Janine Charboneau McInnis, D.V.M. v. Michael Mallia, J.D., the Mallia Law Firm, P.C., Tommy Hastings, J.D. ( 2008 )

Majority and Dissenting Opinions of June 10, 2008, Withdrawn, Reversed and Remanded, and Corrected Majority and Dissenting Opinions filed June 17, 2008

Majority and Dissenting Opinions of June 10, 2008, Withdrawn, Reversed and Remanded, and Corrected Majority and Dissenting Opinions filed June 17, 2008.

In The

Fourteenth Court of Appeals

_______________

NO. 14-06-00354-CV

_______________

JANINE CHARBONEAU McINNIS, D.V.M., Appellant

V.

MICHAEL MALLIA, J.D., THE MALLIA LAW FIRM, P.C., TOMMY HASTINGS, J.D., Appellees

On Appeal from the 281stt District Court

Harris County, Texas

Trial Court Cause No. 2005-34616

D I S S E N T I N G  O P I N I O N

         A party may file a no-evidence summary judgment A[a]fter adequate time for discovery.@  Tex. R. Civ. P. 166a(i).  However, there is no requirement that discovery be completed; the requirement is an adequate amount of time.  Specialty Retailers, Inc. v. Fuqua, 29 S.W.3d 140, 145 (Tex. App.C Houston [14^th Dist.] 2000, pet. denied).  Whether a nonmovant had adequate time for discovery under rule 166(a)(i) is case specific, and there is no bright line test to determine whether an adequate time for discovery has passed.  See Rest. Teams Int=l, Inc. v. MG Sec. Corp., 95 S.W.3d 336, 339 (Tex. App.CDallas 2002, no pet.).  Rather, we consider a number of factors to determine whether a trial court allowed adequate time for discovery.  See Specialty Retailers, 29 S.W.3d at 145.

Although some factors in this case indicate there may have been inadequate time for discovery, I conclude the trial court acted within its discretion by finding McInnis had an adequate time for discovery.  Trial courts may presume a plaintiff investigated his own case prior to filing suit.  See Carter v. MacFadyen, 93 S.W.3d 307, 311 (Tex. App.CHouston [14th Dist.], pet. denied).  Here, McInnis filed suit on May 23, 2005, and the lawsuit had been on file for seven months before the court ruled on the motion for summary judgment.

            A trial court commits an abuse of discretion only when it acts in an arbitrary or unreasonable manner or acts without reference to any guiding rules or principles.  Garcia v. Martinez, 998 S.W.2d 219, 222 (Tex. 1999).  After reviewing the record, I cannot conclude the trial court acted in either an arbitrary or unreasonable manner or acted without reference to guiding rules or principles.  Accordingly, I respectfully dissent.

/s/        Charles W. Seymore

Justice

Judgment rendered, Majority Opinion of June 10, 2008, Withdrawn,  and Corrected Majority Opinion and Dissenting Opinion filed June 17, 2008.

Panel consists of Justices Fowler, Frost, and Seymore. (Frost, J., corrected majority)