Mehanna Mehanna v. International Gourmet Foods, Inc

• Court: Court of Appeals of Texas
• Decided: March 26, 2013
• Docket: 05-11-01548-CV
• Status: Published

Opinion

AFFIRM; Opinion Filed March 26, 2013.

In The Qtiurt nf Apjiiahi Fiftt! 1istrict rif cxa it 1a1hu5 No. 05-1 1-01548-CV

MEHANNA MEI-IANNA, Appellant V. INTERNATIONAL GOURMET FOODS, INC., Appdllee

On Appeal from the 14th Judicial District Court Dallas County, Fexas Trial Court Cause No. DC-10-08946

MEMORANDUM OPINION Before Justices Moseley. Fillmore. and Myers Opinion by Justice Moseley

Mehanna Mehanna sued International Gourmet Foods, Inc. d/b/a Zituna World lood

Market a/k/a Zituna International Gourmet Foods (“Zituna”) in connection with a slip-and-fall

accident, At the trial, the trial court denied several motions for continuance. The case was tried

to a jury, which returned a verdict against Mehanna, and the trial court entered a take-nothing

judgment. Mehanna filed a motion for new trial, which was overruled by operation of law.

Mehanna asserts three issues on appeal, all related to the trial court’s denial of’ the

motions for continuance. Specifically, Mehanna argues the trial court abused its discretion by:

(1) denying a joint—but unveritied—motion for continuance; (2) denying Mehanna’s verified—

and-unopposed motion for continuance; and (3) violating Texas Rule of Civil Procedure 330(d)

by failing to address how a continuance would “unreasonably delay or interfere with other

business of the court.” The background and fticts of the case are well known to the parties; thus, v e (.10 not recite them here. Because a! dispositi e issues are settled n law, n e issue this

memorandum opinlon liX, R .Ae. P. 4/2(a), 47.4. \‘ve ahirm the trial courts judgment,

We review the denial of a motion fir continumce for an abuse of discretion. 14’7i1—Mai’t

.Stoi’’c lcx.. LP r (‘i’osbv. 295 S.\V .3(1 34(. 35( (Tex. App.—- Dallas 21)09. pet. denied). A trial

court abuses its discretion by makin a decision that is arbitrary or unreasonable. Downer i’.

Aquamarine Operators, Inc., 701 S.W.2d 23, 242 (Tex 1985). In determining whether the trial

court abused its discretion, the reviewing court considers three nonexelusive factors: (1) the

length of time the case been on tile, (2) the materiality and purpose of the discovery sought: and

(3) v1iether the party seeking the continuance has exercised due diligence to obtain the discovery

sought. Strong r, Strong. 350 S.W.3d 759, 763 (Tex. App.—-Dallas 201!, pet. denied).

Mehanna argues the trial court abused its discretion by denying the joint motion for

continuance on grounds the motion WiS not verified. Mehanna and Zituna tiled their joint

motion for continuance on July 15, 2011, before the July 26th trial setting. The motion stated,

“Prior to trial, both parties require additional time to complete discovery and conduct mediation.

To date, this case is No.4 on the Court’s docket.” On July 22. 2011, the trial court held a hearing

on the joint motion for continuance. At the hearing, the trial court stated the joint motion for

continuance violated the court’s scheduling order and the rules of civil procedure because it was

not verified. After hearing argument on the motion from both parties, the trial court denied the

joint motion for continuance.

We agree a motion for continuance “made by consent of the parties” does not need to be

verified. TEx. R. Ctv. P. 251 (stating that no continuance shall be granted “except for sufficient

cause supported by affidavit, or by consent of the parties, or by operation of law”). However, if a

movant seeks a continuance to conduct further discovery, “the motion must describe the evidence

sought, explain its materiality, and show the party requesting the continuance has used due

diligence to obtain the evidence.” Crosby, 295 S.W.3d at 356 (citing Pape i: Guadalupe-Blanco .3 River. lath., 4 SW.3d 90X, 914 ([cx. App. Austin 2001, pet. denied)); See lEx. R. (iv, R 252.

Because Mehanna’s motion failed to comply with Rule 252. the trial court did not abuse its

(1 iscretion in denying the joint motion fir continuance. See TEX. R. ( iv. P. 252. We overrule

Mehanna’s lirst issue.

In his second issue, Mehanna argues the trial court abused its discretion by denying his

verified-and-unopposed motion for continuance, which was filed one day before trial. Like the

joint motion for continuance, however, Mehanna’s verified—and—unopposed motion for

continuance does not explain the materiality of the evidence sought or show Mehanna used due

diligence to obtain such evidence. See Tex. R. Civ. P. 252; Crosby, 295 S.W.3d at 356. As a

result. the trial court did not abuse its discretion in denying Mehanna’s verified—and—unopposed

motion for continuance. We overrule Mehanna’s second issue.

Lastly. Mehanna argues that under rule 330(d), the trial court is required to grant a motion

for continuance if it is done by agreement of the parties, unless the continuance will

“unreasonably delay or interfere with other business of the court.” TEx. R. Civ. P. 330(d). This

part of rule 330(d), however, applies to cases that are not tried despite being “set and reached in

its due order and called for trial two (2) or more times.” Id. Because this case does not fit within

that category, rule 330(d) did not limit the trial court’s discretion to rule on the motions for

continuance. We overrule Mehanna’s third issue.

We affirm the trial court’s judgment. Th

.JIMMOSFLEY JUSTICE

11 1548F.P05 Qtnirt ot ApicaI Dhtrirt uf Jixa at Ja1Iaa JUDGMENT

MEI-IANNA MEIIANNA, Appellant Vu Appeal t’rom the 14th Judicial District Court.Dallas County. Texas No. 05-li -() I 548-CV V Trial Court Cause No. DC- 10-08946. Opinion delivered by Justice Moseley. INTERNATIONAL GOURMET FOODS, Justices Fillmore and Myers participating. INC.. Appellee

In accordance with this Court’s opinion of this date the judgment oF the trial court is AFFIRMEI). It is ORDEREI) that appellee INTERNATIONAL GOURMET FOODS, INC. recover its costs of this appeal from appellant MEI-IANNA MFHANNA.

Judgment entered this 26th day of March, 2013.

I.. I /LJ / ‘Ii OLEY JUSTICE