Cervantes, Maria Del Refugio, Individually and as Representative of the Estate of Tomas Rogelio Retana and Next Friends of Tomas Rogelio Retana Cervantes, Daniela Anali Retana Cervantes, Blanca Abigail Retana Cervantes, Vianey Angelica Retana v. Hausman Bus Sales, Inc.

• Court: Court of Appeals of Texas
• Decided: June 27, 2002
• Docket: 08-01-00104-CV
• Status: Published

Opinion

COURT OF APPEALS

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

MARIA DEL REFUGIO CERVANTES, Indiv.      )

and as Representative of the Estate of TOMAS     )

ROGELIO RETANA, and as Next Friends of  )

TOMAS ROGELIO RETANA CERVANTES, )

DANIELA ANALI RENTANA CERVANTES,      )

BLANCA ABIGAIL RETANA CERVANTES,      )

VIANEY ANGELICA RETANA                       )

CERVANTES, Minor Children, EDGAR          )

ALEJANDRO CERVANTES, GUSTAVO       )              No.  08-01-00104-CV

ALONSO HERNANDEZ, PETRA VALLES    )

VALDEZ, ROGELIO RETANA MELENDEZ,      )                          Appeal from the

EMETERIO HERNANDEZ, ROBERTO        )

HOLGUIN, ROBERTO HOLGUIN, JR.,        )             County Court at Law #7

BENITO MERJIL, JUAN LUIS MERJIL, JOSE  )

JESUS MUNOZ BADILLO, DANIEL              )            of El Paso County, Texas

MURILLO, IGNACIO MURILLO, JOSE       )

ANTONIO REYES, and MANUEL VENZOR, )                 (TC# 2001-876)

                                                                              )

Appellants,                       )

v.                                                                           )

HAUSMAN BUS SALES, INC.,                        )

Appellee.                          )

O P I N I O N

This is an appeal from the granting of summary judgment.  For the reasons stated, we affirm.

SUMMARY OF THE EVIDENCE

Tomas Rogelio Retana (ARetana@) and others were involved in a bus accident in January 1998.  The first group of Appellants, Maria Del Refugio Cervantes, Tomas Rogelio Retana Cervantes, Daniela Anali Retana Cervantes, Blanca Abigail Retana Cervantes, Vianey Angelica Retana Cervantes,  Edgar Alejandro Cervantes, Gustavo Alonso Hernandez, Petra Valles Valdez, and Rogelio Retana Melendez, are Retana=s heirs, beneficiaries, and/or relatives.  The second group of Appellants, Emeterio Hernandez, Roberto Holguin, Roberto Holguin, Jr., Benito Merjil, Juan Luis Merjil, Jose Jesus Munoz Badillo, Daniel Murillo, Ignacio Murillo, Jose Antonio Reyes, and Manuel Venzor, were injured in the bus accident.^[1] 

Appellants originally filed suit against the bus operator, Golden Star Tours, Inc. (AGolden Star@) and its driver, Manuel E. Avila (AAvila@) in August 1998.  Appellee, Hausman Bus Sales, Inc. (AHausman@), and other parties were joined in the lawsuit in January 2000.  Hausman filed its original answer later that same month.  Appellants settled with Golden Star and Avila in April 2000.  Later that month, Appellants propounded a request for disclosure upon Hausman.  Hausman responded to the request for disclosure in May 2000.

Hausman filed its no-evidence motion for summary judgment in January 2001.  The hearing on Hausman=s motion was set for January 30, 2001.  Appellants filed a response and a motion for continuance on January 23, 2001.  Appellants attached only one exhibit, Hausman=s response to the request for disclosure.  Hausman filed its reply to Appellants= response and its response in opposition to

Appellants= motion for continuance.  After the hearing on Hausman=s motion for summary judgment, the trial court granted Hausman=s no-evidence summary judgment.  The trial court also denied Appellants= motion for continuance.  Hausman then filed a motion to sever, which was granted.  This appeal follows.

DISCUSSION

Appellants bring four issues on appeal.  We note that Appellants do not directly attack the trial court=s granting of Hausman=s no-evidence summary judgment motion.  Instead, Appellants assert alleged error on the part of Hausman and the trial court.  These complaints will be reviewed under the abuse of discretion standard.

Abuse of Discretion Standard of Review

AA [party] who attacks the ruling of a trial court as an abuse of discretion labors under a heavy burden.@  Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917(Tex. 1985)(orig. proceeding). The test for abuse of discretion is not whether, in the opinion of this Court, the facts present an appropriate case for the trial court=s actions.  Rather, it is a question of whether the court acted without reference to any guiding rules and principles.  Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985) cert. denied, 476 U.S. 1159 (1986); Amador v. Tan, 855 S.W.2d 131, 133 (Tex.App.--El Paso 1993, writ denied).  Another way of stating the test is whether the act was arbitrary or unreasonable.  Downer, 701 S.W.2d at 242, citing Smithson v. Cessna Aircraft Co., 665 S.W.2d 439, 443 (Tex. 1984); Amador, 855 S.W.2d at 133.  The mere fact that a trial court may decide a matter within its discretionary authority in a different manner than an appellate judge in a similar circumstance does not demonstrate that an abuse of discretion has occurred.  Downer, 701 S.W.2d at 242, citing Southwestern Bell Telephone Co. v. Johnson, 389 S.W.2d 645, 648 (Tex. 1965).  A mere error of judgment is not an abuse of discretion.  Loftin v. Martin, 776 S.W.2d 145, 146 (Tex.  1989)(orig. proceeding).

In Issue No. One, Appellants allege that Hausman failed to identify its testifying experts and in so doing, prevented Appellants from seeking the deposition testimony of those experts to determine whether Hausman was responsible.  Hausman agrees that it had not yet identified any experts, but maintains that it had no duty to do so.  Appellants rely on Rule 195.2(b) of the Texas Rules of Civil Procedure.  Rule 195.2(b) provides that for parties not seeking affirmative relief, the expert designation deadline is 60 days before the end of the discovery period.  Tex.R.Civ.P. 195.2(b).  Appellants have conceded that the trial court had not yet set a deadline for discovery or a trial date.  See Issue No. Two.  Therefore, Hausman=s designation of an expert witness was not due or overdue at the time of the filing of its summary judgment motion.^[2]  We overrule Issue No. One.

In Issue No. Two, Appellants argue that the trial court did not issue a Docket Control Order or an Order setting the case for trial.  Appellants assert that Rule 190 of the Texas Rules of Civil Procedure Arequires discovery control plans in all cases filed on or about January 1, 1999.  For cases filed before this date, the trial court may adopt appropriate discovery control plans.@  This suit was filed August 21, 1998, before the implementation of the new discovery rules.  Tex.R.Civ.P. 190, adopted eff. Jan. 1, 1999, by order of Nov. 9, 1998, Misc. Docket No. 98-9196, 977 S.W.2d 39.  Thus, there is no affirmative duty placed upon the trial court in this case to issue a discovery control plan or to set a

trial date.  The authority cited by Appellants supports this position.  Moreover, the trial court has the inherent authority to control the disposition of cases on its docket.  Dow Chem. Co. v. Francis, 46 S.W.3d 237, 240 (Tex. 2001).  The trial court did not abuse its discretion in failing to issue a docket control order or in failing to set a trial date.  Issue No. Two is overruled.

In Issue No. Three, Appellants argue that the trial court erred in failing to grant their motion for continuance.  Hausman argues that Appellants failed to support the motion with any affidavit or other verification.  We agree.

No continuance shall be granted Aexcept for sufficient cause supported by affidavit, or by consent of the parties, or by operation of law.@  Tex.R.Civ.P. 251.  We will not disturb the trial court=s denial of a motion for continuance except for a clear abuse of discretion.  Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986); Verkin v. Southwest Ctr. One, Ltd., 784 S.W.2d 92, 94 (Tex.App.--Houston [1st Dist.] 1989, writ denied).  If a motion for continuance is not verified or supported by affidavit, the appellate court will presume the trial court did not abuse its discretion in denying the motion.  City of Houston v. Blackbird, 658 S.W.2d 269, 272 (Tex.App.--Houston [1st Dist.] 1983, writ dism=d)(court of appeals must presume trial court did not abuse its discretion in denying motion for continuance not verified, as required by Tex.R.Civ.P. 251, 252).  This presumption is rebuttable, not absolute.  Thrower v. Johnston, 775 S.W.2d 718, 720-21 (Tex.App.--Dallas 1989, no writ).  In this case, Appellants filed an unverified motion for continuance.  Therefore, we presume that the trial court did not abuse its discretion in denying the motion.  See Blackbird, 658 S.W.2d at 272.  Issue No. Three is overruled.

In Issue No. Four, Appellants allege that the trial court denied their right to a jury trial when it granted Hausman=s motion for summary judgment.  The Texas Constitution provides, AThe right of trial by jury shall remain inviolate.@  Tex.Const. art. I, ' 15.  The right to a jury trial in civil cases is not absolute, but rather is regulated by rules specifying its availability.  Green v. W.E. Grace Mfg. Co., 422 S.W.2d 723, 725 (Tex. 1968).  The purpose of the summary judgment rule is not to provide trial by affidavit, but rather to provide a method of summarily terminating a case when it clearly appears that only questions of law are involved and that there are no genuine issues of fact.  Port Distrib. Corp. v. Fritz Chem. Co., 775 S.W.2d 669, 670 (Tex.App.--Dallas 1989, writ dism=d by agr.).  The rule does not deprive litigants of a jury trial where there exists a material question of fact.  When a party cannot show a material fact issue, there is nothing to submit to a jury, and the grant of summary judgment to the opposing party does not violate the constitutional right to a jury trial.  Querner Truck Lines, Inc. v. Alta Verde Indus., Inc., 747 S.W.2d 464, 469 (Tex.App.--San Antonio 1988, no writ); Carrabba v. Employers Cas. Co., 742 S.W.2d 709, 717 (Tex.App.--Houston [14th Dist.] 1987, no writ); Mills v. Rice, 441 S.W.2d 290, 292 (Tex.Civ.App.--El Paso 1969, no writ); see also 68 Tex. Jur. 3rd Summary Judgment ' 3 (1989)(summary judgment procedure does not infringe right to trial by jury).

Here, Appellants failed 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.  Tex.R.Civ.P. 166a(i).  As noted, Appellants did not attach any controverting evidence to their response.  Thus the trial court did not err in granting Hausman=s no-evidence summary judgment motion and did not deny Appellants their right to a jury trial.  Issue No. Four is overruled.

We affirm the judgment of the trial court.

June 27, 2002

DAVID WELLINGTON CHEW, Justice

Before Panel No. 5

McClure, J., Chew, J., and Preslar, C.J. (Retired)

{Preslar, C.J., Retired)(Sitting by assignment)

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^[1] We will refer to both groups collectively as AAppellants.@

^[2] We note that Appellants never moved to compel Hausman to designate an expert witness.