MEMORANDUM OPINION No. 04-10-00313-CV
Tammy Sue TURNER, Individually and as Next Friend of Katylnn Nicole Turner, and Claudella Kay Turner, Individually and as Next Friend of Joshua Andrew Turner and Stephen James Lewis Turner, minor children, and as Heir and Beneficiary of the Estate of Geraldine Turner, deceased, Appellants
v.
Santiago V. CRUZ, Appellee
From the 73rd Judicial District Court, Bexar County, Texas Trial Court No. 2010-CI-04548 Honorable Gloria Saldaña, Judge Presiding
Opinion by: Karen Angelini, Justice
Sitting: Karen Angelini, Justice Sandee Bryan Marion, Justice Phylis J. Speedlin, Justice
Delivered and Filed: December 29, 2010
AFFIRMED
This is an appeal from the granting of summary judgment in favor of Santiago V. Cruz.
Cruz filed a no-evidence motion for summary judgment after a wrongful death lawsuit arising
out of an automobile accident was brought against him by the statutory beneficiaries of
Geraldine Turner, deceased (“the Turners”). On appeal, the Turners argue that the trial court 04-10-00313-CV
erred in (1) denying their motion for continuance and (2) in granting Cruz’s motion for summary
judgment. We affirm the trial court’s judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In December 2006, Geraldine Turner, the deceased, was killed in an automobile accident.
At the time of the accident, Turner was riding as a passenger in a car driven by John R. Gray.
Gray, who was intoxicated and speeding, hydroplaned on the wet roadway, crossed over into
oncoming traffic, and hit a vehicle driven by Cruz. Cruz’s wife, who was a passenger in Cruz’s
car, was injured in the accident. Gray was charged with and pled guilty to one count of
intoxication manslaughter (for the death of Geraldine Turner) and one count of intoxication
assault (for the injuries to Cruz’s wife). Gray is serving two concurrent seven-year sentences in
the Texas Department of Corrections.
In December 2008, the Turners sued both Cruz and Gray, alleging both were negligent in
causing Geraldine Turner’s death. That same month, Cruz filed an answer to the lawsuit. One
month later, Gray filed a general denial, listing his address as the Texas Department of
Corrections, Garza West Unit, Beeville, Texas. A little over a year later, Cruz filed his no-
evidence motion for summary judgment. In his motion, Cruz contended there was no evidence he
breached any duty to Turner that caused or contributed to the accident that is the subject of the
suit. Cruz also attached evidence in the form of (1) an affidavit and report from the investigating
police officer, Officer Manuel Morales, Jr.; (2) Gray’s conviction records; and (3) Turner’s
autopsy records. In his affidavit, Officer Morales affirmed that he was trained and experienced in
automobile accident investigation; that he investigated the accident involved in this suit; that he
determined the sole cause of the collision to be the acts and omissions of Gray; and that he
determined Cruz did not cause or contribute to the collision.
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In response to Cruz’s motion, the Turners filed a motion for continuance, contending that
they needed testimony from Gray before the motion could be heard. The Turners’ attorney
provided an affidavit in which he stated that Gray’s exact location had been unknown until
November 2009, and that Gray was entitled to notice of the motion for summary judgment
before it could be heard. Specifically, the Turners’ attorney stated Gray’s deposition was
“required to establish facts necessary to the disposition of this case” and that Gray “can
contribute to the factual dispute as the events immediately prior to the impact of the vehicles
[that] resulted in the death of Geraldine Turner, decedent.”
The Turners also filed a response to Cruz’s no-evidence motion for summary judgment.
In their response, they claimed that a fact issue existed as to Cruz’s negligence in causing the
accident because the evidence showed that Cruz was aware of Gray’s vehicle, but was unable to
stop in time to avoid the collision.
After holding a hearing, the trial court denied the Turners’ motion for continuance and
granted Cruz’s no-evidence motion for summary judgment. In their appeal, the Turners contend
the trial court erred in overruling their motion for continuance and in granting Cruz’s motion for
summary judgment.
DISCUSSION
1. Motion for Continuance
In their first issue on appeal, the Turners argue the trial court erred in denying their
motion to continue the summary judgment hearing. Specifically, they complain that Gray did not
receive notice of the motion for summary judgment and that they needed additional time to take
Gray’s deposition.
-3- 04-10-00313-CV
We review the trial court’s denial of a motion for continuance under an abuse of
discretion standard. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004). 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. Id. Among the factors to consider when
determining whether a trial court has abused its discretion by denying a motion for continuance
of a summary judgment hearing are (1) the length of time the case has been on file; (2) the
materiality of the discovery sought; and (3) whether due diligence was used in obtaining
discovery. Id. When a party argues it has not had adequate opportunity for discovery before the
summary judgment hearing, that party must file an affidavit explaining the need for further
discovery or a verified motion for continuance. TEX. R. CIV. P. 166a(g), 251, 252; Joe, 145
S.W.3d at 161. The affidavit must explain why the continuance is necessary; conclusory
allegations are insufficient. Rocha v. Faltys, 69 S.W.3d 315, 319 (Tex. App.—Austin 2002, no
pet.). The affidavit must specify what evidence the party hopes to procure and detail its
materiality. Id.
First, we find no merit to the Turners’ argument that the hearing could not go forward
until Gray received notice of the summary judgment and the hearing. The Turners failed to allege
or make a showing of how they were harmed by Gray’s lack of notice. Further, Cruz’s motion
for summary judgment concerned only the Turners’ allegations against Cruz, not those against
Gray.
Second, we find no abuse of discretion in the trial court’s denial of the continuance based
on the Turners’ complaint that they had not had sufficient opportunity to take Gray’s deposition.
The first factor we consider is the length of time the case had been on file. The fatal accident
occurred in December 2006, and suit was filed two years later, in December 2008. In their first
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amended petition, which was also filed in December 2008, the Turners listed Gray’s address for
service of process as the Texas Department of Corrections, in Beeville, Texas. And, Gray was
obviously properly served there because he filed a pro se answer on December 29, 2008, and
another pro se answer on January 30, 2009. In his answer, Gray included his Texas Department
of Corrections address in Beeville, Texas. Cruz’s motion for summary judgment was filed on
January 22, 2010, over a year after the Turners filed suit.
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MEMORANDUM OPINION No. 04-10-00313-CV
Tammy Sue TURNER, Individually and as Next Friend of Katylnn Nicole Turner, and Claudella Kay Turner, Individually and as Next Friend of Joshua Andrew Turner and Stephen James Lewis Turner, minor children, and as Heir and Beneficiary of the Estate of Geraldine Turner, deceased, Appellants
v.
Santiago V. CRUZ, Appellee
From the 73rd Judicial District Court, Bexar County, Texas Trial Court No. 2010-CI-04548 Honorable Gloria Saldaña, Judge Presiding
Opinion by: Karen Angelini, Justice
Sitting: Karen Angelini, Justice Sandee Bryan Marion, Justice Phylis J. Speedlin, Justice
Delivered and Filed: December 29, 2010
AFFIRMED
This is an appeal from the granting of summary judgment in favor of Santiago V. Cruz.
Cruz filed a no-evidence motion for summary judgment after a wrongful death lawsuit arising
out of an automobile accident was brought against him by the statutory beneficiaries of
Geraldine Turner, deceased (“the Turners”). On appeal, the Turners argue that the trial court 04-10-00313-CV
erred in (1) denying their motion for continuance and (2) in granting Cruz’s motion for summary
judgment. We affirm the trial court’s judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In December 2006, Geraldine Turner, the deceased, was killed in an automobile accident.
At the time of the accident, Turner was riding as a passenger in a car driven by John R. Gray.
Gray, who was intoxicated and speeding, hydroplaned on the wet roadway, crossed over into
oncoming traffic, and hit a vehicle driven by Cruz. Cruz’s wife, who was a passenger in Cruz’s
car, was injured in the accident. Gray was charged with and pled guilty to one count of
intoxication manslaughter (for the death of Geraldine Turner) and one count of intoxication
assault (for the injuries to Cruz’s wife). Gray is serving two concurrent seven-year sentences in
the Texas Department of Corrections.
In December 2008, the Turners sued both Cruz and Gray, alleging both were negligent in
causing Geraldine Turner’s death. That same month, Cruz filed an answer to the lawsuit. One
month later, Gray filed a general denial, listing his address as the Texas Department of
Corrections, Garza West Unit, Beeville, Texas. A little over a year later, Cruz filed his no-
evidence motion for summary judgment. In his motion, Cruz contended there was no evidence he
breached any duty to Turner that caused or contributed to the accident that is the subject of the
suit. Cruz also attached evidence in the form of (1) an affidavit and report from the investigating
police officer, Officer Manuel Morales, Jr.; (2) Gray’s conviction records; and (3) Turner’s
autopsy records. In his affidavit, Officer Morales affirmed that he was trained and experienced in
automobile accident investigation; that he investigated the accident involved in this suit; that he
determined the sole cause of the collision to be the acts and omissions of Gray; and that he
determined Cruz did not cause or contribute to the collision.
-2- 04-10-00313-CV
In response to Cruz’s motion, the Turners filed a motion for continuance, contending that
they needed testimony from Gray before the motion could be heard. The Turners’ attorney
provided an affidavit in which he stated that Gray’s exact location had been unknown until
November 2009, and that Gray was entitled to notice of the motion for summary judgment
before it could be heard. Specifically, the Turners’ attorney stated Gray’s deposition was
“required to establish facts necessary to the disposition of this case” and that Gray “can
contribute to the factual dispute as the events immediately prior to the impact of the vehicles
[that] resulted in the death of Geraldine Turner, decedent.”
The Turners also filed a response to Cruz’s no-evidence motion for summary judgment.
In their response, they claimed that a fact issue existed as to Cruz’s negligence in causing the
accident because the evidence showed that Cruz was aware of Gray’s vehicle, but was unable to
stop in time to avoid the collision.
After holding a hearing, the trial court denied the Turners’ motion for continuance and
granted Cruz’s no-evidence motion for summary judgment. In their appeal, the Turners contend
the trial court erred in overruling their motion for continuance and in granting Cruz’s motion for
summary judgment.
DISCUSSION
1. Motion for Continuance
In their first issue on appeal, the Turners argue the trial court erred in denying their
motion to continue the summary judgment hearing. Specifically, they complain that Gray did not
receive notice of the motion for summary judgment and that they needed additional time to take
Gray’s deposition.
-3- 04-10-00313-CV
We review the trial court’s denial of a motion for continuance under an abuse of
discretion standard. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004). 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. Id. Among the factors to consider when
determining whether a trial court has abused its discretion by denying a motion for continuance
of a summary judgment hearing are (1) the length of time the case has been on file; (2) the
materiality of the discovery sought; and (3) whether due diligence was used in obtaining
discovery. Id. When a party argues it has not had adequate opportunity for discovery before the
summary judgment hearing, that party must file an affidavit explaining the need for further
discovery or a verified motion for continuance. TEX. R. CIV. P. 166a(g), 251, 252; Joe, 145
S.W.3d at 161. The affidavit must explain why the continuance is necessary; conclusory
allegations are insufficient. Rocha v. Faltys, 69 S.W.3d 315, 319 (Tex. App.—Austin 2002, no
pet.). The affidavit must specify what evidence the party hopes to procure and detail its
materiality. Id.
First, we find no merit to the Turners’ argument that the hearing could not go forward
until Gray received notice of the summary judgment and the hearing. The Turners failed to allege
or make a showing of how they were harmed by Gray’s lack of notice. Further, Cruz’s motion
for summary judgment concerned only the Turners’ allegations against Cruz, not those against
Gray.
Second, we find no abuse of discretion in the trial court’s denial of the continuance based
on the Turners’ complaint that they had not had sufficient opportunity to take Gray’s deposition.
The first factor we consider is the length of time the case had been on file. The fatal accident
occurred in December 2006, and suit was filed two years later, in December 2008. In their first
-4- 04-10-00313-CV
amended petition, which was also filed in December 2008, the Turners listed Gray’s address for
service of process as the Texas Department of Corrections, in Beeville, Texas. And, Gray was
obviously properly served there because he filed a pro se answer on December 29, 2008, and
another pro se answer on January 30, 2009. In his answer, Gray included his Texas Department
of Corrections address in Beeville, Texas. Cruz’s motion for summary judgment was filed on
January 22, 2010, over a year after the Turners filed suit. The hearing on Cruz’s motion for
summary judgment was held on February 18, 2010. Given that the Turners’ lawsuit had been on
file for more than a year when Cruz filed his motion for summary judgment, there was sufficient
time for the Turners to take Gray’s deposition.
The second factor we consider is the materiality of the discovery sought. The only
explanation the Turners offered was in the affidavit of their attorney, which stated that Gray’s
deposition would “establish facts necessary to the disposition of this case” and that Gray “can
contribute to the factual dispute as the events immediately prior to the impact of the vehicles.”
We find these conclusory statements inadequate to detail the evidence the Turners hoped to
procure or its materiality.
As to the third factor, a showing of due diligence in attempting to obtain the discovery,
we likewise find the Turners’ explanation inadequate. The Turners’ attorney alleges in his
affidavit that he did not know Gray’s exact location until November 2009 and that, through
examination of the court’s file, he determined Gray had filed a general denial. As noted above,
however, the Turners’ petition filed in December 2008 listed Gray’s Texas Department of
Corrections address, and Gray’s answer, in which he listed his Texas Department of Corrections
address, had been on file for approximately a year before Cruz filed his motion for summary
judgment. Thus, the Turners did have information regarding Cruz’s location when they filed the
-5- 04-10-00313-CV
lawsuit. And, they failed to show what efforts they made during the year the case was on file to
obtain Gray’s deposition. Therefore, we cannot say the trial court abused its discretion in
denying the Turners’ motion for continuance.
2. Motion for Summary Judgment
Under Rule 166a(i), a party may move for a no-evidence summary judgment on the
ground that there is no evidence of one or more essential elements of a claim or defense on
which an adverse party would have the burden of proof at trial. TEX. R. CIV. P. 166a(i). The trial
court must grant the motion unless the respondent produces summary judgment evidence raising
a genuine issue of material fact. Id. The respondent is “not required to marshal its proof; its
response need only point out evidence that raises a fact issue on the challenged elements.” TEX.
R. CIV. P. 166a(i) cmt-1997. In reviewing a trial court’s order granting a no-evidence summary
judgment, we consider the evidence in the light most favorable to the respondent and disregard
all contrary evidence and inferences. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51
(Tex. 2003). Thus, a no-evidence summary judgment is improperly granted if the respondent
brings forth more than a scintilla of probative evidence to raise a genuine issue of material fact.
Id. at 751; see TEX. R. CIV. P. 166a(i). In determining if the respondent has brought forth more
than a scintilla of evidence, we consider whether the evidence would enable reasonable and fair-
minded jurors to differ in their conclusions. Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex.
2008).
In their petition, the Turners alleged that Cruz was negligent in the operation of his
vehicle and that such negligence was a proximate cause of Turner’s death. In his no-evidence
motion for summary judgment, Cruz contended there was no evidence he breached a duty to
Turner that caused or contributed to the accident made the basis of the suit. In their response, the
-6- 04-10-00313-CV
Turners relied on Cruz’s answer to interrogatories and other evidence attached to Cruz’s motion
for summary judgment. On appeal, the Turners point to three specific items of evidence that they
contend raise a fact issue precluding summary judgment.
The first is Cruz’s interrogatory response in which Cruz stated that, as he was driving
very slowly, he “saw Co-Defendant Gray swerving. [Cruz] applied his brakes but [Gray] struck
his vehicle.” The second is a quote from the medical examiner’s investigation report. The report
described the circumstances of the accident and, among other things, states that when Gray’s
vehicle veered into oncoming traffic, the Kia Sedona “was unable to stop in time.” The third item
the Turners point to is the Texas Peace Officer’s Crash Report, which identifies the driver of the
Kia Sedona as Cruz. The Turners argue this evidence raises a fact issue as to whether Cruz
operated his motor vehicle negligently. In other words, it appears the Turners are contending that
the fact that Cruz saw Gray swerving before applying his brakes and that Cruz was unable to
stop in time amounts to evidence of Cruz’s negligence.
Cruz counters with the argument that this evidence does not raise a fact issue. In support,
Cruz cites Fannin v. Hall, 561 S.W.2d 952, 956 (Tex. Civ. App.—Tyler 1978, no writ), which
states “[e]very motorist has a duty to keep a proper lookout, but he is not required to anticipate
negligence or other unlawful conduct on the part of another.” We agree. The mere fact that Cruz
saw Gray swerve into Cruz’s lane of traffic but was not able to stop in time to avoid a collision is
simply no evidence that Cruz breached any duty to Turner or that his acts and/or omissions were
a proximate cause of the collision. The Turners’ argument assumes, without evidentiary support,
that Cruz had time to see Gray’s vehicle and to take evasive action. See Kahng v. Verity, No. 01-
07-00695-CV, 2008 WL 2930195, at *5 (Tex. App.—Houston [1st Dist.] 2008, no pet.).
-7- 04-10-00313-CV
We conclude the trial court did not err in granting Cruz’s no-evidence motion for
summary judgment. We therefore affirm the trial court’s judgment.
Karen Angelini, Justice
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