Opinion
No. 05-08-01414-CV
Opinion Filed October 2, 2009.
On Appeal from the 401st Judicial District Court, Collin County, Texas, Trial Court Cause No. 401-00501-08.
Before Chief Justice THOMAS and Justices O'NEILL and FILLMORE.
MEMORANDUM OPINION
In two issues, appellant Michael Alan Renfro asserts the trial court erred in denying his motion for continuance and in granting summary judgment in favor of appellees Lynne Chupp Renfro, G. Lee Finley, and the Law Offices of G. Lee Finley, P.C. We resolve appellant's issues against him and affirm the trial court's judgment.
Background
Appellant filed suit against appellees on February 18, 2008. Appellant's claims for breach of contract, breach of fiduciary duty, fraud, and an accounting were based on proceeds of a lawsuit under the terms of a divorce decree. On May 22, 2008, appellant's counsel filed an agreed motion to withdraw, signed by appellant acknowledging his consent to his attorney's withdrawal. The trial court signed the order granting appellant's counsel's withdrawal on May 28, 2008. On June 11, 2008, appellees filed their no-evidence motion for summary judgment challenging the existence of evidence to support essential elements of each of appellant's claims. The motion for summary judgment was set for hearing on July 25, 2008. On July 14, 2008, appellant's new counsel filed an appearance and motion for continuance of the hearing on the motion for summary judgment. Appellant asserted the continuance was to allow his counsel "additional time to review the case and prepare a response" to the motion for summary judgment. Appellees filed a response in opposition to the motion for continuance.
By orders signed July 25, 2008, the trial judge denied appellant's motion for continuance and granted the no-evidence summary judgment in favor of appellees. Appellant's August 25, 2008 motion for new trial was denied. Appellant appeals the denial of the motion for continuance and granting of the no-evidence summary judgment. Appellant has not challenged the denial of his motion for new trial.
Analysis
In his first issue, appellant contends the trial court erred in denying his motion for continuance of the summary judgment hearing. Appellant asserts the denial of the continuance was an abuse of discretion when appellant was not at fault for the withdrawal of his prior counsel and was diligent in efforts to secure new counsel.
We review for clear abuse of discretion the trial court's decision to deny a motion for continuance on a case-by-case basis. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004). The denial will be reversed only if the trial judge acts in an arbitrary or unreasonable manner, or acts without reference to any guiding rules or principles. BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 800 (Tex. 2002). The party complaining of an abuse of discretion has the burden to present a record showing the abuse. See Simon v. York Crane Rigging Co., 739 S.W.2d 793, 795 (Tex. 1987).
The record shows that the case was on file over four months before the summary judgment motion was filed, and the hearing on the motion was held forty-four days after the motion was filed. See Cooper v. Circle Ten Council Boy Scouts of Amer., 254 S.W.3d 689, 697 (Tex. App.-Dallas 2008, no pet.) (no abuse of discretion in denial of motion for continuance where case on file over four months before summary judgment motion filed and hearing on motion held thirty-eight days after motion filed). And generally it is not an abuse of discretion to deny a motion for continuance when the party has received the twenty-one days' notice required by rule 166a(c). Lee v. Haynes Boone, L.L.P., 129 S.W.3d 192, 198 (Tex. App.-Dallas 2004, pet. denied).
Appellant conducted no discovery from the time suit was filed. Nothing in the record shows an inadequate time for discovery, and at the hearing of the motion for continuance, appellant's counsel confirmed he was not seeking a continuance in order to gather evidence. See Tex. R. Civ. P. 166a(g). In his motion for continuance appellant requested "additional time to review the case and prepare a response" to the motion for summary judgment. At the hearing on the motion for continuance, appellant's counsel stated he was "asking for additional time to get my hands around the case in order to replead it." A trial court considering a continuance request may presume that a plaintiff investigated his own case prior to filing the lawsuit. Dallas Indep. Sch. Dist. v. Finlan, 27 S.W.3d 220, 236 (Tex. App.-Dallas 2000, pet. denied).
The case at bar is unlike cases where a party was without counsel when the case was called for trial. In those cases the movant is required to show that the failure to be represented at trial was not due to the party's own fault or negligence. See State v. Crank, 666 S.W.2d 91, 94 (Tex. 1984). Here, appellant had almost two months in advance of the hearing on the motion for summary judgment to retain new counsel. At the hearing on the motion for continuance, appellant's current counsel stated that after appellant's prior counsel was granted leave to withdraw, appellant and current counsel spoke with regard to taking the case. Appellant's current counsel agreed to take the case and filed his notice of appearance.
On this record, the trial court cannot be charged with an abuse of discretion in denying appellant's motion for continuance. See Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986) (trial court's ruling will not be disturbed unless record shows a clear abuse of discretion). We resolve appellant's first issue against him.
In his second issue, appellant contends the trial court erred in granting appellees' no-evidence summary judgment. Appellees' motion for summary judgment stated the elements of appellant's breach of contract, breach of fiduciary duty, fraud, and failure to provide an accounting as to which appellees asserted there is no evidence. See Tex. R. Civ. P. 166a(i); Johnson v. Brewer Pritchard, P.C., 73 S.W.3d 193, 207 (Tex. 2002). Appellant did not file a response to the motion for summary judgment.
A movant is entitled to have a no-evidence summary judgment motion granted if "there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial." Tex. R. App. P. 166a(i); see also Fort Worth Osteopathic Hosp., Inc. v. Reese, 148 S.W.3d 94, 99 (Tex. 2004). To defeat a no-evidence summary judgment motion, the non-movant must produce evidence raising a genuine issue of material fact. See Tex. R. Civ. P. 166a(i); Reese, 148 S.W.3d at 99; Gen. Mills Rests., Inc. v. Tex. Wings, Inc., 12 S.W.3d 827, 832 (Tex. App.-Dallas 2000, no pet.). If the non-movant produces more than a scintilla of probative evidence to raise a genuine issue of material fact, then summary judgment is improper. See Tex. R. Civ. P. 166a(i); Wal-Mart Stores, Inc. v. Rodriguez, 92 S.W.3d 502, 506 (Tex. 2002).
An appellate court is to consider only the evidence before the trial court at the time of a summary judgment motion hearing. Lawrence v. Lawrence, 911 S.W.2d 443, 446 (Tex. App.-Texarkana 1995, writ denied). In his brief to this Court, the purported evidence to defeat appellees' summary judgment cited by appellant consists of pleadings and documents attached to pleadings. Pleadings do not constitute summary judgment proof. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979). See also Hidalgo v. Sur. Sav. Loan Ass'n, 462 S.W.2d 540, 543 (Tex. 1971) ("Pleadings simply outline the issues; they are not evidence for summary judgment purposes."). Appellant's reliance on pleadings and attachments to create a fact issue is misplaced. See King v. Wells Fargo Bank, N.A., 205 S.W.3d 731, 735 (Tex. App.-Dallas 2006, no pet.).
Appellant did not bring forth any evidence in response to the motion for summary judgment to raise a genuine issue of material fact on the challenged elements. Absent such a response, the trial court properly granted appellees' motion. See Tex. R. Civ. P. 166a(i); Crocker v. Paulyne's Nursing Home, Inc. 95 S.W.3d 416, 419 (Tex. App.-Dallas 2002, no pet.) (no-evidence summary judgment properly granted if nonmovant fails to bring forth more than scintilla of probative evidence to raise genuine issue of material fact on challenged elements). Having concluded appellant's argument under this issue is without merit, we resolve appellant's second issue against him.
Conclusion
We affirm the trial court's judgment.