Coleman v. Conway, No. 13-04-256-CV (TX 7/21/2005)
| Decision Date | 21 July 2005 |
| Docket Number | No. 13-04-256-CV.,13-04-256-CV. |
| Parties | ROBERT C. COLEMAN, Appellant, v. DANNY ALLEN CONWAY AND THE CITY OF KINGSVILLE POLICE DEPARTMENT, Appellees. |
| Court | Texas Supreme Court |
On appeal from the 105th District Court of Kleberg County, Texas.
Before Justices RODRIGUEZ, CASTILLO and GARZA
This is a personal injury suit in which Robert C. Coleman filed suit against Danny Allen Conway and the City of Kingsville Police Department. Conway, an officer with the City of Kingsville ("the City"), collided with Coleman's vehicle while operating a police vehicle. In his petition, Coleman alleged negligence, negligence per se, and negligence under the Texas Tort Claims Act.2 Conway and the City responded with various immunity claims. The trial court granted summary judgment in favor of Conway and the City, and it is from that judgment that Coleman appeals. We affirm.
In this case, Coleman filed his original petition on August 27, 2003, alleging negligence, negligence per se, and negligence under the Texas Tort Claims Act. Conway filed his original answer on September 15, 2003, denying the allegations against him. Conway alleged that Coleman was guilty of negligence, pleaded immunity from Coleman's claims, and invoked the protections of the Texas Tort Claims Act.
On February 11, 2004, Conway and the City filed a motion for summary judgment based on official and sovereign immunity. The City filed its answer on February 12, 2004, which (1) denied Coleman's allegations, (2) alleged that Coleman was himself guilty of negligence, and (3) asserted the affirmative defense of sovereign immunity and/or the protections of the Texas Tort Claims Act. Coleman filed a motion for continuance on April 15, 2004, along with a motion to strike the evidence attached to Conway and the City's motion for summary judgment. That same day, Coleman filed his response to Conway and the City's motion for summary judgment subject to his motion for continuance. On April 22, 2004, Conway and the City filed a response to Coleman's motion for continuance, a motion to strike evidence, and their objections and reply to Coleman's response to their motion for summary judgment.
The trial court, by an order dated April 22, 2004, (1) denied Coleman's motion for continuance, (2) denied Coleman's motion to strike Conway and the City's evidence, and (3) granted Conway and the City's motion for summary judgment.
By three issues on appeal Coleman contends the trial court abused its discretion by (1) failing to grant his motion for continuance, (2) sustaining Conway and the City's objections to his summary judgment proof, and (3) granting summary judgment against him.
Coleman filed a motion for continuance contemporaneously with his motion to strike the evidence and his response to the motion for summary judgment. In his motion for continuance, Coleman moved that the hearing on Conway and the City's motion for summary judgment be continued until Coleman had the opportunity to (1) take the deposition of Conway, (2) receive the deposition transcript, and (3) incorporate it into Coleman's response to the motion for summary judgment. Coleman also asked for "costs of court, attorney's fees, and for any other such further relief to which [Coleman] show[ed] himself justly entitled to receive." Coleman attached the following to his verified motion for continuance: (1) a letter dated April 2, 2004, addressed to Thomas A. Silver, attorney for Conway;3 (2) a fax transmission print out;4 (3) a letter, also dated April 2, 2004, addressed to the City of Kingsville, specifically to the records department;5 (4) a copy of a check written in the amount of six dollars, payable to the City of Kingsville and drawn on the account of Cassidy and Raub PLLC; (5) a letter dated April 8, 2004, addressed to the City of Kingsville, specifically to the records department;6 and (6) a receipt on City of Kingsville letterhead for payment of six dollars indicating the amount paid by Cassidy and Raub PLLC.
In their response to Coleman's motion for continuance,7 filed April 22, 2004, Conway and the City maintain that Coleman's inability to take the deposition of Conway directly resulted from the short amount of notice provided by Coleman. Conway and the City allege that Coleman gave unsatisfactory notice because, although Coleman filed suit the preceding August, the first request to depose came less than two weeks before the due date for Coleman's response to the motion for summary judgment.
The trial court denied Coleman's motion for continuance by an order dated April 22, 2004.8 On appeal, Coleman asserts that the trial court abused its discretion by failing to grant his motion for continuance. Coleman points out that (1) at the time of the summary judgment, Conway's answer had only been on file for about seven months, the City's answer had only been on file for about two months, and the lawsuit had only been on file for about eight months; (2) Coleman relied on opposing counsel regarding the taking of Conway's deposition; (3) the motion was the first motion for continuance filed; (4) the motion stated sufficient good cause, and was in substantial compliance with the continuance rule; and (5) the motion was verified and uncontroverted. Coleman asserts these points show diligence on his part.
The determination of a request for continuance of a summary judgment hearing is within the discretion of the trial court and will not be overturned unless a clear abuse of discretion is shown. Cocke v. Meridian Sav. Ass'n., 778 S.W.2d 516, 518 (Tex. App.-Corpus Christi 1989, no pet.) (citingSchero v. Astra Bar, Inc., 596 S.W.2d 613, 615 (Tex. Civ. App.-Corpus Christi 1980, no writ)). An abuse of discretion exists when the court's decision is arbitrary or unreasonable. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241 (Tex. 1985). In the summary judgment context, it is generally not an abuse of discretion to deny a motion for continuance if the party moving for continuance has received the twenty-one days' notice required by rule 166a(c) of the Texas Rules of Civil Procedure. Clemons v. Citizens Med. Ctr., 54 S.W.3d 463, 469 (Tex. App.-Corpus Christi 2001, no pet.) (citing Dallas Indep. Sch. Dist. v. Finlan, 27 S.W.3d 220, 234-35 (Tex. App.-Dallas 2000, pet. denied)). Factors considered when determining whether a trial court has abused its discretion by denying a motion for continuance of a summary judgment hearing include (1) the length of time the case was on file, (2) the materiality of the discovery sought, and (3) whether due diligence was used in obtaining discovery. Citizens Med. Ctr., 54 S.W.3d at 469 (citing Holguin v. Ysleta Del Sur Pueblo, 954 S.W.2d 843, 854 (Tex. App.-El Paso 1997, writ denied)).
Rule 166a(b) states that a defending party may move for summary judgment at any time and does not require a movant to allow an adequate time for discovery. See Tex. R. APP. P. 166a(b). When a party contends that it has not had 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. See TEX. R. CIV. P. 166a(g); Tenneco, Inc. v. Enter. Prods. Co., 925 S.W.2d 640, 647 (Tex. 1996). When considering a continuance request, a trial court can presume that a plaintiff has investigated its case prior to filing the petition. Citizens Med. Ctr., 54 S.W.3d at 469; Finlan, 27 S.W.3d at 235; White v. Mellon Mortgage Co., 995 S.W.2d 795, 804 (Tex. App.-Tyler 1999, no writ).
We examine the record with regard to (1) the length of time the case has been on file, (2) the materiality and purpose of the discovery sought, and (3) whether the party seeking the continuance has exercised due diligence to obtain the discovery sought. See Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004);Clemons v. Citizens Med. Ctr, 54 S.W.3d at 469. We first consider the length of time the case was on file. See id. Coleman filed his lawsuit on August 27, 2003. On February 12, 2004, Conway and the City filed their motion for summary judgment. By an order dated April 22, 2004, the trial court denied Coleman's motion for continuance and granted Conway and the City's motion for summary judgment. Almost eight months passed between the filing of the lawsuit and the date Coleman's motion for continuance was denied and Conway and the City's motion for summary judgment was granted.9 More than the requisite twenty-one days passed between the date Conway and the City filed their motion for summary judgment and the date the summary judgment was entered against Coleman. See Tex. R. CIV. P. 166a(c).
Second, we consider the materiality of the discovery sought. See Citizens Med. Ctr., 54 S.W.3d at 469. Coleman sought the deposition of Conway, the officer whose actions are the basis of this lawsuit. We conclude that the discovery sought was material to the case.
Finally, we determine whether Coleman used due diligence in obtaining discovery. See id. Coleman alleges that his diligence is evident as he (1) requested Conway's deposition at least two weeks prior to his response date for Conway and the City's summary judgment motion; and (2) conducted written discovery, which was delayed by his agreeing to Conway's request for an extension of time to respond to discovery requests.
While the materiality of the evidence Coleman sought the continuance to obtain is evident, after considering the length of time the case was on file, and Coleman's level of diligence in obtaining the deposition of Conway, we cannot conclude that the trial court abused its discretion in denying the motion for continuance. We overrule Coleman's first issue on appeal.
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