law-motion-for-continuance-for-further-discovery | due diligence in seeking discovery |

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
thecase,(2) thenature 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, NE-SJ, failure to preserve error)

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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 MFC, 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.

Analysis

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.