Gregg v. Cecil

844 S.W.2d 851, 1992 Tex. App. LEXIS 3252, 1992 WL 398327

• Court: Court of Appeals of Texas
• Decided: December 10, 1992
• Docket: 09-92-022 CV
• Status: Published

Opinions

OPINION

WALKER, Chief Justice.

Appellant, Gregg, filed this action on November 2, 1989, against appellee, Cecil, for damages allegedly sustained as a result of medical treatment rendered to Gregg by Cecil on or about November 2, 1987. On September 11,1991, Cecil filed a motion for summary judgment supported by affidavits by William Powell, M.D. and Linda Cecil, M.D. Gregg received the motion on September 12, 1991, accompanied by notice of hearing on the summary judgment for October 3, 1991, giving him more than 21 days notice in accordance with Tex.R.Civ.P. 166a. On September 24, 1991, Gregg filed a motion for continuance alleging insufficient time to answer appellee’s motion for summary judgment. For grounds Gregg averred the following:

Over the past several months, Ms. Gregg and her counsel had been consulting with a doctor about the issues in this case. Ms. Gregg anticipated designating him as a testifying expert once he had reviewed the records and authorities sufficiently to formulate an opinion. Unfortunately, that doctor has been diagnosed with a serious illness, and he is no longer available to confer with the plaintiff and her counsel about this case, [footnote omitted] During the past month Ms. Gregg’s counsel has spoken with other doctors/consultants about the issues in this case; however, he has simply not had enough time to obtain reasoned and informed opinions from any of them. Gregg’s counsel is currently consulting a doctor and medical school professor about the issues in this case.

These facts are verified by Pat Gregg’s affidavit attached to that motion for continuance.

Gregg did not challenge the motion for summary judgment, and on October 3, 1991, the trial court granted Cecil’s motion for summary judgment in the absence of controverting evidence.

Appellant brings one point of error before this Court in alleging that the trial court erred by denying plaintiffs motion for continuance. Appellant alleges that the trial court abused its discretion when it denied Ms. Gregg’s motion for continuance, the test being whether the trial court acted without reference to any guiding principles or whether it acted arbitrarily or unreasonably. See Yowell v. Piper Aircraft Corp., 703 S.W.2d 630, 635 (Tex.1986). It is settled law that the trial court’s decision to grant or deny a motion for continuance rests within the discretion of the trial judge. Villegas v. Carter, 711 S.W.2d 624, 626 (Tex.1986). See Draper v. Garcia, 793 S.W.2d 296 (Tex.App.—Houston [14th Dist.] 1990, no writ).

In ruling on a motion for a continuance the Court must look at the entire record in the case and not just the sworn allegations set forth in the motion for continuance. See Durston v. Best Western Motel, 695 S.W.2d 795, 797 (Tex.App.—Waco 1985, no writ). In the case before us we note that the date of the incident giving rise to the action in the trial court occurred almost four years prior to summary judgment being granted. We note at the outset that this motion for continuance was appellant’s first motion in the trial court, but there is nothing in the rules of civil procedure relating to continuances requiring granting of a first motion merely because it meets all the requirements of the statute, and it is uncontroverted by the opposing party. Id. at 797. Fritsch v. J.M. English Truck Line, 151 Tex. 168, 246 S.W.2d 856 (1952). The motion for continuance raises the question of diligence on the part of appellant when the continuance is sought because of the absence of a witness. Holland v. First Nat. Bank in Dallas, 597 S.W.2d 406, 412 (Tex.Civ.App.—Dallas 1980, writ dism’d). It is axiomatic that the appellant must show that he has used due diligence and must state with particularity such diligence used and the cause of the failure to produce a witness. Ray v. Ray, 542 S.W.2d 209, 212 (Tex.Civ.App.—Tyler 1976, no writ). A mere conclusion that diligence was used in an affidavit accompanying a motion for continuance is insufficient to satisfy the requirements of Tex. R.Civ.P. 252. Ray, supra, 542 S.W.2d at 212.

In the case before us we cannot say that the trial judge abused its discretion in overruling the motion for continuance. We cannot determine that appellant used due diligence to procure the testimony of the witness, nor did he even state the name and address of said witness. Tex.R.Civ.P. 166a(g); 252. See Love v. Grizzaffi, 423 S.W.2d 164, 165 (Tex.Civ.App.—Waco 1967, no writ). Appellant has likewise failed to show why the absent witness’ testimony could not have been taken by deposition. Sanders v. Kansas City Life Ins. Co., 152 S.W.2d 506, 508 (Tex.Civ.App.—Amarillo 1941, writ ref’d); Green v. State, 589 S.W.2d 160 (Tex.Civ.App.—Tyler 1979, no writ). Under the circumstances reflected in the record, we cannot say that trial court abused its discretion in denying the motion for continuance. Cedillo v. Jefferson, 802 S.W.2d 866 (Tex.App.—Houston [1st Dist.] 1991, writ denied); Jones v. Papp, 782 S.W.2d 236 (Tex.App.—Houston [14th Dist.] 1989, writ denied).

We affirm the trial court below in granting appellee’s motion for summary judgment.

AFFIRMED.