Full Opinion

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 no- evidence 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. 2 (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 3 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.) 4 (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.— 5 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. 6 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. 7 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 no- evidence motion for summary judgment, we need not address the propriety of the 8 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. 9