NUMBER 13-25-00649-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
LUIS FLORES CANTU, Appellant,
v.
J.H. ROSE LOGISTICS, LLC, Appellee.
ON APPEAL FROM THE COUNTY COURT AT LAW NO. 9
OF HIDALGO COUNTY, TEXAS
MEMORANDUM OPINION
Before Justices Peña, West, and Fonseca
Memorandum Opinion by Justice Fonseca
Appellant Luis Flores Cantu appeals the trial court’s grant of appellee J.H. Rose
Logistics, LLC’s (Rose) traditional and no-evidence motions for summary judgment.
Cantu argues the trial court erred in (1) granting the traditional motion because the
Carmack Amendment did not preempt his claims against Rose and in (2) granting the noevidence motion because discovery was ongoing and Cantu filed a motion for
continuance. We affirm because the trial court did not err in denying Cantu’s motion for
continuance and Cantu failed to respond to Rose’s no-evidence motion for summary
judgment with evidence generating a genuine issue of material fact.
I. BACKGROUND
On January 18, 2024, Cantu hired Rose as a transportation broker to find a carrier
to transport a piece of equipment from a KEI Medical Imaging Services (KEI) facility in
Hutto to Hidalgo with Monterrey, Mexico as a final destination. Rose hired Volt Logistics,
LLC (Volt) to serve as the motor carrier. On the day of shipping, according to the bill of
lading, KEI damaged a “small PVC pipe” involved with the equipment as it loaded the
equipment onto Volt’s trailer. Further damage was discovered upon the equipment’s
arrival in Hidalgo resulting in Cantu declaring the equipment a total loss.
Cantu filed suit 1 asserting claims against Rose for vicarious liability, Texas
Deceptive Trade Practices Act (DTPA) violations, negligence, bailment, and res ipsa
loquitur. Rose filed its answer on October 22, 2024, making a general denial and
specifically denying any vicarious liability or any negligent conduct. Rose also asserted
any damage was due to improper preparation of the equipment by Volt.
On August 11, 2025, Rose filed its traditional and no-evidence motions for
summary judgment. In its traditional motion, Rose argued the federal Carmack
Amendment preempted any claims against it because it was only a broker and damages
for interstate shipping could not be made against brokers. See 49 U.S.C. § 14706
1 Cantu originally filed claims against Volt as well but these claims were later severed.
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(governing liability of interstate motor carriers and freight forwarders for lost, damaged, or
delayed cargo). In its no-evidence motion, Rose argued Cantu lacked evidence for any
of its claims against Rose. Rose attached the bill of lading as evidence indicating KEI took
responsibility for at least some of the damage to the equipment. The trial court set a
hearing for both motions on October 15, 2025.
Cantu filed a verified motion for continuance on August 26, 2025, arguing further
time was needed to conduct discovery before the motions could be considered, that the
parties had pursued early mediation that was unsuccessful, and that no docket control
order had been submitted. The motion did not state when mediation occurred. Cantu also
filed a response to Rose’s motions for summary judgment, arguing the Carmack
Amendment did not apply because the matter did not involve interstate travel and the
statute did not apply to brokers. Cantu further argued fact questions remained as to each
of its claims against Rose and that the discovery period remained open to gather evidence
to support its claims. Cantu did not attach any evidence to this response.
Rose replied to Cantu’s response arguing the Carmack Amendment applied
because Mexico was the equipment’s final destination and, as the exclusive remedy for
Cantu’s claims, it barred such claims against Rose. It attached as evidence an email from
Cantu to Rose employee Paul Fennell describing the damage and Cantu’s initial
disclosure responses describing import costs for “(Texas/Monterrey).” Rose also argued
summary judgment was required because Cantu failed to attach any evidence in his
response to the no-evidence summary judgment.
Cantu filed a sur-reply attaching an affidavit from himself describing the purchase
of the equipment from KEI and the hiring of Rose as the transportation broker at KEI’s
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suggestion. He further described the nature of damage upon the equipment’s arrival in
Hidalgo. He also averred that the Volt driver assured him there would be no issues and
that the equipment was insured.
The hearing occurred on October 15, 2025, of which no record was provided on
appeal. The trial court granted Rose’s motions on November 5, 2025. This appeal
followed.
II. ANALYSIS
Both of Cantu’s issues relate to the propriety of granting summary judgment.
A. Standard of Review
“We review a summary judgment ruling de novo.” H-E-B, LP v. Peterson, 732
S.W.3d 541, 545 (Tex. 2026). A party may seek both a traditional and no-evidence
summary judgment, but if a party moves for both, we consider the no-evidence motion
first. See id.; First United Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214,
219 (Tex. 2017). The movant “seeking a no-evidence summary judgment must show that,
after an adequate time for discovery, no evidence exists of an essential element of a claim
on which the adverse party has the burden of proof at trial.” Peterson, 732 S.W.3d at 545;
TEX. R. CIV. P. 166a(a)(2).
“We view evidence ‘in the light most favorable to the nonmovant, indulging every
reasonable inference and resolving any doubts against the motion.’” Peterson, 732
S.W.3d at 545 (quoting City of Keller v. Wilson, 168 S.W.3d 802, 824 (Tex. 2005)). “To
defeat a no-evidence motion, the non-movant must produce evidence raising a genuine
issue of material fact as to the challenged elements.” Abshier v. Long, No. 13-20-00343-CV, 2022 WL 480250, at *4 (Tex. App.—Corpus Christi–Edinburg Feb. 17, 2022, no pet.)
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(mem. op.) (quoting Parker, 514 S.W.3d at 220). If the nonmovant provides more than a
scintilla of evidence to raise a fact issue, then summary judgment is improper. San
Patricio Cnty. Appraisal Dist. v. Gunvor USA LLC, 731 S.W.3d 908, 917 (Tex. App.—
Corpus Christi–Edinburg 2026, pet. granted); Cardenas v. Bilfinger TEPSCO, Inc., 527
S.W.3d 391, 398 (Tex. App.—Houston [1st Dist.] 2017, no pet.). A scintilla is enough
evidence to rise to a level where reasonable and fair-minded people could differ in their
conclusions whereas less than a scintilla creates no more than a weak surmise or
suspicion. See Gunvor USA LLC, 731 S.W.3d at 917; Cardenas, 527 S.W.3d at 398.
B. Motion for Continuance
Cantu argues the trial court’s grant of no-evidence summary judgment was
premature because discovery had not been completed and the trial court improperly
denied his motion for continuance. If a party contends it had insufficient time to conduct
discovery before a summary judgment hearing, it must file either a verified motion for
continuance or affidavit explaining the need for further discovery. Cardenas, 527 S.W.3d
at 399 (quoting Tenneco Inc. v. Enter. Prods. Co., 925 S.W.2d 640, 647 (Tex. 1996)).
Here, Cantu properly filed the verified motion for continuance but did not obtain a ruling
on the motion. See id. However, “[a] trial court’s granting of a motion for summary
judgment constitutes an implicit decision to overrule a motion for continuance filed by the
nonmovant.” Cardenas, 527 S.W.3d at 403.
Therefore, we will review the trial court’s denial of the motion for abuse of
discretion. Id. The affidavit or motion must “describe the evidence sought, explain its
materiality, and set forth facts showing the due diligence used to obtain the evidence.”
Lucio v. John G. & Marie Stella Kenedy Mem’l Found., 298 S.W.3d 663, 669 (Tex. App.—
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Corpus Christi–Edinburg 2009, pet. denied). Conclusory allegations are not sufficient.
Cardenas, 527 S.W.3d at 404. We may consider other nonexclusive factors such as: “the
nature of the case, the length of time the case and motion for summary judgment have
been on file, the nature of the evidence needed to controvert a no-evidence
motion . . . [and] the amount of discovery that has already taken place.” Id.
Cantu’s argument primarily hinges on his narrative that the parties agreed to
forestall the case’s progress to conduct early mediation which was unsuccessful. He
argues “minimal” discovery was conducted and that no “essential” depositions occurred.
His motion for continuance similarly argued in a conclusory manner that “additional time”
was needed to conduct discovery.
Based on our review of the record, we agree that it appears little discovery was
conducted as minimal documentation and no discovery requests appear in the record.
However, this is the only factor that weighs in Cantu’s favor. See id. Both Cantu’s motion
for continuance and brief rely entirely on conclusory allegations that more discovery is
needed without describing any of the evidence sought or its materiality to the case. See
id. at 399, 404; Lucio, 298 S.W.3d at 669. Cantu argues that “essential” discovery is
needed but does not describe what is essential. See Cardenas, 527 S.W.3d at 404. While
we agree a more developed record would certainly aid our review, Cantu’s failure to assert
any specific fact or piece of evidence that is needed to support a claim, or what claims
require what evidence, is fatal to his arguments on appeal. See Cardenas, 527 S.W.3d
at 404; Lucio, 298 S.W.3d at 669. Cantu was required to describe the evidence sought
and explain its materiality, but he failed to do either. See Lucio, 298 S.W.3d at 669.
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Cantu attempts to get around his deficient arguments in this regard by claiming
only the timeframe of “adequate time for discovery” matters and that it functions as a
prerequisite before having to demonstrate any of the other factors or requirements.
However, Cantu cites no authority for this contention and such argument lacks support.
All caselaw demonstrates that courts consider all of the factors together, rather than
treating one factor as a prerequisite to other factors. See Cardenas, 527 S.W.3d at 404;
Lucio, 298 S.W.3d at 669.
Furthermore, turning to Cantu’s diligence arguments, the record demonstrates
Cantu made no attempts at reasonable diligence. Cantu argues discovery was not
conducted because of early mediation, but made no showing as to when mediation was
conducted, or how long after mediation Rose’s summary judgment was filed. Nor does
Cantu show he made any attempt to conduct discovery during this period. Cantu argues
the point of early mediation was to avoid discovery costs, but concedes there is no Rule
11 agreement memorializing such understanding.
Cantu does not explain why he did not attempt to send any discovery requests
between the unsuccessful mediation and when the summary judgment was filed, or
between the motion being filed and the hearing. He cannot lie behind the log and then
complain about a lack of discovery when the law requires him to “set forth facts showing
the due diligence used to obtain the [needed] evidence.” Lucio, 298 S.W.3d at 669. Cantu
has shown no facts establishing any due diligence on his part. See id. Accordingly, we
find the trial court did not abuse its discretion in implicitly denying Cantu’s motion for
continuance.
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C. No-Evidence Motion for Summary Judgment
Turning to the merits of the no-evidence motion for summary judgment, Cantu
failed to respond with evidence raising a genuine issue of material fact as to the
challenged elements. Parker, 514 S.W.3d at 220. Cantu’s response was comprised
entirely of conclusory statements that fact issues existed on his claims without showing
any evidence or basis as to why such fact issues existed. See id. Cantu’s sur-reply
attached an affidavit from himself repeating the basic facts of the case, but his testimony
did not generate a fact issue as to any of his claims of vicarious liability, DTPA violations,
negligence, bailment, or res ipsa loquitur, even when viewing the affidavit in the light most
favorable to Cantu. See id.; Peterson, 732 S.W.3d at 545. Cantu states generally in his
affidavit how he purchased the equipment from KEI and hired Rose. Cantu avers that the
equipment was “in good condition” before transport but arrived in a damaged condition.
Aside from stating that the Volt driver contracted by Rose reportedly assured Cantu that
“there would be no issues” because the equipment was insured, the affidavit says nothing
about Rose’s actions, duties, obligations, or responsibilities that would give rise to liability
under any of the causes of action Cantu asserted. His testimony alone does not
demonstrate the nature of any relationship between Rose or Volt, or that Rose took any
action regarding shipping the equipment aside from the hiring of Volt. Cantu’s testimony
is much less than a scintilla of evidence because it does not even generate a mere
surmise or suspicion that Rose was negligent or violated the DTPA. See Gunvor USA
LLC, 731 S.W.3d at 917; Cardenas, 527 S.W.3d at 398.
We overrule Cantu’s second issue. As we are affirming this matter on the noevidence motion for summary judgment, we need not address the propriety of the
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Carmack Amendment arguments. See Peterson, 732 S.W.3d at 545.
III. CONCLUSION
We affirm the trial court’s judgment.
YSMAEL D. FONSECA
Justice
Delivered and filed on the
17th day of September, 2026.
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