Thomas Brent Casey v. Interstate Building Maintenance, Inc.

• Court: Court of Appeals of Texas
• Decided: April 20, 2000
• Docket: 03-99-00524-CV
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

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NO. 03-99-00524-CV

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Thomas Brent Casey, Appellant

v.

Interstate Building Maintenance, Inc., Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 345TH JUDICIAL DISTRICT

NO. 97-04671-A, HONORABLE PAUL DAVIS, JUDGE PRESIDING

Thomas Casey appeals from a no-evidence summary judgment rendered in favor of Interstate Building Maintenance, Inc. ("Interstate"). After setting out various appellate issues, Casey's contention in the argument section of his brief is that the trial court erred in not granting his motion for continuance. We will affirm the judgment.

Background

On April 17, 1997, Casey sued Interstate and two other defendants alleging that on May 1, 1995, while working as a subcontractor in a clean room at Advanced Micro Devices, Inc. ("AMD"), he sustained personal injuries when he stepped down from a ladder and slipped on the floor. ⁽¹⁾ At the time, the flooring was temporary and consisted of 4' x 8' plexiglass panels. Casey alleged that the panel beneath the ladder was not properly secured and when he stepped down from the ladder the panel slipped, causing him to fall. Casey's premises liability cause of action alleged that Interstate was negligent in maintaining the temporary flooring in the clean room where he fell in the following respects: (1) it failed to post warning signs; (2) it failed to cover the floor with another covering that would have secured the temporary plexiglass floor; (3) it failed to cover the floor with a nonslip surface; and (4) it failed to remove or secure the plexiglass to eliminate the risk of the panels slipping.

On July 27, 1999, after the case had been on file for more than two years, Interstate moved for summary judgment contending that it was entitled to judgment as a matter of law because it was not the owner of the premises, not responsible for the safety of the premises, and was not a subcontractor responsible for installing, securing, modifying, or maintaining the temporary flooring in the room where Casey allegedly sustained injuries. Interstate asserted that it was a subcontractor hired to provide microcontamination control in the room which involved only cleaning surfaces with special decontamination equipment such as special dry and damp mops and ultrafiltered vacuuming equipment. Interstate supported the motion with sworn affidavits from various people associated with the project at AMD at the time Casey claimed he was injured. In addition, Interstate requested relief under Texas Rule of Civil Procedure 166a(i), the no-evidence summary-judgment rule.

On August 5, Casey filed a verified motion for continuance asking the trial court to delay ruling on the summary-judgment motion because Interstate had failed and refused to provide him with a copy of the written contract defining its activities at AMD. Casey asserted in the motion that although he made the appropriate requests, Interstate had not provided him with a copy of the contract. Finally, Casey asserted that the contract would be the "best evidence" of Interstate's duties at AMD. Casey also filed a document titled "notice of intent to use the following discovery documents and reports as summary-judgment proof and evidence in opposition to defendants' motion for summary judgment." Attached to the cover sheet was a complete copy of Casey's 374-page deposition.

On August 18, the trial court heard the summary-judgment motion and granted judgment in all respects in favor of Interstate. The trial court then severed the order, thereby making it an appealable judgment.

Discussion

Motion for Continuance

Casey argues on appeal that he was entitled to a continuance because Interstate did not comply with his discovery requests and had not produced a copy of the relevant contract, which would be the best evidence of Interstate's duties and responsibilities at the AMD site at the time Casey was injured. Casey did not obtain a ruling on his motion for continuance.

To preserve error in the absence of a ruling, a party must object to the court's refusal to rule. See Southwest Country Enters., Inc. v. Lucky Lady Oil Co., 991 S.W.2d 490, 493 (Tex. App.--Fort Worth 1999, pet. denied); Tex. R. App. P. 33.1(a)(2)(B). Here, Casey did not object to the court's failure to rule on his motion for continuance and consequently has not preserved this complaint for appellate review.

Even if error were properly preserved and the trial court impliedly overruled Casey's motion for continuance, we hold that the trial court did not abuse its discretion. See State v. Wood Oil Distrib. Inc., 751 S.W.2d 863, 865 (Tex. 1988) (citing Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986) (grant or denial of continuance is within trial court's discretion and on appeal will not be disturbed except for clear abuse)).

When a party contends that it has not had an adequate 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. See Tenneco, Inc. v. Enterprise Prods. Co., 925 S.W.2d 640, 647 (Tex. 1996); see also Kahanek v. Rogers, 900 S.W.2d 131, 134 (Tex. App.--San Antonio 1995, no writ); Tex. R. Civ. P. 166a(g), 252. In the verified motion or affidavit the plaintiff must allege that he cannot present facts essential to justify his opposition to the summary-judgment motion and that he needs additional time to conduct discovery. See Tenneco, 925 S.W.2d at 647; see also Kahanek, 900 S.W.2d at 134; Tex. R. Civ. P. 166a(g), 252. It is well established that to be entitled to a continuance a litigant must diligently utilize the rules of civil procedure for discovery purposes. Wood Oil, 751 S.W.2d at 865. When comparing the allegations in the motion with the record reveals a complete lack of diligence, a trial court will not be required to grant a continuance. Id.

Casey's verified motion for continuance requested that the trial court postpone ruling on Interstate's summary-judgment motion until Interstate provided a copy of the relevant contract to him. Casey contended that he was entitled to a continuance because Interstate, after several requests, had failed and refused to provide a copy of the contract to him. The implication of his argument was that he could not properly respond to Interstate's summary-judgment motion without a copy of the contract showing Interstate's duties at AMD.

Reviewing the record and docket sheet, there is no indication that Casey filed a request for production or a motion to compel production of any contract involving Interstate during the twenty-eight months the suit was on file before Interstate moved for summary judgment. While we do not doubt that Casey informally asked Interstate to produce a copy of the contract, there is nothing in the record reflecting that he sought production of the contract by diligently utilizing the rules of civil procedure. Additionally, there is nothing in the record indicating that he asked the trial court for assistance by filing a motion to compel production of the contract.

Considering Casey's motion in light of the entire record, we conclude that he has not shown that he diligently utilized the rules of civil procedure for discovery purposes. Casey has not shown that the trial court abused its discretion in impliedly denying his motion for continuance.

No-Evidence Summary Judgment

The granting of a no-evidence summary judgment is proper when the non-movant fails to present more than a scintilla of proof raising a genuine issue of material fact as to one or more essential elements of his claim on which he would have the burden of proof at trial. See Jackson v. Fiesta-Mart, Inc., 979 S.W.2d 68, 70-71 (Tex. App.--Austin 1998, no pet.). Rule 166a(i) provides that the non-movant must present summary-judgment proof sufficient to raise a material fact on the element attacked by the movant or the no-evidence motion must be granted. See In re Mission Consolidated Indep. Sch. Dist., 990 S.W.2d 459, 460 (Tex. App.--Corpus Christi 1999, orig. proceeding); Tex. R. Civ. P. 166a(i).

A person who does not own or possess the premises in question does not assume liability under a premises liability theory unless he assumes control over and responsibility for the premises. City of Denton v. Van Page, 701 S.W.2d 831, 835 (Tex. 1986). In this case, it is undisputed that Interstate was a subcontractor working at the AMD site where Casey was injured. Ultimately, in order to prevail on his claim, Casey must establish that Interstate had a duty with respect to the floor where Casey was allegedly injured--Casey would be required to prove that Interstate had assumed control over and responsibility for the condition of the floor.

Interstate, by filing a no-evidence summary-judgment motion, shifted to Casey the burden to produce more than a scintilla of competent proof of duty in order to defeat Interstate's motion. See Jackson, 979 S.W.2d at 68; Tex. R. Civ. P. 166a(i). Casey filed two documents in response to Interstate's motion for summary judgment: (1) the notice of intent to use a deposition as summary-judgment proof and (2) a motion for continuance. Casey did not attach any evidence to his motion for continuance. His notice of intent to use a deposition as summary-judgment proof stated in a few lines that he intended to use the deposition in its entirety as a response to Interstate's motion for summary judgment.

When presenting summary-judgment proof a party must expressly and specifically identify the supporting proof on file which it seeks to have considered by the trial court. See Boeker v. Syptak, 916 S.W.2d 59, 61 (Tex. App.--Houston [1st Dist.] 1996, no writ). Attaching entire depositions to a motion for summary judgment or to a response and referencing them only generally does not relieve the party's burden of pointing out to the trial court where in the deposition the issues set forth in the motion or response are raised. See Guthrie v. Suiter, 934 S.W.2d 820, 826 (Tex. App.--Houston [1st Dist.] 1996, no writ). It is not the court's responsibility to sift through voluminous attachments or records to discover potential fact issues. See id.; see also Paull v. Capital Resource Management, Inc., 987 S.W.2d 214, 220-21 (Tex. App.--Austin 1999, pet. denied).

Casey's response to the summary-judgment motion directed the trial court to a lengthy deposition. Casey's broad reference to the deposition, without any specificity whatever in argument or reference, is insufficient as summary-judgment proof. See Rogers v. Ricane Enters., Inc., 772 S.W.2d 76, 81 (Tex. 1989); Guthrie, 934 S.W.2d at 826. We hold that Casey failed to respond to Interstate's summary-judgment motion with competent summary-judgment proof of a duty owed by Interstate to Casey. Because Casey failed to produce competent proof in response to Interstate's no-evidence summary-judgment motion, the trial court did not err in granting judgment in favor of Interstate.

Conclusion

Casey's issues are overruled and the trial court's judgment is affirmed.

J. Woodfin Jones, Justice

Before Justices Jones, Yeakel and Patterson

Affirmed

Filed: April 20, 2000

Do Not Publish

1.   Casey also sued AMD and Meissner & Werst GMBH & Co. U.S. Operations, Inc.

nothing in the record indicating that he asked the trial court for assistance by filing a motion to compel production of the contract.

Considering Casey's motion in light of the entire record, we conclude that he has not shown that he diligently utilized the rules of civil procedure for discovery purposes. Casey has not shown that the trial court abused its discretion in impliedly denying his motion for continuance.

The granting of a no-evidence summary judgment is proper when the non-movant fails to present more than a scintilla of proof raising a genuine issue of material fact as to one or more essential elements of his claim on which he would have the burden of proof at trial. See Jackson v. Fiesta-Mart, Inc., 979 S.W.2d 68, 70-71 (Tex. App.--Austin 1998, no pet.). Rule 166a(i) provides that the non-movant must present summary-judgment proof sufficient to raise a material fact on the element attacked by the movant or the no-evidence motion must be granted. See In re Mission Consolidated Indep. Sch. Dist., 990 S.W.2d 459, 460 (Tex. App.--Corpus Christi 1999, orig. proceeding); Tex. R. Civ. P. 166a(i).

A person who does not own or posses