NUMBER 13-24-00437-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
MELANIE PALKER, Appellant.
v.
CHEVRON FEDERAL CREDIT UNION
D/B/A/SPECTRUM CREDIT UNION, Appellee.
ON APPEAL FROM THE COUNTY COURT AT LAW NO. 6
OF HIDALGO COUNTY, TEXAS
MEMORANDUM OPINION
Before Chief Justice Tijerina and Justices Silva and Cron
Memorandum Opinion by Justice Silva
Appellant Melanie Palker appeals the trial court’s order granting summary
judgment in favor of appellee Chevron Federal Credit Union d/b/a Spectrum Credit Union
(Chevron). By what we construe as four issues, Melanie asserts: (1) the trial court
“[a]pplied [i]ncorrect [s]tandards of [r]eview after [Chevron m]isrepresented that its [m]otion for [s]ummary [j]udgment was actually a [m]otion to [d]ismiss”; (2) it was error for
the trial court to hear Chevron’s summary judgment when “discovery was stayed and no
party had even served initial disclosures”; (3) Chevron was not entitled to summary
judgment since she had a valid claim under Texas Civil Practice and Remedies Code
Chapter 12; and (4) the trial court’s severance order should be reversed if Chevron’s
summary judgment motion was improperly granted. We affirm.
I. BACKGROUND
This case arises from an underlying lawsuit regarding a contract dispute over a
solar equipment system. On or about May 17, 2021, Jason Palker 1 entered into a “Home
Improvement Contract” with ADT Solar LLC f/k/a Marc Jones Construction LLC d/b/a
Sunpro Solar (ADT) for installation of a solar system at his residence. Specifically, Jason
and Tonny Agyekum-Bimpong (Bimpong), a solar energy specialist for ADT, signed the
installation agreement. On the same day, Chevron and Jason entered into a loan
agreement and a promissory note to finance the solar equipment system.
On June 30, 2023, Jason filed his original petition asserting various claims against
ADT, Chevron, and Bimpong, including violations of the Texas Deceptive Trade Practices
Act (DTPA), breach of contract, fraud, fraud in the inducement, conspiracy to commit civil
fraud, fraudulent lien or claim under Chapter 12, consumer credit code violations, and a
declaratory judgment action. 2
On August 14, 2023, ADT, Chevron, and Bimpong all separately filed their original
1 Because Melanie and Jason share a surname, we will refer to them by their first names and
collectively as the Palkers.
2 Jason, ADT, and Bimpong are not parties to this appeal.
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answers generally denying Jason’s claims and raising various defenses. That same day,
ADT and Bimpong filed a motion to compel arbitration of Jason’s claims. The following
day, Jason filed a “Motion to Compel Mandatory Statutory Mediation,” requesting the trial
court to order mediation. The trial court signed an order setting ADT and Bimpong’s
motion to compel arbitration for a hearing on October 12, 2023.
On September 8, 2023, ADT and Bimpong filed a motion to stay discovery and
requested the trial court “enter an order staying all discovery deadlines pending the
outcome of the October 12, 2023 hearing.” Thereafter, Chevron joined ADT’s and
Bimpong’s motion to compel arbitration.
On October 10, 2023, ADT and Bimpong responded to Jason’s motion to compel
mediation arguing that the trial court “must deny [Jason’s m]otion because [Jason’s]
claims are subject to mandatory, binding arbitration.”
On October 12, 2023, Jason filed an amended response to ADT’s and Bimpong’s
motion to compel arbitration again requesting that “mediation be ordered.” Attached to his
amended response was the installation agreement signed by Jason and ADT, as well as
an affidavit from Jason. In his affidavit, Jason attested that “[o]n May 17, 2021, [he]
entered into a contract with [ADT].” He also noted that he is “a licensed attorney regularly
involved in consumer protection litigation.” Jason further stated that “a conjoined loan
agreement and promissory note was executed at the same time and in the same manner
with Chevron as the contract with [ADT].” That same day, the trial court held a hearing on
the motions to compel mediation, arbitration, and to stay discovery. During the hearing,
ADT’s and Bimpong’s counsel offered the installation agreement into evidence, which
was admitted by the trial court without objection. Following this hearing, the trial court
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orally ordered all of Jason’s claims to arbitration, with the exception of his DTPA claim.
On the same day, the trial court orally granted the motion to stay discovery. 3
On October 18, 2023, ADT and Bimpong filed a “Supplemental Brief in Support of
Their Motion to Compel Arbitration.” In this supplemental brief, ADT and Bimpong argued
for the trial court to order Jason’s remaining DTPA claim to arbitration.
On January 29, 2024, Jason filed an amended petition, which added his mother
Melanie as a plaintiff and asserted the same causes of action alleged in Jason’s original
petition. As to their Chapter 12 claim, the Palkers alleged that Chevron
made, presented, or used documents or records with knowledge that the
documents or records were a fraudulent lien or claim against [their] interest
in their property with the intent that the documents or records be given legal
effect of evidencing a valid lien or claim against [their r]esidence with the
intent to cause [them] to suffer financial injury.
See TEX. CIV. PRAC. & REM. CODE ch. 12. In their petition, the Palkers alleged that
Chevron filed a lien in Hidalgo County “in which [Chevron] had no right to use or
place those documents against [their] property interest.” They further alleged
Melanie “was never a party to any of the sales agreements between all other
parties to this suit and her property rights in the real property are now wholly
prejudiced and encumbered by the use of this fraudulent lien.” In relation to this
claim, the Palkers sought “the greater of its actual damages or $10,000 per
violation, court costs, attorney fees, pre and post judgment interest, and exemplary
damages determined by the [trial c]ourt.”
On February 5, 2024, the Palkers filed a “Motion for Clarification and/or
3 The record does not indicate that Chevron joined in ADT’s and Bimpong’s discovery motion, and
it does not contain a written order memorializing the trial court’s October 12, 2023 oral rulings.
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Reconsideration” and requested the trial court to reconsider its verbal rulings from the
October 12, 2023 hearing in part because Melanie’s claims were “not previously
presented for the [trial c]ourt’s consideration.” They also sought clarification of the trial
court’s oral rulings since “[n]o order was signed, and [the] verbal order remain[ed] unclear
to the parties.” Their motion alleged that Melanie “is a fifty-percent owner of the real
property on which a lien was filed securing the transaction made the basis of the suit.” It
further alleged that Chevron encumbered the property by filing a Uniform Commercial
Code (UCC) financing statement “lien” on said property. Attached to the motion was a
Hidalgo County Appraisal District (HCAD) property search webpage indicating that Jason
and Melanie own a 100% ownership interest in the real property at issue. Also attached
to the Palkers’ motion was Chevron’s UCC financing statement, which specified that,
“This financing statement covers the following collateral: Solar Equipment.” In their
motion, the Palkers argued that the financing statement constituted a lien on the property
as “the solar equipment remains wholly integrated into and attached to the property.”
Their prayer for relief requested that the trial court “clarify and/or reconsider its prior
rulings,” “that the stay on discovery be lifted,” and “that the parties be ordered to statutory
mediation.”
On March 5, 2024, Chevron filed its first amended answer generally denying the
Palkers’ claims and asserted, among other things, that Melanie lacked standing to assert
any claims against Chevron. On the same day, Chevron filed its combined traditional
motion for summary judgment and response to the Palkers’ combined clarification and
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reconsideration motion. See TEX. R. CIV. P. 166a. 4 In its motion for summary judgment,
Chevron requested that the trial court “take judicial notice of all the documents on file
incorporated by reference.” Chevron’s motion specified that “as part of this [m]otion and
pursuant to Rule 166a(d), all parties are hereby notified that [Chevron] intends to use”
certain documents “which are true and correct copies of the original documents, as
summary judgment proof.” The documents included: the Palkers’ first amended original
petition and their motion for clarification and/or reconsideration; the affidavit of Ever
Morales, vice president of risk management for Chevron; and a copy of the loan
agreement and promissory note concerning the solar equipment system signed by Jason
and Chevron. The loan agreement stated the following in relevant part:
You and we agree that the Tangible Collateral is not difficult to remove from
the Residence and that it is not intended to be a fixture or to become a
permanent part of the Residence. You agree that you will not make the
Tangible Collateral (or allow any Entity Owner to make the Tangible
Collateral) a permanent part of the Residence unless and until you first pay
all amounts outstanding under this Note. Accordingly, you agree that our
security interest is a security interest in personal property and not a security
interest in real property. However, you understand that we will make a
fixture filing covering the Equipment. You further understand and agree that,
at our election, we may enforce rights in the Tangible Collateral under the
Uniform Commercial Code and/or under state real estate or mortgage law.
Chevron’s motion presented the legal standard for obtaining a traditional summary
judgment under Rule 166a and asserted that “the security agreement executed by [Jason]
did not grant a security interest in the real [property] and the UCC [f]inancing [s]tatement
filed by [Chevron] does not encumber the real property.” It also stated that the “UCC
4 We note that Rule 166a was amended effective March 1, 2026. Because Chevron’s motion for
summary judgment was filed before then, we cite the prior version of the Rule throughout this memorandum opinion. See Supreme Court of Texas, Final Approval of Amendments to Rule 166a of the Texas Rules of Civil Procedure, Misc. Docket No. 26-9012 (Tex. 2026) (ordering that the amendment applies only “to a motion for summary judgment filed on or after March 1, 2026”).
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financing statement is not a lien on the real property” and as a result “there is not [a] lien
on [Melanie’s] interest in the real property.” Chevron further argued that Melanie “was not
a party to the [installation] agreement or promissory note, and her property interest is not
encumbered by [Chevron’s] UCC financing [statement].” It also asserted that Melanie
“has no basis to assert that . . . [Chevron] intended to cause her physical injury, financial
injury, or mental anguish or emotional distress” and that “she cannot show that [Chevron]
intended to cause her injury or distress.” Chevron requested the trial court grant summary
judgment in its favor and order that Melanie take nothing.
On May 2, 2024, the Palkers filed a combined “Reply Brief in Support of [their]
Motion for Clarification and/or Reconsideration” and Melanie’s response to Chevron’s
summary judgment motion. Melanie’s response provided reasons why Chevron’s motion
for summary judgment related to her Chapter 12 claim should be denied. 5 In the Palkers’
combined pleading, they also objected to certain evidence presented by the parties in
their motions and at the October 12 hearing, and attached to Chevron’s combined
pleading for various reasons, including the installation agreement and the loan
agreement. In her response, Melanie reiterated that “the solar equipment remains wholly
integrated into and attached to the [real] property” and that “the fixture filing constitutes a
lien on the real property, encumbering [Melanie’s] interests in it.” The Palkers combined
pleading further stated that they intended to reference certain evidence “without
stipulating to their admissibility.” They attached the installation agreement signed by
Jason and ADT, the loan agreement signed by Jason and Chevron, a “similar ADT
5 The Palkers’ response to Chevron’s combined motion provided that Melanie “is unopposed to the
granting of summary judgment on all causes of action other than the Chapter 12 Fraudulent Lien Cause of Action.”
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Contract” from another customer, the HCAD property search webpage, and Chevron’s
UCC financing statement. In their pleading, the Palkers also indicated they intended to
present the live testimony of Jason and Melanie as evidence.
On May 9, 2024, the trial court held a hearing on Chevron’s motion for summary
judgment, among other things. 6 The following exchange occurred:
[the Palkers’ counsel]: We object on the Motion for Summary Judgment
on the basis that discovery has been abated on
this matter as a result of [the Motion] for
Arbitration. So it’s not ripe at this point. Your
Honor, this was not titled Motion for Summary
Judgment under Texas Rules of [Civil]
Procedure 90, or 91. This is a Traditional Motion
for Summary Judgment that’s—since discovery
has not happened, we’re objecting to going
forward.
[Chevron’s counsel]: Your Honor, they filed a response. They have
conceded and said: We agree with you on
everything, except that one cause of action.
Discovery is irrelevant to this sole issue, or
Summary Judgment. I don’t see why
we . . . can’t proceed. And I don’t see how they
bring that objection up after they have already
conceded and put the matter in the Court’s
hands.
[Jason]: If we will start with Summary Judgment, I will say
we can start there, and we can pause there.
Neither Jason nor Melanie requested a ruling from the trial court concerning their
objection to proceeding on the motion for summary judgment. At the hearing, Chevron’s
6 At the outset of the hearing, counsel for Jason and Melanie were introduced by stating, “Raul
Acevedo for Plaintiff. Your Honor.” Jason then introduced himself by stating, “With regard to the Plaintiff, [Jason] in my capacity as Plaintiff and licensed attorney, joined by Co-Counsel Randall Gomez.”
8
counsel asked the trial court “to take judicial notice of all of the pleadings, and all of the
motions, responses, replies, and briefs, and exhibits that have been attached to those
that have been filed to this date,” and the trial court responded by stating it “will take
judicial notice of all filings in the Court’s docket.” Jason agreed that Chevron’s motion for
summary judgment may be granted as to all of Melanie’s claims except for her Chapter
12 claim. Chevron’s counsel proceeded to introduce as evidence and specifically directed
the trial court to review a copy of the loan agreement as well as the UCC financing
statement attached to the Palkers’ response. 7 The Palkers did not object to this evidence
at the hearing nor did they request a ruling from the trial court concerning their written
objections lodged in their May 2, 2024 combined pleading. In addition, neither Jason nor
Melanie made a request for additional discovery or a continuance at any point during the
hearing. Following arguments, the trial court took the matter under advisement.
The trial court signed certain findings and rulings on June 21, 2024, which specified
the following:
Arbitration was originally GRANTED with the exception of the
D.T.P.A. Claim; which claim was to be briefed.
Thereafter, [Chevron] filed a Motion for Summary Judgment on all
claims which was GRANTED by agreement of the parties, except to the
fraudulent lien claim.
A legal question remained as to whether arbitration was waived with
the Motion for Summary Judgment being [f]iled and [g]ranted.
After reviewing arguments and case law submitted, the Ruling is: IT
WAS WAIVED.
Another legal question was if the FCC [sic] document filing encumbers the
7The record does not indicate that the trial court formally admitted the exhibits; however, the documents were part of the trial court’s record as attachments to the parties’ pleadings.
9
real property?
The FCC filing Does Not create a lien on the real property.
Next Question: Is [Melanie] a proper party?
[Melanie] is partial owner of the [real] property and the contract
includes any Entity Owner that owns the Residence.
On July 2, 2024, Chevron filed an “Expedited Motion for Reconsideration and
Rescission of [the] Findings and Rulings of the Court as to Waiver of Arbitration, and for
Clarification.” In this motion, Chevron urged in part that it did not waive its arbitration rights
and that “there is a spelling error listing the UCC filing as an ‘FCC’ filing . . . [which] should
be corrected to state ‘UCC’ filing.” Chevron requested that the trial court set aside its June
21 findings and rulings and find that
(1) neither [ADT, Bimpong, nor Chevron] waived arbitration, (2) the UCC
Financing Statement filed by Chevron . . . does not create a lien and does
not encumber the real property, (3) find that the term Entity Owner does not
apply to [Melanie], (4) grant summary judgment in favor of [Chevron] and
against [Melanie] on the remaining cause of action of Fraudulent Lien under
[Texas Civil Practice and Remedies Code] Chapter 12, and (5) sever
[Melanie’s] causes of action from the case so as to make the judgment
against her final, and for such other and further relief for which [Chevron]
may be justly entitled.
The same day, ADT and Bimpong filed their own motion for clarification concerning the
waiver of arbitration issue and requested the trial court to clarify that the waiver was only
applicable to Chevron as ADT and Bimpong argued they never filed and were never
granted summary judgment.
On July 10, 2024, the Palkers filed a combined response, as well as their own
motion for clarification concerning Chevron’s waiver of arbitration issue. In this response,
the Palkers requested that the trial court “[t]emporarily rescind its ruling on waiver of
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arbitration pending the full evidentiary [hearing] on matters pending before the [trial
c]ourt,” “[m]aintain that Chevron has waived its right to arbitration,” “[c]larify whether
summary judgment was granted on [Melanie’s] fraudulent lien claim,” “[p]rovide a ruling
on whether [Melanie’s] claims fall within the arbitration agreement(s),” and deny
Chevron’s motion as to the waiver of arbitration. A hearing was held in the trial court that
same day. On July 11, 2024, the trial court issued its amended filings and rulings:
Arbitration was originally GRANTED with the exception of the
D.T.P.A. [c]laim which claim was to be briefed.
Thereafter, [Chevron] filed a Motion for Summary Judgment against
[Melanie] on all of her claims, which was GRANTED by agreement of the
parties, except for the fraudulent lien claim.
A legal question remained as to whether arbitration was waived by
Chevron with the Motion for Summary Judgment being [f]iled and [g]ranted.
The [trial c]ourt, by this Amended Order, hereby rescinds its prior
finding/ruling dated June 21, 2024, that Chevron waived arbitration. On July
10, 2024, the [trial c]ourt heard arguments on this issue and took the matter
under advisement for future ruling.
Another legal question was if the UCC document filing encumbers
the real property? The UCC filing Does Not create a lien on the real
property.
On July 12, 2024, the Palkers filed an “Emergency Motion for Leave and to Compel
Depositions of William H. Payne, IV and [Morales].” In this motion, they requested the trial
court “order the video recorded depositions of [Payne] and [Morales] so the [trial c]ourt
may be fully apprised of all relevant evidence pertaining to the issue of arbitrability.” The
motion did not mention any details concerning Chevron’s motion for summary judgment.
ADT and Bimpong responded to the Palkers’ emergency motion on July 15, 2024.
On August 2, 2024, the trial court signed an order granting summary judgment in
favor of Chevron and ordered that Melanie “take nothing of and from [Chevron] on all
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causes of actions asserted against it.” The order stated “that [Chevron’s] Traditional and
No-Evidence Motion for Summary Judgment as to [Melanie’s] claims against it, is in all
things GRANTED.” Melanie’s claims were subsequently severed from the cause of action,
and her appeal followed.
II. SUBSTANCE OF MOTION
We begin by addressing Melanie’s argument that that “[t]he trial court erred by
treating [Chevron’s] Motion for Summary Judgment as a Motion to Dismiss.” In this
regard, she argues that “Chevron admitted repeatedly before the trial court that although
it filed a Motion for Summary Judgment, it intended for it to be construed as a Motion to
Dismiss.”
Accordingly, we must first determine whether Chevron’s motion for traditional
summary judgment is in substance a traditional or no-evidence motion for summary
judgment or a motion to dismiss so that we may review it under the proper standard. “We
determine the nature of a motion by its substance, not its title or caption.” In re Casterline,
476 S.W.3d 38, 44 (Tex. App.—Corpus Christi–Edinburg 2014, no pet.); see In re
Brookshire Grocery Co., 250 S.W.3d 66, 72 (Tex. 2008) (orig. proceeding). Courts
sometimes treat motions differently than their label. See TEX. R. CIV. P. 71 (“When a party
has mistakenly designated any plea or pleading, the court, if justice so requires, shall
treat the plea or pleading as if it had been properly designated.”).
Here, Chevron’s motion explicitly set out the standard for obtaining a traditional
summary judgment under Rule 166a and requested that the trial court grant summary
judgment in its favor. See id. R. 166a. The motion also contained no-evidence grounds
for obtaining summary judgment. For instance, it alleged that Melanie “has no basis to
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assert that . . . [Chevron] intended to cause her physical injury, financial injury, or mental
anguish or emotional distress” and “cannot show that [Chevron] intended to cause her
injury or distress.” Furthermore, the parties themselves treated the trial court proceedings
as a motion for summary judgment—Chevron attached exhibits to its motion, and the
Palkers filed a response including their own exhibits and anticipated evidence. Cf. Guion
v. Guion, 597 S.W.3d 899, 905 (Tex. App.—Houston [1st Dist.] 2020, no pet.) (declining
to treat motion to dismiss as motion for summary judgment where “the parties themselves
did not treat the proceedings as summary-judgment proceedings” since there were no
affidavits, evidence, or responses filed). At the May 9, 2024 motion hearing and in the
motion itself, Chevron’s counsel requested the trial court to take judicial notice of the trial
court’s record and directed the trial court to certain documents and exhibits on file. In
addition, the trial court’s final order expressly granted Chevron’s “Traditional and NoEvidence Motion for Summary Judgment as to [Melanie’s] claims” and it did not dismiss
any of her claims.
Because the parties and the trial court effectively treated Chevron’s motion as a
summary judgment proceeding and because the motion contained both traditional and
no-evidence grounds, we conclude that Chevron’s motion is in substance a hybrid motion
for summary judgment. See In re Cobb, 714 S.W.3d 656, 665 (Tex. App.—Corpus
Christi–Edinburg 2024, no pet.) (treating summary judgment motion as hybrid when it
contained “both no-evidence and traditional grounds”); Hearn v. Snapka, No. 13-11-00332-CV, 2012 WL 7283791, at *9 (Tex. App.—Corpus Christi–Edinburg Dec. 28, 2012,
pet. denied) (mem. op.) (same). To the extent Chevron’s motion could possibly be
construed as a motion to dismiss, the order at issue in this appeal contains no language
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indicating the trial court dismissed Melanie’s claim against Chevron. 8 Therefore, we
reject Melanie’s argument that the trial court applied the incorrect standards by effectively
treating Chevron’s motion for summary judgment as a motion to dismiss. Melanie’s first
issue is overruled.
III. DISCOVERY AND INITIAL DISCLOSURES
By her second issue, Melanie contends she “was deprived of due process” and
that the trial court improperly ruled on Chevron’s motion for summary judgment because
“[s]ummary [j]udgment took place with no discovery, no witnesses, and absolutely no
evidence.” She argues that “no discovery had taken place” before the trial court heard the
summary judgment motion “as [discovery] had been stayed since October 2023,” and
points out that no party had served initial disclosures. In this regard, Melanie asserts that
she “had a right to the discovery she sought before summary judgment could be heard”
and that “[t]he trial court precluded [her] from conducting any discovery whatsoever,
deposing any witnesses, or presenting evidence” and that she “was precluded from
calling essential fact witnesses.” We construe this argument as a complaint that an
adequate time for discovery had not passed before the trial court granted summary
judgment in favor of Chevron. See TEX. R. CIV. P. 166a(i) (providing that a party may
move for a no-evidence summary judgment “[a]fter adequate time for discovery”). She
also argues that she “sought to conduct an evidentiary hearing (which never actually took
place)” concerning the deposition of certain individuals but that “the trial court never
permitted leave to take these individuals depositions,” which we construe as an argument
8 We also note that to the extent Melanie appears to argue that the trial court erred in granting a
motion to dismiss based on standing, we reiterate that the record does not indicate that the trial court dismissed her claims based on such theory.
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that the trial court denied her request for a continuance to obtain additional discovery. We
address each argument in turn.
A. Standard of Review and Applicable Law
“We review the trial court’s determination that there has been an adequate time for
discovery on a case-by-case basis, under an abuse-of-discretion standard.” Chamie v.
Mem’l Hermann Health Sys., 561 S.W.3d 253, 257 (Tex. App.—Houston [14th Dist.]
2018, no pet.); see Castillo v. Mizpah Residential Care, No. 13-12-00719-CV, 2014 WL
2159255, at *3 (Tex. App.—Corpus Christi–Edinburg May 22, 2014, pet. denied) (mem.
op.). In determining whether an adequate time for discovery has passed, we examine the
following factors:
(1) the nature of the case, (2) the nature of the evidence necessary to
controvert the no-evidence motion, (3) the length of time the case was
active, (4) the amount of time the no-evidence motion had been on file,
(5) whether the movant had requested stricter deadlines for discovery,
(6) the amount of discovery already taken place, and (7) whether the
discovery deadlines were specific or vague.
Rankin v. Union Pac. R. Co., 319 S.W.3d 58, 67 (Tex. App.—San Antonio 2010, no pet.)
(citing Martinez v. City of San Antonio, 40 S.W.3d 587, 591 (Tex. App.—San Antonio
2001, pet. denied)). The rule does not require that discovery be completed, only that there
was adequate time for discovery. Id.; Gallardo v. Ins. Co. of the State of Pa., No. 13-17-00347-CV, 2019 WL 2529039, at *3 (Tex. App.—Corpus Christi–Edinburg June 20, 2019,
pet. denied) (mem. op.).
Likewise, “[a] trial court’s ruling on a request for a continuance to conduct
additional discovery before a summary judgment hearing is reviewed for an abuse of
discretion.” Sanchez v. City of Houston, 712 S.W.3d 681, 690 (Tex. App.—Houston [14th
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Dist.] 2025, no pet.) (citing Tenneco, Inc. v. Enter. Prods. Co., 925 S.W.2d 640, 647 (Tex.
1996)). “When a party contends that it has not had an adequate opportunity for discovery
before a summary judgment hearing, it must file either an affidavit explaining the need for
further discovery or a verified motion for continuance.” Id. (quoting Tenneco Inc., 925
S.W.2d at 647); Cooper v. Circle Ten Council Boy Scouts of Am., 254 S.W.3d 689, 696
(Tex. App.—Dallas 2008, no pet.); see TEX. R. CIV. P. 166a(g), 251, 252. “Rule 166a(g)
permits a trial court to deny a motion for summary judgment or grant a continuance to the
party opposing summary judgment if the party opposing summary judgment files an
affidavit setting forth the reasons the party cannot present the facts necessary to respond
to the motion.” D.R. Horton-Texas, Ltd. v. Savannah Props. Assocs., L.P., 416 S.W.3d
217, 222 (Tex. App.—Fort Worth 2013, no pet.) (first citing TEX. R. CIV. P. 166a(g); and
then citing Ford Motor Co. v. Castillo, 279 S.W.3d 656, 662 (Tex. 2009)). “The affidavit
must describe the evidence sought, explain its materiality, and set forth facts showing the
due diligence used to obtain the evidence prior to the hearing.” Cooper, 254 S.W.3d at
696.
B. Analysis
We begin by noting Melanie does not direct us to any authority to support her
position that a traditional motion for summary judgment filed under Rule 166(b) cannot be
granted with a discovery stay in place or without initial disclosures. See TEX. R. CIV. P.
166a(b). In fact, Rule 166(b) expressly provides that a traditional motion for summary
judgment may be filed “at any time.” Id.; Lee v. Residence Inn Houston Nw./Cypress, No.
14-25-01009-CV, 2026 WL 1983489, at *2 (Tex. App.—Houston [14th Dist.] July 9, 2026,
no pet. h.) (“A traditional motion for summary judgment may be filed at any time and the
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rules do not require that there be an adequate time for discovery before the consideration
of the traditional motion for summary judgment.”). On the other hand, Rule 166a(i)
provides that a party may move for no-evidence summary judgment after an adequate
time for discovery has passed. See TEX. R. CIV. P. 166a(i). We will assume, without
deciding, that the rule concerning adequate timing also applies to a hybrid motion for
summary judgment.
1. Adequate Time for Discovery
By granting Chevron’s motion for summary judgment, the trial court implicitly found
that an adequate time for discovery passed before its consideration of said motion. See
Rogers v. City of Houston, 627 S.W.3d 777, 787 (Tex. App.—Houston [14th Dist.] 2021,
no pet.) (“In granting a no-evidence motion for summary judgment, a trial court implicitly
holds that an adequate time for discovery passed before its consideration of the motion.”).
Melanie’s remaining sole cause of action concerned a Chapter 12 claim after she agreed
that summary judgment should be granted in favor of Chevron with respect to all of her
other claims. Despite the parties’ voluminous filings, we do not conclude that this type of
claim requires extensive or complex discovery. See Rankin, 319 S.W.3d at 67; In re
Guardianship of Patlan, 350 S.W.3d 189, 196 (Tex. App.—San Antonio 2011, no pet.);
Rest. Teams Int’l, Inc. v. MG Sec. Corp., 95 S.W.3d 336, 339 (Tex. App.—Dallas 2002,
no pet.). In fact, this type of claim would require no more than minimal discovery, if any
discovery at all, to defeat a no-evidence motion for summary judgment. See Rest. Teams
Int’l, Inc., 95 S.W.3d at 339.
To defeat Chevron’s motion for summary judgment, Melanie needed to present
more than a scintilla of probative evidence to raise a question of material fact on the
17
elements challenged in Chevron’s no-evidence grounds for summary judgment. See King
Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003). One of Chevron’s grounds
for summary judgment was that Melanie “has no basis to assert that . . . [Chevron]
intended to cause her physical injury, financial injury, or mental anguish or emotional
distress” and that “she cannot show that [Chevron] intended to cause her injury or
distress.” Evidence of Chevron’s intent to injure her or cause her distress could have been
provided by affidavit testimony, for instance. See TEX. R. CIV. P. 166a(c); see also TEX.
CIV. PRAC. & REM. CODE § 12.002(a)(3) (establishing third element is intent to cause a
person to suffer physical injury, financial injury, or mental anguish or emotional distress).
As such, this is the sort of evidence that should be immediately available to Melanie as
she is presumed to have investigated her case before filing her lawsuit. See Martinez, 40
S.W.3d at 591.
In addition, Jason’s original petition was filed on June 30, 2023, and Melanie was
added as a plaintiff on January 29, 2024. Chevron filed its motion for summary judgment
on March 5, 2024, and the Palkers responded to the motion on May 2, 2024. Furthermore,
Chevron’s motion had been on file for over two months prior to the May 9, 2024 summary
judgment hearing. And while Melanie contends discovery was stayed, the record before
us contains no such written order from which we can determine the scope of any
purported stay. Cf. Branum v. Nw. Tex. Healthcare Sys., Inc., 134 S.W.3d 340, 342 (Tex.
App.—Amarillo 2003, pet. denied) (noting order which stayed proceedings did not stay,
bar, or impede appellant’s efforts to engage in expert designation). The previously
discussed factors favor the trial court’s implicit decision that adequate time for discovery
had passed. See Rankin, 319 S.W.3d at 67. We conclude the trial court did not abuse its
18
discretion in implicitly determining that an adequate time for discovery had passed. See
Chamie, 561 S.W.3d at 257.
2. Request for a Continuance to Conduct Additional Discovery
We next address Melanie’s argument concerning her request to “conduct an
evidentiary hearing” related to depositions she sought. In making this argument, Melanie
directs our attention to the Palkers’ “Emergency Motion for Leave and to Compel
Depositions,” as well as a purported transcript of trial court proceedings not properly
before this Court. 9 However, the motion to compel specifically requested that the trial
court “order the video recorded depositions of [Payne] and [Morales] so the [trial c]ourt
may be fully apprised of all relevant evidence pertaining to the issue of arbitrability.”
Nothing in the Palkers’ motion indicates a request for a deposition or a continuance for
purposes of Chevron’s summary judgment motion regarding Melanie’s Chapter 12 claim.
Even assuming, without deciding, that Melanie did request more time to obtain
additional evidence, we cannot say that Melanie complied with the Texas Rules of Civil
Procedure. Although Melanie filed a response to Chevron’s motion for summary
judgment, her response was not verified, and she did not specifically include an affidavit
or request for a continuance in her response or prayer for relief. See TEX. R. CIV. P.
166a(g), 251, 252; Sanchez, 712 S.W.3d at 690–91 (finding no abuse of discretion where
appellant did not file a verified response or affidavit in support of her request for
continuance). Rather, in her combined pleading partly in response to Chevron’s motion
for summary judgment, Melanie merely requested “that the stay on discovery be lifted”
9 We note that it is the appellant’s burden to ensure that an adequate record is presented to this
Court for our review. See Enter. Leasing Co. of Hous. v. Barrios, 156 S.W.3d 547, 549 (Tex. 2004).
19
and that Chevron’s motion related to her Chapter 12 claim be denied without providing
specifics on the discovery she anticipated. See Cooper, 254 S.W.3d at 696–97
(concluding “the trial court did not have a basis on which to weigh the materiality of the
requested discovery” where appellant merely requested that discovery continue and “did
not provide any specific details in his response or affidavit regarding the type of discovery
he anticipated”). In addition, Melanie did not file an affidavit setting forth the specific
details concerning her need for discovery. See TEX. R. CIV. P. 166a(g), 251, 252.
While she did initially object to proceeding at the summary judgment hearing, she
did not provide any specific details regarding the type of discovery she sought, stating
only that she objected “on the basis that discovery has been abated on this matter.”
Melanie also did not request a ruling from the trial court concerning this objection, and
she participated in the remainder of the summary judgment hearing without bringing
specific details concerning discovery to the trial court’s attention. See TEX. R. APP. P. 33.1.
Regardless of whether she orally requested additional time for discovery or not, an oral
request is not a written motion for continuance nor is it an affidavit. See TEX. R. CIV. P.
166a(g), 251, 252; see In re Est. of Alexander, 250 S.W.3d 461, 463 (Tex. App.—Waco
2008, pet. denied) (An “oral continuance motion [does] not comply with Rule 251, which
requires that a continuance motion be ‘supported by affidavit.’”). As such, the trial court
would not have abused its discretion in denying a request even if Melanie had requested
a continuance to obtain additional summary judgment evidence. See Sanchez, 712
S.W.3d at 690.
Based on the foregoing discussion, we conclude that it was not error for the trial
court to proceed on Chevron’s hybrid motion for summary judgment under the
20
circumstances present here. See Chamie, 561 S.W.3d at 257; Sanchez, 712 S.W.3d at
690. We overrule Melanie’s second issue.
IV. GRANT OF SUMMARY JUDGMENT
A. Standard of Review and Applicable Law
A trial court’s ruling on a summary judgment motion is reviewed de novo. See JLB
Builders, L.L.C. v. Hernandez, 622 S.W.3d 860, 864 (Tex. 2021). Our de novo standard
of review extends to both traditional and no-evidence summary judgments. Comm’n for
Law. Discipline v. Powell, 689 S.W.3d 620, 625 (Tex. App.—Dallas 2024, no pet.) Usually,
when a party moves for both traditional and no-evidence summary judgments, we first
consider the no-evidence motion. First United Pentecostal Church of Beaumont v. Parker,
514 S.W.3d 214, 219 (Tex. 2017). However, when both parties present evidence on a
hybrid motion for summary judgment, as here, the differing burdens are immaterial and
“the ultimate issue is whether the nonmovant raised a fact issue to preclude summary
judgment.” Fossil Grp., Inc. v. Harris, 691 S.W.3d 874, 882 (Tex. 2024); Buck v. Palmer,
381 S.W.3d 525, 527 & n.2 (Tex. 2012) (per curiam).
Accordingly, we do not segregate our review to address the different burdens
associated with each type of motion for summary judgment, and in conducting our de
novo review, we will review the full summary judgment record to determine whether fact
issues exist. See Tex. Dep’t of Motor Vehicles v. Bustillos, 630 S.W.3d 316, 331 (Tex.
App.—El Paso 2021, no pet.); Tawil v. Cook Children’s Healthcare Sys., 582 S.W.3d 669,
686 (Tex. App.—Fort Worth 2019, no pet.). “[T]o determine if a fact issue exists, we
examine the evidence in the light most favorable to the nonmovant, indulging reasonable
inferences and resolving any doubts against the moving party.” Fossil Grp., Inc., 691
21
S.W.3d at 882; see Scripps NP Operating, LLC, 573 S.W.3d at 790; City of Keller v.
Wilson, 168 S.W.3d 802, 824 (Tex. 2005).
Relevant here, when the trial court “does not specify the grounds it relied upon in
making its determination, reviewing courts must affirm summary judgment if any of the
grounds asserted are meritorious.” Lightning Oil Co. v. Anadarko E&P Onshore, LLC, 520
S.W.3d 39, 45 (Tex. 2017). However, “[s]ummary judgment may not be affirmed on
appeal on a ground not presented to the trial court in the motion.” State Farm Lloyds v.
Page, 315 S.W.3d 525, 532 (Tex. 2010) (citing Stiles v. Resolution Tr. Corp., 867 S.W.2d
24, 26 (Tex. 1993)).
The elements of a Chapter 12 claim are that the defendant (1) made,
presented, or used a document or other record with knowledge that it was
a fraudulent claim against real property, (2) intended the document to be
given legal effect, and (3) intended to cause physical or financial injuries or
mental distress.
Hargrave v. Lake CCC, Inc., 730 S.W.3d 519, 524 (Tex. App.—Eastland 2026, pet.
denied) (citing TEX. CIV. PRAC. & REM. CODE § 12.002(a)). “The plain language of the
statute states that a Chapter 12 claim requires that a defendant know that the document
or other record is a ‘fraudulent lien.’” Rio Grande Reg’l Hosp., Inc. v. Akindayomi, No. 13-20-00330-CV, 2022 WL 2838442, at *6 (Tex. App.—Corpus Christi–Edinburg July 21,
2022, pet. denied) (mem. op). “[W]hen analyzing whether a lien is fraudulent, we will
consider whether it was created in bad faith or with dishonesty, a lack of integrity, or moral
turpitude.” Nationstar Mortg. LLC v. Barefoot, 654 S.W.3d 440, 446–47 (Tex. App.—
Houston [14th Dist.] 2021, pet. denied). “When the violation involves a ‘fraudulent lien or
claim against real or personal property or an interest in real or personal property,’ any
‘person who owns an interest in the real or personal property’ may sue for such relief.”
22
Lance v. Robinson, 543 S.W.3d 723, 744 (Tex. 2018) (quoting TEX. CIV. PRAC. & REM.
CODE § 12.003(8)).
B. Analysis
1. Summary Judgment Evidence
We first address Melanie’s assertion “[a]ll arguments made by Chevron with regard
to [its] Motion for Summary Judgment were entirely based on evidence which it never
offered and was never admitted.” She suggests in her brief that certain evidence
considered by the trial court was not proper. In particular, she argues the UCC financing
statement and loan agreement were not admissible for the trial court to properly consider
as summary judgment evidence.
“To preserve objections to summary judgment evidence for appeal, a party
asserting the objections must obtain a ruling at or before the summary judgment hearing.”
Essex Crane Rental Corp. v. Carter, 371 S.W.3d 366, 383 (Tex. App.—Houston [1st Dist.]
2012, pet. denied). “As a prerequisite to presenting a complaint for appellate review, the
record must show that . . . the complaint was made to the trial court by a timely request,
objection, or motion.” TEX. R. APP. P. 33.1; see also TEX. R. CIV. P. 166a(f) (“Defects in
the form of affidavits or attachments will not be grounds for reversal unless specifically
pointed out by objection by an opposing party with opportunity, but refusal, to amend.”).
A party’s failure to obtain a ruling on an objection waives the issue for appellate review.
Essex Crane Rental Corp., 371 S.W.3d at 383; see TEX. R. APP. P. 33.1.
Appellate courts only consider evidence that was before the trial court at the time
it ruled on the particular summary judgment motion being challenged. Urias v. Owl
Springs N., LLC, 662 S.W.3d 561, 566–67 (Tex. App.—El Paso 2022, no pet.) (“We can
23
consider only the record as it existed at the time summary judgment was entered.”). And
“[a] party must present its summary judgment evidence in a form that would be admissible
at trial.” Fortitude Energy, LLC v. Sooner Pipe LLC, 564 S.W.3d 167, 178 (Tex. App.—
Houston [1st Dist.] 2018, no pet.); see also TEX. R. CIV. P. 166a(f). However, “Rule 166a
does not require evidence to be physically attached to a summary judgment motion; it
need only be on file at the time of the summary judgment hearing.” Kuo v. Regions Bank,
722 S.W.3d 15, 16 (Tex. 2025); see Richards v. Allen, 402 S.W.2d 158, 161 (Tex. 1966)
(“[W]hile it is essential that depositions, admissions and affidavits be on file, either
independently or as a part of the motion for summary judgment, the reply thereto, or some
other properly filed instrument, it is not necessary that they be formally offered in evidence
upon the summary judgment hearing.”).
Chevron attached multiple exhibits to its motion and asked the trial court in its
summary judgment motion and at the May 9, 2024 hearing to take judicial notice of all
filings on record. 10 The Palkers lodged objections to certain evidence in their combined
pleading filed on May 2, 2024; however, they did not object to any evidence at the
summary judgment hearing nor did they request a ruling from the trial court concerning
their written objections. See Essex Crane Rental Corp., 371 S.W.3d at 383; TEX. R. APP.
P. 33.1; see also Leonard v. Knight, 551 S.W.3d 905, 913 (Tex. App.—Houston [14th
Dist.] 2018, no pet.) (concluding error not preserved for appellate review when appellant
“included an objection to the admissibility of [an] affidavit in his summary judgment
response, but he did not obtain an express ruling on that objection”). Melanie was required
10 Notably, at the hearing, the trial court announced it “will take judicial notice of all filings in the
[trial c]ourt’s docket.” Moreover, both of the exhibits complained-of on appeal were attached to the Palkers’ filings. See TEX. R. CIV. P. 166a(c).
24
to obtain a ruling concerning her written objections and failed to do so. See Essex Crane
Rental Corp., 371 S.W.3d at 383; TEX. R. APP. P. 33.1. Because she did not obtain a
ruling on her objections to Chevron’s summary judgment evidence, she has not preserved
any complaint concerning the admissibility of said evidence. See Essex Crane Rental
Corp., 371 S.W.3d at 383; TEX. R. APP. P. 33.1. Thus, the trial court was free to consider
any evidence in the record at the time it ruled on Chevron’s motion for summary judgment.
See Urias, 662 S.W.3d at 566–67.
2. Chevron’s Entitlement to Summary Judgment
Having determined what evidence the trial court could have properly considered
with respect to Chevron’s motion for summary judgment, we turn to whether Chevron was
entitled to summary judgment concerning Melanie’s Chapter 12 claim.
Melanie argues that “Chevron failed to ever specifically allege what specific
elements [she] had no evidence to support.” We disagree. As previously noted, in its
motion for summary judgment, Chevron asserted, among other things, that Melanie “has
no basis to assert that . . . [Chevron] intended to cause her physical injury, financial injury,
or mental anguish or emotional distress” and that “she cannot show that [Chevron]
intended to cause her injury or distress.”
In this regard, Melanie was required to present evidence raising a genuine issue
of material fact supporting each element contested in Chevron’s motion to survive
summary judgment. See King Ranch, 118 S.W.3d at 751. Here, having concluded that
an adequate time for discovery had passed, we conclude that Melanie did not present
25
any evidence to support the third element required to prevail on a Chapter 12 claim. 11
See TEX. CIV. PRAC. & REM. CODE § 12.002(a)(3). The trial court could not have
reasonably inferred that Chevron intended to cause Melanie physical or financial injuries
or mental distress based on the evidence before it. See JLB Builders, 622 S.W.3d at 864
(noting appellate courts indulge in every reasonable inference in the nonmovant’s favor
when reviewing an order granting summary judgment); Hargrave, 730 S.W.3d at 524;
TEX. CIV. PRAC. & REM. CODE § 12.002(a)(3).
Melanie argues that Chevron’s UCC financing statement is considered a “fixture
filing” and “a lien on the real property.” The term “fixture filing” according to the Texas
Business and Commerce Code “means the filing of a financing statement covering goods
that are or are to become fixtures.” TEX. BUS. & COM. CODE § 9.102(40). “The term
includes the filing of a financing statement covering goods of a transmitting utility that are
or are to become fixtures.” Id. It further defines the term “fixture” as “goods that have
become so related to particular real property that an interest in them arises under the real
property law of the state in which the real property is situated.” Id. at § 9.102(41). Section
9.604 provides that “if a security agreement covers goods that are or become fixtures, a
secured party may proceed . . . in accordance with the rights with respect to real
property.” Id. at § 9.604(b)(2). However, “Section 9.604(b)(2) does not operate
independently to expand the collateral covered by a Texas UCC fixture lien to include the
whole of the real property to which the fixture is attached, and it does not itself create a
11 We note that Melanie argues in her appellate brief that her “property has sat vacant for nearly
two years, unable to be sold because of the state of the solar system, causing devastating financial injury to [Melanie] who sought to liquidate her equity in the property for her retirement, forcing her to return to work in her late sixties.” However, she had not directed us to any evidence, nor have we found any in the record before us, establishing these allegations.
26
security interest in the real property.” Carmel Fin. Corp., Inc. v. Castro, 514 S.W.3d 291,
297 (Tex. App.—Houston [14th Dist.] 2016, pet. denied).
Here, the UCC financing statement clearly stated that it “cover[ed] the following
collateral: Solar Equipment.” Jason’s underlying loan agreement stated that Chevron’s
“security interest is a security interest in personal property and not a security interest in
real property.” Even if Chevron’s UCC financing statement constituted a “fixture filing,”
such filing would not independently create an interest in Melanie’s real property not
authorized by Jason’s underlying loan agreement. See id. at 296 (“Neither [S]ection
9.334(d) nor [S]ection 9.604(b)(2) operates independently to create a security interest in
real property that the underlying security agreement did not authorize.”); TEX. BUS. & COM.
CODE §§ 9.334(d), 9.604(b)(2); see also Lankhorst v. Indep. Sav. Plan Co., 787 F.3d
1100, 1103 (11th Cir. 2015) (“Lankhorst has cited no authority to support the assertion
that a security interest in a fixture constitutes a security interest in the real property on
which the fixture is installed.”); cf. Mattlage v. Dividend Solar Fin., LLC, No. 6:19-CV00409-ADA-JCM, 2019 WL 7879962, at *5 (W.D. Tex. Oct. 2, 2019) (dismissing cause of
action requiring plaintiff to show defendant claimed an interest in plaintiff’s real property
when financing statement clearly stated it did not create an interest in the real property).
In addition, Melanie contends certain terms and provisions in Chevron’s loan agreement
are considered fraudulent claims on her real property. She argues in part that “[t]he
contract specifically dictated what was required to be done to and with the underlying real
property.” However, we similarly fail to see how those contract provisions show that
Chevron executed a fraudulent lien or claim on her real property. Cf. In re Hai Quang La,
415 S.W.3d 561, 566 (Tex. App.—Fort Worth 2013, pet. denied) (concluding covenants
27
that “restrict or otherwise limit permissible uses of the land . . . do not create or purport to
create a ‘lien or a claim’ on the owner’s property”).
Further, Melanie does not direct us to evidence showing how any of the contested
documents were “created in bad faith or with dishonesty, a lack of integrity, or moral
turpitude.” Nationstar Mortg., 654 S.W.3d at 446–47; see also Walker & Assocs.
Surveying, Inc. v. Roberts, 306 S.W.3d 839, 849 (Tex. App.—Texarkana 2010, no pet.)
(defining the term fraudulent as “a knowing misrepresentation of the truth or concealment
of a material fact to induce another to act to his or her detriment”); In re AFGO Dev. Co.,
Inc., 625 B.R. 324, 342 (Bankr. S.D. Tex. 2020) (“Subjective knowledge that the
document filed is fraudulent, not merely incorrect, is required to impose liability on a
filer.”). In this regard, Melanie did not offer evidence raising a genuine dispute of material
fact over Chevron’s “knowledge” within the meaning of Section 12.002(a). See TEX. CIV.
PRAC. & REM. CODE § 12.002(a).
Therefore, the documents contained in the record do not constitute evidence
raising a fact issue concerning the existence of a lien or claim on Melanie’s real property
in that Chevron “made, presented, or used a document or other record with knowledge
that it was a fraudulent claim.” Hargrave, 730 S.W.3d at 524; see Fossil Grp., Inc., 691
S.W.3d at 882; TEX. CIV. PRAC. & REM. CODE § 12.002(a).
Melanie does not point to, and we have not identified, any other evidence raising
a fact issue concerning the existence of a lien or claim on the real property at issue. See
Hargrave, 730 S.W.3d at 524; Fossil Grp., Inc., 691 S.W.3d at 882; TEX. CIV. PRAC. &
REM. CODE § 12.002(a). Accordingly, Melanie failed to raise a fact issue to preclude
summary judgment. See Fossil Grp., 691 S.W.3d at 882. Consequently, we conclude the
28
trial court did not err in granting Chevron’s motion for summary judgment on Melanie’s
Chapter 12 claim. See Lightning Oil Co., 520 S.W.3d at 45 (noting we “must affirm
summary judgment if any of the grounds asserted are meritorious”). Melanie’s third issue
is overruled. 12
V. CONCLUSION
We affirm the trial court’s order.
CLARISSA SILVA
Justice
Delivered and filed on the
24th day of September, 2026.
12 In light of our conclusion regarding Chevron’s entitlement to summary judgment, we need not
address Melanie’s fourth issue. See TEX. R. APP. P. 47.1 (“The court of appeals must hand down a written opinion that is as brief as practicable but that addresses every issue raised and necessary to final disposition of the appeal.”).
29