Ervin M. Emanuel v. Citibank (South Dakota) N.A.

• Court: Court of Appeals of Texas
• Decided: November 10, 2011
• Docket: 01-10-00768-CV
• Status: Published

Opinion

Opinion issued November 10, 2011.

In The

Court of Appeals

For The

First District of Texas

————————————

NO. 01-10-00768-CV

———————————

Ervin M. Emanuel, Appellant

V.

Citibank (South Dakota), N.A., Appellee

On Appeal from the County Court at Law No. 3

Fort Bend County, Texas

Trial Court Case No. 05-CCV-026051

MEMORANDUM OPINION

          Appellant, Ervin M. Emanuel, challenges the trial court’s rendition of summary judgment in favor of appellee, Citibank (South Dakota), N.A. (“Citibank”), in Citibank’s suit against Emanuel for breach of contract and on a sworn account.  In two issues, Emanuel contends that the trial court erred in not holding an evidentiary hearing on his motion for new trial and denying his motion for continuance.

          We affirm.

Background

          In its original petition, Citibank alleged that Emanuel defaulted on the terms of a credit card agreement by failing to make the required payments.  Emanuel answered, generally denying Citibank’s allegations.  Emanuel later filed a notice of intention to take the oral deposition of the chief financial officer of Citibank.  Emanuel also filed a motion to show want of authority[1] for Citibank’s attorney to represent Citibank.

          Four and one-half years after the case’s commencement, Citibank filed a summary-judgment motion in which it argued that it was entitled to judgment as a matter of law against Emanuel because there were no genuine issues of material fact on its claims.  Citibank asserted that it had demonstrated that it had “provided [Emanuel] with extensions of credit”; it had “transmitted monthly statements [to Emanuel] describing the extensions of credit requested” by him; there remained outstanding amounts due on the account and owing after applying any credits due; “[Emanuel] defaulted by failing to pay the installment amounts shown as owing on the monthly statements when they were due”; and “as a result of [Emanuel’s] default the entire balance” became due and owing, and Citibank was “entitled to recover the sums due and owing as a matter of law.”  

          Emanuel responded, arguing that summary judgment should not be granted because Citibank did not respond to his discovery requests.  Emanuel also filed a motion for continuance, asserting that Citibank had not responded to his first set of interrogatories, requests for admission, requests for production, and requests for oral deposition.  Emanuel then filed a motion to compel Citibank to respond to his notice to take oral deposition.  After a summary-judgment hearing, the trial court entered judgment in favor of Citibank and awarded it $6,094.79. 

          Emanuel then filed his motion for new trial, in which he asserted that the granting of Citibank’s summary-judgment motion was “premature and filed before the completion of discovery and a ruling on whether or not . . . to hear . . . jurisdictional issues” raised in his motion to show want of authority, “which were pending at the time the [trial court] rule[d] on [Citibank’s] motion.”  The trial court denied Emanuel’s motion for new trial without conducting a hearing. 

Hearing on Motion for New Trial

          In his first issue, Emanuel argues that the trial court erred in not holding an evidentiary hearing on his motion for new trial and allowing him to present evidence in support of his assertion that the trial court lacked “subject matter jurisdiction” over the case because Citibank’s counsel “lacked standing” or “authority” to “act on behalf of Citibank.”[2]  See Tex. R. Civ. P. 12.    

          We review a trial court’s denial of a motion for new trial for an abuse of discretion.  See Cliff v. Huggins, 724 S.W.2d 778, 778–79 (Tex. 1987).  To determine whether a trial court abused its discretion, we must decide whether the trial court acted without reference to any guiding rules or principles; in other words, we must decide whether the act was arbitrary or unreasonable.  Cire v. Cummings, 134 S.W.3d 835, 838–39 (Tex. 2004).

Generally, an evidentiary hearing on a motion for new trial is not mandatory.  In the Interest of T.B.H.-H., 188 S.W.3d 312, 315 (Tex. App.—Waco 2006, no pet.).  A trial court is only required to conduct an evidentiary hearing on a motion for new trial when a motion presents a question of fact upon which evidence must be heard.  E.g., Hensley v. Salinas, 583 S.W.2d 617, 618 (Tex. 1979); Navistar Int'l Corp. v. Valles, 740 S.W.2d 4, 6–7 (Tex. App.—El Paso 1987, no writ).  

Emanuel was not entitled to an evidentiary hearing on his complaint in his motion for new trial because he failed to describe what evidence, if any, he would have presented to the trial court had an evidentiary hearing been held.  Hamilton v. Pechacek, 319 S.W.3d 801, 807 (Tex. App.—Fort Worth 2010, no pet.); Landis v. Landis, 307 S.W.3d 393, 394 (Tex. App.—San Antonio 2009, no pet.).  Accordingly, we hold that the trial court did not err in not conducting an evidentiary hearing on Emanuel’s motion for new trial.  See Landis, 307 S.W.3d at 394.

We overrule Emanuel’s first issue. 

Motion for Continuance

          In his second issue, Emanuel argues that the trial court erred in granting Citibank summary judgment because his motion for continuance “included an affidavit showing sufficient cause for the continuance.” 

          We review for an abuse of discretion a trial court’s decision to deny a motion for continuance.  Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004).  The denial will be reversed only if the trial court acted in an arbitrary or unreasonable manner or without reference to any guiding rules or principles.  BMC Software Belg., N.V. v. Marchland, 83 S.W.3d 789, 800 (Tex. 2002).  The party complaining of an abuse of discretion has the burden to present a record showing the abuse.  See Simon v. York Crane & Rigging Co., 739 S.W.2d 793, 795 (Tex. 1987).

When a party contends that it has not had an adequate opportunity for discovery before a summary judgment, it must file either an affidavit explaining the need for further discovery or a verified motion for continuance.  Tenneco, Inc. v. Enter. Prods. Co., 925 S.W.2d 640, 647 (Tex. 1996) (citing Tex. R. Civ. P. 166a(g)); see Tex. R. Civ. P. 251 (“No application for a continuance shall be heard before the defendant files his defense, nor shall any continuance be granted except for sufficient cause supported by affidavit, or consent of the parties, or by operation of law.”); Tex. R. Civ. P. 252 (providing, among other things, that if motion for continuance is filed on ground of “want of testimony,” movant must present affidavit “showing the materiality” of such testimony and that he “used due diligence to procure such testimony” and “stating such diligence, and the cause of failure, if known”).  If a motion for continuance is not verified or supported by affidavit, an appellate court must presume that 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).  The affidavit or motion must describe the evidence sought, state with particularity the diligence used to obtain the evidence, and explain why the continuance is necessary.  Rocha v. Faltys, 69 S.W.3d 315, 319 (Tex. App.—Austin 2002, no pet.).  If these requirements are met, then the appellate court considers three non-exclusive factors in determining the propriety of a trial court’s ruling on a motion for continuance: (1) the length of time the case was on file; (2) the materiality and purpose of the discovery sought; and (3) whether the party seeking the continuance exercised due diligence to obtain the discovery sought.  Joe, 145 S.W.3d at 161.

It is undisputed that Emanuel’s motion for continuance was not verified and was not supported by an attached affidavit.  However, Emanuel argues that although his motion for continuance did not contain an affidavit “per se,” his motion was supported by an affidavit attached to his summary-judgment response in which he listed “the names of the employees of Citibank whom he would seek to depose.”   

Emanuel alleged in his motion for continuance that Citibank’s representatives “had been effectively non-responsive” to his discovery requests and it was “unclear” whether Citibank’s counsel had the “proper want of authority to prosecute this suit.”  Even assuming that we could consider Emanuel’s affidavit attached to his summary-judgment response, this affidavit was deficient in multiple respects.  See Rocha, 69 S.W.3d at 319.  Despite his assertions on appeal, the record reflects that his affidavit did not list the names of the Citibank employees that he wanted to depose, describe the anticipated testimony of these representatives, or explain how such testimony was essential to his summary-judgment response.  See West v. SMG, 318 S.W.3d 430, 443–44 (Tex. App.—Houston [1st Dist.] 2010, no pet.).  Emanuel’s motion for continuance also failed to show that he had used due diligence in procuring the desired depositions and that such testimony was material to his summary-judgment response.  See Tex. R. Civ. P. 252.

As noted above, Citibank filed its summary-judgment motion more than four and one-half years after the case’s commencement, providing Emanuel more than enough time to conduct discovery and seek the aid of the trial court, if any, in compelling discovery.  See Rest. Teams Int’l v. MG Secs. Corp., 95 S.W.3d 336, 339–41 (Tex. App.—Houston [1st Dist.] 2002, no pet.).  Accordingly, we hold that the trial court did not abuse its discretion in denying Emanuel’s motion for continuance. 

We overrule Emanuel’s second issue.

Conclusion

          We affirm the judgment of the trial court. 

                                                                   Terry Jennings

                                                                   Justice

Panel consists of Justices Jennings, Sharp, and Brown.

---

[1]           See Tex. R. Civ. P. 12. 

[2]           Within this issue, Emmanuel asserts that Citibank’s counsel “lacked standing to prosecute this case and when such authority was requested trial counsel failed to show that he [had] the authority to act on behalf of Citibank.”  Emanuel also asserts that “[a] question concerning want of authority is a fact question” and “[t]hus upon proper request the trial court herein would have been required to hold a hearing.”