Keith W. Schmidt v. Patsy Bell, V.P.

• Court: Court of Appeals of Texas
• Decided: April 3, 2008
• Docket: 01-06-00161-CV
• Status: Published

Opinion

Opinion Issued April 3, 2008

Opinion Issued April 3, 2008

In The

Court of Appeals

For The

First District of Texas

NO. 01-06-00161-CV

KEITH W. SCHMIDT, Appellant

V.

PATSY BELL, V.P. and BELL & ROBB ELECTRIC CO., Appellee

On Appeal from the County Civil Court at Law No. 4

Harris County, Texas

Trial Court Cause No. 826522

MEMORANDUM OPINION

          Appellant Keith Schmidt, in his sole issue, contends that the trial court abused its discretion by refusing to grant a longer continuance to prepare for a summary judgment hearing.  The trial court granted summary judgment to Appellees Patsy Bell and Bell & Robb Electric Company.  We affirm.[1]

Background

          Schmidt sued Bell and Bell & Robb Electric Company in justice court for failure to fully compensate him for services in the amount of $4,940 that he allegedly performed under an oral employment contract.[2]  The justice court granted summary judgment against Schmidt.  Schmidt appealed the decision to county civil court.

          Appellees filed a motion for summary judgment on September 13, 2005.  The trial court initially set the motion for a hearing for October 13.  On October 12, Schmidt moved for a continuance, based in part upon the city of Houston’s evacuation during Hurricane Rita.  The trial court granted Schmidt’s motion for continuance, extending the deadline for Schmidt to respond to the summary judgment motion to October 17, and resetting the hearing for October 24.  Appellees moved to strike Schmidt’s response.  The trial court granted the motion to strike, and granted summary judgment against Schmidt on October 24.

Analysis

          Schmidt contends that the trial court abused its discretion by not granting a longer continuance.  When a party contends that it has not had sufficient opportunity for discovery before a summary judgment hearing, 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); see Tex. R. Civ. P. 166a(g), 251, 252. “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.”  Sneed v. Cryolife, Inc., No. 01-05-00425-CV, 2006 WL 1653653, at *2 (Tex. App.—Houston [1st Dist.] Jun. 15, 2006, pet. denied) (mem op.) (citing Rocha v. Faltys, 69 S.W.3d 315, 319 (Tex. App.—Austin 2002, no pet.)).

A trial court has broad discretion to decide whether to grant a continuance until the requested discovery is completed.  Levinthal v. Kelsey-Seybold Clinic, P.A., 902 S.W.2d 508, 510 (Tex. App.—Houston [1st Dist.] 1994, no writ).  We will not disturb the trial court’s granting or denial of a motion for continuance absent a clear abuse of discretion.  See BMC Software Belgium, N.V. v. Marchand, 83 S.W. 3d 789, 800 (Tex. 2002); 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).  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.” Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985).

Schmidt had one-month’s notice of the summary judgment hearing, after which the trial court granted him an additional eleven days to prepare for the hearing.  Schmidt does not explain how additional time would have helped him overcome summary judgment, nor does he point to any evidence in the record to support that conclusion.  In addition, Schmidt did not request additional time prior to the hearing.  We hold that the trial court did not abuse its discretion when it continued the hearing for eleven days.

Conclusion

We affirm the trial court’s judgment.

Jane Bland

                                                          Justice

Panel consists of Chief Justice Radack and Justices Jennings and Bland.

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[1]           Appellees contest our jurisdiction due to Schmidt’s failure to timely file his notice of appeal.  Although the notice of appeal was untimely filed, it was filed within the 15-day period in which parties may file a motion to extend time to file a notice of appeal. Tex. R. App. P. 26.3.  Accordingly, we imply a motion to extend time to file the notice of appeal if Schmidt provides a reasonable explanation for the delay. See Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997).  Upon notice of the jurisdictional defect, Schmidt filed a reasonable explanation for the late filing of the notice of appeal, which we accepted. See Jones v. City of Houston, 976 S.W.2d 676, 677 (Tex. 1998). Therefore, we have jurisdiction over this appeal.

[2]           The limited record before us on review provides only the final summary judgment record.  The parties, however, do not dispute the facts of this case, and we recite them as stated in the parties’ briefs.