Bushnell v. Mott, No. 4-05-00846-CV (Tex. App. 9/13/2006), 4-05-00846-CV.
| Decision Date | 13 September 2006 |
| Docket Number | No. 4-05-00846-CV.,4-05-00846-CV. |
| Parties | GENEVIA BUSHNELL AND DEWARD RAYMOND (D.R.) BUSHNELL, Appellants, v. JANET MOTT, Appellee. |
| Court | Texas Court of Appeals |
Appeal from the 216th District Court, Gillespie County, Texas, Trial Court No. No. 9932, Honorable Stephen B. Ables, Judge Presiding.
AFFIRMED.
Sitting: Alma L. LÓPEZ, Chief Justice, Catherine STONE, Justice, Sarah B. DUNCAN, Justice.
In this dog bite case, Genevia Bushnell and her husband, Deward Raymond (D.R.) Bushnell (the Bushnells), appeal from a take-nothing summary judgment rendered in favor of Janet Mott. We affirm the judgment of the trial court.
In March of 2001, Genevia began corresponding via email with Janet Mott regarding Mott's purchase of Shaklee products.1 On March 18, 2001, Genevia emailed Mott and asked if she could make her delivery that evening. Although the record does not contain a response from Mott, Genevia claims to have confirmed the delivery with Mott by telephone. Genevia's son and daughter-in-law drove her to Mott's mobile home in Fredericksburg that evening. Genevia knocked on Mott's front door and heard dogs barking. When Mott opened the inside door, her three dogs pushed open the screen door and rushed out. Genevia was attacked by Mott's three dogs and was bitten fifteen times. Genevia claims that Mott did not attempt to stop the attack, and failed to render aid following the attack. Genevia's son stopped the attack and took her to the emergency room, where she received over thirty stitches. Genevia also claims that Mott refused to provide her with the dogs' shot records following the attack. Since the incident, Genevia has had two surgeries for injuries related to the bites.
On March 17, 2003, the Bushnells sued Mott, alleging claims of negligence and strict liability.2 Mott moved for a no-evidence summary judgment in November 2003, but never set a hearing date. Mott filed an amended no-evidence motion for summary judgment in December 2003.
On July 14, 2005, Mott filed a supplemental motion for summary judgment (traditional and no-evidence) and simultaneously set the hearing for August 8, 2005. The Bushnells claimed they were not notified of this hearing until July 26, 2005, at which time they asked opposing counsel for a resetting. The hearing was then reset for August 19, 2005. The Bushnells' counsel claimed he was not notified of the resetting until August 2, 2005. The Bushnells filed their response to the summary judgment motion, which included supporting affidavits and a motion for leave to file the untimely response and a motion for continuance, on August 17, 2005, two days before the hearing. Subsequently, on August 19, 2005, the trial court refused to consider the Bushnells' late-filed response, but postponed hearing oral argument on the summary judgment motions until September 2, 2005 to give the Bushnells' counsel more time to prepare. On August 24, 2005, nine days before the September 2, 2005 hearing, the Bushnells filed a supplemental response to the summary judgment motions, including amended affidavits and a supplemental motion for reconsideration requesting that the trial court reconsider whether all of the evidence presented in response to the motions should be considered.
At the September 2, 2005 hearing, the trial court refused to consider the amended affidavits. After hearing oral argument, the court took Mott's motion for summary judgment under advisement. Ultimately, the trial court granted the Bushnells' supplemental motion for reconsideration, but only with respect to Genevia's original affidavit filed on August 17, 2005, because the trial court concluded good cause had been shown for the late filing of the original affidavit. Nevertheless, the trial court refused to consider the evidence filed in support of the supplemental response, including Genevia's amended affidavit, and granted Mott's motion for summary judgment.
Mott moved for both no-evidence and traditional summary judgment. We apply a de novostandard of review to summary judgments. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 156 (Tex. 2004). A traditional motion for summary judgment is properly granted only when the movant establishes that there are no genuine issues of material fact and that the movant is entitled to judgment as a matter of law on a ground expressly set forth in the motion. Tex. R. Civ. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). In reviewing the grant of a summary judgment, we indulge every reasonable inference and resolve any doubts in favor of the non-movant. Nixon, 690 S.W.2d at 549. Additionally, we assume all evidence favorable to the non-movant as true. Id. at 548-49. A no-evidence summary judgment is improper if the non-movant presents more than a scintilla of probative evidence to raise a genuine issue of material fact. Tex. R. Civ. P. 166a(i); Moore v. K Mart Corp., 981 S.W.2d 266, 269 (Tex. App.-San Antonio 1998, pet. denied). More than a scintilla of evidence exists if it would allow reasonable and fair-minded individuals to differ in their conclusions. Forbes, Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167, 172 (Tex. 2003). 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. Id. If the trial court's judgment does not specify the grounds relied upon for its ruling, we must affirm the judgment if any of the theories advanced are meritorious. See Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001).
On appeal, the Bushnells argue that the trial court erred in refusing to consider their amended affidavits filed nine days before the September 2, 2005 hearing. At the August 19, 2005 hearing, the trial court denied the Bushnells' motion for continuance but postponed oral arguments on the summary judgment motions until September 2, 2005 to give the Bushnells' counsel more time to prepare his argument. The trial court stated on the record:
The motion for summary judgment, response to summary judgment, I'm not going to expand the time for you to file additional motions for summary judgment or for [plaintiffs' counsel] to add anything to his response. He is finished, and what he attempted to file August 17th, I am not going to consider that, but I am going to give him more time to prepare his argument on motion for summary judgment. He just came back. He said he hasn't had an opportunity to look through it and formulate his thoughts, so I'll give you more time on that and give you a date, but no additional filings, and the August 17th attempts at late filing will not be considered by the Court.
Mott argues that the September 2, 2005 setting was not a hearing in the sense that there had been no resetting or continuance, and therefore the trial court did not abuse its discretion in refusing to consider the supplemental response filed on August 24, 2005. Mott, however, has failed to cite any authority for the proposition that a postponement of oral argument does not constitute a resetting.
Rule 166a(c) provides, "Except on leave of court, the adverse party, not later than seven days prior to the day of hearing may file and serve opposing affidavits or other written response." Tex. R. Civ. P. 166a(c). Texas courts have interpreted the rule to mean that a written response to a motion for summary judgment can be filed, without leave of court, on the seventh day before the hearing or before. See, e.g., Volvo Petroleum, Inc. v. Getty Oil Co., 717 S.W.2d 134, 138 (Tex. App.-Houston [14th Dist.] 1986, no writ). Any written response or opposing affidavit filed on the seventh day before the day of the hearing will be deemed timely and may be properly considered without leave of court. See Benger Builders, Inc. v. Bus. Credit Leasing, Inc., 764 S.W.2d 336, 338 (Tex. App.-Houston [1st Dist.] 1988, writ denied) (); Allen v. Roddis Lumber & Veneer Co., 796 S.W.2d 758, 761 (Tex. App.-Corpus Christi 1990, writ denied) ().
Assuming without deciding that the trial court erred in refusing to consider the supplemental response submitted nine days before the summary judgment hearing, see Barry v. Moores, No. B14-91-00884-CV, 1992 WL 110706 (Tex. App.-Houston [14th Dist.] May 28, 1992, writ denied) (), the Bushnells voluntarily waived the admission of "ninety-nine percent" of their evidence. The Bushnells' counsel stated on the record that he was withdrawing ninety-nine percent of the evidence filed on August 17, 2005 and asked only to be permitted to argue the summary judgment motion on the basis of Genevia's amended affidavit, with her original affidavit attached, filed on August 24, 2005.3 On appeal, the Bushnells argue that this withdrawal was "conditioned" on the trial court's consideration of the Bushnells' supplemental response, which included Genevia's amended affidavit. We do not agree, however, that the withdrawal was conditioned on the trial court's consideration of Genevia's amended affidavit. In view of the Bushnells' counsel's withdrawal of all the evidence except Genevia's amended affidavit, we will assume for purposes of this opinion that the trial court erred in failing to consider Genevia's amended affidavit. Such error, however, would be harmless if the amended affidavit failed to raise a genuine issue of material fact. The Bushnells admitted on the record at the September 2, 2005 hearing that they were no...
To continue reading
Request your trial