Marcia Slack v. Robert Charles Shreve, Jr.

NO. 12-24-00014-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

MARCIA SLACK, § APPEAL FROM THE 7TH
APPELLANT
§ JUDICIAL DISTRICT COURT
V.
§ SMITH COUNTY, TEXAS
ROBERT CHARLES SHREVE, JR.,
APPELLEE
MEMORANDUM OPINION

Marcia Slack appeals the trial court’s order granting summary judgment in favor of
Appellee Robert Charles Shreve, Jr. Slack raises eight issues on appeal. We affirm.

BACKGROUND
On December 27, 2019, Slack sued Shreve, Greg Carlson, Steven Blair, Joseph Shane
Jackson, SunRay Operating Company, Inc., CJW Operating Company, SunRay Resources, LLC,
and Dane Charles Butzer. 1 According to Slack, Joseph Jackson woke her at 5:00 a.m. on February
2, 2015, and demanded that she write him a check for $250,000 to invest in an oil-and-gas-
exploration company, and she did so. Slack alleged that the defendants (other than Shreve) offered
for sale oil and gas interests for SunRay Resources on the website to obtain investors. She claimed
that Shreve promoted Jackson, Blair, Carlson, and Woods as trustworthy people, but Shreve failed
to disclose that he would receive $107,500 of the money she gave Jackson as part of a debt
repayment and a buyout of SunRay Operating by Carlson, Jackson, and Woods. She further
claimed that Shreve never disclosed that the money she gave Jackson would be used to buy a lease

1
See Slack v. Shreve, No. 12-22-00024-CV, 2023 WL 2417971, at *1 (Tex. App.–Tyler Mar. 8, 2023, no
pet.) (mem. op.). This is the second appeal to this court in this matter following a partial remand of the cause after the
initial appeal. Shreve is the only defendant who is a party to this appeal.
that Shreve claimed to own under a separate, limited liability company. Slack eventually learned
she was the sole investor in the company, which led her to believe that Shreve and the other
defendants colluded to defraud her.
Slack asserted causes of action against Shreve for violations of the Texas Securities Act
(TSA), 2 civil conspiracy, common-law fraud, conversion, and negligence, as well as a claim under
the Texas Theft Liability Act. Additionally, Slack sought a declaratory judgment that she is the
sole owner of the assets of SunRay Resources.
Shreve filed a traditional motion for summary judgment, in which he asserted that the
following causes of action are barred by limitations: (1) registration violations under the TSA,
(2) the Texas Theft Liability Act, (3) common-law fraud, (4) conversion, and (5) negligence. Slack
did not file a response to the motion, and on August 30, 2021, the trial court signed an order
granting Shreve’s motion. 3 Slack appealed, and this court affirmed the trial court’s summary
judgment as to the aforementioned causes of action which formed the basis of Shreve’s motion.
But we reversed the trial court’s summary judgment on Slack’s cause of action pursuant to Section
33(A)(2) of the TSA, which was not among the bases of Shreve’s motion, and remanded the cause
to the trial court for further proceedings related to that claim.
On remand, Shreve filed both no-evidence and traditional motions for summary judgment
on Slack’s Section 33(A)(2) claim, in which he argued that (1) there was no evidence that Shreve
offered or sold Slack any security, (2) the evidence conclusively proved that Shreve did not offer
or sell Slack any security, (3) there was no evidence of any materially false statement by Shreve
in connection with Slack’s securities purchase, and (4) there was no evidence that Shreve
substantially aided any other actor’s Section 33(A)(2) violation. Slack filed a response.
Thereafter, Shreve filed a reply, in which he objected to several exhibits to Slack’s response.
Ultimately, the trial court sustained Shreve’s objections to Slack’s summary-judgment evidence,
granted his motions, and rendered a take-nothing judgment against Slack on her Section 33(A)(2)

2
In 2019, the Legislature repealed The Texas Securities Act, which previously was codified beginning at
TEX. REV. CIV. STAT. art. 581-1, and recodified it as Title 12 of the Texas Government Code. See TEX. GOV’T CODE
ANN. § 4001.001 (“Historical and Statutory Notes”) (West 2008). Former Section 33(A)(2) is now codified at Section
4008.052 of the Texas Government Code. See id. § 4008.052 (West Supp. 2024). The recodification of the TSA
became effective on January 1, 2022. See id. § 4001.001 (“Historical and Statutory Notes”). Because the former
version of the statute was in effect when Slack filed her petition, we will cite to that version in this opinion.
3
Slack filed a motion for new trial, which the trial court denied after a hearing. Thereafter, the trial court
severed Slack’s causes of action against Shreve into a separate action and signed a final, take-nothing judgment against
Slack.

2
claim. Slack moved to reconsolidate her suit against Shreve with the original suit from which it
was severed. The trial court denied Slack’s motion. Slack later filed a motion for new trial, which
was overruled by operation of law. This appeal followed.

SUMMARY JUDGMENT
In her sixth issue, Slack argues that the trial court erred in granting Shreve’s motions for
summary judgment because she presented evidence that Shreve was the Chief Financial Officer of
SunRay Resources, and he did not disclose to Slack that he paid himself more than $100,000 of
her investment through a “shell,” limited liability company he controlled. In her seventh issue,
Slack argues that the trial court erred in granting Shreve’s motion in light of evidence that Shreve
was avoiding service of a trial subpoena for the trial against his undisclosed, former business co-
owners in SunRay Operating. 4
Standard of Review
Because summary judgment is a question of law, a trial court’s summary judgment decision
is reviewed de novo. 5 See Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005);
Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003); McMahon
Contracting, L.P. v. City of Carrollton, 277 S.W.3d 458, 467–68 (Tex. App.–Dallas 2009, pet.
denied). The standard of review for a traditional summary judgment motion pursuant to Texas
Rule of Civil Procedure 166a(c) is threefold: (1) the movant must show there is no genuine issue
of material fact and he is entitled to judgment as a matter of law; (2) in deciding whether there is
a disputed, material fact issue precluding summary judgment, the court must take as true evidence
favorable to the nonmovant; and (3) the court must indulge every reasonable inference from the
evidence in favor of the nonmovant and resolve any doubts in the nonmovant’s favor. See TEX.

4
Slack states that her seventh issue “raises all arguments as to all grounds why the summary-judgment motion
of Shreve should have been denied” and cites Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970). But
we are mindful that a general Malooly issue statement only preserves a complaint if the ground challenged on appeal
is supported by argument. See Brown v. Hearthwood II Owners Ass’n, Inc., 201 S.W.3d 153, 156 (Tex. App.–
Houston [14th Dist.] 2006, pet. denied). It is unclear the relation of Shreve’s alleged avoidance of service of a trial
subpoena in separate proceedings with whether Shreve is entitled to summary judgment on Slack’s claims under
Section 33(A)(2), and Slack fails to make any argument in support of this allegation. But to the extent Slack made
cogent arguments in her brief related to the trial court’s granting Shreve’s motions for summary judgment, we will
address them.
5
In conducting a de novo review, the trial court’s reasoning is not relevant to or controlling of our review
and analysis. See Markel Ins. Co. v. Muzyka, 293 S.W.3d 380, 385 (Tex. App.–Fort Worth 2009, no pet.).

3
R. CIV. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548–49 (Tex. 1985);
Montgomery v. Kennedy, 669 S.W.2d 309, 311 (Tex. 1984); Hightower v. Baylor Univ. Med.
Ctr., 251 S.W.3d 218, 221–22 (Tex. App.–Dallas 2008, pet. struck). We are not required to
ascertain the credibility of affiants or to determine the weight of evidence in the affidavits,
depositions, exhibits, and other summary judgment proof. See Gulbenkian v. Penn, 252 S.W.2d
929, 932 (Tex. 1952); Palestine Herald-Press Co. v. Zimmer, 257 S.W.3d 504, 508 (Tex. App.–
Tyler 2008, pet. denied).
Further, all theories in support of or in opposition to a motion for summary judgment must
be presented in writing to the trial court. See TEX. R. CIV. P. 166a(c). If the trial court’s order
granting summary judgment does not specify the grounds relied on for its ruling, we will affirm it
if any of the theories advanced are meritorious. State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d
374, 380 (Tex. 1993).
Additionally, after an adequate time for discovery, a party without the burden of proof at
trial may move for summary judgment on the ground that there is no evidence of one or more
essential elements of a claim or defense. See TEX. R. CIV. P. 166a(i). Once a no evidence motion
has been filed in accordance with Rule 166a(i), the burden shifts to the nonmovant to bring forth
evidence that raises a fact issue on the challenged evidence. See Macias v. Fiesta Mart, Inc., 988
S.W.2d 316, 317 (Tex. App.–Houston [1st Dist.] 1999, no pet.). We review a no evidence motion
for summary judgment under the same legal sufficiency standards as a directed verdict. King
Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750–51 (Tex. 2003). A no evidence motion is properly
granted if the nonmovant fails to bring forth more than a scintilla of probative evidence to raise a
genuine issue of material fact as to an essential element of the nonmovant’s claim on which the
nonmovant would have the burden of proof at trial. See id. at 751. If the evidence supporting a
finding rises to a level that would enable reasonable, fair-minded persons to differ in their
conclusions, then more than a scintilla of evidence exists. Id. Less than a scintilla of evidence
exists when the evidence is so weak as to do no more than create a mere surmise or suspicion of a
fact, and the legal effect is that there is no evidence. See id.
Lastly, when a party moves for both a traditional and a no evidence summary judgment,
we ordinarily review first the trial court’s summary judgment under the no evidence standard of
Rule 166a(i). See Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). If the no-
evidence summary judgment properly was granted, we do not reach arguments under the

4
traditional motion for summary judgment. See id. However, this rule is not absolute. See Dunn
v. Clairmont Tyler, LP, 271 S.W.3d 867, 870 (Tex. App.–Tyler 2008, no pet.) (rule that court of
appeals must address no-evidence motion first cannot be applied unless same issue raised in both
motions). In this case, our disposition of Shreve’s argument that the evidence conclusively
establishes the opposite of a necessary element of Slack’s Section 33(A)(2) claim is dispositive of
her sixth and seventh issues, but only is raised in his traditional motion for summary judgment.
See id. Therefore, we will address that argument first.
Governing Law
Section 33(a)(2) of the TSA states, in pertinent part, as follows:

(2) Untruth or Omission. A person who offers or sells a security . . . by means of an untrue statement
of a material fact or an omission to state a material fact necessary in order to make the statements
made, in light of the circumstances under which they are made, not misleading, is liable to the person
buying the security from him, who may sue either at law or in equity for rescission, or for damages[.]

TEX. REV. CIV. STAT. art. 581-33(A)(2); see also Slack v. Shreve, No. 12-22-00024-CV, 2023 WL
2417971, at *6 (Tex. App.–Tyler Mar. 8, 2023, no pet.) (mem. op.).
As used in the Texas Securities Act, the terms “sale” and “offer for sale” or “sell” shall
include every disposition of or attempt to dispose of a security for value. See Tex. Capital Sec.,
Inc. v. Sandefer, 58 S.W.3d 760, 775 (Tex. App.–Houston [1st Dist.] 2001, pet. denied). The term
“sell” means any act by which a sale is made, and the term “sale” or “offer for sale” shall include
subscription, an option for sale, a solicitation of sale, a solicitation of an offer to buy, an attempt
to sell, or an offer to sell, directly or by an agent or salesman, by circular, letter, or advertisement
or otherwise. Id. The terms “security” or “securities” include stock. Id. Section 33(A)(2) applies
to private, secondary transactions. See id. The Act applies if the seller is any link in the chain of
the selling process. Id.
Discussion
In the instant case, Shreve argued, in part, that he was entitled to traditional summary
judgment because the evidence conclusively proved that he did not offer or sell Slack any security.
In support of his motion, Shreve attached an affidavit in which he stated that he did not offer or
sell Slack anything, much less a security. He also attached Slack’s late-filed responses to his
request for admissions. In Request for Admission Number 42, Shreve requested that Slack
“[a]dmit or deny that Shreve never sold a security to Slack.”

5
Deemed Admissions
A request for admission is a “written request[] that the other party admit the truth of any
matter within the scope of discovery. . . .” TEX. R. CIV. P. 198.1; Time Warner, Inc. v. Gonzalez,
441 S.W.3d 661, 664 (Tex. App.–San Antonio 2014, pet. denied). If a response is not served
timely, the request is considered admitted without the necessity of a court order. See TEX. R. CIV.
P. 198.2(c); Gonzales, 441 S.W.3d at 664. An admitted matter is “conclusively established as to
the party making the admission unless the court permits the party to withdraw or amend the
admission.” TEX. R. CIV. P. 198.3; Gonzales, 441 S.W.3d at 664. However, a trial court has
discretion to permit a party to withdraw an admission if: (a) the party shows good cause for the
withdrawal; (b) the court finds that the other party will not be unduly prejudiced; and
(c) presentation of the lawsuit’s merits is served by the withdrawal. See TEX. R. CIV. P. 198.3;
Gonzales, 441 S.W.3d at 664; Cleveland v. Taylor, 397 S.W.3d 683, 694 (Tex. App.–Houston [1st
Dist.] 2012, pet. denied).
In the instant case, Slack did not request, pursuant to Rule 198.3, the withdrawal of the
aforementioned, deemed admission upon which Shreve relied in his motion for summary
judgment, nor did she otherwise seek to make a showing of good cause for such a withdrawal. 6
Instead, she argued that Shreve cannot rely on her deemed admission because Shreve waited over
thirty months to use it as evidentiary support for his summary-judgment motion and did so
following the remand of the case from this court. She also notes that she sought an extension of
the deadline and that Shreve declined to extend her deadline to respond but was not clear about
that fact and, therefore, her response should not be considered late. 7 We disagree that any of the
circumstances Slack describes in her appellate brief prevents Shreve’s reliance on her deemed
admission as summary judgment evidence. Moreover, she waived any argument in this appeal
that she had good cause for her late response to Shreve’s request for admissions.

None of Slack’s exhibits in the summary judgment record serve to contradict her deemed admission of
6

Request 42. See, e.g., Marshall v. Vice, 767 S.W.2d 699, 700 (Tex. 1989) (party relying on judicial admissions or
deemed admissions must protect record by objecting to introduction of controverting evidence).
7
The record reflects that Slack’s counsel requested an extension from Shreve’s counsel. Shreve’s counsel
agreed to permit an extension if Slack would agree to provide an explanation for each request she denied. Slack’s
counsel was asked to indicate agreement to this stipulation by sending a return email indicating the same. There is no
indication that Slack’s counsel sent an email accepting the conditions to the proposed extension, nor does Slack
contend that such an email exists. Slack served her response on Shreve four days after the original deadline. Her
response contains no explanation for the requests she denied.

6
In Unifund CCR Partners v. Weaver, 262 S.W.3d 796 (Tex. 2008), the pro se defendant
was served with requests for admission; the record did not show that the defendant served the
plaintiff with his responses. Id. at 797. The plaintiff filed a motion for summary judgment
“asserting that the facts set out in its requests for admissions were automatically admitted when
[the defendant] failed to timely serve his responses.” Id. The defendant did not respond to the
summary judgment motion and the motion was granted by the trial court. Id.
There, the defendant first challenged the deemed admissions in a post-judgment filing and
asserted that he properly served the plaintiff with his responses. Id. The supreme court held that
the defendant “waived his right to challenge the deemed admissions.” Id. at 798. Noting that the
plaintiff’s “motion for summary judgment put [the defendant] on notice of the deficiency of his
response,” the court stated that the defendant “knew of his mistake before judgment and could
have responded to [the plaintiff’s] motion, but because he did not, he waived his right to raise the
issue thereafter.” Id.; see also Cleveland, 397 S.W.3d at 693–95 (defendants did not respond to
plaintiffs’ requests for admissions and challenged requests only after trial court rendered judgment
despite earlier “notice of their mistake;” court held that defendants’ challenges to deemed
admissions were waived); Johnson v. Lewis, No. 14-10-00293-CV, 2011 WL 2083965, at *3 (Tex.
App.–Houston [14th Dist.] May 19, 2011, no pet.) (mem. op.) (defendants, although aware of their
failure to serve responses to plaintiff’s requests for admission, did not challenge admissions until
after summary judgment was granted; defendants waived the right to challenge admissions on
appeal); but see Wheeler v. Green, 157 S.W.3d 439, 441–42 (Tex. 2005) (per curiam) (pro se
defendant filed responses to requests for admissions two days late because of a miscalculation with
respect to mailbox rule; court held that defendant did not waive complaint regarding withdrawal
of the deemed admissions presented for first time in motion for new trial because “nothing in this
record suggests that before summary judgment was granted, [the defendant] realized that her
responses were late, that she needed to move to withdraw deemed admissions, or that she needed
to file a response to the summary judgment raising either argument”).
Here, Slack’s failure to challenge the deemed admission in the trial court pursuant to Rule
198.3 waives her ability to raise such a challenge on appeal. Unlike the defendant in Wheeler,
Slack was represented by counsel at trial. The record demonstrates that she had notice of the due
date for the admissions and, as she also notes in her brief, she sought an extension of this deadline.
Shreve’s motion for summary judgment appreciably relied on the deemed admission in question.

7
And Slack failed to seek to withdraw or “undeem” the admission pursuant to Rule 198.3. Instead,
she asserted that the response to the request for admissions should be considered timely or,
alternatively, that other evidence rendered the deemed admission immaterial. Because she was
represented by counsel at trial, it is reasonable to conclude that, unlike the pro se defendant in
Wheeler, Slack realized before summary judgment was granted that because her responses were
late, she needed to move to withdraw the deemed admission or needed to include such an argument
in her response to Shreve’s motion for summary judgment. Cf. Wheeler, 157 S.W.3d at 442.
Like the defendant in Weaver, Slack was on notice of her failure to respond to Shreve’s
requests for admission. See Weaver, 262 S.W.3d at 797–87. Despite this notice, she did not raise
in the trial court her challenges to the deemed admission. Thus, the admission was conclusive,
and we decline to consider any argument of impropriety of such deemed admission on appeal. See
Weaver, 262 S.W.3d 797–98; Cleveland, 397 S.W.3d at 693–95; see also Hendrickson v. Heard,
No. 14-17-00659-CV, 2018 WL 4780802, at *3–4 (Tex. App.–Houston [14th Dist.] Oct. 4, 2018,
no pet.) (mem. op).
Slack’s Admissible Summary Judgment Proof
In response to Shreve’s motion for summary judgment, Slack included numerous exhibits,
many of which the trial court excluded pursuant to Shreve’s objections. In her brief, Slack argues
that the summary-judgment evidence raises a genuine issues of material fact, which demonstrates
Shreve’s privity to the security transaction at issue because (1) Shreve was the sole member at
Gryphon Global Investments, LLC (GGI), to which SunRay Resources sent $107,500 following
Slack’s $250,000 investment; (2) Shreve was a member of Oklahoma Shelf Exploration and
Development Company (OSED) in 2014, along with Jackson, Carlson, Blair, and Woods, and
failed to disclose to Slack that OSED was involved in a lawsuit during 2015; (3) Shreve was the
Chief Financial Officer of SunRay Resources and did its taxes for a period of years; (4) Shreve
had a prior, business relationship with and previously agreed to sell to Jackson, Carlson, Blair, and
Woods the “Hanks Oil Lease” and let them take over all of his shares in SunRay Operating; and
(5) Shreve provided Jackson and Slack with “primo” seats to a Texas Rangers baseball game to
“entice her investment.”
Based on the summary judgment record and considering the arguments of privity Slack
raised, we cannot conclude that such evidence creates a genuine issue of material fact in light of
the conclusive proof offered by Shreve in support of his traditional motion for summary judgment.

8
None of the evidence in the summary-judgment record indicates that Shreve sold or offered to sell
a security to Slack or was in privity to such a transaction. Shreve’s alleged involvement in GGI,
to which SunRay Resources transferred money following the transaction, does not prove that he
or GGI sold or offered to sell her a security. See 1993 GF P’ship v. Simmons & Co. Intern., No.
14-09-00268-CV, 2010 WL 4514277, at *8 (Tex. App.–Houston [14th Dist.] Nov. 9, 2010, no
pet.) (mem. op.) (alleged misrepresentations which occurred after parties agreed to sale of
securities not actionable). Nor do Shreve’s previous business dealings with Jackson, Carlson,
Blair, and Woods logically place him in privity to the sale or offer to sell the security at issue.
Moreover, Slack’s argument that Shreve was the CFO for SunRay Resources, even assuming the
existence of evidentiary support for such an allegation, does not, without more, prove that he was
in privity to the sale or offer to sell the security at issue. See Tex. Capital Sec. Mgmt., Inc. v.
Sandefer, 80 S.W.3d 260, 266 (Tex. App.–Texarkana 2002, pet. struck). Lastly, the evidence that
Shreve provided Jackson and Slack with baseball tickets, no matter how “primo” the seats were,
without more, does not serve to place him in privity to the sale or offer to sell the security at issue.
In sum, Shreve’s affidavit testimony and Slack’s deemed admission conclusively prove
that Shreve neither sold nor offered to sell Slack the security at issue. None of the evidence upon
which Slack bases her arguments of Shreve’s privity to the sale or offer to sell such security,
amount to proof of alleged privity to the sale or offer to sell. Accordingly, because we cannot
conclude that Slack’s summary-judgment evidence creates a genuine issue of material fact in light
of the conclusive proof offered by Shreve in support of his traditional summary judgment motion,
we hold that the trial court did not err in granting Shreve’s traditional motion for summary
judgment. Slack’s sixth and seventh issues are overruled.

EXCLUSION OF SUMMARY JUDGMENT EVIDENCE
In her third issue, Slack argues that the trial court abused its discretion in granting Shreve’s
objections to numerous exhibits she submitted in support of her response to his motions for
summary judgment because “the Smith County Local Rule was implemented without the
objections being identified as a motion or otherwise identified in the title of the Shreve Reply[.]”
Standard of Review
An appellate court reviews a trial court’s ruling that sustains an objection to summary
judgment evidence for an abuse of discretion. Cantu v. Horany, 195 S.W.3d 867, 871 (Tex. App.–

9
Dallas 2006, no pet.); see Cruikshank v. Consumer Direct Mortgage, Inc., 138 S.W.3d 497, 499
(Tex. App.–Houston [14th Dist.] 2004, pet. denied). An appellant has the burden to bring forth a
record that is sufficient to show the trial court abused its discretion when it sustained the appellee’s
objections to the summary judgment evidence. See Cantu, 195 S.W.3d 867.
Discussion
In her brief, Slack does not address the merits of Shreve’s numerous objections to her
summary judgment evidence. Instead, she argues as follows:

As explained in her motion for a new trial, Slack is prejudiced by the Court granting all of
Shreve’s evidentiary objections, when there was no jury to be confused or sustain objections relating
to hearsay and relevance. These objections were not stated in title of the reply, and it was not
labelled a “motion” or even objections to trigger the Draconian Smith County Local Rule whereby
the Court simply grants the moving parties[‘] objections due to no opposition. This is unfair and a
violation of due process. Whether Slack took a week after the deadline set or a year, it is the same
because she didn’t know the objections were imbedded in the Reply because a Reply is not
calendared in a law firm, and was not calendared in Slack’s attorneys’ law firm for a response or
opposition.

First, Slack failed to cite any authority in support of her third issue and, therefore, waived
any error argued therein. See TEX. R. APP. P. 38.1(i); In re A.N.G., 631 S.W.3d 471, 476–77 (Tex.
App.–El Paso 2021, no pet.) (“Mere uttering of brief conclusory statements unsupported by
citation to legal authorities does not satisfy briefing requirements. The Texas Supreme Court has
continuously recognized that an issue may be waived when appellant fails to provide citations,
arguments, or analysis . . . . [W]e have no duty––or even right––to perform an independent review
of the record and applicable law to determine whether there was error”).
Second, Slack’s suggestion that such evidentiary objections improperly were sustained
because, at the summary-judgment stage, there is no jury to be confused, flatly is incorrect. The
same evidentiary standards that apply in trials also control the admissibility of evidence in
summary-judgment proceedings. United Blood Servs. v. Longoria, 938 S.W.2d 29, 30 (Tex.
1997) (per curiam); In re E. Tex. Oilfield Prod. Services, Inc., No. 12-20-00077-CV, 2020 WL
1697428, at *2 (Tex. App.–Tyler Apr. 8, 2020, no pet.) (mem. op.).
Third, Slack vaguely describes a local rule applicable to the Smith County District Courts
without any other reference as to which rule she finds objectionable or why her objections legally
are sustainable. Her vague description of the substance of this rule, along with the allegation that

10
it is “Draconian” and violative of her “due process” rights, provides this court nothing to review.
See TEX. R. APP. P. 38.1(i); In re A.N.G., 631 S.W.3d at 476–77.
Lastly, Slack reveals that she failed to respond to the objections because she did not know
the objections were “imbedded in [Shreve’s] reply” and “a Reply is not calendared in a law firm
and was not calendared in Slack’s attorneys’ law firm for a response or opposition.” Based on our
review of the record, regardless of how a response is calendared, the headings and language used
in Shreve’s reply should have put any reasonable person who read the document on notice that
Shreve made specific, legal objections to certain exhibits Slack offered in response to Shreve’s
motion for summary judgment. There is no rule prohibiting making objections in such a reply.
Indeed, a longstanding rule dictates that a filing’s substance governs over its title or form. See
State Bar v. Heard, 603 S.W.2d 829, 833 (Tex. 1980); see also In re J.Z.P., 484 S.W.3d 924,
924–25 (Tex. 2016). Slack describes the objections in Shreve’s reply as “imbedded,” ostensibly
suggesting that Shreve intended to make his objections surreptitiously. Yet, based on our review
of the record, the objections appear within the reply under the boldfaced, underscored heading,
“Objections to Slack’s Proof.” The objections are divided into two, boldfaced subheadings:
“Hearsay Objections” and “Relevance Objections.” Under each subheading is a bullet-point
listing of each, numbered exhibit from Slack’s response to which Shreve objects. The objections
comprise three pages of the seven-page reply. Based on our review of the record, we conclude
that a reader who made even the most cursory perusal of the entirety of Slack’s reply should have
taken note of Shreve’s objections. The fact that Shreve’s reply apparently was “calendared” based
on its title alone without any review of the filing’s substance, regardless of the suggestion, both in
Slack’s brief and at oral argument, that such a practice is commonplace, cannot overcome the trial
court’s decision to sustain Shreve’s unchallenged objections, which so obviously were set forth in
his reply.
Based on the foregoing, we hold that the trial court did not abuse its discretion in sustaining
Shreve’s objections to Slack’s summary-judgment evidence. Slack’s third issue is overruled.

DENIAL OF MOTION FOR NEW TRIAL BASED ON “PONZI SCHEME” ALLEGATIONS
In her first issue, Slack argues that the trial court abused its discretion in failing to grant
her motion for new trial “based on a Ponzi Scheme Shreve actively participated in and profited

11
from with his undisclosed[,] former[,] business co-owners in SunRay Operating Company, Inc[.],
including Carlson, Jackson[,] and Blair.”
“We review a trial court’s denial of a motion for new trial under an abuse of discretion
standard.” Storck v. Tres Lagos Prop. Owners Ass’n, Inc., 442 S.W.3d 730, 741 (Tex. App.–
Texarkana 2014, pet. denied). The trial court’s decision may not be overturned unless it “acted
unreasonably or in an arbitrary manner, without reference to guiding rules or principles.” Id. at
741–42.
A “Ponzi scheme” is an investment fraud wherein investors are enticed with the promise
of extremely high returns or dividends over a very short period of time. Goldstein v. Mortenson,
113 S.W.3d 769, 773 n.1 (Tex. App.–Austin 2003, no pet.). Investors are paid “from monies
obtained from later investors rather than from profits of the underlying business venture.” Id.
“The scheme takes its name from Charles Ponzi, who in the late 1920s was convicted and punished
for fraudulent schemes he conducted in Boston.” Id.
Slack’s allegations related to a “Ponzi scheme” fall under the umbrella of common-law
fraud. See id.; see also, e.g., Janvey v. Golf Channel, Inc., 487 S.W.3d 560, 563 (Tex. 2016)
(Ponzi scheme is fraudulent endeavor). But any common-law fraud claim Slack may have had
against Shreve previously and appropriately was dismissed on limitations grounds. See Slack,
2023 WL 2417971, at *4; see also Briscoe v. Goodmark Corp., 102 S.W.3d 714, 716 (Tex. 2003)
(“law of the case” doctrine defined as principle under which questions of law decided on appeal
to court of last resort will govern case throughout its subsequent stages). Therefore, because the
trial court previously determined that limitations barred any common-law fraud cause of action
Slack may have had against Shreve, and this court affirmed that decision, we hold that the trial
court did not abuse its discretion in declining to grant Slack’s motion for new trial based on her
allegations related to Shreve’s involvement in an alleged Ponzi scheme. See Slack, 2023 WL
2417971, at *4; see also Briscoe, 102 S.W.3d at 716. Slack’s first issue is overruled.

FAILURE TO HOLD HEARING ON MOTION FOR NEW TRIAL AND FAILING EXPRESSLY TO RULE
In her fifth issue, Slack argues that the trial court abused its discretion by allowing her
motion for new trial to be overruled by operation of law without conducting a hearing on the
motion, wherein she requested leave to file a response to Shreve’s evidentiary objections to her
summary-judgment evidence.

12
Ordinarily, a trial court is not required to hold an evidentiary hearing on a motion for new
trial. See Jefa Co., Inc. v. Mustang Tractor and Equipment Co., 868 S.W.2d 905, 909 (Tex.
App.–Houston [1st Dist.] 1994, writ denied). Nor is a trial court required expressly to rule on a
motion for new trial. See TEX. R. CIV. P. 329b(c); In re Dixon, 346 S.W.3d 906, 910 (Tex. App.–
Tyler 2011, no pet.) (trial court not required to rule on motions for new trial because passage of
time may serve to overrule a new trial motion by operation of law).
The only circumstances under which a hearing is required on a party’s motion for new trial
is when the motion alleges (1) jury misconduct, (2) newly-discovered evidence, or (3) the failure
to set aside a default judgment. See TEX. R. CIV. P. 324(b)(1) (point required to be made in motion
for new trial on complaint on which evidence must be heard, such as jury misconduct, newly
discovered evidence, or failure to set aside default judgment); Hendricks v. Barker, 523 S.W.3d
152, 157 (Tex. App.–Houston [14th Dist.] 2016, no pet.). Slack’s motion for new trial raised no
such issues. And even if she had urged the trial court to consider newly-discovered evidence, since
her motion challenged the trial court’s grant of summary judgment, any such evidence or argument
Slack sought to present was required to be urged by written submission in accordance with Texas
Rule of Civil Procedure 166a, which precludes live testimony. See TEX. R. CIV. P. 166a(c); cf. B.
Gregg Price, P.C. v. Series 1 - Virage Master, LP, No. 01-20-00474-CV, 2021 WL 3204753, at
*16 (Tex. App.–Houston [1st Dist.] July 29, 2021) (mem. op.), rev’d on other grounds, 661 S.W.3d
419 (Tex. 2023). Therefore, we hold that the trial court did not abuse its discretion by failing to
conduct a hearing on Slack’s motion for new trial or allowing it to be overruled by operation of
law. Slack’s fifth issue is overruled.

FAILURE TO CONDUCT HEARING ON SUMMARY-JUDGMENT MOTION
In her fourth issue, Slack argues that the trial court denied her due process by “taking away
[her] property interest involving oil and gas leases” without conducting a hearing on the merits,
which she requested pursuant to Smith County Local Rule 2.7.
Texas Rule of Civil Procedure 166a(c) calls for a hearing on a motion for summary
judgment. TEX. R. CIV. P. 166a(c). However, “not every hearing called for under every rule of
civil procedure necessarily requires an oral hearing.” Martin v. Martin, Martin & Richards, Inc.,
989 S.W.2d 357, 359 (Tex. 1998); Harpole v. Rains Cty. Appraisal Dist., No. 12-22-00221-CV,
2023 WL 3510829, at *5 (Tex. App.–Tyler May 17, 2023, no pet.) (mem. op.). Unless required

13
by the express language or the context of the particular rule, the term “hearing” does not
necessarily contemplate either a personal appearance before the court or an oral presentation to the
court. Harpole, 2023 WL 3510829, at *5. An oral hearing on a motion for summary judgment
may be helpful to the parties and the court, but since oral testimony cannot be adduced in support
of or opposition to a motion for summary judgment, an oral hearing is not mandatory. Id.; see
TEX. R. CIV. P. 166a(c). The decision of whether to grant an oral hearing on a summary-judgment
motion is purely within the discretion of the trial judge. Adamo v. State Farm Lloyds Co., 853
S.W.2d 673, 677 (Tex. App.–Houston [14th Dist.] date), writ denied per curiam, 864 S.W.2d 491
(Tex. 1993). Pursuant to Rule 166a, the trial court may determine the merits of the summary-
judgment action based only upon the pleadings, discovery responses, sworn affidavits, and other
valid evidence submitted as grounds for granting or denying the motion. See TEX. R. CIV. P.
166a(c). An oral hearing on summary judgment is little more than argument of counsel, and a trial
court’s failure to conduct such a proceeding upon request of a party is not reversible error. See
Harpole, 2023 WL 3510829, at *5; Giese v. NCNB Texas Forney Banking Ctr., 881 S.W.2d 776,
783 (Tex. App.–Dallas 1994, no pet.).
Smith County Local Rule 2.7 does not limit the trial court’s discretion to hear summary-
judgment motions by written submission. See Smith Cty. Loc. R. 2.7. Rather, it sets the procedure
for requesting a discretionary, oral argument. See id. (stating that any party desiring oral argument
must include written request in its motion or response).
Even assuming arguendo that Slack had real-property interests at stake in this case, she
cites no authority which requires a trial court to conduct an oral hearing on a motion for summary
judgment in a case which involves real-property interests, nor is this court aware of any such
authority. Therefore, we hold that the trial court did not abuse its discretion in ruling on Shreve’s
motion for summary judgment without conducting an oral hearing thereon. Slacks’ fourth issue is
overruled.

FAILURE TO GRANT MOTION TO CONSOLIDATE AND MOTION FOR REJOINDER
In her second issue, Slack argues that the trial court abused its discretion by denying her
motion to consolidate her sole cause of action on remand with the case pending against other
defendants. In her eighth issue, she contends that the trial court abused its discretion in denying

14
her “Motion to Joinder Shreve back into the lead case with Carlson, Jackson, and Blair,” who are
his undisclosed former co-owners in SunRay Operating.
Slack makes no argument in support of either her second or eighth issues. See TEX. R. APP.
P. 38.1(i). Further, Slack offers no record citations or citation to authority in her brief with regard
to either a motion to consolidate or a motion for joinder. See id. Based on our review of the record,
we conclude that it contains no such motions; the only related document is the trial court’s order
denying Slack’s motion for joinder. 8 Slack’s initial statement of these issues and a conclusory
statement in the final sentences of her brief that the interconnected nature of this matter “with the
undisclosed Ponzi Scheme” makes joinder of the two cases appropriate, are the only references
made to the issues.
We reiterate that merely uttering brief, conclusory statements, which are unsupported by
citation to legal authorities, does not satisfy briefing requirements. See In re A.N.G., 631 S.W.3d
at 476–77. We have no duty or right to perform an independent review of the record and applicable
law to determine whether there was error. See id.; see also Redmon v. Griffith, 202 S.W.3d 225,
241 (Tex. App.–Tyler 2006, pet. denied). Thus, because Slack wholly failed to provide citations,
arguments, or the most basic analysis, she provides nothing for us to review and has waived these
issues. Slack’s second and eight issues are overruled.

DISPOSITION
Having overruled Slack’s issues one through eight, we affirm the trial court’s judgment.

BRIAN HOYLE
Justice

Opinion delivered October 31, 2024.
Panel consisted of Worthen, C.J., Hoyle, J., and Griffith, Retired J., Twelfth Court of Appeals, sitting by assignment.

8
This order was entered after the trial court granted Shreve’s motion for summary judgment. As the order
states, because the court “has granted the Shreve Motion for Summary Judgment pending in the severed cause . . .
there is no longer any case to ‘join’ back with [t]he original cause[.]”

15
COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

OCTOBER 31, 2024

NO. 12-24-00014-CV

MARCIA SLACK,
Appellant
V.
ROBERT CHARLES SHREVE, JR.,
Appellee

Appeal from the 7th District Court
of Smith County, Texas (Tr.Ct.No. 19-3131-A/S)

THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED, and DECREED that the judgment
of the court below be in all things affirmed, and that all costs of this appeal are hereby adjudged
against the appellant, Marcia Slack, for which execution may issue, and that this decision be
certified to the court below for observance.
Brian Hoyle, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Griffith, Retired J., Twelfth Court of Appeals,
sitting by assignment.