Opinion
No. 11-03-00373-CV
March 24, 2005.
Appeal from Palo Pinto County.
Panel consists of: ARNOT, C.J., and WRIGHT, J., and McCALL, J.
Memorandum Opinion
This is an appeal from the trial court's order granting summary judgment and dismissing the claims and causes of actions. We affirm.
Appellant inmates sued Corrections Corporation of America (CCA) for negligence arising out of an incident in which several inmates were hospitalized and treated for food poisoning after eating at CCA's facility in June 2000. The case was filed in June 2002. On November 19, 2002, the trial court signed an order granting an Agreed Motion for Entry of Level 3 Discovery Control Plan. The trial court ordered that discovery be completed by September 5, 2003. On September 2, 2003, CCA filed a no-evidence motion for summary judgment. On September 8, 2003, CCA also filed a traditional motion for summary judgment and a motion to dismiss for appellants' failure to comply with discovery requests. On October 2, 2003, appellants filed a motion for continuance and a request to modify the scheduling order to allow more time for discovery.
Appellants are Gerald Milici; Rodolfo Perez; Terry Davis; Robert L. Hall; Rogerio Rendon; Deondre Harrell; Jay Parrish; Anthony L. Mitchell; William Lee Thomas; Stewart Lamont Rice; Aaron Waymon Allen; Jerry W. Smith; Jesse L. Perez, Jr.; Stephen R. Short; Miguel Yepes; and Tracy Denard Osby.
On October 3, 2003, the trial court held a hearing on all of the above motions. The court first denied the motion for continuance. The court next granted the no-evidence motion for summary judgment, making it unnecessary for the court to rule on CCA's traditional summary judgment motion, CCA's motion for dismissal, and appellants' request for rescheduling.
In their only issue on appeal, appellants argue that the trial court abused its discretion by not permitting additional time for appellants to complete discovery prior to ruling on the no-evidence motion for summary judgment. We disagree. We review the trial court's denial of a motion for continuance of a summary judgment hearing under an abuse-of-discretion standard. Tenneco, Inc. v. Enterprise Products Company, 925 S.W.2d 640, 647 (Tex. 1996); Finlan v. Dallas Independent School District, 90 S.W.3d 395, 412 (Tex.App.-Eastland 2002, pet'n den'd). A trial court abuses its discretion in this context only if the record clearly demonstrates that the denial was arbitrary and unreasonable. Finlan v. Dallas Independent School District, supra. It is generally not an abuse of discretion by the trial court to deny a motion for continuance of a summary judgment hearing if the party has received the 21-day notice of the hearing required by TEX.R.CIV.P. 166a(c). Finlan v. Dallas Independent School District, supra.
There is nothing in the record suggesting that appellants did not receive timely notice. CCA requested the hearing on September 2, 2003, and certified that a copy of the request had been properly sent to appellants. The hearing was set for a month later, on October 3, 2003. Appellants do not dispute that they received 21 days notice of the summary judgment hearing.
There is also nothing in the record suggesting that the trial court's decision was arbitrary or unreasonable. Appellants assert that they needed additional time for discovery based on circum-stances beyond their control. CCA counters that there is no evidence in the record to show that appellants had not already received adequate time to conduct discovery. An adequate time for discovery depends upon the nature of the claims, the evidence needed to controvert the motion, the length of time the case has been on file, and any deadlines set by the court. Carter v. MacFadyen, 93 S.W.3d 307, 311 (Tex.App.-Houston [14th Dist.] 2002, pet'n den'd).
Appellants' cause of action allegedly arose in June 2000. The case was filed two years later. Generally, a trial court may presume that a plaintiff has investigated his own case prior to filing. Carter v. MacFadyen, supra. The discovery order was signed on November 19, 2002, giving appellants an additional 11 months for discovery. CCA filed its no-evidence motion for summary judgment on September 2, 2003, more than 14 months after appellants' petition was originally filed. It was filed 3 days before the September 5, 2003, discovery deadline set by the court. When the pretrial hearing was held on October 3, 2003, the case had been on file for more than 15 months. Appellants have made several assertions as to why they needed additional time for discovery but have failed to support these assertions with evidence.
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. Carter v. MacFadyen, supra. The affidavit must show why the continuance is necessary; conclusory allegations are not sufficient. See National Union Fire Insurance Company of Pittsburgh, Pennsylvania v. CBI Industries, Inc., 907 S.W.2d 517, 520 (Tex. 1995); Carter v. MacFadyen, supra. The only affidavit appellants filed was an affidavit in which appellants verified that the statements in the motion for continuance were true and correct. This is insufficient to support appellants' conclusory allegations that they did not receive adequate time for discovery.
Because a myriad of factors may affect an "adequate time for discovery," we must defer to a trial court's discretion, absent abuse. Carter v. MacFadyen, supra. We can find nothing in the record which would allow us to substitute our judgment for that of the trial court. Carter v. MacFadyen, supra. We overrule appellants' only issue on appeal.
The order of the trial court is affirmed.
Not designated for publication. See TEX.R.APP.P. 47.2(a).