law-no-evidence-motion-for-summary-judgment-adequate-inadquate-time-for-discovery
ADEQUACY OF TIME FOR DISCOVERY PRIOR TO NO-EVIDENCE
MSJ
A party may move for no-evidence summary judgment only "[a]fter adequate time for discovery." TEX.
R. CIV. P. 166a(i); Specialty Retailers, Inc. v. Fuqua, 29 S.W.3d 140, 145 (Tex. App.-Houston [14th
Dist.] 2000, pet. denied). Rule 166a(i) does not require that discovery be completed before a party
may move for no-evidence summary judgment; the trial court may grant such a motion after "adequate
time" for discovery. See Madison v. Williamson, 241 S.W.3d 145, 155 (Tex. App.-Houston [1st Dist.]
2007, pet. denied); In re Mohawk Rubber Co., 982 S.W.2d 494, 498 (Tex. App.-Texarkana 1998, orig.
proceeding). According to the comment to Rule 166a(i), "[a] discovery period set by pretrial order
should be adequate opportunity for discovery unless there is a showing to the contrary, and ordinarily
a motion under paragraph (i) would be permitted after the period but not before." TEX. R. CIV. P.
166a(i) cmt. (emphasis added); McInnis v. Mallia, 261 S.W.3d 197, 200 (Tex. App.-Houston [14th Dist.]
2008, no pet.).
When determining whether adequate time for discovery has elapsed, we consider: (1) the nature of
the cause of action; (2) the nature of the evidence necessary to controvert the no-evidence motion;
(3) the length of time the case has been active in the trial court; (4) the amount of time the
no-evidence motion has been on file; (5) whether the movant has requested stricter time deadlines for
discovery; (6) the amount of discovery that has already taken place; and (7) whether the discovery
deadlines that are in place are specific or vague. Madison, 241 S.W.3d at 155; Fuqua, 29 S.W.3d at
145 (citing Dickson Constr., Inc. v. Fid. & Deposit Co., 5 S.W.3d 353, 356 (Tex. App.-Texarkana 1999,
pet. denied)). When a party moves for no-evidence summary judgment before the end of the specified
discovery period, "our principal task is to determine if [the] record provides support for the trial court's
consideration of a no-evidence summary judgment motion" before the end of the designated discovery
time frame. McInnis, 261 S.W.3d at 200. The "pertinent date for this inquiry is the final date on which
the no-evidence motion is presented to the trial court for ruling." Id. We review a trial court's
determination that there has been an adequate time for discovery for an abuse of discretion. Fuqua,
29 S.W.3d at 145. A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner
"without reference to any guiding rules or principles." Madison, 241 S.W.3d at 155 (quoting Garcia v.
Martinez, 988 S.W.2d 219, 222 (Tex. 1999)).
Failure of a litigant to diligently use the discovery rules does not authorize the granting of a
continuance. State v. Wood Oil Distrib., Inc., 751 S.W.2d 863, 865 (Tex. 1988); Brown, 145 S.W.3d at
750 (noting that "[t]he record does not show appellant conducted any discovery during the nine
months preceding the filing of the motion"); see also Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d
150, 161 (Tex. 2004) (stating that, among other factors, appellate courts consider whether party
seeking continuance exercised due diligence to obtain sought-after discovery when determining if trial
court abused its discretion in denying motion).
Robertson v. Sw. Bell Yellow Pages, Inc., 190 S.W.3d 899, 903 (Tex. App.-Dallas 2006, no pet.)
("[A]ppellant has made no effort to discuss any of the relevant factors. She does not state how much
time she had for discovery, what discovery was completed, what further discovery was needed or
otherwise argue why the time was not adequate. We will not make appellant's arguments for her.");
see also Madison, 241 S.W.3d at 155 (considering fact that appellant "made no effort to specify the
additional evidence she needed to respond to the motion, or the reason she could not obtain it during
the discovery period" when determining appellant had adequate time for discovery).
Brown v. Brown, 145 S.W.3d 745, 750 (Tex. App.-Dallas 2004, pet. denied) (considering appellant's
failure to move for enlargement of discovery period until several weeks after no-evidence motion filed
and failure to explain what further discovery he needed in affirming denial of motion for continuance).
McInnis v. Mallia (Tex.App.- Houston [14th Dist.] June 17, 2008)(Corrected majority opinion by Frost)
(malpractice suit, no-evidence motion for summary judgment, no adequate opportunity to conduct
discovery)
REVERSED AND REMANDED: Opinion by Justice Frost
Before Justices Fowler, Frost and Seymore
14-06-00354-CV Janine Charboneau McInnis, D.V.M. v. Michael Mallia, J.D., The Mallia Law Firm,
P.C., Tommy Hastings, J.D.
Appeal from 281st District Court of Harris County
Trial Court Judge: David J. Bernal
Dissenting Opinion by Justice Seymore (adequate discovery)
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