Enterprises & Contracting Co. v. Plicoflex, Inc.

Citation529 S.W.2d 805
Decision Date23 October 1975
Docket NumberNo. 16547,16547
PartiesENTERPRISES AND CONTRACTING COMPANY, Appellant, v. PLICOFLEX, INC., Appellee. (1st Dist.)
CourtCourt of Appeals of Texas. Court of Civil Appeals of Texas

Lapin, Totz & Mayer, William A. Petersen, Jr., Houston, for appellant.

Robert W. Simmer, Houston, for appellee.

COLEMAN, Chief Justice.

This is a suit by plaintiff-appellant, Enterprises and Contracting Company, to collect a judgment rendered in its favor and against defendant-appellee, Plicoflex, Inc., by the Beirut Commercial Court of the First Instance in the State of Lebanon. Plicoflex answered that the Beirut Court did not have personal jurisdiction over it and that it had a valid defense to the claims of plaintiff. Plicoflex made a motion for summary judgment and plaintiff filed a motion for continuance. Plaintiff's motion was denied, the summary judgment hearing was held and motion granted on March 3, 1975 and the summary judgment was signed and entered in behalf of Plicoflex on March 20, 1975.

Appellant's first point of error asserts that the trial court abused its discretion by not granting appellant's motion for continuance. The motion for continuance was filed pursuant to Rule 166--A(f) which provides as follows:

'Should it appear from the affidavits of a party opposing the motion (for summary judgment) that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.'

In the motion for continuance, counsel for appellant stated that: he was served with a copy of Plicoflex's motion for summary judgment on February 19, 1975, and was furnished with a copy of the answer some time after that; it was not until the aforementioned times when he was apprised of Plicoflex's allegations and motion for summary judgment that he could prepare his summary judgment proof; upon receipt of the answer, inquiries were made to appellant in Beirut, Lebanon; communication between counsel and appellant is extremely difficult; and there was no person within the United States from whom counsel could have obtained the necessary information and summary judgment proof. He further stated that the motion for continuance was not a dilatory tactic exercised for the purpose of delay, and requested that the motion be continued on the docket for a period of at least ninety days, to provide him with an opportunity to present affidavits in opposition to Plicoflex's summary judgment proof. Only twelve days after the motion for summary judgment was filed, the motion for continuance was denied and summary judgment was entered. It is appellant's contention on this appeal that '. . . it has not had a proper opportunity to fairly present its case in this matter . . .'

Plicoflex counters that appellant's motion for continuance did not fully comply with the requirements of Rule 252, T.R.C.P., and therefore was properly denied by the trial court. Rule 252 requires inter alia, that the movant for continuance for want of testimony shall show that the testimony is material. Plicoflex asserts that appellant's motion was deficient in this regard. The motion for continuance stated the following:

'As soon as Plaintiff's Counsel secured the answer of Defendant, inquiries were made of the Plaintiff of the facts necessary to be presented in order ot refute the Motion for Summary Judgment filed by the Defendant.'

The basis for Plicoflex's motion for summary judgment and the sole import of his summary judgment proof was that none of the officers of Plicoflex and neither of the registered agents in Texas or Delaware had been served with process in the Beirut case. Yet it appears on the face of the motion for continuance that appellant's summary judgment proof or the testimony to be obtained would assert that there had been service of process on Plicoflex which proof was, of course, material to the disposition of the case.

Both the Courts of Civil Appeals in Dallas and Amarillo have held applications for additional time under the summary judgment provision of Rule 166--A do not necessitate a strict compliance with all the requirements of Rule 252. Green v. Smart, 333 S.W.2d 880, 885 (Tex.Civ.App.--Dallas, 1960, no writ history); Wilkerson v. Moore, 465 S.W.2d 382, 384 (Tex.Civ.App.--Amarillo, 1971, no writ history). A case closely in point with the instant case is Watson v. Godwin, 425 S.W.2d 424 (Tex.Civ.App.--Amarillo, 1968, writ ref'd n.r.e.). Watson is a summary judgment case in which the motion for continuance was neither verified nor supported by affidavit and in which the record failed to show that the testimony sought was material. The court held that the failure to show materiality was 'also' fatal to the point of error. Such holding was preceded by the following statement of the law in Texas:

'Rules relating to continuance merely prescribe certain requisites of the application. Accordingly, if an application for continuance does not conform to the provisions of a statute or rule regulating same the granting of relief is within the sound discretion of the court . . . If it is demonstrated that the rule has not been complied with it will be presumed, in the absence of a showing to the contrary, that the court has not abused its discretion.' Id. at pg. 430.

In Traweek v. Radio Brady, Inc., 441 S.W.2d 240 (Tex.Civ.App.--Austin, 1969, writ ref'd n.r.e.), the court found no abuse of discretion when the trial court overruled a motion for leave to file supplemental pleadings at the summary judgment hearing. The following observation was, however, made in Traweek at page 243:

'Rule 166--A, Texas Rules of Civil Procedure, provides that opposing affidavits be filed prior to the date of hearing. The rule contains ample provisions for the protection of the litigants where it appears to the trial court that some modification of the literal requirements of the rule is required in the interest of justice. The rule contemplates that the trial court will have broad discretion in setting reasonable deadlines in summary judgment proceedings.'

We are of the opinion that the trial court abused its discretion in overruling appellant's motion for continuance. However such error was not properly preserved. The ruling of a court with regard to a motion for continuance shall be considered to have been acquiesced in unless complained of in the motion for new trial. Rule 325, T.R.C.P. That rule applies where summary judgment has been granted. Watson v. Godsin, 425 S.W.2d 424, 430 (Tex.Civ.App.--Amarillo, 1968, writ ref'd n.r.e.); Shaw v. Transport Life Ins. Co., 498 S.W.2d 495, 499 (Tex.Civ.App.--Texarkana, 1973, no writ hist.). It is further necessary that a motion for new trial be filed within ten days after the judgment is rendered. Rule 329b, T.R.C.P.

In the instant case, appellant filed 'Plaintiff's Motion for Reconsideration' which might be considered a motion for new trial. The transcript indicates that the motion was filed on April 3, 1975. The summary judgment was signed on March 20, 1975. Since fourteen days had elapsed between the entry of judgment and the motion for 'new trial,' the motion was not timely filed.

The court's overruling of the motion for continuance must, therefore, be considered to have been acquiesced in notwithstanding app...

To continue reading

Request your trial
6 cases
  • Garza v. Allied Finance Co.
    • United States
    • Court of Appeals of Texas. Court of Civil Appeals of Texas
    • April 20, 1978
    ...Tex. 442, 322 S.W.2d 492, 500 (1958); Fail v. Lee, 535 S.W.2d 203, 207 (Tex.Civ.App. Fort Worth 1976, no writ); Enterprises and Contracting Co. v. Plicoflex Inc., 529 S.W.2d 805 (Tex.Civ.App. Houston (1st Dist.) 1975, no The following statement contained in defendants' answer in opposition ......
  • Manges v. Astra Bar, Inc.
    • United States
    • Court of Appeals of Texas. Court of Civil Appeals of Texas
    • February 21, 1980
    ...the trial court's discretion. The ruling will not be disturbed on appeal unless an abuse of discretion is shown. Enterprises & Contracting Co. v. Plicoflex, Inc., 529 S.W.2d 805 (Tex.Civ.App. Houston (1st Dist.) 1975, no writ); Watson v. Godwin, 425 S.W.2d 424 (Tex.Civ.App. Amarillo 1968, w......
  • Caulley v. Caulley
    • United States
    • Court of Appeals of Texas
    • August 17, 1989
    ...decree and the resulting judgment for alimony. Appellant cites an article from the Houston Post as well as Enterprises & Contracting Co. v. Plicoflex, Inc., 529 S.W.2d 805 (Tex.Civ.App.--Houston [1st Dist.] 1975, no writ.), and Acco International Paper Stock Corp. v. Sea-Land Service, Inc.,......
  • Schero v. Astra Bar, Inc., 1451
    • United States
    • Court of Appeals of Texas. Court of Civil Appeals of Texas
    • February 21, 1980
    ...the trial court's discretion. The ruling will not be disturbed on appeal unless an abuse of discretion is shown. Enterprises & Contracting Co. v. Plicoflex, Inc., 529 S.W.2d 805 (Tex.Civ.App. Houston (1st Dist.) 1975, no writ); Watson v. Godwin, 425 S.W.2d 424 (Tex.Civ.App. Amarillo 1968, w......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT