Verkin v. Southwest Center One, Ltd.
| Decision Date | 21 December 1989 |
| Docket Number | No. 01-88-00785-CV,01-88-00785-CV |
| Citation | 784 S.W.2d 92 |
| Parties | William P. VERKIN d/b/a Verkin Properties, Appellant, v. SOUTHWEST CENTER ONE, LTD., Appellee. (1st Dist.) |
| Court | Texas Court of Appeals |
Timothy R. Ploch, Bro & Ploch, Houston, for appellant.
Mynde S. Eisen, Michael C. O'Connor, O'Connor, Wisner, Craig & Young P.C., Houston, for appellee.
Before O'CONNOR, WARREN and COHEN, JJ.
This is an appeal from a summary judgment for plaintiff. We reverse and remand the cause to the trial court.
Defendant, William P. Verkin d/b/a Verkin Properties, leased property from plaintiff, Southwest Center One, Ltd., for $9,949.58 per month beginning April 1, 1987. Defendant paid full rent for several months and then began making partial payments. Plaintiff sued for past-due rent totalling $40,257.48, plus late payment penalties, attorney's fees, interest, and costs. The court granted plaintiff a summary judgment for $45,783.22.
Defendant contends: (1) the trial court abused its discretion when it refused him leave to file an amended answer and original counterclaim; (2) the trial court abused its discretion when it refused to grant his motion for continuance; and (3) there were fact issues that precluded the summary judgment. We find it unnecessary to consider any but the second point.
The record reveals the following significant dates.
3-16-88 Plaintiff filed suit.
3-29-88 Defendant was served.
4-15-88 Defendant's personal attorney filed general denial; defendant began looking for trial attorney to represent him.
5-5-88 Plaintiff filed motion for summary judgment; hearing set for 6-2-88.
5-8-88 Defendant received motion for summary judgment.
5-17-88 Defendant hired trial attorney; trial attorney immediately filed motion to substitute.
5-20-88 Court signed order substituting trial attorney for defendant's personal attorney; defendant's trial attorney attempted to contact plaintiff's attorney by telephone.
5-25-88 Defendant's counsel delivered request for production and interrogatories to plaintiff's counsel; finally was able to reach plaintiff's counsel to ask for additional time for discovery; plaintiff's counsel said no.
5-31-88 Defendant filed amended answer, motion for continuance, and response to motion for summary judgment.
6-1-88 Defendant filed counterclaim.
6-2-88 Hearing on motion for summary judgment; summary judgment granted.
In his sworn motion for continuance, defendant said he asked his personal attorney to file an answer and immediately began looking for a trial attorney. On the same day the trial court signed the order substituting the trial attorney, defendant's new counsel began calling plaintiff's counsel to discuss a continuance and discovery. Five days later, when he was unable to reach plaintiff, defendant delivered requests for production and interrogatories to plaintiff. When defendant finally reached plaintiff's counsel by telephone and asked for an agreed continuance, counsel refused and characterized the request as a stalling tactic. At the time of the hearing on the motion for summary judgment, plaintiff had not responded to the discovery.
We recognize that the granting or denial of a motion for continuance is within the trial court's sound discretion, and will not be disturbed except for clear abuse. Villegas v. Carter, 711 S.W.2d 624, 626 (Tex.1986).
Defendant's motion for continuance was in substantial compliance with the rule and was verified. Because plaintiff did not controvert it, we must accept the statements in the motion as true. Piedmont Fire Ins. Co. v. Dunlap, 193 S.W.2d 853, 856 (Tex.Civ.App.--Galveston 1946, writ ref'd n.r.e.). In Piedmont, this Court said that when considering a first motion for continuance, there is no presumption that the court did not abuse its discretion. Id. In ruling on a first motion for continuance, the trial court does not have the discretion to reject the uncontroverted facts established by defendant's sworn motion. Garza v. Serrato, 699 S.W.2d 275, 281 (Tex.App.--San Antonio 1985, writ ref'd n.r.e.).
Defendant challenges the trial court's ruling on the motion for continuance on several grounds, including: defendant's answer had been on file only 20 days when plaintiff filed the motion for summary judgment; plaintiff did not present evidence to oppose the motion for continuance; only twelve days elapsed from the time the order substituting defendant's trial counsel was signed and the hearing on the summary judgment was held; defendant had discovery requests outstanding at the time of the hearing on the motion for summary judgment.
Defendant's challenges can be consolidated into the argument that the trial court did not take into consideration three related factors:
(1) The suit was just filed.
(2) Defendant substituted a trial attorney for his personal attorney.
(3) There had not been enough time to investigate the case or make discovery.
Rule 252, Tex.R.Civ.P., governs the procedure for a motion for continuance made on the ground a party needs additional time for discovery. When requesting additional time for discovery, a party must fulfill the six requirements of rule 252 under oath. Those requirements and defendant's statements, which meet the requirements, are:
REQUIREMENTS OF DEFENDANT'S SUFFICIENT CAUSE
RULE 252
1. The testimony is Defendant needed plaintiff's answers to discovery to
material: begin investigation of the case
2. Proof of Defendant could not investigate the case without
materiality: plaintiff's answers to discovery
3. Show of diligence: Defendant filed request for discovery almost
immediately; made attempts to secure continuance by
agreement
4. Cause of failure, Plaintiff was unreasonable: filed motion for summary
if known: judgment 37 days after defendant was served with
suit; refused to agree to continuance even though
plaintiff had not responded to defendant's discovery
requests
5. Evidence not (Defendant was not required to prove this element in
available from first motion for continuance for discovery.)
other source
6. Continuance was Defendant stated this requirement in his motion.
not for delay
only, but that
justice be done:
A party who does not diligently utilize the procedure for discovery can seldom claim reversible error when the trial court refuses a continuance. State v. Wood Oil Distrib., Inc., 751 S.W.2d 863, 865 (Tex.1988). In Wood Oil, the suit had been pending for two years when Wood moved for a continuance. Wood asked for a continuance to read depositions of its own witnesses and take depositions of the State's witnesses. Wood had not conducted any discovery during the two years in which suit was pending. The supreme court held the trial court did not abuse its discretion because Wood did not prove diligence. The court said Wood's inability to review its own depositions or take the depositions of the State's witnesses was "a predicament of its own making." Id. Here, defendant's predicament was not of his own making. This case was barely filed. There is nothing in this record to suggest defendant was not diligent in pursuing discovery.
We recognize that in Fritsch v. J.M. English Truck Line, Inc., 151 Tex. 168, 171, 246 S.W.2d 856, 858-59 (1952), the supreme court said that a first motion for continuance, as opposed to a second motion, did not have any special cachet. The only difference between the first and second motion for continuance is that in the second motion, the party must state that the absent testimony cannot be procured from any other source. Id.; Tex.R.Civ.P. 252. At the time the trial court denied the motion for continuance in Fritsch, the case had been on the docket for one year, it had been twice set for trial, once preferentially, and defendant had announced ready four days before he filed the motion. It is easy to understand how the court decided that the Fritsch defendant could not claim any special consideration for a first motion for continuance under the circumstances of that case. We do not think the reversal in this case violates the rule in Fritsch.
Plaintiff defends the trial court's ruling on the motion for continuance on three separate grounds: (1) defendant received notice of the hearing on the summary judgment more than 21 days before the hearing, per Tex.R.Civ.P. 166a; (2) defendant's first counsel should have started the discovery; (3) the grounds stated in the motion for continuance are not compelling grounds for a continuance.
Plaintiff cites Cronen v. Nix, 611 S.W.2d 651, 653 (Tex.Civ.App.--Houston [1st Dist.] 1980, writ ref'd n.r.e.), cert. denied, 454 U.S. 833, 102 S.Ct. 132, 70 L.Ed.2d 112 (1981), for the proposition that it is not an abuse of discretion to deny a motion for continuance if the party receives 21 days notice of the hearing on a motion for summary judgment. Cronen is not controlling here. It certainly says what plaintiff is arguing. The facts in Cronen, however, do not parallel the facts here.
Cronen did not involve, as this case does, a plaintiff filing suit and immediately filing a motion for summary judgment on his own pleadings, before defendant could investigate the case. In Cronen, the defendant filed the motion for summary judgment. The distinction is significant: We can presume a plaintiff has investigated his own case; we cannot make the same assumption about a defendant.
Nothing in the Cronen opinion indicates the timing of defendant's motion for summary judgment. As far as we can tell from the opinion, Cronen's suit could have been languishing in the court for years before defendant filed a ...
To continue reading
Request your trial
-
Two Thirty Nine Joint Venture v. Joe
...except for a clear abuse of discretion. Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986); Verkin v. Southwest Ctr. One, Ltd., 784 S.W.2d 92, 94 (Tex. App.-Houston [1st Dist.] 1989, writ denied). In deciding whether the trial court abused its discretion in denying a rule 166a(g) motion fo......
-
Sipes v. General Motors Corp.
...abuse. Ross v. Arkwright, 892 S.W.2d 119, 125 (Tex.App.-Houston [14th Dist.] 1994, no writ); Verkin v. Southwest Center One, 784 S.W.2d 92, 96 (Tex.App.-Houston [1st Dist.] 1989, writ denied) (citing Villegas v. Carter, 711 S.W.2d 624, 626 (Tex.1986)). An appellate court may reverse a trial......
-
In re North American Refractories Co.
...controvert NARCO's verified motion; "we must accept the statements in the motion as true." Verkin v. Southwest Center One, Ltd., 784 S.W.2d 92, 94 (Tex. App.--Houston [1st Dist.] 1989, writ denied). In Verkin, the court held that "[i]n ruling on a first motion for continuance, the trial cou......
-
J.E.M. v. Fidelity & Cas. Co. of New York
...except for a clear abuse of discretion. Villegas v. Carter, 711 S.W.2d 624, 626 (Tex.1986); Verkin v. Southwest Ctr. One, Ltd., 784 S.W.2d 92, 94 (Tex.App.--Houston [1st Dist.] 1989, writ denied). In Levinthal, this Court considered the following nonexclusive list of factors in deciding whe......