Juan Martinez v. Swift Transportation Co., Inc.

IN THE

TENTH COURT OF APPEALS

 

No. 10-06-00012-CV

Juan Martinez,

                                                                                    Appellant

 v.

Swift Transportation Co., Inc., et al.,

                                                                                    Appellee

From the 13th District Court

Navarro County, Texas

Trial Court No. 04-00-13317-CV

MEMORANDUM  Opinion

      This is a personal injury case arising out of a collision between a car driven by Appellant Juan Martinez and a tractor-trailer driven by Jacquez Rene Amador, an employee of Swift Transportation Co., Inc.  Santos Garcia, who was killed in the accident, and José Garcia were passengers in Martinez’s car.  Santos’s parents filed suit against Martinez, Swift, and Amador, and a Petition in Intervention was filed by Santos’s wife and daughter.  Martinez asserted his own claims against Swift and Amador.  Swift filed a cross-claim against Martinez alleging his intoxication and that his negligent and/or grossly negligent driving proximately caused Santos’s death, José’s injuries, and Martinez’s own injuries.  Santos’s parents, wife, and daughter settled their claims against Swift and those claims were severed from the remaining claims.

      Swift filed a motion in which it sought both a traditional summary judgment and a no-evidence summary judgment.  In the motion, Swift relied on deemed admissions obtained as a result of Martinez’s failure to respond to Swift’s Request for Admissions.  Martinez failed to timely respond to the motion before the hearing and sought leave of the trial court to file a late response, which the trial court denied.  The trial court granted Swift’s motion.  Specifically, the order stated that Swift and Amador were not liable to Martinez “for any of his claims in this suit” and that he take nothing from Swift and Amador.  The order granting summary judgment disposed of all remaining issues and parties.[1]

Martinez brings five issues on appeal contending the trial court erred in failing to grant his motion for continuance, sustain his special exceptions to Swift’s motion for summary judgment, sustain his motion to strike deemed admissions, deny Swift’s motion for summary judgment as it was not supported by competent summary judgment evidence, and deny the motion as there were genuine issues of material fact.

Summary Judgment Review

We review the decision to grant or deny a summary-judgment motion de novo.  See Provident Life & Accident Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003).  The standards for reviewing a motion for summary judgment are well established.  Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985).  The movant has the burden of showing that no genuine issue of material fact exists and that it is entitled to summary judgment as a matter of law.  American Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997); Ash v. Hack Branch Distributing Co., 54 S.W.3d 401, 413 (Tex. App.—Waco 2001, pet. denied). The reviewing court must accept all evidence favorable to the non-movant as true.  Nixon, 690 S.W.2d at 549; Ash, 54 S.W.3d at 413.  Every reasonable inference must be indulged in favor of the non-movant and all doubts resolved in his favor.  American Tobacco, 951 S.W.2d at 425; Ash, 54 S.W.3d at 413.

In reviewing a no‑evidence summary judgment, we apply the same legal sufficiency standard as a directed verdict.  King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003).  A no-evidence motion will be defeated if more than a scintilla of probative evidence exists to raise a genuine issue of material fact on the element challenged by the movant.  Id.  More than a scintilla of evidence exists if it would allow reasonable and fair-minded people to differ in their conclusions.  Id.

Motion for Continuance

      In his fifth issue, Martinez challenges the trial court’s denial of his motion for continuance which he filed on the day of the summary judgment hearing.  The granting or denial of a motion for continuance is within the trial court's sound discretion.  Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986).  The trial court's action will not be disturbed unless the record discloses a clear abuse of discretion.  Id.  Rule 166a(c) requires a motion for summary judgment to be filed and served at least twenty-one days before the time specified for hearing.  Tex. R. Civ. P. 166a(c).  Where a party receives notice of the date of the hearing in excess of the required twenty-one days, denial of a motion for continuance based on lack of time to prepare is generally not an abuse of discretion.  Clemons v. State Farm Fire & Cas. Co., 879 S.W.2d 385, 394 (Tex. App.—Houston [14th Dist.] 1994, no writ).

Martinez argued that his failure to respond to Swift’s motion for summary judgment was due to the belief of his attorney, Domingo Garcia, that he had been allowed to withdraw as counsel.  Attorney Garcia filed a motion to withdraw in the trial court and a hearing was set for October 21, 2003.  The trial court did not address the issue of withdrawal or sign an order granting the motion to withdraw at the October hearing.

The record reflects that as early as February 2004 Attorney Garcia was aware that he continued to represent Martinez.  Swift’s attorney sent a letter to an associate at the Law Office of Domingo Garcia, P.C. dated February 11, 2004 which stated:

I am in receipt of your letter dated February 10, 2004.  I take issue with your statement regarding your firm’s representation of Juan Martinez.

It is true that your firm filed a Motion to Withdraw as counsel for Juan Martinez.  However, that Motion was opposed by the Defendants in a written response, and has never been set for hearing, or ruled upon by the Court.  As of today, your firm still represents Juan Martinez as his attorneys of record in this matter.

The February 10 letter referenced by Swift’s attorney stated that “The Law Office of Domingo Garcia withdrew as counsel for Juan Martinez on or about September 15, 2003” and was “awaiting the judge’s order.”

      Although Attorney Garcia received notice of the summary-judgment hearing on June 14, 2005, more than twenty-one days before the hearing, and was on notice that he represented Martinez, he failed to seek a continuance until the day of the summary judgment hearing.  We find the trial court did not abuse its discretion.  We overrule Martinez’s fifth issue.

Specificity of Motion

In his second issue, Martinez contends that the trial court erred in failing to sustain his special exceptions because Swift’s no-evidence motion is defective in that it fails to specify the elements for which he allegedly had no evidence.  This Court has concluded that a non-movant must object to a no-evidence motion which it contends does not provide adequate specificity in order to present such an issue for appellate review.  Watson v. Dallas Indep. Sch. Dist., 135 S.W.3d 208, 227 (Tex. App.—Waco 2004, no pet.), disapproved of on other grounds by Univ. of Tex. Med. Branch at Galveston v. Barrett, 159 S.W.3d 631 (Tex. 2005).

The record reveals that Swift’s motion for summary judgment was filed on June 13, 2005 and the hearing was set for July 20, 2005.  On September 1, 2005, approximately six weeks after the hearing, Martinez filed a response to the motion which contained special exceptions.  At that time, he also filed a motion for leave to late-file his response, but the court did not rule on it.  On October 14, 2005, the trial court granted Swift’s motion.

  Because the late-filed response was not with leave of the trial court, the response cannot be considered on appeal.  See Benchmark Bank v. Crowder, 919 S.W.2d 657, 663 (Tex. 1996).  Martinez thus failed to timely object to the no-evidence motion and, therefore, did not preserve this issue for appeal.  Watson, 135 S.W.3d at 227.  We overrule his second issue.

Was Summary Judgment Proper?

Issue three asserts that fact issues in the summary judgment proof preclude summary judgment.

After an adequate time for discovery, the party without the burden of proof may, without presenting evidence, move for summary judgment on the ground that there is no evidence to support an essential element of the non-movant's claim or defense.  Tex. R. Civ. P. 166a(i).  To defeat a no-evidence motion for summary judgment, the respondent must produce summary judgment evidence raising a genuine issue of material fact.  Id.

Swift filed a no-evidence motion for summary judgment, asserting that there was no evidence to support Martinez’s causes of action.  As stated, Martinez failed to file a timely response to the motion.  Because Martinez did not meet his burden to present evidence to defeat Swift's motion, the trial court did not err by granting Swift’s no-evidence motion for summary judgment.  We overrule Martinez’s third issue.

Having affirmed the trial court’s no-evidence summary judgment, we need not address the traditional summary judgment motion, the sufficiency of the summary judgment evidence, or Martinez’s motion to withdraw deemed admissions.

Conclusion

We affirm the judgment of the trial court.

BILL VANCE

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Affirmed

Opinion delivered and filed November 8, 2006

[CV06]

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    [1]   The order contains a “Mother Hubbard” clause denying all relief not granted.