Jamie Stierwalt and Arnold Lee Stierwalt, Jr. v. FFE Transportation Services, Inc., Conwell Corporation, Frozen Food Express Industries, Inc., and Jeffrey Preston Lear, 499 S.W.3d 181

Background

In Jan 2010 Jamie Stierwalt’s car, after being struck from behind by another driver, slid ~300 feet and collided with a tractor-trailer parked on I‑20. Jeffrey Lear had momentarily pulled onto the shoulder to consult a map.
Plaintiffs (Jamie and Arnold Stierwalt) sued Lear and his corporate employers (FFE, Conwell, Frozen Food Express) alleging negligence, negligent entrustment/training, vicarious liability, and negligence per se for violating Tex. Trans. Code §545.302(a)(9) (stopping where an official sign prohibits stopping).
Defendants moved for summary judgment (traditional and no‑evidence). Evidence submitted indicated the other driver was speeding and at fault; Lear testified he did not recall any no‑parking signs where he stopped and was not cited for parking; investigating officer assigned fault to the other driver.
Plaintiffs sought a continuance of the summary‑judgment hearing to obtain Lear’s deposition transcript, asserting Lear had testified he knew of signage forbidding stopping except in emergencies and admitted there was no emergency. Their counsel filed a late, conclusory affidavit and did not secure the transcript before the response deadline.
The trial court denied the continuance, granted summary judgment dismissing all claims with prejudice, and denied a motion for new trial. Plaintiffs appealed the denial of the continuance and the grant of summary judgment.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether trial court abused discretion by denying continuance to obtain Lear’s deposition transcript	Payne heard Lear admit awareness of no‑stop signage and that there was no emergency; transcript was necessary to oppose summary judgment	Plaintiffs had ample time, did not exercise due diligence, waited until after discovery deadlines and filed a late, conclusory affidavit; transcript was available from reporter or defense	Denial not an abuse of discretion — counsel lacked diligence; affidavit was conclusory and untimely
Whether Defendants met no‑evidence summary judgment on negligence per se (violation of parking prohibition)	Plaintiffs argued Lear’s alleged deposition testimony would show a statutory violation creating fact issue	Defendants showed no evidence of signage at the location, Lear testified he did not see signs and was not cited; plaintiffs produced no competent timely evidence	Summary judgment proper — plaintiffs failed to raise a genuine fact issue on statutory violation element
Admissibility/consideration of plaintiffs’ late filed response and affidavit	Plaintiffs asked court to consider the late preliminary response and Payne’s affidavit of what he overheard	Defendants noted response was late and no leave was shown; affidavit was conclusory and possibly inadmissible hearsay regarding deposition content	Court (and appellate court) treated the late response as not considered; even if considered, affidavit insufficient to create fact issue
Whether Plaintiffs were barred from alternative discovery to prove signage existed	Plaintiffs focused on Lear’s deposition as sole source of signage evidence	Defendants pointed out plaintiffs could have inspected roadway, contacted TxDOT, or obtained reporter transcript earlier	Plaintiffs’ failure to use alternative, available means supported denial of continuance and summary judgment outcome

Key Cases Cited

D.R. Horton–Texas, Ltd. v. Savannah Props. Assocs., 416 S.W.3d 217 (Tex. App. — Fort Worth 2013) (continuance denial reviewed for abuse of discretion; movant must show diligence)
BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789 (Tex. 2002) (standards for reviewing discovery and continuance rulings)
Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150 (Tex. 2004) (factors for evaluating continuance requests and abuse‑of‑discretion standard)
KCM Fin. LLC v. Bradshaw, 457 S.W.3d 70 (Tex. 2015) (no‑evidence summary judgment standard explained)
City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) (standard for reviewing evidence in summary‑judgment context)