Dr. Joseph R. Willie, Sr. and Dr. Joseph R. Willie, II v. Peter E. Pratt, Jr., Indivdually and in His Official Capacity

Affirmed and Memorandum Opinion filed October 19, 2004 Affirmed and Memorandum Opinion filed October 19, 2004. In The Fourteenth Court of Appeals ____________ NO. 14-03-01435-CV ____________ DR. JOSEPH R. WILLIE, SR., AND DR. JOSEPH R. WILLIE, II, Appellants V. PETER E. PRATT, JR., INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY, Appellee On Appeal from the 61st District Court Harris County, Texas Trial Court Cause No. 03-46840 M E M O R A N D U M   O P I N I O N Appellants, Dr. Joseph R. Willie, Sr., and Dr. Joseph R. Willie, II, appeal from the trial court’s granting of a no-evidence summary judgment favoring Peter E. Pratt on appellants’ negligence and gross negligence causes of action. In two issues, appellants contend that (1) a question of material fact existed precluding summary judgment and (2) they were not given adequate time for discovery. We affirm. Background In June 2000, a judgment was entered against Willie, II in a prior lawsuit. In July 2003, the trial court appointed Pratt as a receiver to collect the judgment. Pursuant to a turnover order, Pratt sent a letter to Bank One, asking it to place a hold on any bank accounts listed for Willie, II. Bank One subsequently froze an account owned by appellants’ dental partnership. In August 2003, the final judgment and the appointment of receiver were declared void as a matter of law because the court had lacked jurisdiction to issue either. The same month, appellants filed the present suit against Pratt, in both his individual and official capacities, alleging negligence and gross negligence. Pratt filed a no-evidence motion for summary judgment in October 2003, and it was granted in November 2003. No-Evidence Motion In their first issue, appellants argue that the trial court erred in granting appellee’s no-evidence motion for summary judgment because (1) Pratt is not entitled to immunity as a matter of law and (2) a material issue of fact exists. We disagree. Preliminarily, appellants contend that appellee’s no-evidence motion is legally insufficient because it fails to state the elements as to which there is no evidence. A respondent may challenge the legal sufficiency of a no-evidence motion for the first time on appeal. See, e.g., Cuyler v. Minns, 60 S.W.3d 209, 213 (Tex. App.—Houston [14th Dist.] 2001, pet. denied). We find that appellee’s no-evidence motion is legally sufficient because it contains the statement, “Plaintiffs have no evidence that they suffered any damages as alleged in their petition.” We therefore overrule appellants’ initial contention. We now consider whether the trial court erred in granting appellee’s no-evidence motion for summary judgment. When the trial court does not specify the basis for summary judgment, an appealing party must show that it is error to base summary judgment on any ground asserted in the motion. Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995). In the present case, appellants neither present any argument relating to the issue of damages nor identify any evidence of the injuries they allegedly suffered. Therefore, appellants have waived this issue on appeal. See Tex. R. App. P. 38.1(h). Accordingly, appellants’ first issue is overruled. Time for Discovery In their second issue, appellants contend that they were given inadequate time to complete discovery before entry of the no-evidence summary judgment. Texas Rule of Civil Procedure 166a(i) states that a party may move for a no-evidence summary judgment only “[a]fter adequate time for discovery.” Tex. R. Civ. P. 166a(i). The rule requires only that there be “adequate time,” not that discovery be completed. Specialty Retailers, Inc. v. Fuqua, 29 S.W.3d 140, 145 (Tex. App.—Houston [14th Dist.] 2000, pet. denied). An “adequate time” for discovery is determined by the cause of action, the nature of the evidence necessary, and the length of time the case had been active in the trial court. Id. The trial court’s decision is reviewed under an abuse of discretion standard. Id. When a party contends that there was inadequate time for discovery before a summary judgment hearing, it must file either (1) an affidavit explaining why more time is necessary or (2) a verified motion for continuance. See Tex. R. Civ. P. 166a(g) (affidavit regarding time); Tex. R. Civ. P. 252 (motion for continuance); see also Tenneco Inc. v. Enter. Prods. Co., 925 S.W.2d 640, 647 (Tex. 1996). There is no indication in the record that appellants did either. Consequently, appellants waived any argument that they did not have adequate time for discovery. Stangel v. Perkins, 87 S.W.3d 706, 709 (Tex. App.—Dallas 2002, no pet.); Green v. City of Friendswood, 22 S.W.3d 588, 594 (Tex. App.—Houston [14th Dist.] 2000, pet. denied). We overrule appellants’ second issue. The trial court’s judgment is affirmed. /s/ Adele Hedges Chief Justice Judgment rendered and Memorandum Opinion filed October 19, 2004. Panel consists of Chief Justice Hedges and Justices Edelman and Seymore.