Estate of Samantha Skaggs; Robbin Skaggs, Individually and as Personal Representative of the Estate of Samantha Skaggs; and Walter Skaggs Sr. v. Peternett, Inc. d/b/a Showdown, 02-25-00257-CV, March 26, 2026.
On appeal from 67th District Court, Tarrant County, Texas
Synopsis
When a party pleads “Level 3” but never moves for—or obtains—a signed Level 3 discovery-control plan, Level 2 deadlines govern and discovery can close by operation of the rules. The Fort Worth Court of Appeals held the trial court acted within its discretion to quash late discovery, deny a continuance, and grant a no-evidence summary judgment where the plaintiffs had conducted no discovery within the applicable period and failed to challenge the order striking all of their summary-judgment evidence.
Relevance to Family Law
Texas family cases routinely involve litigants who “plan” to seek expanded discovery (business valuations, separate-property tracing, social-media custody evidence) but do not secure a Level 3 order early. This opinion is a cautionary appellate blueprint: absent a signed Level 3 plan, you are living in Level 1 or Level 2, and courts can (and will) enforce discovery closure—then entertain no-evidence MSJs or evidentiary attacks that effectively end the case. In custody and property litigation, the same procedural posture can convert a “we just need more discovery” narrative into waiver, exclusion, and an outcome-determinative record.
Case Summary
Fact Summary
The plaintiffs sued a bar (Showdown) under the Texas Dram Shop Act after a fatal car accident. Although their pleadings stated they intended to conduct discovery under Rule 190 Level 3, they never filed a motion requesting a Level 3 discovery-control plan and never obtained a signed Level 3 order.
The trial court later set the case for trial and expressly indicated it would accept a scheduling order but that certain dates could not be changed without leave of court. Despite that invitation, the plaintiffs still did not secure a Level 3 plan. Under the default rules, the case proceeded under Level 2 deadlines.
Critically, the plaintiffs conducted no discovery during the applicable discovery period. After the Level 2 period had closed, Showdown filed a no-evidence motion for summary judgment aimed at key Dram Shop elements (service to an obviously intoxicated patron and proximate cause). Only then did the plaintiffs attempt to serve written discovery, seeking “expanded” discovery by ex parte request. Showdown sought a protective order; the trial court quashed the untimely discovery and declared discovery closed. The plaintiffs sought reconsideration and a continuance, but their motions did not demonstrate diligence or explain with specificity why the new discovery was material and why it could not have been obtained earlier.
On the summary-judgment merits, the plaintiffs filed a large volume of purported evidence (hundreds of pages), but Showdown objected broadly and specifically (authentication, hearsay, improper expert opinions, and failure to direct the court to supporting evidence). The night before the hearing, plaintiffs attempted to file an amended response with new declarations without leave; at the hearing, counsel withdrew that late filing. The trial court sustained all objections to the plaintiffs’ summary-judgment evidence and granted the no-evidence motion. On appeal, plaintiffs did not challenge the evidentiary ruling striking their evidence.
Issues Decided
- Whether the trial court abused its discretion by enforcing discovery closure via protective order, declining to enter a Level 3 discovery plan, and denying a continuance sought to conduct belated discovery.
- Whether the trial court erred by granting a no-evidence summary judgment when the plaintiffs’ summary-judgment evidence was excluded and the plaintiffs did not challenge that exclusion on appeal.
Rules Applied
- Texas Rule of Civil Procedure 190 (Discovery Control Plans)
- Level 2 governs by default unless a court-ordered plan “specifically” changes those limits. See Tex. R. Civ. P. 190.4(b).
- Protective orders / discovery enforcement discretion
- Trial courts have broad discretion to manage discovery and enforce deadlines, including quashing untimely discovery and denying continuances where diligence is lacking.
- Texas Rule of Civil Procedure 166a(i) (No-Evidence Summary Judgment)
- Once a no-evidence motion is properly filed after adequate time for discovery, the respondent must produce competent evidence raising a genuine issue of material fact.
- Rule 166a(c) timing / leave requirement
- Late-filed affidavits or responses within seven days of the hearing require leave of court.
- Appellate preservation / briefing waiver
- If the trial court excludes summary-judgment evidence and the appellant does not challenge that evidentiary ruling on appeal, the appellate court generally treats the record as containing no competent evidence on the challenged elements.
Application
The Second Court of Appeals treated the plaintiffs’ “Level 3” language in pleadings as legally meaningless without the one thing that matters in practice: a signed order entering a Level 3 discovery-control plan. Because the plaintiffs never moved for and obtained that plan, Level 2 controlled. Under Level 2, discovery closed by the rules, not by ambush. The plaintiffs’ attempt to initiate written discovery roughly a year after closure was precisely the sort of late-stage activity a trial court is permitted to police with a protective order—especially where the record showed total inaction throughout the discovery window.
On the continuance request, the court focused on the classic diligence problem: the plaintiffs did not explain why the discovery they now wanted was material and did not show that they had pursued it timely. The trial judge’s on-the-record frustration—two years into the case with no discovery from plaintiffs—became an appellate fact supporting the discretionary rulings.
On the no-evidence summary judgment, the appellate outcome was sealed by two linked failures. First, the trial court sustained objections to all of the plaintiffs’ proffered evidence (large, unorganized, unauthenticated materials and other defects). Second—and more important for appellate lawyers and trial counsel protecting the record—the plaintiffs did not challenge that evidentiary order on appeal. With the evidence excluded and the exclusion unchallenged, the court of appeals effectively had no competent evidence to review for a fact issue on Dram Shop elements. The no-evidence summary judgment therefore stood.
Holding
The court affirmed the protective order and denial of continuance. Because the plaintiffs never sought or obtained a signed Level 3 discovery-control plan and conducted no discovery within the applicable Level 2 period, the trial court did not abuse its discretion in quashing the late discovery, declaring discovery closed, and refusing to continue the case so the plaintiffs could “start” discovery after the deadline.
The court also affirmed the no-evidence summary judgment. The plaintiffs failed to challenge on appeal the trial court’s order sustaining Showdown’s objections to all summary-judgment evidence; with no competent evidence remaining in the record, there was nothing to raise a genuine issue of material fact on the challenged Dram Shop Act elements.
Practical Application
In family-law litigation, this case should be read as a procedural discipline opinion, not a dram-shop opinion. Texas family courts run increasingly on firm scheduling orders, pretrial deadlines, and evidentiary gatekeeping—especially in cases involving business-owner spouses, tracing experts, forensic downloads, mental-health experts, or third-party discovery.
Key takeaways for litigators:
- “We pled Level 3” is not a substitute for a signed Level 3 order. If you need expanded discovery (custody social study materials, electronic records, business valuation inputs), file the motion early and obtain a signed plan. Without it, Level 2 controls—and you can lose the case on deadlines alone.
- Continuance practice must be built for appeal. If you seek a continuance to obtain discovery or evidence, you must show diligence, materiality, and why the evidence could not have been obtained earlier. A conclusory “we need more time” motion invites an abuse-of-discretion affirmance.
- No-evidence MSJs are increasingly viable in family-adjacent civil issues. While no-evidence MSJs are not typical in SAPCR merits, they arise in related civil claims (torts between spouses, fraud, contract, business disputes, third-party claims), and evidentiary exclusions can make them outcome determinative.
- Evidentiary rulings must be appealed. If your summary-judgment proof is struck and you do not challenge the striking order, you have likely surrendered the merits on appeal, even if your underlying theory is strong.
- “Document dumps” are not evidence. Courts expect authenticated, cited, organized proof that ties to elements—particularly in high-volume electronic discovery contexts common in modern divorce practice.
Checklists
Securing Level 3 (Expanded) Discovery in a Family Case
- File a motion for Level 3 discovery-control plan early (do not rely on pleading language).
- Attach a proposed Level 3 order with: discovery scope, limits, deadlines, ESI protocol (if relevant), and expert/mediation dates.
- Set the motion for hearing and get a signed order—confirm it is entered on the docket.
- If the court prefers a global scheduling order, ensure it expressly modifies Rule 190 limits where needed.
- Calendar the controlling deadlines the day the order is signed (and again after any reset).
“Diligence-Ready” Continuance Packet (Discovery/Evidence)
- Verified motion and/or affidavit establishing diligence.
- Identify specific discovery needed (requests, subpoenas, depositions) and why it is material to pleaded issues.
- Provide a chronology showing prior efforts and obstacles (dates of requests, meet-and-confer, follow-ups).
- Explain why the evidence could not have been obtained earlier with reasonable diligence.
- Request tailored relief (limited continuance, partial reset, phased discovery) rather than an open-ended delay.
Surviving a No-Evidence Motion (or Equivalent Elemental Attack)
- Map each challenged element to pinpoint citations to admissible evidence.
- Use competent proof: authenticated records, proper business-record affidavits, deposition excerpts, sworn declarations that comply with Texas requirements.
- Avoid “binder drops”: organize exhibits and include an exhibit index; cite page/line with precision.
- Confirm the adequate time for discovery record: show what was served, what was produced, and what remains outstanding (if relevant).
- If evidence is excluded, preserve error and be prepared to challenge the exclusion on appeal.
Protecting the Appellate Record on Evidence Exclusions
- Obtain a written order on objections (or ensure the ruling is clearly on the record).
- If leave is required for late-filed summary-judgment evidence, move for leave and obtain a ruling.
- If you withdraw a filing at hearing, understand the consequence: it may eliminate your best proof.
- On appeal, challenge the evidentiary ruling specifically; otherwise, the reviewing court may treat the case as having no evidence.
Citation
Estate of Samantha Skaggs; Robbin Skaggs, Individually and as Personal Representative of the Estate of Samantha Skaggs; and Walter Skaggs Sr. v. Peternett, Inc. d/b/a Showdown, No. 02-25-00257-CV (Tex. App.—Fort Worth Mar. 26, 2026) (mem. op.).
Full Opinion
Family Law Crossover
This opinion is deployable in divorce and custody litigation as a deadline-enforcement weapon: if the other side has sat on discovery and then claims “we need Level 3,” you can frame the dispute as a Rule 190 problem of their own making—Level 2 governs absent a signed Level 3 plan, and a court acts well within discretion to quash late discovery and deny continuances that reward inaction. It is equally potent in evidentiary fights that precede dispositive rulings (sanctions-based exclusions, expert challenges, or no-evidence/elemental attacks in tort claims between spouses): once the trial court sustains objections that eliminate the opponent’s proof, appellate survival depends on directly challenging that exclusion—so pressing for a comprehensive objection ruling can be outcome determinative, not merely procedural.
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