X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision When a party contends that it has not had an adequate opportunity for discovery before a summary judgment hearing, it must file an affidavit explaining the need for further discovery or a verified motion for continuance. FACTS:Ruth Blake fell on the stairs of a hotel owned by Intco Investments. She filed a premises liability lawsuit against Intco. Intco filed a no-evidence summary judgment motion 17 months after the suit was initiated, attaching excerpts from four depositions for support. The trial court granted the motion. On appeal, Blake contends the trial court erred in: 1. failing to continue the summary judgment until discovery was substantially complete; 2. considering deposition excerpts not properly before the court; 3. granting the summary judgment based on conclusions not founded in law or facts; and 4. granting the summary judgment although Blake’s amended petition raised additional claims of general negligence not addressed by the motion. HOLDING:Affirmed. On the first point, the court agrees that T.R.Civ.P. 166a(i) states that a no-evidence summary judgment motion should be filed after the nonmovant has had “adequate time for discovery,” which varies based on the nature of the case, the nature of the evidence necessary to controvert the motion and the length of time the case has been active in the trial court. Blake filed a motion for continuance because Intco had not answered written discovery questions and none of Intco’s witnesses had been deposed. The court rejects Blake’s argument that the trial court’s refusal to grant the continuance violated her constitutional right to due process and equal protection. If Blake felt she did not have enough time, she should have filed an affidavit explaining the need for further discovery or she should have filed a verified motion for continuance. On the second point, Blake complains that her own deposition was one of the four submitted by Intco, but that deposition was not on file with the court, and Intco did not file a proper statement of intent to use it. The court points out that Rule 166a(d) provides a mechanism for using unfiled discovery as summary judgment proof and points out that Intco followed those procedures. On the third point, the court rules the summary judgment itself was properly granted. Intco presented evidence that, as of that point, Blake had not and could not present any evidence of what caused her fall to proof duty or breach of that duty. Blake then had the burden to produce more than a scintilla of evidence to refute the challenged points but she did not. Her summary judgment response lacked evidence altogether. Nor does Blake even quote from the summary judgment record at the appellate level. On the fourth point, the court construes Blake’s petition, even the amended one, as alleging a cause of action for premises liability. OPINION:Speedlin, J.; Lopez, C.J., Angelini and Speedlin, JJ. DISSENT:L”pez, C.J. The dissent believes the appellate court, on a de novo standard of review, should have at least looked at the deposition excerpts cited in Intco’s summary judgment motion to see if anything in there raised a genuine issue of material fact.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 3 articles* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.