law-MFC | motion for continuance  reset of trial date | motion for continuance of the trial date or summary
judgment hearing date |

MOTION FOR CONTINUANCE - CASE LAW SNIPPETS

An appellate court reviews the trial court’s ruling on a motion for continuance for an abuse of discretion.  
See Landers v. State Farm Lloyds, 257 S.W.3d 740, 747 (Tex. App. — Houston [1st Dist.] 2008, no
pet.) (citing Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986)).  The trial court has broad discretion to
deny or grant a motion for continuance, and the appellate court will not reverse the trial court’s decision
absent a clear abuse of discretion.  Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986); see also Roob
v. Von Beregshasy, 866 S.W.2d 765, 767 (Tex. App.—Houston [1st Dist.] 1993, writ denied).  
Considering the circumstances at the time the motion is denied, a trial court abuses its discretion if it
acts in an arbitrary and unreasonable manner without reference to any guiding rules or principles.  
Landers, 257 S.W.3d at 747.  To decide if a trial court has abused its discretion, the appellate court
considers the following non-exclusive factors: (1) the length of time the case has been on file; (2) the
materiality of the discovery sought; and (3) whether due diligence was exercised in obtaining discovery.  
Joe  v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004).  The appellate court may not
substitute its judgment for that of the trial court in matters committed to the trial court’s discretion.  In re
Spooner, 333 S.W.3d 759, 763 (Tex. App.—Houston [1st Dist.] 2010, orig. proceeding).

Continuance | Standard of Review on Appeal
A trial court's order denying a continuance of a summary judgment hearing will not be disturbed except for a clear
abuse of discretion.  See Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004).  Factors to
consider when deciding whether a trial court abused its discretion in denying a continuance include the length of
time the case has been on file; the materiality and purpose of the discovery sought; and whether the party
seeking the continuance exercised due diligence to obtain the requested discovery.  Id.


For Additional Discovery - Factors
Source: Duerr v. Brown et al (Tex.App.- Houston [14th Dist.] July 3, 2008)(Boyce) (legal malpractice vs. breach of
fiduciary duty, BoFD, fracturing, continuance)
Courts have considered the following nonexclusive factors when deciding whether a trial court abused its
discretion in denying a motion for continuance seeking additional time to conduct discovery: the length of time the
case has been on file; the materiality and purpose of the discovery sought; and whether the party seeking the
continuance has exercised due diligence to obtain the discovery sought.  Two Thirty Nine Joint Venture, 145 S.W.
3d at 161.

The first factor is the length of time the case has been on file.  McMahan v. Greenwood is instructive
in this regard.  See McMahan, 108 S.W.3d at 498.  The lawsuit in McMahan was filed nearly 28 months
before the granting of summary judgment, with 16 months in between subject to a bankruptcy stay,
allowing the parties a full year to conduct discovery.  Id. at 498-99, the trial court found this to be sufficient
time for discovery and denied the continuance; on appeal we concluded that the trial court acted within
its discretion is so determining.  Id. at 499.

In the case before us, the parties had from February 16, 2006  - when the original petition was filed - until
February 22, 2007 -   when the docket control order ended discovery - to conduct discovery and to
prepare for an April, 23 2007 trial.  The trial court acted within its discretion in concluding that this was
sufficient time for dicovery.  This factor weighs in favor of Fleming and Brown.  See Perrotta v. Farmers
Ins. Exch., 47 S.W.3d 569, 576 (Tex. App.- Houston [1st Dist.] 2001, no pet.) (plaintiff has obligation to
research a case before bringing suit; trial court within discretion to deny continuance, noting seven
months  was sufficient to effect discovery and motion for summary judgment was reasonable).[7]

The second factor considers the
materiality and purpose of the discovery sought.  When the basis
for the requested continuance is "want of testimony," the movant must show that (1) the testimony is
material; (2) due diligence has been used to obtain the testimony; (3) there is an explanation given for
the failure to obtain the testimony; and (4) the testimony cannot be procured from another source. Tex. R.
Civ. P. 252; see Blake v. Lewis, 886 S.W.2d 404, 409 (Tex. App.- Houston [1st Dist.] 1994, no writ)
(proponent of a motion for continuance should state what specific discovery is material and show why it
is material).  While Duerr asserted his need to depose the attorneys for Fleming and Brown, he never
states what their depositions would demonstrate or how this information would assist Duerr or the court.  
See Perrotta, 47 S.W.3d at 576 (appellant failed to show how additional discovery was pertinent).  A
motion for a continuance must "reflect any need for additional discovery or what might be expected to be
developed as evidence with additional depositions."  Gabaldon v. Gen. Motors Corp., 876 S.W.2d 367,
370 (Tex. App.- El Paso 1993, no writ) (without this showing, the record reflects no basis for determining
that the trial court abused its discretion)."  Because Duerr did not satisfy this standard, this factor weighs
in the favor of Fleming and Brown.

Finally, we consider the
diligence of the party seeking continuance.  It is "well established that the
failure of a litigant to diligently utilize the rules of civil procedure for discovery purposes will not authorize
the granting of a continuance."  State v. Wood Oil Distrib., Inc., 751 S.W.2d 863, 865 (Tex. 1988); see
also Schmidt v. Bell, No. 01-06-00161-CV, 2008 WL 921702, at *1 (Tex. App.- Houston [1st Dist.] April
3, 2008, no pet. h.) (in addition to describing the evidence sought, a verified motion must state with
particularity the diligence used to obtain the evidence, and explain why the continuance is necessary).   
In this case, Duerr had nearly a year to engage in discovery and failed to utilize available discovery
methods until after the discovery period ended.  When a party is prevented from deposing opponents
because it failed to act timely, that is a "predicament of its own making" and the "risk" a party takes by
not "diligently pursuing discovery."   Wood Oil Distrib., Inc., 751 S.W.2d at 865.   

In this case, "nothing prevented [Duerr] from conducting discovery earlier in the case, and his failure to
make diligent efforts to secure discovery did not authorize the granting of a continuance."  See Perrotta,
47 S.W.3d at 576-77; see also Carbonara v. Tex. Stadium Corp., 244 S.W.3d 651, 659 (Tex. App.-
Dallas Jan. 24, 2008, no pet. h.) (while appellant explained unsuccessful discovery attempts since filing
of summary judgment, appellant never explained why discovery was not conducted before).  This factor
also weighs in favor of Fleming and Brown.

Because all of the pertinent factors weigh in favor of Fleming and Brown, we conclude that the trial court
acted within its discretion in denying both requests for a continuance.  Accordingly, Duerr's third issue is
overruled.

MOTION FOR CONTINUANCE MUST BE IN WRITING AND SWORN /
SUPPORTED BY AFFIDAVIT

Thomas v Radioshack Corp. (Tex.App.- Houston [1st Dist.] Mar. 4, 2010)(Radack)
(
request for jury trial, motion for continuance properly denied, oral motion to continue trial date was insufficient)
AFFIRM TRIAL COURT JUDGMENT: Opinion by
Chief Justice Radack    
Before Chief Justice Radack, Justices Alcala and Higley    
01-08-00400-CV  Arva Thomas v. Radioshack Corporation d/b/a Radioshack #8002 and Danica Reyes,
Employee in her Official and Individual Capacity    
Appeal from 11th District Court of Harris County  
Trial Court Judge:
Hon. Mark Davidson   


MOTION TO CONTINUANCE DENIED

Source: O'Kane v. Coleman (Tex.App.- Houston [14th Dist.] July 1, 2008)(Fowler)(lease law, theft liability act claim)

The trial court=s denial of the motion for continuance is subject to a clear-abuse-of-discretion standard of review.  
Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004). A court abuses its discretion if it reaches
a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law.  Id.  A nonexclusive
list of factors we consider in deciding whether a court has abused its discretion in denying a motion for
continuance to conduct further discovery includes (1) the length of time the case has been on file, (2) the
materiality and purpose of the discovery sought, and (3) whether the party seeking the continuance has exercised
due diligence to obtain the discovery sought.  Id.

When O=Kane filed his motion for continuance, the case had been on file for over eight months, and appellees=
summary judgment motion had been on file for over two months.  Additionally, O=Kane received thirty-nine days=
notice of the summary judgment hearing.  When a party has received the twenty-one days= notice required by
Texas Rule of Civil Procedure 166a(c) for a traditional motion for summary judgment, the trial court generally
does not abuse its discretion in denying a motion for continuance.  Carter v. MacFadyen, 93 S.W.3d 307, 310
(Tex. App.CHouston [14th Dist.] 2002, pet. denied).

In his supporting affidavit, O=Kane set forth a list of fifteen assertions he believed the evidence he sought would
establish.  He did not, however, describe the evidence itself or further explain its materiality.  See id. (AA party
seeking more time to oppose a summary judgment must file an affidavit describing the evidence sought,
explaining its materiality, and showing the due diligence used to obtain the evidence.@); Lee v. Haynes & Boone,
L.L.P., 129 S.W.3d 192, 198 (Tex. App.CDallas 2004, pet. denied) (observing party requesting continuance had
not provided any specifics about what documents she anticipated).

Finally, O=Kane merely represented that he had been diligent in his discovery requests and appellees wrongfully
objected to, and denied, those requests.[4]  O=Kane did not specify when he had requested discovery, what he
had requested, or what he had been denied.  He did not aver he had filed a motion to compel discovery.  See
BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 800B01 (Tex. 2002) (holding no abuse of discretion in
denial of motion to continue special appearance hearing when, among other matters, record did not reveal party
had ever filed a motion to compel or otherwise attempted to obtain any discovery not provided).

We conclude the trial court did not clearly abuse its discretion when it denied O=Kane=s motion for continuance.
[5]  We therefore overrule O=Kane=s second issue.

Oral Motion for Continuance Not Proper - Must be written and sworn  

Orosco failed to preserve error for appellate review.  

A motion for continuance shall not be granted except for sufficient cause supported by an affidavit, consent of the
parties, or by operation of law.  Tex. R. Civ. P. 251; In the Interest of B.S.W., No. 14-04-00496-CV, 2004 WL
2964015, at *4 (Tex. App.- Houston [14th Dist.] Dec. 23, 2004, no pet.) (mem. op.).  Both of Orosco's motions for
continuance were oral, and the record does not contain a written motion for continuance or an affidavit.  The
record also does not reflect that the parties consented to a continuance, nor does Orosco assert that a
continuance should have been granted by operation of law.  

Because Orosco did not comply with Rule 251, the trial court did not abuse its discretion by failing to grant a
continuance.  See In the Interest of B.S.W., 2004 WL 2994015, at *4; Ohlhausen v. Thompson, 704 S.W.2d 434,
436- 37 (Tex. App.- Houston [14th Dist.] 1986, no writ).  

In addition, Orosco failed to preserve error under Texas Rule of Appellate Procedure 33.1, which generally
requires a party complaining on appeal to have obtained an adverse ruling on the appellate complaint in the trial
court.  See Tex. R. App. P. 33.1(a).  The appellate record reflects that the trial court did not rule on Orosco's
motions for continuance, either expressly or implicitly.  Orosco did not request the trial court to rule on these oral
motions, nor did he object to any alleged refusal of the trial court to rule on them.  See Clarke v. Hunter's Glen
Comty. Ass'n, No. 14-03-00971-CV, 2004 WL 1313294, at *1 (Tex. App.- Houston [14th Dist.] June 15, 2004, no
pet.) (mem. op.).  By failing to do so, Orosco waived the complaint.  See id.
In the Interest of TDN (Tex.App.- Houston [14th Dist] June 26, 2008)(Frost)
(
termination of parental rights, oral motion for continuance deficient, error not preserved)
AFFIRMED: Opinion by Justice Frost  
Before Justices Fowler, Frost and Seymore
14-07-00387-CV        In the Interest of T.D.N.
Appeal from 313th District Court of Harris County
Concurring Opinion by Justice Seymore  




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