Full Opinion

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. 2 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 3 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. 4 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 5 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”). 6 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.” 7 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 10 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 11 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 12 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 No- Evidence 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 13 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. 14 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 15 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 16 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.’”