Opinion
No. 06-98-00046-CV
Submitted: April 22, 1999, July 9, 1999.
September 14, 1999. DO NOT PUBLISH.
On Appeal from the 124th Judicial District Court, Gregg County, Texas, Trial Court No. 96-1806-B.
Before CORNELIUS, C.J., GRANT and ROSS, JJ.
OPINION
Lisa Flores, individually, as next friend of Sara Flores, a minor, and as representative of the estate of Jacob Flores, deceased minor (Flores) appeals a no-evidence summary judgment granted to Paul Winston Snelling, Welltech, Inc., and its successor, Key Energy Group, Inc., Crown Motor Co., KIA Motors America, Inc. and KIA Motors Corp. (KURU-GU). In eight points of error, Flores contends that the trial court erred in failing to grant a continuance and in granting the motion for summary judgment.
This suit arose from a two-vehicle accident in which the Flores' vehicle, a KIA Sephia, collided with another vehicle. At the time of the accident, Sara and Jacob Flores were both in the back seat Sara was not wearing a seat belt and suffered injuries. Jacob was wearing a seat belt and was killed in the accident.
Flores filed suit against KIA on August 30, 1996, alleging strict liability, Deceptive Trade Practices Act (DTPA) violations, and negligence. Specifically, Flores alleged that the rear seat occupant restraint system was defective and unreasonably dangerous to children.
KIA filed an answer on October 18, 1996. Discovery in the case commenced shortly thereafter. Written discovery between the parties occurred in November 1997 and January 1998. KIA took depositions of the driver of the KIA, Ricky Flores; the driver of the other vehicle involved in the accident; the appellant, Lisa Flores; two eyewitnesses to the accident; and an accident reconstructionist. KIA also took several depositions by written questions.
KIA filed a no-evidence motion for summary judgment on October 29, 1997, contending that Flores' defective seat belt claim lacked evidentiary support.
Flores filed a motion for continuance contending that there had been inadequate time for discovery because "many of the corporate documents" produced were in Korean and the parties had not yet worked out an agreement to get the documents translated. Flores further stated that, upon translation of the documents, the depositions of the design and manufacturing engineers from KIA could be scheduled. Flores stated that it would be more efficient to schedule the depositions after the documents were translated and the proper KIA employees were identified, because the employees resided in Asia. The trial court denied the motion for continuance, and Flores complains that the trial court erred in doing so.
In response to a motion for summary judgment, a party may request a continuance if the nonmovant shows an inability to obtain essential summary judgment evidence justifying opposition to the summary judgment. However, when a party contends that it has not had adequate time for discovery before summary judgment, an affidavit explaining the need for further discovery or a verified motion for continuance is required. See TEX. R. CIV. P. 166a(g), 251, and 252; Tenneco, Inc. v. Enterprise Products Co., 925 S.W.2d 640, 647 (Tex. 1996).
Rule 251 of the Rules of Civil Procedure prohibits the granting of a continuance except for sufficient cause supported by affidavit, by consent of the parties, or by operation of law. The motion for continuance was not supported by affidavit, was not based on the consent of the parties, and was not a matter of operation of law. Therefore, it could not be granted by the trial court.
Flores' contentions regarding the denial of the motion for continuance are overruled. As for the motion for summary judgment, Flores filed a response to the motion stating that the 1995 Warranty Information Booklet and 1995 Owner's Manual for a KIA Sephia, the "Safe Fit" and "Body Guard Child Protector," the deposition of Ricky Flores, the medical records of Jacob Flores, and the answers to interrogatories and requests for production of the KIA defendants show that issues of material fact exist related to the effectiveness of the rear restraint system. Also, Flores contended in the response that the nature of Jacob's injuries constituted evidence of a defect in the rear passenger restraint. In support of the response, Flores' attorney filed an affidavit stating that all of the items listed in the motion, e.g., depositions, answers to interrogatories, and labels for the "Safe Fit" and "Body Guard Child Protector," were true and accurate.
The trial court granted the motion for summary judgment. In the remaining points of error, Flores contends that the trial court erred in granting the motion because (1) discovery had not been completed; (2) the trial court considered the time period prior to September 1, 1997 [the effective date of Rule 166a(i)] in determining whether adequate time for discovery existed; (3) no discovery scheduling order was in place; (4) the trial court did not consider the response to the motion for summary judgment and the argument of counsel; and (5) Flores raised a genuine issue of material fact regarding the lack of warning and alternative designs.
As for the first contention, Flores offers no explanation in the brief to this Court of what discovery was not completed. Flores simply asserts that "[t]welve months to conduct discovery in an automotive crashworthiness case against a foreign defendant while juggling schedule of all counsel, is simply not adequate time." In the response to the motion for summary judgment, Flores failed to show that additional discovery was necessary. Flores did not mention that the translation of Korean documents was an impediment to discovery. This issue was only raised in the motion for continuance, which has already been addressed above.
In the next contention, Flores argues that the trial court erred by considering the length of time prior to September 1, 1997, in determining whether adequate time for discovery had elapsed. Flores fails to cite any authority which supports this position. The new rule became effective on September 1, 1997. However, Rule 166a(i) is not limited to cases filed after September 1, 1997.
In the next point, Flores contends that the trial court erred in granting the motion for summary judgment because there was no discovery order in place. Flores contends that granting the no-evidence motion, in the absence of court-ordered discovery timetables, violates the intent of Rule 166a. Flores cites to the comment to Rule 166a which states that "[a] discovery period set by pretrial order should be adequate opportunity for discovery unless there is a showing to the contrary, and ordinarily a motion under paragraph (i) [of Rule 166a] would be permitted after the period but not before." Flores interprets this comment to require the completion of a court-ordered discovery period in every case before a no-evidence summary judgment motion could be made or granted.
This is an erroneous conclusion. Rule 166a requires an "adequate time for discovery" to pass before a no-evidence summary judgment could be moved for by a party in the suit. The comment to the rule indicates that a presumption exists that, if a pretrial discovery order is in place, the passing of such a period constitutes adequate time for discovery. The absence of a discovery order does not indicate that the discovery period is not adequate, but rather, indicates that there is no presumption regarding the adequacy of the period. In the absence of a discovery order, the trial court must make the determination, without the benefit of a presumption, of whether an adequate period for discovery has passed. Granting a no-evidence summary judgment motion when a pretrial discovery order was not in place does not violate the intention of Rule 166a. Rule 166a(i) does not require the implementation of a discovery order before a no-evidence summary judgment motion can be made or granted.
Flores further contends that the trial court did not consider the response to the motion for summary judgment and the argument of counsel in granting the motion. Flores offers no argument and no evidence to support this contention, and we therefore overrule it.
In the last contention, Flores argues that a genuine issue of material fact was raised as to the lack of warning regarding the rear restraint system and the availability of alternative designs. Rule 166a(i) states that the court must grant a motion for summary judgment unless the respondent produces summary judgment evidence raising a genuine issue of material fact. In the present case, Flores responded to the motion for summary judgment by offering an affidavit by her attorney, which stated:
All of the depositions referenced in the response to the Motion for Summary Judgment and made a part of this response are true, accurate, and correct copies of such depositions. All answers to Interrogatories or discovery responses are true, accurate, and correct copies of material provided by the Kia Defendants in response to Interrogatory or Requests for Production propounded by my office to the Kia Defendants. The "Safe Fit" and "Body Guard child protector" labels attached to this response are true, accurate, and correct packaging and fairly and accurately represent the actual product contained therein. Such products are a safe, effective, and economical method of adjusting front or rear automobile shoulder restraints so that children too large for child safety restraints, but too small for proper fit of the shoulder restraint may be effectively restrained.
The medical records of Jacob Flores show he sustained fatal injuries to his abdomen and neck as a result of improper functioning of the lap/shoulder restraint in which he was contained. The testimony of Ricky Flores shows there was a lack of adequate instructions as to the proper use of the restraint system when restraining a child too large for a child safety restraint but too small for appropriate fit of the lap/shoulder restraint.
The response consisted of global references to such items as a 1995 Warranty Information Booklet and a 1995 Owner's Manual for a KIA Sephia, the "Safe Fit" and "Body Guard Child Protector," the deposition of Ricky Flores, the medical records of Jacob Flores, and the answers to interrogatories and requests for production of the KIA defendants. The response did not specifically point the court to any particular evidence which raised an issue of material fact as to the effectiveness of the rear seat lap/shoulder restraint when used by a child of Jacob's height and weight. The only appropriate evidence to which Flores refers in the response to the summary judgment motion are the answers to interrogatories and requests for production which, in total, consist of eighty-five pages. Flores failed to point to any specific answers or production requests that provide any evidence of the claim regarding the effectiveness of the rear restraint system.
Flores' contentions related to the granting of the no-evidence summary judgment motion are overruled.
The judgment of the trial court is affirmed.
OPINION ON REHEARING
On rehearing, Lisa Flores, individually, as next friend of Sara Flores, a minor, and as representative of the estate of Jacob Flores, deceased minor (Flores) argues that this Court incorrectly ignored statements in the motion for continuance regarding problems with discovery in this case. Flores admits that these problems were not mentioned in the response to the motion for summary judgment. In evaluating a summary judgment, the Court may only look to proper summary judgment evidence. See TEX. R.CIV.P.166a(c). A motion, for continuance is not proper evidence to be considered in a motion for summary judgment The first contention is without merit
Flores also contends that this Court misinterprets her argument concerning the applicability of Rule 166a(i) to cases filed after September 1, 1997. TEX.R. CIV. P. 166a(i). Flores' contention is that, when considering whether adequate time for discovery has passed, this Court must consider the "radical change in summary judgment procedure" brought by Rule 166a(i). There is no grace period contemplated by Rule 166a(i) before it is applied, nor is there a requirement that special consideration be given to litigants affected by 166a(i) in the time period soon after the amendment. When considering the motion, the trial court need only determine if an adequate time for discovery has passed and need not consider the "radical change" in summary judgment motion practice brought about by Rule 166a(i).
Flores further contends that this Court failed to liberally construe the requirement that an adequate time for discovery pass before granting a no-evidence motion for summary judgment. Again, Flores' complaint is that the "new and radically different rules" were unfairly construed against them. There is not an admonition in the rule that "adequate time for discovery" be liberally construed in favor of the respondent. The trial court must determine if an adequate time for discovery has passed and, if so, evaluate the no-evidence summary judgment motion.
Flores next contends that, unlike our recitation in the opinion, they did offer argument and evidence that the trial court did not consider the response to the motion, for summary judgment and the argument of counsel in ruling on the motion for summary judgment Flores' arguments in the brief, however, never mention the trial court's failure to consider the response to the motion for summary judgment Even if we were to consider this point in the interest of justice, we do not find any evidence that the trial court failed to consider the response. The response was filed with the clerk on November 24, 1997. The summary judgment motion was granted following a hearing on December 15, 1997. Although much of the discussion at the hearing dealt with the motion for continuance and what constituted an adequate time for discovery, there is no indication that the trial court failed to consider the response to the motion for summary judgment prior to making a ruling. In the next contention, Flores complains that this Court erred in determining that Flores failed to specifically point to particular evidence raising an issue of material fact. Flores contends that Rule 166a(i) does not require such proof. Flores argues that this Court is requiring them to marshal their proof in violation of the purpose of Rule 166a(i). This Court, however, is not requiring Flores to marshal all her proof. Flores need only "point out evidence that raises a fact issue on the challenged element" See TEX. R. CIV. P. 166a(i) notes and comments. As we said in the opinion, the response consisted of global references to such items as a 1995 Warranty Information Booklet and a 1995 Owner's Manual for a KIA Sephia, the "Safe Fit" and "Body Guard Child Protector," the deposition of Ricky Flores, the medical records of Jacob Flores, and the answers to interrogatories and requests for production of the KIA defendants. The only evidence which the trial court could consider in evaluating the summary judgment motion were the answers to interrogatories and requests for production, because none of the other documents was attached to the response or on file with the court. See TEX. R. CIV. P. 166a(c). These items consisted of eighty-five pages. Although Flores is not required to marshal all of the proof, she is required to point to at least one item in the evidence which raises a fact issue which avoids the summary judgment. Justice Greg Abbott described the response as a "rifle shot" presenting evidence that specifically raises the fact issue on the particular element of a claim challenged by the movant. Flores failed to do this.
See THE NEW SUMMARY JUDGMENT BULLET, TEXAS TRIAL LAWYERS ASSOCIATION 8TH ANNUAL MEDICAL MALPRACTICE CONFERENCE (1997).
Next, Flores argues that the no-evidence summary judgment motion was so broadly stated that it constitutes no more than a general no-evidence challenge. This argument was raised for the first time on rehearing and should not be addressed.
In the next contention, Flores argues that there was no showing by the movant that adequate time for discovery had been given. Flores argues that the rule places the burden on the movant to show that adequate time for discovery has passed. This is not a proper reading of Rule 166a(i). The rule provides that, "after adequate time for discovery, a party without presenting summary judgment
evidence may move for summary judgment. . . ." TEX. R. CIV. P. 166a(i). We do not find that this
places a burden of proof on the movant to show that adequate time for discovery has passed. If a Rule 166a(i) motion is filed and the nonmovant feels there has not been adequate time for discovery, the nonmovant should file a motion for continuance and has the burden of supporting the need for the motion for continuance.