law-motion-for-continuance-for-further-discovery | inadequate amount of time to conduct discovery | due
diligence in seeking discovery | no-evidence motion for summary judgment | notice of hearing on summary
judgment motion | notice of trial
When reviewing a trial court’s order denying a motion for continuance, we consider whether the trial court
committed a clear abuse of discretion on a case by case basis. Joe v. Two Thirty Nine Joint Venture, 145 S.W.
3d 150, 161 (Tex. 2004).
SUPREME COURT CRITERIA FOR DETERMINING WHETHER ADDITIONAL TIME OR
DISCOVERY SHOULD BE GRANTED ON MOTION FOR CONTINUANCE
The Texas Supreme Court has considered the following non-exclusive factors when deciding whether a trial
court abused its discretion in denying a motion for continuance filed for the purpose of gaining additional time
for discovery: the length of time the case has been on file, the materiality and purpose of the discovery sought,
and whether the party seeking the continuance has exercised due diligence to obtain the discovery sought. Id.
(diligence and length of time on file); Tenneco Inc. v. Enter. Prods. Co., 925 S.W.2d 640, 647 (Tex. 1996)
(materiality and purpose); National Union Fire Ins. Co. v. CBI Indus., Inc., 907 S.W.2d 517, 521-22 (Tex. 1995)
(materiality); State v. Wood Oil Distrib., Inc., 751 S.W.2d 863, 865 (Tex. 1988) (diligence); see also Perrotta v.
Farmers Ins. Exch., 47 S.W.3d 569, 576 (Tex. App.-Houston [1st Dist.] 2001, no pet.) (using these factors to
decide whether a trial court abused its discretion in denying a motion for continuance).
A party requesting additional time for discovery must comply with rule 252 under oath. See Hatteberg v.
Hatteberg, 933 S.W.2d 522, 527 (Tex. App.-Houston [1st Dist.] 1994, no writ).
The failure of a litigant to diligently utilize the rules of civil procedure for discovery purposes will not authorize
the granting of a continuance. State v. Wood Oil Distr., Inc., 751 S.W.2d 863, 865 (Tex. 1988).
Generally, it is not an abuse of discretion to deny a motion for continuance if a party has received the 21-days’
notice required by Rule 166a(c). Clemons v. State Farm Fire & Cas. Co., 879 S.W.2d 385, 394 (Tex. App.—
Houston [14th Dist.] 1994, no writ). A party seeking more time to oppose a summary judgment must file an
affidavit describing the evidence sought, explaining its materiality, and showing the due diligence used to obtain
the evidence. Tex. R. Civ. P. 166a(g). The affidavit must show why the continuance is necessary; conclusory
allegations are not sufficient. Carter v. MacFadyen, 93 S.W.3d 307, 310 (Tex. App.—Houston [14th Dist.]
2002, pet. denied).
MOTION FOR CONTINUANCE FOR SUMMARY JUDGMENT HEARING TO ALLOW
FOR ADDITIONAL DISCOVERY - SHOW DUE DILIGENCE
FAILURE TO PRESERVE ERROR ON THE GROUND THAT PARTY WAS DENIED SUFFICIENT
OPPORTUNITY TO CONDUCT DISCOVERY BEFORE SUMMARY JUDGMENT MOTION WAS RULED UPON
Rule 166a(i) provides that, “[a]fter adequate time for discovery, a party[,] without presenting summary judgment
evidence[,] may move for summary judgment on the ground that there is no evidence.” TEX. R. CIV. P. 166a(i).
Whether a nonmovant has had an adequate time for discovery under Rule 166a(i) is case specific. Madison v.
Williamson, 241 S.W.3d 145, 155 (Tex. App.—Houston [1st Dist.] 2007, pet. denied). Rule 166a(i) does not
require that discovery must have been completed, only that there was adequate time. Id. To determine whether
an adequate time for discovery had passed, we examine such factors as: (1) the nature of the case,(2) the
nature of evidence necessary to controvert the no-evidence motion,
(3) the length of time the case was active, (4) the amount of time the no-evidence motion was on file, (5)
whether the movant had requested stricter deadlines for discovery, (6) the amount of discovery already
completed, and (7) whether the discovery deadlines in place were specific or vague. Id. We review a trial court’s
determination on whether an adequate time for discovery had passed under an abuse of discretion standard. Id.
Here, Kahng only discusses, in less than specific terms, the third factor. Kahng asserts that an inadequate time
for discovery had passed because “the [t]rial [c]ourt granted the no-evidence summary judgment [motion] on
this matter[,] [a case] which was less than a year old, and the trial on the matter was set [for] October 8, 2007.”
Kahng “does not state how much time she had for discovery, what discovery was completed, what further
discovery was needed[,]or otherwise argue why the time was not adequate.” See Robertson v. Sw. Bell Yellow
Pages, Inc., 190 S.W.3d 899, 903 (Tex. App.—Dallas 2006, no pet.). We will not decide an issue on appeal
without proper argument and authority showing why the trial court acted erroneously. See Winchek v. Am.
Express Travel Related Servs. Co., 232 S.W.3d 197, 207 (Tex. App.—Houston [1st Dist.] 2007, no pet.).
Accordingly, we hold that “this issue is inadequately briefed and presents nothing for review.” See Robertson,
190 S.W.3d at 903 (concluding that appellant did not preserve issue for appellate review without addressing
factors on why appellant had inadequate time to conduct discovery).
Source: Kahng v. Verity (Tex.App.- Houston [1st Dist.] July 31, 2008)(Jennings) (auto PI, death, negligence,
man running into freeway, no-evidence motion for summary judgment, failure to preserve error)
The trial court may order a continuance of a summary judgment hearing if it appears "from the affidavits of a
party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his
opposition." Tex. R. Civ. P. 166a(g). We review the grant or denial of a motion for continuance for an abuse of
discretion. BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 800 (Tex. 2002). "We have considered the
following nonexclusive factors when deciding whether a trial court abused its discretion in denying a motion for
continuance seeking additional time to conduct discovery: the length of time the case has been on file, the
materiality and purpose of the discovery sought, and whether the party seeking the continuance has exercised
due diligence to obtain the discovery sought." Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex.
2004). City of Inkster Policeman and FIreman Retirement System v. Kinder (Tex.App.- Houston [1st Dist.] Jun.
STANDARD OF REVIEW OF DENIAL OF MOTION FOR CONTINUANCE: ABUSE OF DISCRETION
LACK OF DILIGENCE | FAILURE TO SHOW EVIDENCE OF DILIGENCE IN SEEKING DISCOVERY
TRCP 251 | due diligence affidavit |
Pouncy Pittman v. Pappas Restaurants (Tex.App.- Houston [1st Dist.] July 31, 2008)(Hanks)
(shooting in front of restaurant, not forseeable, no liability, motion for continuance, admission of evidence)
Generally, a trial court’s action in granting or denying a motion for continuance will not be disturbed on appeal
unless the record discloses an abuse of discretion. See Gen. Motors Corp. v. Gayle, 951 S.W.2d 469, 476
(Tex. 1997) (orig. proceeding); Sw. Country Enters. v. Lucky Lady Oil Co., 991 S.W.2d 490, 493 (Tex. App.—
Fort Worth 1999, pet. denied). In the summary judgment context, a court may order a continuance if the party
opposing the motion cannot “for reasons stated present by affidavit facts essential to justify his opposition.” Joe
v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004) (citing Tex. R. Civ. P. 166a(g)).
Rule 251 requires the party moving for a continuance to include an affidavit showing sufficient cause for the
continuance with its affidavit. Tex. R. Civ. P. 251; see also Tri-Steel Structures, Inc. v. Baptist Found. of Tex.,
166 S.W.3d 443, 448 (Tex. App.—Fort Worth 2005, pet. denied). If the request is based upon “want of
testimony,” the affidavit must set forth facts showing “due diligence to procure such testimony, stating such
diligence, and the cause of failure, if known.” Tex. R. Civ. P. 252. Assuming without deciding that the trial court
did in fact deny Pouncy-Pittman’s motion to continue the summary judgment hearing, we conclude no abuse of
discretion is shown.
The failure of a litigant to diligently use the rules of civil procedure for discovery purposes does not support the
granting of a continuance. See State v. Wood Oil Distrib., Inc., 751 S.W.2d 863, 865 (Tex. 1988). A court will
not be required to grant a continuance when the allegations in the motion, examined in light of the record, show
a complete lack of diligence. See id. (citing Fritsch v. J.M. English Truck Line, Inc., 151 Tex. 168, 246 S.W.2d
856, 858-59 (1952)).
Pouncy-Pittman’s motion to continue the summary judgment hearing was based upon her counsel’s failure to
procure discovery supporting her claim. Specifically, in the affidavit attached to the motion, Pouncy-Pittman’s
attorney listed the names of the employees of Pappadeaux whom he would seek to depose, and stated he
would also seek to depose Pappadeaux’s expert, Dr. Moore. He also stated he would seek to obtain a
“complete” investigation file from the Houston Police Department, and to obtain additional information regarding
crimes committed on surrounding properties.
As an excuse for his failure to conduct discovery in the eight months since the case had been filed, Pouncy-
Pittman’s counsel claimed he did not know the names of any of the employee witnesses until he received Dr.
Moore’s affidavit on May 3, 2007, and that he was not aware of Dr. Moore’s identity or opinions until served with
Pappadeaux’s motion for summary judgment. There is no evidence, however, that he diligently sought such
information via interrogatories or requests for disclosure prior to moving for a continuance of the summary
judgment hearing. Pouncy-Pittman’s counsel did not even provide a cursory summary of any discovery he had
undertaken on behalf of his clients to obtain this supposedly vital information. Nor did he demonstrate he had
previously sought the crime statistics and investigative file listed in his affidavit from the Houston Police
Department, or any other third party. In short, there was no evidence he had undertaken any discovery in the
eight months the case had been on file. On these facts, which demonstrate a lack of diligence, we cannot say
the trial court’s denial of the continuance was an abuse of its discretion. We overrule Pouncy-Pittman’s second
point of error.
McInnis, D.V.M. v. Michael Mallia, J.D., (Tex.App.- Houston [14th Dist.] June 10, 2008)(Frost)
(legal malpractice) (no-evidence summary judgment reversed on ground of insufficient time for discovery)
(cases with dissents)
REVERSED AND REMANDED: Opinion by Justice Frost
Before Justices Fowler, Frost and Seymore
14-06-00354-CV Janine Charboneau McInnis, D.V.M. v. Michael Mallia, J.D.,
The Mallia Law Firm, P.C., Tommy Hastings, J.D.
Appeal from 281st District Court of Harris County | Trial Court Judge: David J. Bernal
DISSENTING: Dissenting Opinion by Justice Seymore
Green v. Quality Dialysis One LP (Tex.App.- Houston [14th Dist.] Aug. 7, 2007)(Anderson) (employment law,
contract, discovery prior to summary judgment)
AFFIRMED: Opinion by Justice Anderson
(Before Justices Brock Yates, Anderson and Hudson)
14-05-01247-CV Shawn D. Green v. Quality Dialysis One LP, d/b/a Quality Dialysis, QDI Management, LLC
Appeal from 240th District Court of Fort Bend County
HOUSTON CASES AND CASELAW | TEXAS APPELLATE CASELAW
CAUSES OF ACTION ELEMENTS | HOUSTON CASE LAW | TEXAS COURT OF APPEALS OPINIONS
HOUSTON OPINIONS HOME PAGE