate courts review a trial court's determination of whether there was an adequate time for discovery on a
case-by-case basis under an abuse of discretion standard. Specialty Retailers, Inc. v. Fuqua, 29 S.W.3d 140, 145
(Tex. App.-Houston [14th Dist.] 2000, pet. denied). To preserve a complaint that the trial court's decision on a
summary judgment motion was premature, the party claiming it did not have adequate time for discovery must file
either an affidavit explaining the need for further discovery or a verified motion for continuance. Tenneco, Inc. v.
Enterprise Prods. Co., 925 S.W.2d 640, 647 (Tex. 1996). Ratcliff did not file a motion for continuance. He did,
however, file an affidavit in support of his objections to LHR's combined motions for summary judgment.
Nevertheless, in this level-one discovery case, Ratcliff's affidavit fails to sufficiently explain the necessity for further
discovery on the issues raised by LHR's motions or to sufficiently explain the necessity for further discovery on his
For instance, Ratcliff's affidavit does not specify the additional necessary discovery he believed to be required to
adequately respond to LHR's motions for summary judgment. Rather, Ratcliff generally asserts that LHR had not
answered the interrogatories by fully disclosing related parties or other parties with knowledge concerning the
transaction. Further, while Ratcliff filed a motion to compel after LHR filed its motions for summary judgment, the
record does not show that he ever obtained a hearing on his motion. Moreover, Ratcliff propounded ten
interrogatories and LHR responded to them all, including supplementing its responses more than three months
before the summary judgment hearing. Even if the trial court had considered Ratcliff's objections, our review of
LHR's responses leads us to conclude that LHR's answers adequately responded to Ratcliff's interrogatories. On
appeal, because the record does not contain LHR's responses to the requests for disclosure, Ratcliff has failed to
produce a record to carry his burden of persuasion that the response to the disclosure requests are inadequate.
See Tex. R. Civ. P. 194.1; Tex. R. App. P. 44.1(a). Finally, at the summary judgment hearing, Ratcliff did not
request a continuance for lack of adequate discovery or identify the additional discovery, if any, that he needed to
adequately respond to LHR's motions. Under these circumstances, considering (1) the amount of time that passed
between Ratcliff filing his counterclaims against LHR and the date of the summary judgment hearing, (2) Ratcliff's
lack of diligence in securing a hearing on his complaints about the adequacy of LHR's discovery responses, (3)
Ratcliff's failure to bring his complaints concerning the adequacy of LHR's discovery responses to the trial court's
attention during the summary judgment hearing, and (4) Ratcliff's failure to identify the additional discovery he
believed necessary to respond at the hearing, we cannot conclude that the trial court abused its discretion in
proceeding to judgment. See Specialty Retailers, 29 S.W.3d at 145. To the extent that Ratcliff's issues complain
that the court should have delayed proceeding to judgment, they are overruled.
No Evidence Motion for Summary Judgment on Ratcliff's Counterclaim
We next address Ratcliff's issues that we construe to be a challenge to the merits of the trial court's decision to
grant LHR's no evidence motion for summary judgment. 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 adverse party's claim or defense. Tex. R. Civ. P. 166a(i). When
the no evidence motion is in proper form, the burden shifts to the respondent to produce summary judgment
evidence raising a genuine issue of material fact regarding each element challenged. Mack Trucks, Inc. v. Tamez,
206 S.W.3d 572, 582 (Tex. 2006); Weaver v. Highlands Ins. Co., 4 S.W.3d 826, 829, n.2 (Tex. App.-Houston [1st
Dist.] 1999, no pet.). A fact issue exists if 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 does no more than create a mere surmise or suspicion of fact, less than a scintilla of evidence exists,
and summary judgment is proper. Id.; see also Tex. R. Civ. P. 166a(i). When reviewing a no evidence motion for
summary judgment, appellate courts must disregard all contrary evidence and inferences, and review the evidence
in the light most favorable to the non-movant. King Ranch, 118 S.W.3d at 751.
LHR's no evidence motion for summary judgment challenges one or more elements of each of Ratcliff's
counterclaims against LHR. Ratcliff's objections to LHR's motion, liberally construed as Ratcliff's response,
address only the issue of the adequacy of discovery; Ratcliff did not produce any evidence to raise a genuine
issue of material fact on his counterclaims.
Because Ratcliff failed to produce more than a scintilla of evidence, the trial court properly granted LHR's no
evidence motion for summary judgment disposing of Ratcliff's counterclaims. To the extent Ratcliff's issues argue
the trial court erred in granting LHR's no evidence motion for summary judgment, we overrule those issues.
Summary Judgment on LHR's Contract Claim
We also liberally construe Ratcliff's brief as raising an issue that questions whether the trial court properly granted
LHR's motion for summary judgment on its breach of contract claim. Appellate courts review a trial court's decision
to grant a traditional summary judgment under a de novo standard. Provident Life & Accident Ins. Co. v. Knott, 128
S.W.3d 211, 215 (Tex. 2003). To succeed in a traditional motion for summary judgment, the movant must establish
that there is no genuine issue of material fact so that the movant is entitled to judgment as a matter of law. Tex. R.
Civ. P. 166a(c); W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005). "A plaintiff moving for summary
judgment must prove that it is entitled to summary judgment as a matter of law on each element of its cause of
action." Winchek v. Am. Express Travel Related Servs. Co., Inc., 232 S.W.3d 197, 201 (Tex. App.-Houston [1st
Dist.] 2007, no pet.). Once the movant conclusively establishes its cause of action, the burden shifts to the non-
movant to respond with evidence raising a genuine issue of material fact that would preclude summary judgment.
See Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 222-23 (Tex. 1999). We consider the evidence in the light
most favorable to the non-movant and resolve any doubt in the non-movant's favor. Nixon v. Mr. Property Mgmt.
Co., 690 S.W.2d 546, 548-49 (Tex. 1985). When "the trial court's order granting summary judgment does not
specify the basis for the ruling, we must affirm the trial court's judgment if any of the theories advanced are
meritorious." Urena, 162 S.W.3d at 550 (citing Rogers v. Ricane Enters., Inc., 772 S.W.2d 76, 79 (Tex. 1989)).
To recover for breach of contract, a plaintiff must prove the existence of a valid contract, that the plaintiff
performed, that the defendant breached the contract, and that the defendant's breach caused plaintiff injury.
Winchek, 232 S.W.3d at 202. Recovery of attorney's fees from an adverse party is allowed when a contract or
statute permits the recovery. Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 310 (Tex. 2006).
In this case, LHR attached the installment contract between Bank One and Ratcliff to its summary judgment motion
to evidence the written contract. LHR's motion also contains affidavits stating that Bank One assigned the contract
to LHR. The affidavits explain that Ratcliff promised to pay for the goods he purchased under the contract, but that
he breached the promise by refusing to pay the agreed installments specified under the contract, and as a result,
LHR suffered $17,968.76 in damages. The affidavits' attachments include authenticated copies of correspondence
between Bank One and Ratcliff and LHR and Ratcliff requesting payment following Ratcliff's failure to pay the
promised installments. The sworn "Statement of Account" is consistent with the amount that LHR claims in
damages, $17,968.76. We conclude that LHR's motion for summary judgment on its breach of contract claim
conclusively establishes its cause of action and therefore, Ratcliff bore the burden of raising a genuine issue of
material fact at the hearing.
With respect to the trial court's award to LHR of attorney's fees, LHR moved for attorney's fees in its motion for
summary judgment and argued that the award was appropriate because the contract at issue provided for
recovery of attorney's fees in the event of default; LHR also asserted in its motion that it was authorized by statute
to recover its attorney's fees. See Tex. Civ. Prac. & Rem. Code Ann. §§ 38.001, 38.002 (Vernon 2008) (containing
the statutory procedure governing the recovery of statutory attorney's fees for written breach of contract claims).
Ratcliff's installment contract, attached as part of LHR's summary judgment proof, provides for the recovery of
attorney's fees in the event of the debtor's default. An affidavit by an attorney referenced in LHR's summary
judgment motion and contained in the clerk's record asserts the reasonable and necessary fees incurred in this
matter are at least $5,989.59. Additionally, the attorney's affidavit explains that LHR demanded payment of its
claim more than thirty days before it filed its motion for summary judgment and that the claim remained unpaid.
Ratcliff offered no summary judgment evidence to dispute any of the elements of LHR's beach of contract claim or
its attorney's fee claim. The affidavit attached to Ratcliff's objections to LHR's motion for summary judgment
addresses Ratcliff's complaints about discovery. Even if we liberally construed Ratcliff's affidavit in the trial court
and briefs filed in this Court to assert an argument that he was not the proper party to a claim that LHR obtained
by an assignment, we note that Ratcliff admits in his reply brief that "there is no dispute that Elijah W. Ratcliff,
Appellant, is a proper party to the immediate proceeding." Moreover, Ratcliff also specifically states in his reply
brief that he does not contend that the document he executed was not contractual in nature. Under Texas law,
contracts for debt are generally assignable. See, e.g., Crim Truck & Tractor Co. v. Navistar Int'l Transp. Corp., 823
S.W.2d 591, 596 (Tex. 1992).
In summary, viewing the evidence in the light most favorable to Ratcliff, he failed to respond with evidence raising
a genuine issue of material fact that would preclude LHR's summary judgment on its contract claim. See Rhone-
Poulenc, 997 S.W.2d at 222-23; see also Mr. Property Mgmt. Co., 690 S.W.2d at 548-49. After reviewing the
evidence, we find that LHR established its beach of contract claim and attorney's fees award as a matter of law
and that no genuine issue of material fact exists. Tex. R. Civ. P. 166a(c); Urena, 162 S.W.3d at 550. Accordingly,
we conclude that the trial court did not err in granting LHR's motion for summary judgment on its contract claim or
in awarding LHR a recovery of attorney's fees. To the extent that any of Ratcliff's issues challenge the trial court's
grant of summary judgment on LHR's contract claim and attorney's fees award, we overrule those issues.
We hold the trial court properly granted LHR's motion for summary judgment on its contract claim and attorney's
fees award and properly granted LHR's no evidence motion for summary judgment disposing of Ratcliff's
counterclaim. Having overruled all of Ratcliff's issues, we affirm the judgment of the trial court. (1)
Submitted on April 2, 2009
Opinion Delivered May 28, 2009
Before McKeithen, C.J., Gaultney and Horton, JJ.
1. In his reply brief, Ratcliff raises additional issues that were not included in his original brief. Because the issues
are not properly before us, we do not address Ratcliff's new issues, and we limit our analysis to the issues raised
in Ratcliff's opening brief. Dallas County v. Gonzales, 183 S.W.3d 94, 104 (Tex. App.-Dallas 2006, pet. denied) ("A
reply brief may not be used to raise new issues."); see also Tex. R. App. P. 38.3.
Court of Appeals
Ninth District of Texas at Beaumont
ELIJAH W. RATCLIFF, Appellant
LHR, INC., Appellee
On Appeal from the 258th District Court
Polk County, Texas
Trial Cause No. CIV 22975