Verkin v. Southwest Center One, Ltd. , 784 S.W.2d 92 ( 1989 )

OPINION

O’CONNOR, Justice.

This is an appeal from a summary judgment for plaintiff. We reverse and remand the cause to the trial court.

Defendant, William P. Verkin d/b/a Ver-kin Properties, leased property from plaintiff, Southwest Center One, Ltd., for $9,949.58 per month beginning April 1, 1987. Defendant paid full rent for several months and then began making partial payments. Plaintiff sued for past-due rent totalling $40,257.48, plus late payment penalties, attorney’s fees, interest, and costs. The court granted plaintiff a summary judgment for $45,783.22.

Defendant contends: (1) the trial court abused its discretion when it refused him leave to file an amended answer and original counterclaim; (2) the trial court abused its discretion when it refused to grant his motion for continuance; and (3) there were fact issues that precluded the summary judgment. We find it unnecessary to consider any but the second point.

The record reveals the following significant dates.

3-16-88 Plaintiff filed suit.

3-29-88 Defendant was served.

4-15-88 Defendant’s personal attorney filed general denial; defendant began looking for trial attorney to represent him.

5-5-88 Plaintiff filed motion for summary judgment; hearing set for 6-2-88.

5-8-88 Defendant received motion for summary judgment.

5-17-88 Defendant hired trial attorney; trial attorney immediately filed motion to substitute.

5-20-88 Court signed order substituting trial attorney for defendant’s personal attorney; defendant’s trial attorney attempted to contact plaintiff’s attorney by telephone.

5-25-88 Defendant’s counsel delivered request for production and interrogatories to plaintiff’s counsel; finally was able to reach plaintiff’s counsel to ask for additional time for discovery; plaintiff’s counsel said no.

5-31-88 Defendant filed amended answer, motion for continuance, and response to motion for summary judgment.

6-1-88 Defendant filed counterclaim.

6-2-88 Hearing on motion for summary judgment; summary judgment granted.

In his sworn motion for continuance, defendant said he asked his personal attorney to file an answer and immediately began looking for a trial attorney. On the same day the trial court signed the order substituting the trial attorney, defendant’s new counsel began calling plaintiff’s counsel to discuss a continuance and discovery. Five days later, when he was unable to reach plaintiff, defendant delivered requests for production and interrogatories to plaintiff. When defendant finally reached plaintiff’s counsel by telephone and asked for an agreed continuance, counsel refused and characterized the request as a stalling tactic. At the time of the hearing on the motion for summary judgment, plaintiff had not responded to the discovery.

We recognize that the granting or denial of a motion for continuance is within the trial court’s sound discretion, and will not be disturbed except for clear abuse. Villegas v. Carter, 711 S.W.2d 624, 626 (Tex.1986).

Defendant’s motion for continuance was in substantial compliance with the rule and was verified. Because plaintiff did not controvert it, we must accept the statements in the motion as true. Piedmont Fire Ins. Co. v. Dunlap, 193 S.W.2d 853, 856 (Tex.Civ.App.—Galveston 1946, writ ref’d n.r.e.). In Piedmont, this Court said that when considering a first motion for continuance, there is no presumption that the court did not abuse its discretion. Id. In ruling on a first motion for continuance, the trial court does not have the discretion to reject the uncontroverted facts established by defendant’s sworn motion. Garza v. Serrato, 699 S.W.2d 275, 281 (Tex.App.—San Antonio 1985, writ ref’d n.r.e.).

DEFENDANT’S ARGUMENTS

Defendant challenges the trial court’s ruling on the motion for continuance on several grounds, including: defendant’s answer had been on file only 20 days when plaintiff filed the motion for summary judgment; plaintiff did not present evidence to oppose the motion for continuance; only twelve days elapsed from the time the order substituting defendant’s trial counsel was signed and the hearing on the summary judgment was held; defendant had discovery requests outstanding at the time of the hearing on the motion for summary judgment.

Defendant’s challenges can be consolidated into the argument that the trial court did not take into consideration three related factors:

(1) The suit was just filed.

(2) Defendant substituted a trial attorney for his personal attorney.

(3) There had not been enough time to investigate the case or make discovery.

Rule 252, Tex.R.Civ.P., governs the procedure for a motion for continuance made on the ground a party needs additional time for discovery. When requesting additional time for discovery, a party must fulfill the six requirements of rule 252 under oath. Those requirements and defendant’s statements, which meet the requirements, are:

REQUIREMENTS OF RULE 252 DEFENDANT’S SUFFICIENT CAUSE

1. The testimony is material: Defendant needed plaintiff’s answers to discovery to begin investigation of the case.

2. Proof of materiality: Defendant could not investigate the case without plaintiff’s answers to discovery.

3. Show of diligence: Defendant filed request for discovery almost immediately; made attempts to secure continuance by agreement.

REQUIREMENTS OF RULE 252 DEFENDANT’S SUFFICIENT CAUSE

4. Cause of failure, if known: Plaintiff was unreasonable: filed motion for summary judgment 37 days after defendant was served with suit; refused to agree to continuance even though plaintiff had not responded to defendant’s discovery requests.

5. Evidence not available from other source: (Defendant was not required to prove this element in first motion for continuance for discovery.)

6. Continuance was not for delay only, but that justice be done: Defendant stated this requirement in his motion.

A party who does not diligently utilize the procedure for discovery can seldom claim reversible error when the trial court refuses a continuance. State v. Wood Oil Distrib., Inc., 751 S.W.2d 863, 865 (Tex.1988). In Wood Oil, the suit had been pending for two years when Wood moved for a continuance. Wood asked for a continuance to read depositions of its own witnesses and take depositions of the State’s witnesses. Wood had not conducted any discovery during the two years in which suit was pending. The supreme court held the trial court did not abuse its discretion because Wood did not prove diligence. The court said Wood’s inability to review its own depositions or take the depositions of the State’s witnesses was “a predicament of its own making.” Id. Here, defendant’s predicament was not of his own making. This case was barely filed. There is nothing in this record to suggest defendant was not diligent in pursuing discovery.

We recognize that in Fritsch v. J.M. English Truck Line, Inc., 151 Tex. 168, 171, 246 S.W.2d 856, 858-59 (1952), the supreme court said that a first motion for continuance, as opposed to a second motion, did not have any special cachet. The only difference between the first and second motion for continuance is that in the second motion, the party must state that the absent testimony cannot be procured from any other source. Id.; Tex.R.Civ.P. 252. At the time the trial court denied the motion for continuance in Fritsch, the case had been on the docket for one year, it had been twice set for trial, once preferentially, and defendant had announced ready four days before he filed the motion. It is easy to understand how the court decided that the Fritsch defendant could not claim any special consideration for a first motion for continuance under the circumstances of that case. We do not think the reversal in this case violates the rule in Fritsch.

PLAINTIFF’S ARGUMENTS

Plaintiff defends the trial court’s ruling on the motion for continuance on three separate grounds: (1) defendant received notice of the hearing on the summary judgment more than 21 days before the hearing, per Tex.R.Civ.P. 166a; (2) defendant’s first counsel should have started the discovery; (3) the grounds stated in the motion for continuance are not compelling grounds for a continuance.

1. NOTICE OF THE SUMMARY JUDGMENT.

Plaintiff cites Cronen v. Nix, 611 S.W.2d 651, 653 (Tex.Civ.App.—Houston [1st Dist.] 1980, writ ref’d n.r.e.), cert. denied, 454 U.S. 833, 102 S.Ct. 132, 70 L.Ed.2d 112 (1981), for the proposition that it is not an abuse of discretion to deny a motion for continuance if the party receives 21 days notice of the hearing on a motion for summary judgment. Cronen is not controlling here. It certainly says what plaintiff is arguing. The facts in Cronen, however, do not parallel the facts here.

Cronen did not involve, as this case does, a plaintiff filing suit and immediately filing a motion for summary judgment on his own pleadings, before defendant could investigate the case. In Cronen, the defendant filed the motion for summary judgment. The distinction is significant: We can presume a plaintiff has investigated his own case; we cannot make the same assumption about a defendant.

Nothing in the Cronen opinion indicates the timing of defendant’s motion for summary judgment. As far as we can tell from the opinion, Cronen’s suit could have been languishing in the court for years before defendant filed a motion for summary judgment. Here, the suit had been on file for 50 days when plaintiff filed a motion for summary judgment.

In Cronen, the plaintiff moved for a continuance in response to a hearing on a motion for summary judgment on the grounds he had “personal matters,” law cases, and insufficient time to prepare for the summary judgment hearing. This Court held the trial court did not abuse its discretion in denying the motion. Here, a defendant moved for a continuance because he did not have time to investigate the case.

2. DEFENDANT’S FIRST COUNSEL.

Plaintiff says defendant could have started discovery before hiring his trial counsel. Even adding the time the first attorney was on the case, defendant still did not have time to complete discovery. There was certainly not enough time to use information in written discovery to identify witnesses and to take their depositions.

Plaintiff cites Thomson v. Norton, 604 S.W.2d 473, 478 (Tex.Civ.App.—Dallas 1980, no writ), to support its statement that defendant was responsible for his first counsel’s actions. The Thomson case is not relevant here because it had been on file for three years at the time the trial court overruled the third motion for continuance and rendered the summary judgment. The trial attorney for Thomson was the third attorney in the case to represent Thomson. Id. Though the Thomson ease makes the statement relied on by plaintiff, the facts in Thomson do not parallel the facts here.

3. THE ADEQUACY OF THE MOTION.

Plaintiff says that defendant filed an inadequate motion for continuance. Plaintiff says that defendant was compelled to attach affidavits to his response to the motion for summary judgment, stating why he was not able to obtain discovery. Plaintiff cites rule 166a(f), Tex.R.Civ.P., for the proposition that when affidavits are unavailable, a non-movant must so state in affidavits attached to the response to the motion for summary judgment.

Section (f) of rule 166a does not place any burden on a party to attach affidavits stating the need for additional time. Section (f) merely states that, when it is apparent from the affidavits that a party needs additional time, the court may either refuse the summary judgment or order a continuance. Nothing in section (f) precludes a party from filing a separate motion for continuance when faced with a motion for summary judgment.

Plaintiff also argues that defendant did not show diligence in attempting to make discovery, or show good cause for the continuance. For reasons stated in the first section, we disagree.

Finally, plaintiff argues that defendant did not attach any discovery request or deposition notices to the motion. We know of no rule of procedure, no case law, nor any theory of appeal that states that a motion for continuance on the grounds of discovery must be accompanied by a request for discovery. Because the statements regarding discovery were uncontro-verted, we must accept them as true. Garza v. Serrato, 699 S.W.2d at 281.

SUMMARY

The trial court should have granted defendant’s first motion for continuance for the combined reasons that: the suit had been on file less than three months; the motion stated sufficient good cause; the motion was uncontroverted; it was the first motion for continuance; the motion was made to reschedule the hearing on a summary judgment, which was filed soon after defendant was served.

We sustain defendant’s point of error, reverse the judgment, and remand the cause to the court below.