Opinion
01-21-00595-CV
12-29-2022
RAYMOND ETHRIDGE, Appellant v. NORTHGATE VERTICAL LP D/B/A CRESCENT NORTH POINT APARTMENTS, Appellee
On Appeal from the County Civil Court at Law No. 4 Harris County, Texas Trial Court Case No. 1159899
Panel consists of Justices Kelly, Rivas-Molloy, and Guerra.
MEMORANDUM OPINION
Veronica Rivas-Molloy Justice
This is a premises liability case arising from Appellant's alleged slip and fall in an apartment elevator. Appellant Raymond Ethridge sued the owner of the apartment complex, Appellee Northgate Vertical LP d/b/a Crescent North Point Apartments, for negligence. Appellee moved for summary judgment on Appellant's claims, and Appellant filed objections and exceptions to the summary judgment motion and a motion for continuance. The trial court granted Appellee's motion for summary judgment but did not expressly rule on Appellant's objections and exceptions or motion for continuance.
Both appellate briefs spell Appellant's last name as "Ethridge." The clerk's record identifies Appellant's last name as "Ethridge" and alternatively as "Etheridge." The order of which Appellant complains, Plaintiff's Original Petition, and the reporter's record spell Appellant's name as "Etheridge." Appellant's medical records, his amended petitions, and his apartment lease spell his name as "Ethridge." We refer to Appellant as Ethridge in our opinion.
In three issues, Appellant complains the trial court abused its discretion by (1) failing or refusing to rule on his motion for continuance and objections and exceptions to Appellee's motion for traditional and no-evidence summary judgment, (2) failing or refusing to grant his motion for continuance, and (3) granting Appellee's motion for summary judgment "while refusing" to rule on his objections and exceptions.
We affirm the trial court's judgment.
Background
This personal injury lawsuit arises from a slip-and-fall incident. Appellant Raymond Ethridge ("Ethridge"), a tenant at Crescent North Point Apartments, alleges he was injured while exiting his apartment's elevator. He claims he "slipped and fell" as he exited the elevator because of "some chemical used to clean the elevator" and that he "sustained severe personal injuries" as a result.
Ethridge sued Appellee Northgate Vertical LP d/b/a Crescent North Point Apartments ("Northgate"), the owner of the apartment complex at the time, alleging theories of premises liability and negligence. Ethridge alleged that Northgate's employees allowed the floor to become slippery and failed to warn Ethridge of the floor's condition. Northgate filed a general denial and affirmative defenses. Ethridge later filed a First Amended Original Petition, the live petition involved in this appeal.
It appears Appellant filed the First Amended Original Petition on February 26, 2021, to correct the spelling of his name. Appellant later filed a Second Amended Original Petition on June 7, 2021, adding references to Northgate's "agents, servants, or employees" but no new parties.
In May 2021, Northgate filed a Traditional and No-Evidence Motion for Summary Judgment ("Summary Judgment Motion") on Appellant's claims arguing Northgate was merely the owner of the property and had no on-site employees who exercised control over the day-to-day operations of the apartment complex.Northgate asserted it could not have had actual or constructive knowledge of any dangerous condition at the apartment complex, and it could not have committed any of the dangerous acts alleged by Ethridge. Northgate attached the affidavit of Rick Wilson ("Wilson"), the Asset Management Associate at Crescent Communities, Northgate's former owner, to its Summary Judgment Motion. Wilson's affidavit authenticated two exhibits filed in support of its motion, Ethridge's Lease Application Agreement and Apartment Lease Contract. Wilson averred that Northgate "did not exercise any control over the day to day operations at the property" and did not have employees on site at the property. Wilson also stated that Northgate hired a property management company "to handle day-to-day activities at that location."
Northgate originally noticed the hearing on its Summary Judgment Motion for June 29, 2021. It later renoticed the hearing to July 27, 2021, and a third time for August 3, 2021. During the hearing on its Summary Judgment Motion, Northgate explained that the resets were intended "to allow Counsel [for Ethridge] to respond, to address discovery concerns that he's raising now which have since been addressed."
Ethridge did not respond to the Summary Judgment Motion on the merits or present any evidence in response. Instead, he moved to compel discovery on June 18, 2021, and he filed objections and exceptions to the Summary Judgment Motion on June 21, 2021. Ethridge's motions to compel discovery sought answers to seven interrogatories concerning Northgate's affirmative defenses, the inspection and cleaning of the elevator at issue, and similar previous incidents. Ethridge also sought discovery of documents responsive to nine requests for production including documents concerning statements made by Ethridge, Northgate's affirmative defenses, Northgate's relationship with the apartment complex management company, and the care and maintenance of the premises. Finally, Ethridge sought to compel the deposition of Sky Usher, whom Ethridge identified as the apartment complex's property manager. Ethridge initially set his motions to compel for submission on July 2, 2021, and later on August 20, 2021. Ethridge voluntarily passed the first submission date, and the record is silent as to the second submission date.
In his objections and exceptions, Ethridge complained of Northgate's failure to file special exceptions to Ethridge's pleadings. Ethridge argued that because Northgate's Summary Judgment Motion "appear[ed] to be an attack on plaintiff's petition for failure to name the Management Company" as a party, Northgate should have specially excepted to Ethridge's petitions.
Ethridge also made several objections to Northgate's alleged failure to respond to discovery. Ethridge objected to Northgate's failure to identify the apartment's management company in response to requests for disclosures. He also objected to Northgate's failure to produce documents in response to requests for production seeking documents supporting its affirmative defense that Ethridge's fall was caused by a third party, and contracts between Northgate and its management company. Ethridge further objected to Northgate's failure to respond to two interrogatories concerning "defendant's factual contentions that another party/third party caused the incident made the basis of this suit." Finally, Ethridge objected to Wilson's affidavit, claiming (1) he was an interested person; (2) the facts in the affidavit were not based on his personal knowledge because the affidavit did not say when his relationship with Northgate began or "the status of his relationship with defendant and/or its predecessor" on certain dates; and (3) the affidavit contained "factual conclusions" about Northgate's failure to exercise dayto-day control over operations at the apartment complex.
Northgate replied to Ethridge's objections and exceptions on July 30, 2021, arguing it was not required to file special exceptions simply because Ethridge failed to sue the apartment complex's management company, a "completely separate entity." Northgate explained that Ethridge had long been aware, or should have been aware, of the management company, because his Lease Application Agreement mentioned the company in several places and his Apartment Lease Contract identified the property manager. Northgate argued there was no authority requiring it to "challenge Plaintiff's omissions pertaining to a completely separate entity through special exceptions." Northgate argued that because the alleged injuries were sustained during an "unwitnessed event and there [was] no evidence that anything happened," it was not required to identify the management company or anyone else as a potential party or potentially responsible third party. Nonetheless, Northgate noted it had identified the management company as an entity with knowledge of relevant facts in its First Supplemental Responses to Ethridge's Requests for Disclosure served on April 30, 2021
In response to Ethridge's other discovery complaints, Northgate argued Ethridge had never "pursued" a motion to compel discovery, because the parties were "able to resolve" the "multiple discovery motions" Ethridge filed in June 2021. Northgate further argued the production responses and interrogatory answers of which Ethridge complained were moot, because Northgate had produced the requested information with its supplemental discovery responses in July 2021, with the possible exception of one interrogatory, which Northgate objected to because it asked for a legal conclusion concerning the negligence of another party, exceeded the scope of discovery, and invaded Northgate's trial strategy and attorney-client and work-product privileges. Northgate explained it nonetheless produced the non-privileged information sought in the interrogatory in document production and disclosure responses.
Northgate also served supplemental discovery responses in March 2021 but that was before Ethridge filed his motions to compel.
As for Ethridge's objections to Wilson's affidavit, Northgate argued that Wilson's testimony was based on his personal knowledge, because he was the Asset Management Associate of the apartment complex's former owner and the custodian of records for Northgate. Northgate responded that Wilson was not an "interested witness" and that the factual statements in his affidavit and supporting exhibits were based on his own personal knowledge. Northgate noted that contrary to Ethridge's argument, there was no requirement that Wilson state the date his relationship with Northgate started or the status of his relationship with Northgate and/or its predecessor.
Northgate noticed its Summary Judgment Motion for hearing on August 3, 2021. One day before the hearing, on August 2, 2021, Ethridge filed a motion for continuance of the summary judgment hearing, arguing it needed "additional time to obtain discovery from defendant's management company regarding the issues raised in defendant's [summary judgment] motions." Ethridge also requested that the trial court continue the summary judgment hearing until it ruled on his outstanding discovery motions, and he had a "reasonable opportunity" to review the court's ruling. Ethridge argued he had been "diligent" in attempting to obtain discovery, but that Northgate's "hindrance and obstruction" had precluded his efforts. Ethridge argued Northgate had not filed a verified answer stating it had been sued in the wrong capacity, that it was not liable in the capacity in which it was sued, or that there was a defect of parties. Ethridge also argued Northgate failed to disclose the management company in its initial disclosures, refused to produce documents and answer interrogatories "relating to the issues in the summary judgment motions," and refused to produce the management company's manager for deposition. In the affidavit attached to his motion for continuance, Ethridge argued he needed more time to determine the "relationship between defendant and the person(s) that mopped the floor on the day of the incident made the basis of this suit; [the] relationship between defendant and its management company; control of the premises; policies and procedures regarding upkeep and maintenance of the premises, supervision, etc." Ethridge did not set his motion for continuance for hearing, and the record does not reflect whether Northgate filed a response.
On August 3, 2021, the trial court conducted a hearing on Northgate's Summary Judgment Motion. During the hearing, Ethridge argued his motion for continuance and his objections and exceptions to the Summary Judgment Motion. Northgate argued the motion for continuance was not properly before the court and did not constitute a summary judgment response. Northgate explained it had reset the summary judgment hearing twice "to address discovery concerns that [Ethridge is] raising now which have since been addressed." Northgate also argued that as part of its discovery responses, it had asserted that the alleged occurrence and any resulting damages had been caused in whole or in part by a third party, that a verified denial was not necessary, and that it did not have control over the management company and thus it could not produce the company's manager for deposition. The trial court did not expressly rule on either the motion for continuance or the objections and exceptions.
The trial court granted Northgate's Summary Judgment Motion on August 4, 2021. Ethridge filed a "Motion for Reconsideration And/or Motion for New Trial" ("Motion for Reconsideration"), which the trial court heard on August 31, 2021. In his two-page Motion for Reconsideration, Ethridge argued the trial court erred by granting Northgate's Summary Judgment Motion because the court refused to "rule on his Objections and Exceptions." He also argued that Northgate's pleadings "contradicted its motions for summary judgment" because Northgate did not "file a verified answer that it [was] being sued in the wrong capacity" or that there was "a defect of the parties." Ethridge did not address the merits of Northgate's Summary Judgment Motion or present specific evidence raising any issues of material fact. Northgate filed a response arguing the Motion for Reconsideration should be denied because the motion presented nothing new. Northgate argued the trial court had already considered the issues, and Ethridge did not address any specific point of error, "nor [did] he present[] any new evidence."
The trial court denied the Motion for Reconsideration. This appeal followed.
Discussion
Ethridge complains the trial court abused its discretion in granting Northgate's Summary Judgment Motion. In his first issue, Ethridge asserts the trial court abused its discretion in failing to rule on his motion for continuance and his objections and exceptions to Northgate's Summary Judgment Motion. In his second issue, Ethridge asserts the trial court erred in refusing to grant his motion for continuance. And in his third issue, Ethridge asserts the trial court erred in granting Northgate's Summary Judgment Motion without first ruling on his objections. Ethridge's brief does not address the merits of Northgate's Summary Judgment Motion.
Northgate responds that Ethridge's motion for continuance and objections were not properly before the trial court, and thus he did not preserve his complaints for review. Northgate further argues that Ethridge's motion for continuance and objections lacked merit.
A. Standard of Review and Applicable Law
The denial of a motion for continuance is within the trial court's discretion. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004); Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986). We will not disturb the trial court's actions in the absence of a clear abuse of discretion. Id.; Levinthal v. Kelsey-Seybold Clinic, P.A., 902 S.W.2d 508, 510 (Tex. App.-Houston [1st Dist.] 1994, no writ). A trial court abuses its discretion if it acts in an "arbitrary or unreasonable" manner "without reference to any guiding rules and principles." Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). To determine whether a trial court abused its discretion in denying a request for a continuance to conduct further discovery, courts consider the following nonexclusive factors: (1) how long the case has been on file, (2) the materiality of the discovery sought, and (3) whether the movant exercised due diligence in obtaining the discovery. Levinthal, 902 S.W.2d at 510 (citations omitted); In re Marriage of Moncur, 640 S.W.3d 309, 321 (Tex. App.-Houston [14th Dist.] 2022, no pet.).
A trial court's ruling sustaining or overruling an objection to summary judgment evidence is reviewed for an abuse of discretion. Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998). We may reverse the ruling only if the appellant establishes that "the trial court's erroneous admission or exclusion of evidence was harmful-that it was calculated to cause and probably did cause the rendition of an improper judgment." Doncaster v. Hernaiz, 161 S.W.3d 594, 601 (Tex. App.-San Antonio 2005, no pet.) (citing Tex.R.App.P. 44.1, Owens-Corning, 972 S.W.2d at 43).
Texas Rule of Appellate Procedure 33.1(a) states in part that to present a complaint for appellate review, the record must show the complaint was made to the trial court "by a timely request, objection, or motion," that it complied with the applicable rules of procedure or evidence, and that the trial court "ruled on the request, objection, or motion, either expressly or implicitly." Tex.R.App.P. 33.1(a).
B. Refusal to Rule on Motion for Continuance and Objections
In his first issue, Ethridge complains the trial court abused its discretion because it failed or refused to rule on his motion for continuance and objections to Northgate's Summary Judgment Motion. And in his third issue, he argues the trial court erred in granting Northgate's Summary Judgment Motion while failing or refusing to rule on his objections.
Northgate responds that the motion for continuance was implicitly overruled and that it was not before the trial court during the hearing on its Summary Judgment Motion. Thus, the trial court did not, as Ethridge contends, refuse to rule on the motion. Northgate also argues that Ethridge's objections and exceptions were either implicitly overruled or were not properly preserved for this Court's review and that they lacked merit in any event. Thus, Northgate argues, the trial court did not abuse its discretion in refusing to rule or implicitly overruling Ethridge's objections and exceptions.
1. Motion for Continuance
Ethridge's motion for continuance was not before the trial court on August 3, 2021. Texas Rule of Civil Procedure 21(b) requires that a motion be served on all parties "not less than three days before the time specified for the hearing, unless otherwise provided by these rules or shortened by the court." Tex.R.Civ.P. 21(b). Ethridge did not comply with Rule 21(b).
When a hearing is noticed, a trial court can shorten the three-day notice-of-hearing requirement. Cotten v. Briley, 517 S.W.3d 177, 185 (Tex. App.-Texarkana 2017, no pet.) A trial court's shortening of the notice requirement is reviewed for abuse of discretion. Id. (citing Buruato v. Mercy Hosp. of Laredo, 2 S.W.3d 385, 387 (Tex. App.-San Antonio 1999, pet. denied)). In deciding to shorten the notice period, the trial court "may consider the exigent circumstance of the particular case." Id.
Ethridge filed his motion for continuance on August 2, 2021, only one day before the August 3, 2021 hearing on Northgate's Summary Judgment Motion. Thus, the motion was not set for hearing during the summary judgment hearing. There is also no indication in the record that Ethridge noticed his motion for continuance for a hearing at any time. The trial court thus did not "refuse" to rule on the motion for continuance and Ethridge failed to preserve this issue for our review. See TEX. R. APP. P. 33.1(A) (to preserve complaint for appellate review, record must show complaint was made in trial court by timely request, objection, or motion that complied with texas rules of Civil procedure).
Even if Ethridge had properly set his motion for continuance, he has not established the trial court refused to rule on his motion. If a trial court grants a motion for summary judgment while a motion for continuance remains pending, a trial court implicitly denies the motion for continuance. See West v. SMG, 318 S.W.3d 430, 436 (Tex. App.-Houston [1st Dist.] 2010, no pet.) (holding that when trial court granted motion for summary judgment, it implicitly overruled nonmovant's motion for continuance); Clemons v. Citizens Med. Ctr., 54 S.W.3d 463, 468 (Tex. App.-Corpus Christi-Edinburg 2001, no pet.) (holding motion for continuance was implicitly overruled when trial court heard motion for summary judgment without continuing it); Cherry v. McCall, 138 S.W.3d 35, 40 (Tex. App.-San Antonio 2004, pet. denied) (holding trial court implicitly overruled request for additional discovery time "to demonstrate that defendant is not entitled to summary judgment" when it heard summary judgment motion without continuing it). Generally, it is not an abuse of discretion to deny a motion for continuance in the summary judgment context if the non-movant receives twenty-one days' notice of the summary judgment hearing, as required by Texas Rule of Civil Procedure 166a(c). Clemons, 54 S.W.3d at 469.
Ethridge does not argue he failed to receive proper notice of the August 3, 2021 summary judgment hearing. Moreover, when the trial court granted Northgate's Summary Judgment Motion, Ethridge's motion for continuance had already been filed. Indeed, the parties argued the motion for continuance to the court during the summary judgment hearing. Ethridge does not argue he failed to receive proper notice of the summary judgment hearing. We thus conclude that when the trial court granted Northgate's Summary Judgment Motion, the trial court implicitly denied Ethridge's motion for continuance.
2. Objections
Ethridge filed "Objections and Exceptions" to Northgate's Summary Judgment Motion. While the document he filed references "Exceptions," Ethridge's complaints are not in the nature of special exceptions. Rather, Ethridge made mostly procedural arguments in response to Northgate's Summary Judgment Motion. He argued Northgate's Summary Judgment Motion was deficient because Northgate had not challenged Ethridge's pleadings by special exceptions. He also argued that the Summary Judgment Motion should be stricken because Northgate had not disclosed any other potential parties in its disclosures. Ethridge also argued that Northgate failed to respond to certain discovery. Separately, Ethridge objected to the affidavit of Rick Wilson arguing (1) Wilson was an interested witness; (2) the affidavit was not based on Wilson's personal knowledge; and (3) Wilson made improper "factual conclusions." Ethridge does not reurge these specific arguments on appeal; instead, he complains only of the trial court's alleged failure to rule on his objections.
Special exceptions are intended to "compel clarification of pleadings when the pleadings are not clear or sufficiently specific or fail to plead a cause of action." Baylor Univ. v. Sonnichsen, 221 S.W.3d 632, 635 (Tex. 2007).
The affidavit says Wilson works for the defendant's former owner. But according to Northgate's response to the objections and exceptions, Wilson works for the former owner of the apartment complex, which is Northgate.
A ruling on an objection to summary judgment evidence may be implied if the implication is "clear." Seim v. Allstate Texas Lloyds, 551 S.W.3d 161, 166 (Tex. 2018) (citing In re Z.L.T., 124 S.W.3d 163, 165 (Tex. 2003)). "The mere granting of a summary judgment motion 'does not suffice as an implicit ruling on objections' to summary judgment evidence." Fortitude Energy, LLC v. Sooner Pipe LLC, 564 S.W.3d 167, 178 (Tex. App.-Houston [1st Dist.] 2018, no pet.) (quoting Ennis, Inc. v. Dunbrooke Apparel Corp., 427 S.W.3d 527, 532 (Tex. App.-Dallas 2014, no pet.)). For there to be an implicit ruling on objections to summary judgment evidence, there must be "some indication that the trial court ruled on the objections in the record or in the summary judgment itself, other than the mere granting of the summary judgment." Id. at 178 (quoting Ennis, 427 S.W.3d at 532).
Ethridge argued his objections during the hearing on the Summary Judgment Motion. The trial court, however, did not issue a separate order ruling on the objections. And the order granting Northgate's Summary Judgment Motion does not reflect the trial court ruled on Ethridge's objections or that it granted the Summary Judgment Motion after considering all summary judgment evidence. The order merely states that the "[c]ourt has considered the Traditional and NoEvidence Motion for Summary Judgment of Defendant . . . [and] [h]aving done so, the Court finds the Motion should be granted in its entirety." The trial court thus did not implicitly rule on Ethridge's objections by granting the Summary Judgment Motion. See Fortitude, 564 S.W.3d at 179 (holding trial court implicitly ruled on objections to summary judgment evidence because order granting summary judgment stated trial court granted motion after considering "all summary judgment evidence").
Ethridge asked the trial court to rule on his objections during the hearing on his Motion for Reconsideration of the trial court's order granting summary judgment. The order that emanated from that hearing was a denial of Ethridge's Motion for Reconsideration/and or Motion for New Trial. The order did not specify whether it was addressing the objections.
Nonetheless, we hold that the trial court did not abuse its discretion, because even if Ethridge's evidentiary objections had been sustained, Northgate's noevidence Summary Judgment Motion would have been granted. Texas Rule of Civil Procedure 166a(i) mandates that summary judgment must be granted in response to a no-evidence motion for summary judgment if the non-movant fails to produce "summary judgment evidence raising a genuine issue of material fact." Tex.R.Civ.P. 166a(i); Town of Dish v. Atmos Energy Corp., 519 S.W.3d 605, 608 (Tex. 2017); Jones v. Star Houston, Inc., 45 S.W.3d 350, 353 (Tex. App.- Houston [1st Dist.] 2001, no pet.).
When, as here, the trial court fails to state the basis for granting a summary judgment, the appellate court "must uphold the order if any of the theories advanced is meritorious." Greene 's Pressure Treating &Rentals, Inc. v. Fulbright &Jaworski, L.L.P., 178 S.W.3d 40, 43 (Tex. App.-Houston [1st Dist.] 2005, no pet.) (citing State Farm Fire &Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex. 1993); cf. Alejandro v. Bell, 84 S.W.3d 383, 389 (Tex. App.-Corpus Christi-Edinburg 2002, no pet.) (concluding any error in refusing to rule on appellant's objections to summary judgment affidavit was harmless given competent summary judgment evidence in affidavit). Northgate moved for a traditional and no-evidence motion for summary judgment. It argued that summary judgment on Ethridge's premises liability and negligence claims was proper because Ethridge had no evidence that Northgate breached any duty or that it had any actual or constructive knowledge of the alleged dangerous condition Ethridge claimed caused his injuries. Ethridge did not respond to the merits of Northgate's Summary Judgment Motion, nor did he proffer any evidence in response to the motion. Ethridge thus failed to satisfy his burden of raising a genuine issue of material fact precluding summary judgment and the trial court was required to grant Northgate's no-evidence summary judgment motion. Tex.R.Civ.P. 166a(i); Dish, 519 S.W.3d at 608 ("As the residents never responded to Enterprise's no-evidence point, the trial court properly granted Enterprise's summary-judgment motion."); Jones, 45 S.W.3d at 353 ("The trial court must grant the motion unless the nonmovant produces more than a scintilla of evidence raising a genuine issue of material fact on each of the challenged elements."); Canton-Carter v. Baylor Coll. of Med., 271 S.W.3d 928, 932 (Tex. App.-Houston [14th Dist.] 2008, no pet.) ("Because, under rule 166a(i), a trial court must grant a no-evidence motion for summary judgment unless the respondent produces summary judgment evidence sufficient to raise a genuine issue of material fact, which appellant failed to do, the trial court properly granted appellee's motion.").
We further note that Ethridge waived two of his evidentiary objections. Ethridge objected to Wilson's affidavit, claiming he was an interested person and that the facts in the affidavit were not based on his personal knowledge. Form defects in an affidavit include lack of personal knowledge and the statement of an interested witness. Stewart v. Sanmina Tex. L.P., 156 S.W.3d 198, 206 (Tex. App.-Dallas 2005, no pet.); Americo Energy Res., L.L.C. v. Moore, No. 13-08-00097-CV, 2008 WL 3984169, at *6 (Tex. App.-Corpus Christi-Edinburg Aug. 29, 2008, no pet.) (mem. op.). Objections to form defects are waived if the objecting party does not secure a ruling from the trial court. Stewart, 156 S.W.3d at 206; Americo Energy Res., L.L.C., 2008 WL 3984169 at *6. Ethridge did not secure a ruling on his evidentiary objections, nor does the record reflect the trial court refused to rule on them.
Because we hold the trial court properly granted Northgate's no-evidence summary judgment, we need not determine whether Northgate's traditional motion for summary judgment should have been granted.
We overrule Ethridge's first and third issues.
C. Denying the Motion for Continuance
In his second issue, Ethridge argues the trial court erred in failing to grant his motion for continuance. We review a trial court's ruling on a motion for continuance for an abuse of discretion. See Joe, 145 S.W.3d at 161. As noted, to determine whether the trial court abused its discretion in denying a request for a continuance to conduct further discovery, courts consider the following nonexclusive factors: (1) how long he case has been on file, (2) the materiality of the discovery sought, and (3) whether due diligence was exercised in obtaining the discovery. Levinthal, 902 S.W.2d at 510 (citations omitted); In re Marriage of Moncur, 640 S.W.3d at 321.
Ethridge did not address these factors in his appellate brief. He thus waived his issue on appeal. And even if Ethridge had not waived the issue, consideration of the relevant factors reveals the trial court did not abuse its discretion.
Ethridge relies on Nelson v. PNC Mortg. Corp., 139 S.W.3d 442 (Tex. App.-Dallas 2004, no pet.) for the proposition that "[a] party is entitled to a ruling on its discovery motions within a reasonable time." In Nelson, the appellant filed twelve discovery motions between January 2001 and June 2002 and sent eight letters to the court requesting that his motions be set for hearing. Id. at 444. There was no indication that hearings were scheduled for the motions or that the trial court ruled on the motions. Id. While "many" discovery motions were pending, the appellees filed a motion for summary judgment. Id. The appellant filed three verified motions for continuance of the summary judgment hearing. Id. at 444-45. The court of appeals, in reversing the summary judgment granted in favor of the appellees, noted the appellant's "long-pending" discovery motions were not ruled on while the appellees' summary judgment and discovery motions were set promptly and ruled on in the incarcerated appellant's absence. Id. at 445. The court was troubled by "the trial court's repeated failure to hear or rule on the numerous motions filed by [appellant] despite [his] persistent requests for action." Id. In contrast, the record indicates that Ethridge passed the submission dates on his discovery motions one month before the summary judgment hearing and that he only renoticed the discovery motions for submission and separately filed a motion for continuance one day before the summary judgment hearing.
(a) Length of Time Case Has Been on File
Ethridge filed his Original Petition on October 8, 2020. Trial was set for December 6, 2021 with a discovery deadline of November 6, 2021. Northgate filed its Summary Judgment Motion on May 13, 2021. The hearing on the motion was conducted on August 3, 2021 and the trial court granted the Summary Judgment Motion the following day. By the time Ethridge filed his August 2, 2021 motion for continuance, the case had been on file for nearly ten months, with trial of the case only three months away. This factor weighs against a continuance.
(b) Materiality of Discovery Sought
Ethridge asserted in his motion for continuance that he needed "additional time to obtain discovery from defendant's management company regarding the issues raised in defendant's motions." He asserted that Northgate had not filed a verified answer asserting it was being sued in the wrong capacity or that there was a defect of parties; that Northgate failed in its initial disclosures to identify the management company; that Northgate failed to produce documents "relating to the issues in this summary judgment motion" in response to discovery; and that Northgate refused to produce the manager of its management company for deposition. Ethridge asserted the evidence was "material to [his] opposition to defendant's motions for summary judgment regarding relationship between defendant and the management company, control, delegation of duties, etc."
Northgate contends the information sought would not have helped Ethridge, because its Summary Judgment Motion was based on Northgate's status as the owner of the apartment complex and the fact that Northgate "did not have any onsite employees or exercise any control over the day-to-day operations at the apartment complex." Northgate further notes that even though the property management company was identified in discovery responses served on April 30, 2021, and in Ethridge's lease, Ethridge did not sue the management company before limitations ran. Northgate also argues it could not produce the management company's representative for trial, because it did not have control over him.
Northgate was the property owner. Northgate explained it hired "a completely separate company" to manage the day-to-day activities and to hire on-site employees.
Although it is plausible that information concerning the management company is material to determining whether Northgate maintained control over the premises or had actual or constructive knowledge of any dangerous condition, the information Ethridge sought, even if produced to his satisfaction, would not have defeated Northgate's Summary Judgment Motion. Among other things, Northgate argued in its no-evidence motion for summary judgment that there was no evidence of Ethridge's damages. The information sought was not material to Ethridge's damages. See Cherry, 138 S.W.3d at 41 (holding trial court did not abuse discretion in denying request for additional time to respond to summary judgment motion because "obtaining such evidence would not have assisted . . . in defending against the motion for summary judgment.") Thus, this factor also weighs against the granting of a continuance.
(c) Due Diligence
The Summary Judgment Motion was originally set for hearing on June 29, 2021. Northgate explained the hearing was reset twice to allow Ethridge to address his discovery concerns, which he raised again at the August 3, 2021 Summary Judgment Motion hearing. Northgate argued Ethridge failed to use due diligence to address his discovery concerns because although he sought more information in three discovery motions originally filed on June 18, 2021, "[t]he parties were able to resolve those issues and Appellant passed each of his oral hearings based on those conferences. Appellee's counsel heard nothing from Appellant's counsel after those issues were resolved."
On June 18, 2022, Ethridge filed motions to compel answers to interrogatories, the production of documents, and attendance at depositions. The motions were set for submission on July 2, 2022. Ethridge voluntarily passed the submission dates. On August 2, 2022, Ethridge filed amended notices of submission resetting the hearing dates for August 20, 2021.
The record reflects additional failures by Ethridge in exercising due diligence to obtain the information sought. Most significantly, Northgate identified the property management company, GREP South, L.P., as having knowledge of relevant facts in its First Supplemental Responses to Plaintiff's Requests for Disclosure served on April 30, 2021. In addition, the parties filed an agreed motion for continuance of the summary judgment hearing on July 14, 2021 to allow Ethridge time for discovery and depositions, but the record does not reflect Ethridge did either. Northgate argued during the summary judgment hearing that Ethridge
has been aware for years that GREP was the management company, as is evidenced in who he wrote his checks to, what documents he signed, what name is on those documents; and if that wasn't enough,
[Northgate] disclosed that company's name specifically in April of this year."
In the apartment lease, the property management company is referred to as Greystar.
This factor weighs against the granting of a continuance. See Stierwalt v. FFE Transp. Servs., Inc., 499 S.W.3d 181, 189 (Tex. App.-El Paso 2016, no pet.) ("In general, a litigant is not entitled to a continuance if he or she fails to diligently use the rules of civil procedure for discovery purposes prior to filing a motion for continuance.").
Given how long the case had been on file, the lack of materiality of some of the information Ethridge sought, and Ethridge's failure to use due diligence to procure the requested information, we hold the trial court did not abuse its discretion in denying Ethridge's request for a continuance. We overrule Ethridge's second issue.
Conclusion
We affirm the trial court's judgment.