DISSENTING OPINION BY JUSTICE SEYMORE
A party may file a no-evidence summary judgment "[a]fter adequate time
for discovery." Tex. R. Civ. P. 166a(i). However, there is no requirement
that discovery be completed; the requirement is an adequate amount of
time. Specialty Retailers, Inc. v. Fuqua, 29 S.W.3d 140, 145 (Tex. App.C
Houston [14th Dist.] 2000, pet. denied). Whether a nonmovant had
adequate time for discovery under rule 166(a)(i) is case specific, and
there is no bright line test to determine whether an adequate time for
discovery has passed. See Rest. Teams Int=l, Inc. v. MG Sec. Corp., 95
S.W.3d 336, 339 (Tex. App.- Dallas 2002, no pet.). Rather, we consider a
number of factors to determine whether a trial court allowed adequate time
for discovery. See Specialty Retailers, 29 S.W.3d at 145.
Although some factors in this case indicate there may have been
inadequate time for discovery, I conclude the trial court acted within its
discretion by finding McInnis had an adequate time for discovery.
Trial courts may presume a plaintiff investigated his own case prior to filing
suit. See Carter v. MacFadyen, 93 S.W.3d 307, 311 (Tex. App.- Houston
[14th Dist.], pet. denied). Here, McInnis filed suit on May 23, 2005, and
the lawsuit had been on file for seven months before the court ruled on the
motion for summary judgment.
A trial court commits an abuse of discretion only when it acts in an
arbitrary or unreasonable manner or acts without reference to any guiding
rules or principles. Garcia v. Martinez, 998 S.W.2d 219, 222 (Tex. 1999).
After reviewing the record, I cannot conclude the trial court acted in either
an arbitrary or unreasonable manner or acted without reference to guiding
rules or principles. Accordingly, I respectfully dissent.
/s/ Charles W. Seymore
Judgment rendered and Majority and Dissenting Opinions filed June 10,
Panel consists of Justices Fowler, Frost, and Seymore. (Frost, J., majority)