Opinion
No. 04-06-00042-CV
Delivered and Filed: November 15, 2006.
Appeal from the 111th Judicial District Court, Webb County, Texas, Trial Court No. 2001-Cve-001785-D2, Honorable Raul Vasquez, Judge Presiding.
Affirmed.
Sitting: Alma L. LÓPEZ, Chief Justice, Catherine STONE, Justice, Karen ANGELINI, Justice.
MEMORANDUM OPINION
Rigoberto Villarreal appeals a no-evidence summary judgment based on his failure to timely file evidence supporting his negligence claims. We affirm.
Background
Villarreal's petition alleged negligence against his employer, W.W. Rowland Trucking Co., Inc. and negligence and violation of the Deceptive Trade Practices Act against TIG Insurance Co. The companies filed their no-evidence motion for summary judgment on August 17, 2005 and the court set the matter for hearing on October 7, 2005. Villarreal's response to the motion was due on September 30, 2005. On October 5, 2005, Villarreal filed a motion for extension of time and a motion for continuance, both of which were denied. After the court found for the companies at the hearing, Villarreal filed a motion to reconsider which was also denied by the court on October 31, 2005. Villarreal's response to the no-evidence motion for summary judgment, which included an amended petition adding a new cause of action, was not filed until November 1, 2005.
W.W. Rowland Trucking Co., Inc. and TIG Insurance Co. will hereafter be collectively referred to as the "companies."
In his appeal, Villarreal alleges that the trial court abused its discretion by denying his motion for extension of time, request for continuance, and motion to reconsider. Villarreal bases his argument on his counsel's illness, stating that she was too ill to comply with the applicable deadline and thus her absence was not intentional or the result of conscious indifference. Villarreal also argues that the trial court committed error in granting the no-evidence motion in light of material issues of fact set out in his response. Finally, Villarreal argues that the trial court committed error in entering a final summary judgment because he put forth additional claims before the hearing was held on his motion to reconsider.
Motion for Extension of Time and Request for Continuance
In Villarreal's first issue, he argues that the trial court abused its discretion in denying his motion for extension of time and his request for continuance. He states that the motions should have been granted because his counsel was too ill to attend the hearing or comply with the applicable deadline.
When reviewing a trial court's order denying a motion for continuance or a motion for extension of time, we consider whether the trial court committed a clear abuse of discretion on a case-by-case basis. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004). "A trial court abuses its discretion when it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law." Id. Furthermore, in cases where a trial judge's discretion comes into play, the judge may take into account the entire procedural history of the case. Waste Water, Inc. v. Alpha Finishing Developing Corp., 874 S.W.2d 940, 942 (Tex.App.-Houston [14th] 1994) (finding no abuse of discretion where appellant exhibited a consistent pattern of neglect and indifference exemplified by his attorney's failure to timely answer the suit and show up for trial, despite the attorney's claims that his illness was the cause of the neglectful behavior). When determining if a trial court abused its discretion in denying a motion for continuance seeking additional time to conduct discovery, the Texas Supreme Court has considered factors such as the "length of time the case has been on file, the materiality and purpose of the discovery sought, and whether the party seeking the continuance has exercised due diligence to obtain the discovery sought." Joe, 145 S.W.3d at 161.
The record indicates that the trial judge could have concluded that Villarreal's counsel exhibited a consistent pattern of neglect and lack of due diligence during the course of this case. Between the dates of February 22, 2002 and May 02, 2003, Villarreal's attorney failed to show up for five hearings and a substitute attorney was present for one hearing. In his defense, Villarreal states that his attorney, Sharon Trigo, became ill on September 28, 2005, only nine days before the summary judgment hearing. As proof of her illness, Trigo offered a document from the South Laredo Family Clinic where she was treated. It did not list a diagnosis or symptoms, but did state that she was examined at the clinic on September 30, 2005 and could return to work after October 7, 2005. However, the motion for summary judgment was originally filed on August 17, 2005, forty-two days before Trigo became sick. Therefore, the trial court could have concluded that Trigo had ample time to prepare for the summary judgment hearing before she became ill.
We further note that Villarreal did not include an affidavit in his request for continuance and thus did not comply with the requirements of Rule 251. See Tex. R. Civ. P. 251. Additionally, long before her illness, and throughout the four years the case was on file, Villarreal's attorney failed to show up for hearings and missed deadlines. Therefore, we cannot say the trial court abused its discretion in denying Villarreal's motion for extension of time or request for continuance. Villarreal's first issue is overruled.
Motion for Reconsideration
In his second issue, Villarreal argues that the trial court erred in overruling his motion to reconsider the motions for continuance, extension of time, and summary judgment. We disagree. We review a trial court's ruling on a motion for reconsideration under an abuse of discretion standard. Methodist Hospitals of Dallas v. Corporate Communicators, Inc., 806 S.W.2d 879, 883 (Tex.App.-Dallas 1991, writ denied); Robinson v. City of San Antonio, 727 S.W.2d 40, 43 (Tex.App.-San Antonio 1987, writ ref'd n.r.e.). A trial court abuses its discretion when its ruling is arbitrary, unreasonable, or without reference to any guiding rules or legal principles. Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998).
In his motion, Villarreal made no new arguments; he only reiterated his assertion that because his motion due date for the no-evidence summary judgment hearing was so close in time to his attorney's illness, the trial court should have granted him the continuance and extension of time. However, because Villarreal made no new arguments in his motion to reconsider and because his attorney had a history of missing deadlines and failing to appear in court, we conclude that the trial court did not abuse its discretion in overruling Villarreal's motion for reconsideration. Villarreal's second issue is overruled.
No-Evidence Motion for Summary Judgment
In his third issue, Villarreal argues that the trial court committed reversible error in granting the companies' no-evidence motion for summary judgment in light of the material issues of fact set out in his response to the no-evidence motion. Because "a no-evidence summary judgment is essentially a pretrial directed verdict, we apply the same legal sufficiency standard in reviewing a no-evidence summary judgment as we apply in reviewing a directed verdict." Birmingham-Queen v. Whitmire, 2006 WL 1539587, *4 (Tex.App.-San Antonio June 7, 2006, no pet.) (mem. op.) (citing King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51. (Tex. 2003)). Therefore, we review the evidence in the light most favorable to the nonmovant, disregarding all contrary evidence and inferences. King Ranch, Inc. 118 S.W.3d at 751. A no-evidence point will be sustained when there is a complete absence of evidence of a vital fact. Id. A no-evidence summary judgment is properly granted if the nonmovant fails to bring forth more than a scintilla of probative evidence to raise a genuine issue of material fact as to an essential element of the nonmovant's claim on which the nonmovant would have the burden of proof at trial. See Tex. R. Civ. P. 166a(i); Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). "Less than a scintilla of evidence exists when the evidence is `so weak as to do no more than create a mere surmise or suspicion' of a fact" and the legal effect is that there is no evidence. King Ranch, 118 S.W.3d at 751 (citing Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)).
In the present case, the companies filed their no-evidence motion on August 17, 2005 and the trial court granted it on October 7, 2005. Villarreal did not file a response to the no-evidence motion until November 1, 2005, long after the motion was granted. As a result, Villarreal did not satisfy his burden of proving that there was more than a scintilla of evidence and that the no-evidence summary judgment had been granted improperly. Therefore, the trial court properly rendered summary judgment for the companies. Villarreal's third issue is overruled.
Amended Petition Filed After Summary Judgment Hearing
In his fourth issue, Villarreal argues that his amended petition alleging a cause of action for breach of contract is still pending because the issue was not included in the motion for summary judgment and was thus not addressed at the summary judgment hearing. When a party wishes to assert a new cause of action after a summary judgment hearing, the party may do so only with permission of the court. Tex. R. Civ. P. 166a(c). When a party does not receive permission to file additional pleadings raising new causes of action in compliance with Rule 166a(c), the trial court is limited to reviewing only those pleadings on file at the time of the summary judgment hearing to determine if plaintiff pled a viable cause of action. Leinen v. Buffington's Bayou City Service Co., 824 S.W.2d 682, 685 (Tex.App.-Houston [14th Dist.] 1992, no writ).
There is nothing in the record to show that Villarreal sought or obtained leave of court to file an amended petition raising the new allegation of breach of contract, or that he even brought the issue to the attention of the court so it could be considered at the time of the hearing on the motion for summary judgment. See Id. Villarreal filed his November 1, 2005 amended petition after the previous hearings, which occurred on October 7, 2005 and on October 31, 2005. Therefore, because he did not have permission from the court to file a pleading with a new cause of action subsequent to the hearings, the trial court did not abuse its discretion by refusing to consider Villarreal's amended petition. Villarreal's fourth issue is thus overruled.
Conclusion
Based on the foregoing, the judgment of the trial court is affirmed.