Guillermo Gutierrez v. Vermeer Manufacturing Company ( 2010 )

Reversed and Remanded and Memorandum Opinion filed April 15, 2010.

In The

Fourteenth Court of Appeals

NO. 14-08-00997-CV

Guillermo Gutierrez, Appellant

v.

Vermeer Manufacturing Company, Appellee

On Appeal from the 234th District Court

Harris County, Texas

Trial Court Cause No. 2005-06777

MEMORANDUM OPINION

In this personal injury case, appellant Guillermo Gutierrez asserts that the trial court (a) abused its discretion by allowing his trial counsel to withdraw without giving him an opportunity to respond and (b) erred by granting Vermeer Manufacturing Company’s no-evidence summary-judgment motion.  Because we agree that the trial court erred in granting summary judgment, we reverse and remand.

Background

            In October 2004, Gutierrez sustained on-the-job injuries that resulted in the amputation of his lower left leg and surgical intervention to preserve his lower right leg.  In January 2005, he sued Vermeer Manufacturing Company (“Vermeer),[1] the manufacturer of the ground boring equipment, a horizontal directional drill, that severely injured him.  He alleged:

At the time of the occurrence made the basis of this suit, Mr. Gutierrez was standing approximately five-to-ten (5-10) feet from the exit pit—out of which the connected drilling pipes of the system extended and on the end of which was a device called a “reamer.”  Almost immediately when the boring drill pipeline started revolving, the reamer end gyrated wildly in such a manner that it jumped out of the exit pit and traumatically amputated Mr. Gutierrez’s left leg at the knee and severely mangled his right leg.

Gutierrez’s products liability causes of action included claims sounding in strict liability, negligence and gross negligence, breach of the duty to warn, breach of warranty, breach of implied warranty of fitness for a particular purpose, and breach of implied warranty of merchantability.  Vermeer responded with a general denial and numerous affirmative defenses.  Discovery commenced, and numerous depositions were taken.

On November 1, 2007, during the pendency of the present civil case, Gutierrez was adjudicated guilty of a criminal offense and sentenced to fifteen years’ incarceration.  His counsel subsequently moved to withdraw, stating that good cause existed for withdrawal because Gutierrez had been incarcerated for a fifteen year sentence.  The motion listed the following pending settings and deadlines:  (1) a deposition of Samuel Brown scheduled for February 4, 2008, and (2) a trial setting of March 2008.  The trial court granted the motion on February 11, 2008, and reset the trial date to June 2008 to allow Gutierrez time to find new counsel.  Gutierrez, pro se, filed a motion for continuance in May because he needed more time for discovery and had not yet retained counsel; on June 11, 2008, the trial court granted the motion and reset the case for trial on December 8, 2008.[2]

Twenty-nine days later, on July 10, 2008, Vermeer filed a no-evidence motion for summary judgment, detailing the elements of each of Gutierrez’s claims and alleging that Gutierrez had no expert witness and therefore there was no evidence of certain elements of the claims.  Gutierrez responded, pro se, by asserting that he had not had adequate time to retain an attorney and conduct needed discovery, and therefore could not present the necessary evidence. The trial court granted Vermeer’s no-evidence motion and signed a final judgment dismissing all of Gutierrez’s claims.  This appeal timely ensued.

Analysis

In his second issue, Gutierrez asserts that the trial court erred in granting Vermeer’s no-evidence motion for summary judgment.  In a no-evidence motion for summary judgment, the movant must specifically state the element(s) as to which there is no evidence.  Tex. R. Civ. P. 166a(i).  The burden then shifts to the nonmovant to produce evidence that raises a fact issue on the challenged element(s).  Tex. R. Civ. P. 166a(i).  

A no-evidence motion for summary judgment may be made after the non-movant has had “adequate time for discovery.”  Tex. R. Civ. P. 166a(i).  Rule 166a(i) does not require that discovery must have been completed, but only that there was “adequate time.”  Tex. R. Civ. P. 166a(i); Specialty Retailers, Inc. v. Fuqua, 29 S.W.3d 140, 145 (Tex. App.—Houston [14th Dist.] 2000, pet. denied).  If a party claims he did not have adequate time for discovery, he must file either an affidavit explaining the need for further discovery or a verified motion for continuance.[3] Tenneco, Inc. v. Enterprise Prods. Co., 925 S.W.2d 640, 647 (Tex. 1996). When determining if a nonmovant has had an adequate time for discovery, courts consider such factors as the nature of the cause of action, the type of evidence necessary to controvert the no-evidence motion, the length of time the case has been on file with the court, the length of time the no-evidence motion has been on file, the amount of discovery that has already taken place, the discovery deadlines in place in the case, and whether the movant has requested stricter time deadlines for discovery.  See Specialty Retailers, 29 S.W.3d at 145.  We review a trial court’s determination that there has been an adequate time for discovery for an abuse of discretion.  Id. 

This personal-injury lawsuit involved claims sounding in strict products liability, negligence, and gross negligence, as well as claims for breach of (a) a continuing duty to warn, (b) warranty, (c) an implied warranty of fitness for a particular purpose, and (d) an implied warranty of merchantability.  These claims all require a showing of proximate or producing cause.[4] Vermeer’s no-evidence motion challenged the elements of causation, as well as the elements of duty and breach.  To overcome the no-evidence motion filed by Vermeer, Gutierrez would have needed to come forth with more than a scintilla of evidence of the challenged elements.  See Kiesel, 245 S.W.3d at 99.  Gutierrez would have needed to offer some evidence that Vermeer’s conduct or product was a substantial factor in bringing about his injuries.  See id.  Vermeer’s motion asserted that Gutierrez needed “competent, admissible expert testimony . . . and he has no such proof.”

As evidence that he had not had adequate time to complete discovery, Gutierrez attached to his summary-judgment response a copy of the motion for continuance he filed in May 2008.  In the motion for continuance, Gutierrez stated he needed “additional time to complete discovery and to complete depositions prior to trial.”  In addition to seeking additional time for discovery, Gutierrez stated in this motion,

Plaintiff is currently incarcerated and a layman of the law.  He also suffers from extreme depression, which prevents him from being able to proceed on his own pro se, unassisted. . . .  Plaintiff’s mental condition is well documented and supported by a finding recently made by the Social Security Administration finding him totally disabled, partially based upon his mental status. . . .  Plaintiff’s family has been diligently assisting him in trying to obtain replacement counsel for him, to date to no avail.  The complexity of the instant ligatable [sic] issues and his incarceration has created extraordinary circumstances requiring Plaintiff to request additional time from the Court in which to obtain counsel. . . .

The reason for the continuance is that Plaintiff’s attorney of record was allowed to withdraw on February 11, 2008, by leave of the court. Mr. Gutierrez is currently incarcerated in TDCJ for a term of fifteen years and is mentally incapable of proceeding pro se due to major depression.  Plaintiff and Plaintiff’s family is diligently attempting to procure substitute counsel. . .  This case involves complex questions of product design and development [and] Plaintiff needs time to substitute counsel.

In response to this unopposed motion, the trial court reset the trial date to December 2008.  In July 2008, only twenty-nine days after this continuance was granted, Vermeer filed its no-evidence motion for summary judgment.  In his response to this motion, Gutierrez additionally stated:

Plaintiff began searching for substitute counsel and requested his case file from his former attorney.  The same responded by having fourteen (14) boxes of material which encompassed his case file delivered to the Polunsky Unit of TDCJ.  Prison authorities were overwhelmed by the volume of the material delivered and forced plaintiff to send the material home, without any opportunity to review the contents first.  This placed him in an extreme disadvantage to be ready for trial.

On appeal, Gutierrez asserts that he has not had adequate time to “marshall the necessary summary judgement [sic] evidence needed. . . .”  Given Gutierrez’s circumstances, the complicated nature of Gutierrez’s claims, the complex facts of the case, and the type of evidence necessary to defeat the no-evidence motion, Gutierrez established a legitimate need for further time for discovery.  See McInnis v. Mallia, 261 S.W.3d 197, 202 (Tex. App.—Houston [14th Dist.] no pet). 

            In sum, Gutierrez established through sworn pleadings that he needed more time for discovery and to find an attorney to represent him in pursuing his legal remedies for his devastating injury.  Although this case had been on file for a significant amount of time, it involves both legally and factually complicated causes of action.  The record is clear that at the time Gutierrez’s attorney withdrew in February 2008, more discovery was contemplated and needed.  Gutierrez established good cause for his failure to retain an attorney and obtain expert testimony by July 2008 when the no-evidence motion for summary judgment was filed.  The motion for summary judgment was filed only twenty-nine days after Gutierrez successfully obtained a trial continuance based on his need for more time to find an attorney and complete discovery.  Vermeer never asked for stricter discovery deadlines.  Considering the factors enumerated above, we conclude that the trial court abused its discretion in concluding that an adequate time for discovery had passed.  See id.; see also Brewer & Pritchard, P.C. v. Johnson, 167 S.W.3d 460, 467–68 (Tex. App.—Houston [14th Dist.] 2005, pet. denied).  We sustain Gutierrez’s second issue. 

Conclusion

            Having sustained Gutierrez’s second issue, we need not consider his first issue.  We reverse the trial court’s judgment and remand for further proceedings consistent with this opinion.

                                                                        /s/        Margaret Garner Mirabal

                                                                                    Justice

Panel consists of Chief Justice Hedges, Justice Anderson, and Senior Justice Mirabal.*

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[1] Gutierrez brought suit against (1) his employer, MICA Corporation, (2) Vermeer Equipment of Texas, Inc., and (3) Vermeer Manufacturing Company.  The only defendant/appellee in this appeal is Vermeer Manufacturing Company.

[2] We note that the discovery deadline set in the trial court’s original (and only) docket control order was September 28, 2007; however, discovery continued after the deadline, and trial settings were reset a number of times.

[3] Because appellant is an inmate and signed a proper verification form, we will construe his response to Vermeer’s summary-judgment motion as an affidavit explaining the need for further discovery.  See Tex. Civ. Prac. & Rem. Code Ann. § 132.001 (Vernon Supp. 2009) (permitting an inmate to use an unsworn declaration in lieu of a written sworn declaration, verification, certification, oath, or affidavit required by statute or rule).

[4] See Kiesel v. Rentway, 245 S.W.3d 96, 99 (Tex. App.—Dallas 2008, pet. dism’d). 

* Senior Justice Margaret Garner Mirabal sitting by assignment.