OPINION
This сase arises out of a business venture involving property for a golf resort in La Paz, Mexico. Thomas Muller was one of three individuals who formed La Paz Golf Villas, LLC. La Paz and Desarrollos Punta La Paz S. de R.L, de C.V. entered into an escrow agreement with the international division of Stewart Title Guaranty Company (STGC) serving as escrow agent. Muller contributed funds for the escrow. After La Paz and Desarrollos cancelled the agreement, STGC released the remaining escrow funds to a La Paz account. In pertinent part, Muller brought claims against STGC and STGC’s employee, Joseph Alvarado, for releasing the funds to the La Paz account instead of releasing the funds to him. The trial court granted STGC’s and Alvarado’s motions for traditional and no-evidence summary judgment; STGC’s and Alvarado’s motiоn to strike a fifth amended petition naming La Paz as an additional plaintiff; and STGC’s and Alvarado’s motion to strike La Paz’s petition in intervention and to enter final judgment.
On appeal, Muller argues that: the trial court erred in granting summary judgment against him on his contract and fiduciary claims; the trial court abused its discretion by not continuing the summary-judgment hearing for Muller to conduct additional discovery; the trial court abused its discretion in striking the fifth amended petition; and the trial court abused its discretion in striking La Paz’s petition in intervention. We affirm.
I. Background
Thomas Muller, James Limperis, and Frederick Stock formed La Paz Golf Villas, LLC, a Nevada company, in order to purchase development property for a golf resort in La Paz, Mexico, from Desarrollos
A few months later, there arose “a disagreement among the members of La Paz.” Muller, Limperis, and Stock signed a settlement agreement in 2006 and another settlement agreement and mutual release in 2008.
In August 2011, Limperis sent STGC a letter as a “managing member” of La Paz. In that letter, La Paz requested a transfer of “interest only to date” from the escrow account to La Paz’s “business bank account with Nevada State Bank.” The letter provided wiring instructions for this account.
In October 2011, Muller (on behalf of himself and Stock) and Limperis signed the “La Paz Golf Villas, LLC, Agreement.” This agreement stated that Limperis as a “managing member” of La Paz “has established our entity bank account and facilitated the withdrawal of interest only from our Escrow Account with” STGC, and that the interest-only amount of $183,531.77 was wired and received in La Paz’s bank account in August 2011. This agreement outlined what would occur in the event the closing and acquisition of the property was unsuccessful. In pertinent part, the agreement provided that Limperis would release the escrow funds to the same La Paz bank account at Nevada State Bank.
On April 19, 2012, La Paz and Desarrol-los sent STGC a signed notice of cancellation and requested that the remaining еscrow funds be released to La Paz’s bank account at Nevada State Bank. Limperis signed the notice for La Paz. The notice included wiring instructions with the same account number and routing number as in the August 2011 interest request.
On April 23, 2012, Alvarado sent Lim-peris an email regarding processing the cancellation. Alvarado stated:
In order to return the funds back, we need to send the funds back to the accounts) from which they originated from. According to our records, we received funds from two different accounts:
Cummings & Lockwood LLC (Bank of America)
Thomas R. Muller (US Trust Company of NY)
Can you please provide the wiring instructions for each account? If the accounts) are no longer valid, can youplease provide us' with new wiring instructions?
Limperis replied to Alvarado’s email:
Those accounts are no longer valid: I have given instructions to wire to our business account at Nevada State Bank as part of the сancellation requirement. If for any reason you cannot distribute funds to our business account' at Nevada State Bank I would request that NO cancellation take place and the contracts and escrow remain in place. Please send confirmation' that you-understand the request and verify that if canceled the escrow funds will be distributed as directed to Nevada State Bank....
Thank you,
Jim Limperis
La Paz Golf Villas
STGC released just under $1.76 million to La Paz’s account at Nevada State Bank.
In April 2014, Muller originally brought suit against Limperis, STGC, Alvarado, Does 1-10, and Roes Cos. 11-20. By April 2015, Muller had amended his petition four times. Muller removed Limperis as a defendant and named five additional defendants (Steve Gottardy, Mitch Creekmore, Tanya M. Harris, Farah A. Najjar, and Veronica Ramos) who allegedly were employеes of STGC.
On September 29, 2015, STGC filed a' traditional and no-eviderice motion for summary judgment, and a notice of hearing.
STGC’s and Alvarado’s summary-judgment motions were set for hearing on Monday, December 14, 2015. On Sunday, December 13, Muller sent counsel for STGC and Alvarado a supplemental declaration in support of opposition to defendants’ traditional and no-evidence motions for. summary judgment, as well as a fifth amended petition naming La Paz as a plaintiff. The file stamps on these documents indicate that they were filed first thing on December 14, 2015. That same
In January 2016, STGC and Alvarado filed a verified motion to strike the fifth amended pleading and to show authority, and motion to enter final judgment. The trial court held a hearing on the motion on February 22, 2016. On February 25, 2016, La Paz as intervenor-plaintiff filed a petition in intervention. On March 2, 2016, the trial court signed an order of dismissal and interlocutory judgment. The next day, STGC and Alvarado filed a, motion to strikе the petition in intervention .and to enter final judgment. The trial court held another hearing on March 14, 2016. That same day, the trial court signed its order striking intervention and rendering final judgment.
Muller and La Paz timely appealed.
II. Analysis
A. The trial court properly granted summary judgment.
In an overarching first issue, Muller contends that the trial court érred in granting summary judgment and requests reversal and remand of his breach-of-contract and breach-of-fiduciary-dúty claims. Second, Muller argues that there is a genuine issue of material fact regarding whether he is an intended, third-party beneficiary of the escrow agreement and therefore owed contractual and fiduciary duties. Third, Muller argues that there is a fact issue regarding breach of those contractual and fiduciary duties.
1. Trial court’s refusal to continue the summary-judgment hearing
We address Muller’s fourth issue first. Muller argues that the trial , court abused its discretion in refusing to continue the summary-judgment hearing until Muller was able .to conduct the discovery he needed to be able to adequately respond to STGC’s and Alvarado’s no-evidence motion for summary ■ judgment.
STGC and Alvarado respond that because Muller did not obtain a written ruling on his request to continue the summary-judgment hearing, he failed to preserve error on his argument that the trial court abused its discretion when it went ahead with the hearing. See Lewis v. Marina Bay Trucks, Inc., No. 14-02-00053-CV,
The trial court may order a continuance of a summary-judgment hearing “to permit affidavits to be obtained or depositions to be taken or discovery to be had” if it appears “from the affidavits of a party opposing the motion that he cannot for rеasons stated present by affidavit facts essential to justify his opposition,” Tex. R. Civ. P. 166a(g). A party contending that it has not had an adequate opportunity for discovery before a summary-judgment hearing either must file an affidavit explaining the need for further discovery or file a verified motion for continuance. See Tenneco Inc. v. Enter. Prods. Co.,
In his opposition to STGC’s and Alvarado’s summary-judgment motions, Muller noted that discovery in his case was not set to close until April 18, 2016, with the trial set for May 16, 2016. In his affidavit, Muller stated that “[tjhe necessary discovery remaining include[d]” what he alleged was a complete copy of the escrow agreement and the deposition of the Mexico closing coordinator for STGC, as well as third-party records and additional depositions.
The hearing on the motions for summary judgment was originally noticed and set for more than 21 days after the motions were filed, in compliance with rule 166a(c). The hearing took place two and a half months after the motions were filed. Generally, it is not an abuse of discretion to deny a motion for continuance where a party has received the 21-days’ notice required by rule 166a(c). Carter v. MacFadyen,
Moreover, Muller failed to provide any explanation for why any of the requested additional discovery was “necessary” or material. See Doe v. Roman Catholic Archdiocese of Galveston-Houston ex rel. Dinardo,
In addition, Muller did not point to any place in the record showing his diligent efforts to оbtain, nor did he aver that he filed a motion to compel, any of this discovery. See Bottenstein v. Univ. of Tex. Med. Branch at Galveston, No. 14-07-00747-CV,
2. Standard of review
We review the trial court’s summary judgment de novo. Valence Operating Co. v. Dorsett,
A nо-evidence motion for summary judgment is essentially a motion for a pretrial directed verdict. See Tex. R. Civ. P. 166a(i); Timpte Indus., Inc. v. Gish,
The party moving for a traditional summary judgment has the burden to show that no material fact issue exists and that it is entitled to summary judgment as a matter of law. Tex. R. Civ. P. 166a(c); Willrich,
Where, as here, a summary judgment fails to specify the grounds upon which the trial court relied for its ruling, we must affirm the judgment if any of- the grounds advanced is meritorious. See Carr v. Brasher,
3. Muller’s contract claims
In their summary-judgment motions, with, regard to Muller’s claims for breach of the escrow agreement, STGC and Alvarado argued that there was no evidence Muller was a party to or a third-party beneficiary of that agreement. STGC and Alvarado also argued that Muller’s contract claim failed as a matter of law because the four corners of the escrow agreement showed Muller was not a party or a third-party beneficiary. STGC and Alvarado asserted that Muller’s reliance on extrinsic evidence was irrelevant and incompetent.
Muller argues that there is a genuine issue of material fact regarding whether Muller is an intended, third-party beneficiary of the escrow agreement. Muller focuses on evidence extrinsic tо the escrow agreement — namely, that Muller contributed escrowed funds and the parties to the escrow agreement knew that. John Pair, a principal of Desarrollos, stated that he understood Muller contributed escrowed funds and that the escrow agreement was executed directly for the benefit of, and was intended to secure a benefit to,, all parties involved in the La Paz project, including Muller. Muller asserts that STGC knew that funds, in the escrow account originated from Muller’s bank account. In addition, Muller argues that the escrow agreement indicated “an ‘intent to benefit Muller because it contemplates the party depositing funds into the escrow account being a party to the agreement.”
In First Bank, this court concluded the trial court did not err in submitting a third-party-beneficiary issue to the jury over an objection that such analysis should be limited to the four corners of the commitment letters at issue and that construction of the unambiguous letters was a matter of law for the court. Id. at 19-20. In doing so, we relied upon the decisions of the Supreme Court of Texas in Sharyland Water Supply Corp. v. City of Alton,
Recently, the Supreme Court of Texas reversed our decision in First Bank. The Brumitt Court began its analysis by providing “well-established principles.”
“It is not enough that the third party would benefit — whether directly or indirectly — from the parties’ performance, or that the parties knew that the third party would benefit.” Id. (citing, amongst others, Sharyland,
Instead, “[t]o determine whether the contracting parties intended to directly benefit a third party and entered -into the contract for that purpose, courts must look solely to the contract’s language, construed as a whole.” Id. at 102, *4. “The contract must include ‘a clear and unequivocal expression of the contracting parties’ intent to directly benefit a third party,’ and any implied intent to create a third-party beneficiary is insufficient.” Id. (quoting Tawes v. Barnes,
Finally, with regard to extrinsic evidence, the Brumitt Court concluded that in First Bank we erred in our reading of Basic Capital and Sharyland and that those decisions did not change the law or announce a new rule.
These types of references to thе “circumstances” surrounding a contract recognize that evidence of the circumstances may assist courts in construing the language the parties used, but they do not authorize courts to rely on such evidence to add to or alter the terms contained within the agreement itself. When parties “have a valid, integrated written agreement,” the parol-evidence rule “precludes enforcement of prior or contemporaneous agreements.” Hous. Expl. Co. v. Wellington Underwriting Agencies, Ltd.,352 S.W.3d 462 , 469 (Tex. 2011). As a result, “extrinsic evidence cannot alter the meaning of an unambiguous contract.” Dynegy Midstream Servs., Ltd. P’ship v. Apache Corp.,294 S.W.3d 164 , 170 (Tex. 2009). Courts may consider the “context in which an agreement is made” when determining whether the contract is ambiguous, but the parties may not rely on extrinsic evidence “to create an ambiguity or to give the сontract a meaning different from that which its language imports.” Anglo-Dutch Petroleum [Int'l, Inc. v. Greenberg Peden, P.C.], 352 S.W.3d [445,] 451 [ (Tex. 2011) ] (internal quotation marks omitted) (quoting David J. Sacks[, P.C. v. Haden], 266 S.W.3d [447,] 450-51 [(Tex. 2008) (per curiam))).
Brumitt,
Muller asserts that whether the parties to the escrow agreement intended to confer a benefit on him as a third party is a question of fact.
Muller does not contend that the escrow agreement is ambiguous. STGC and Alvarado assert that the agreement is unambiguous, and we agree. The escrow agreement plainly stated that it was made and entered into by and between Desarrollos as Seller and La Paz as Purchaser. The
Presumably, Muller, as underlying source of the escrowed funds and a manager and member of La Paz, would benefit from the real estate transaction and therefore from STGC’s agreement to serve as escrow agent for the transaction. Presumably, Desarrollos as Seller, La Paz as Purchaser, and STGC as escrow agent knew that Muller would so benefit. “But such presumptions cannot support [Muller’s] claim to be a third-party beneficiary.” See id. This is because “[contracts often benefit third parties, and the contracting parties are often aware that their performance under the contract will benefit third parties.” Id.
We also reject Muller’s argument that the agreement “contemplates the party depositing funds into the escrow account being a party to the agreement.” This is not what the agreement contemplates. Rather, it provides: “If the Party(ies) making de-posites) wish(es) to have the Escrowed Funds maintained in an interest bearing money market account, such party(ies) shall provide a completed Form W-9 (or Form W-8, if applicable) to Escrow Agent.” The next sentence of the agreement provides additional context that the “Party” at issue intended to benefit from any payment of interest was Purchaser La Paz: “All interest thereon shall be paid to Purchaser.” The agreemеnt does not provide that Muller or the individual or entity which was the underlying source of any deposited funds for Purchaser would receive the interest — or expressly receive any other benefit.
Nothing contained in the escrow agreement clearly, fully, wholly, and unequivocally expresses the parties’ intent to contract directly for Muller’s benefit and therefore to confer on Muller the right to be a claimant in the event of a breach. See id. at 104-05, 112-13, *5, 12. Relying on the escrow agreement’s plain and unambiguous language, we conclude that Muller is not a party or a third-party beneficiary. See id. at 104-05, *5. Even considering the extrinsic facts and circumstances that Muller raises to support his reading of the escrow agreement, they are of limited, if any, relevance and “cannоt be used to show that the parties probably meant, or could have meant, something other than what their agreement stated.” See id. at 110, *10 (quoting Anglo-Dutch Petroleum,
Because Muller is not a party or third-party beneficiary of the escrow agreement as a matter of law, STGC owed him no contractual duty, and the trial court properly granted summary judgment on Muller’s contract claims based on such agreement.
An escrow agent for a real estate transaction owes a fiduciary duty to both parties' to an escrow agreement: the buyers and the sellers of the property. Gary E. Patterson & Assocs., P.C. v. Holub,
In their summary-judgment motions, STGC and Alvarado argued there was no evidence that they owed Muller any fiduciary duties because there was no evidence of an agreement among Muller, another party, and STGC for which STGC would serve as an escrow agent. STGC and Alvarado also argued that Muller was not a party to the agreement between Desarrol-los, and La -Paz for the underlying real estate transaction for which STGC served as escrow agent. - According to STGC and Alvarado, even if Muller effectively was a creditor of the party La Paz, an escrow agent-does not owe any fiduciary duty to a non-party creditor of a party to the escrow agreement. See Gary E. Patterson,
Muller essentially reurges his position that he is a third-pаrty beneficiary of the escrow -agreement. Therefore, Muller asserts that he was owed fiduciary duties by STGC and Alvarado “as though he were a named party to the agreement.”;
We have determined as a matter of law that Muller is not a party to the escrow agreement. We also already have determined that Muller is not a third-party beneficiary as a matter of law. Nevertheless, Muller cites Zimmerman for the proposition that an escrow agent owes fiduciary duties to a non-party to the escrow agreement. Zimmerman, however, is distinguishable.
In Zimmerman, the appellate court reversed a directed take-nothing verdict entered against a real estate agent plaintiff on his contract and fiduciary claims against the title company escrow agent. The plaintiff in Zimmerman was a signatory to the purchase contract and the con
We conclude that as a matter of law STGC and Alvarado owed Muller no fiduciary duties based on any status, as-.a third-party beneficiary of the escrow agreement. Therefore, the trial court properly granted summary judgment on Muller’s fiduciary claims.
B. The trial court did not abuse its discretion by striking La Paz’s attempts to intervene.
According to Muller and La Paz, La Paz had a right to intervene because of its justiciable interest in the pending suit. In their fifth and sixth issues, Muller and La Paz argue that the trial court abused its discretion by striking the fifth amended рetition. They contend that the fifth amended petition was actually La Paz’s •first petition in intervention, was timely filed under rule 60 because the trial court had not entered final judgment, and La Paz had authority under both Nevada and Texas law to intervene. In their seventh and eighth issues, Muller and La Paz again contend that the trial court abused its discretion by striking La Paz’s intervention essentially because it was timely filed.
“Any party may intervene by filing a pleading, subject to being stricken out by the court for sufficient cause on the motion of any party.” Tex. R. Civ. P. 60. We review a trial court’s striking of a petition in intervention for abuse of discretion. See Guaranty Fed. Savs. Bank v. Horseshoe Operating Co.,
A trial court may' strike an intervention where (1) the intervention will complicate the case by excessive multiplication of the issues or (2) the intervention is not necessary to effectively protect the
It thus appears that Intervenors waited about three, years and nine months after suit was filed by Armstrong before attempting to intervene in the ease, and their petition was filed after Tideland’s motion for summary judgment was filed and set for hearing originally on December 4, 1969. Under these conditions it appears that we need not reach the question of limitations and the order dismissing the petition in intervention may be affirmed on the basis that it was not timely filed as is contended by ap-pellee’s third reply point.
Armstrong v. Tidelands Life Ins. Co.,
STGC and Alvarado moved to strike both the fifth amended petition and La Paz’s petition in intervention as improper bqsed on untimeliness, prejudice, and unreasonable delay. STGC and Alvarado asserted that La Paz’s intervention was “filed too late.” STGC and Alvarado argued that they litigated the case against Muller for over a year, conducted discovery, filed and set their summary-judgment motions that effectively set the case for trial, and showed they were entitled to summary judgment and dismissal.
Here, La Paz waited until just before the summary-judgment heаring to attempt to intervene, almost 20 months after Muller filed suit, and two and a half months after STGC and Alvarado filed and set for hearing their summary-judgment motions. La Paz made its second attempt to intervene on February 25, 2016, three days after the hearing on STGC’s and Alvarado’s motion to strike the fifth amended petition, more than 22 months after Muller filed suit, and more than two months after the trial court heard and granted summary judgment in favor of STGC and Alvarado.
Muller and La Paz rely on Texas Mutual Insurance Co. v. Ledbetter,
Under these circumstances, and considering the trial court’s broad discretion to consider all the issues related to whether the intervention was proper, Muller and La Paz have not shown that the trial court acted without any referеnce to guiding rules or principles. We overrule Muller and La Paz’s fifth through eighth issues.
III. Conclusion
Having overruled Muller’s challenges to the granting of summary judgment and Muller’s and La Paz’s challenges to the striking of the fifth amended petition and the petition in intervention, we affirm the trial court’s final judgment.
Notes
. Stewart Information International is a former division of STGC,
. These individuals are not parties to this appeal,
. To its motion, STGC attached: excerpts from Muller’s deposition, the escrow agreement, a November 2005 letter from Muller and Stock to John Fair of Fair Enterprises, LLC, the April 2012 notice of cancellation, an April 2012 file ledger of the escrow account, the August 2011 request for'withdrawal of interest, and excerpts from Alvarado's deposition.
. To his response, Muller attached: an affidavit by Muller, the escrow agreement, an affidavit by Fair, the STGC escrow аccount deposit receipt issued to La Paz,, the November 2005 letter from Muller and Stock to Fair, the August 2011 request for withdrawal of interest, the signature card for the La Paz Nevada State Bank account, excerpts from Alvarado’s deposition, an August 2011 account statement for the La Paz Nevada State Bank account, the October 2011 La Paz agreement, excerpts from Creekmore’s and Gottardy’s depositions, the April 2012 notice of cancellation, the April 2012 email exchange between Limperis and Alvarado, an August 2014 order granting in part Muller’s motion for summary judgment against Limperis signed by the district court for Clark County, Nevada, the docket in a Nevada criminal action against Limperis, an initial expert report by Robert E. Philo, and an August 2011 email exchange between a principal at Cummings & Lockwood LLC and Gottardy.
. Aside from issue four, Muller only provides arguments specifically challenging the summary judgment with regard to his contract and fiduciary claims,
. In his- opposition, Muller did not argue there had been inadequate time for discovery such that the trial court could not grant summary judgment under rule 166a(i). Muller instead requested additional time for discovery pursuant to rule 166a(g).
. Muller also relies on a supplemental declaration, arguing that in "significant detail" his supplemental declaration "outlined what discovery was needed, why it was relevant, and what efforts he took to obtain it.” The supplemental declaration was filed as a stand-alone document on December 14, 2015, the same day the trial court held the summary-judgment hearing and signed its orders granting summary judgment. However, "[s]howing that a motion was filed with the court clerk does not constitute proof that the motion was brought to the trial court’s attention or presented to the trial court with a request for a ruling.” See Zahorik v. Metro. Life Ins. Co., No. 14-14-00564-CV,
. STGC and Alvarado further argued that even if Muller was a third-party beneficiary, he could not show that STGC breached the escrow agreement.
. The Texas cases cited by Muller are not persuasive because they did not involve intent of the parties in the context of a construing a written contract. See State Farm Fire & Cas. Co. v. S.S.,
. Because we conclude that the trial court properly could have granted summary judgment as to Muller's contract claims based on lack of duty, we need not address Muller’s
. The duties of the escrow agent are limited and defined by the escrow agreement itself. Garcia,
. STGC and Alvarado further argued that even if a fiduciary duty existed, Muller could , not show that STGC and Alvarado breached such a duty.
. Muller also cites Gonzales v. American Title Co. of Houston,
. Because we conclude that the trial court properly could have granted summary judgment as to Muller’s fiduciary claims based on lack of duty, we need not address Muller’s third issue regarding raising a fact issue on breach. See Tex. R. App. P. 47.1.