*1 eyewitness of the cou- given the of the
pled with officers’ observation
injury and of the com- the emotional state
plainant. Accordingly, exclusion Arroyo’s did not affect substan- excluding rights,
tial error harmless.
convictions was the trial is af-
firmed. BLAKE, Appellant,
Ruth TEXAS,
INTCO INVESTMENTS OF Royale Hotel,
INC. Sierra d/b/a
Appellee.
No. 04-02-00915-CV. Texas, Appeals
Court of
San Antonio.
Oct. *2 later, Intco a no- months filed
seventeen summary judgment for evidence motion “no that there was the basis *3 by proximately that a breach Defendant injuries.” part As of its Plaintiffs caused judg- summary motion no-evidence for ment, four excerpts from Intco attached response a but depositions. Blake filed After a presented no additional evidence. granted the sum- hearing, the trial court mary raises judgment. appeal, On Blake court’s challenging four issues trial (1) judgment failing for continue discovery was summary judgment until (2) complete; considering de- substantially excerpts properly before position court; (3) judg- granting summary ment not founded based conclusions (4) facts; granting law and the sum- mary although Blake’s amended judgment petition general raised additional claims of by motion. negligence addressed Altier, Tyler, Linda Appellant. A. for Willis, Mark R. Stein and Katherine M. Discovery Adequate time FOR Antonio, Appellee. San for of Civil Under the Texas Rules Procedure, motion sum a no-evidence for LÓPEZ, Sitting: L. ALMA Chief mary filed judgment should be after ANGELINI, Justice, Justice KAREN for “adequate has had time non-movant SPEEDLIN, PHYLIS J. Justice. 166a(i). An P. discovery.” Tex.R. Civ. adequate discovery time for is determined OPINION case, of as the nature such factors SPEEDLIN, Opinion by PHYLIS necessary of the nature Justice. motion, the no-evidence controvert length time the had been active case (“Blake”) appeals Ruth Blake a no-evi- City the trial San court. Martinez summary judgment granted dence favor Antonio, (Tex.App.-San Texas, Intco Inc. Investments of d/b/a denied). Antonio We review (“Intco”). Royale Sierra Hotel We affirm has determination there court’s Intco the trial order sum- granting court’s adequate discovery time for under been an mary dismissing Blake’s an of discretion standard. Moore abuse claim. Bank, 76 house v. Chase Manhattan (Tex.App.-San Antonio Background pet.). registered guest at the
While Sierra Hotel, response to the Royale carpet- Blake fell In her unsworn down suite, summary judgment, Blake stairs and later filed a motion for ed within be- sought hearing premise liability Approximately lawsuit. a continuance cause Intco had not answered written dis- This requirement is satisfied when the dis- covery, and covery none of Intco’s witnesses had attached the motion and the deposed. clearly been argues, Blake now motion relies on the without attached dis- citing covery legal authority, support. as McConathy, the failure of judge the trial S.W.2d at 342 n. 2. continue the judgment hearing until discovery was sub- motion, In its no-evidence Intco attached stantially complete violated her constitu- deposition excerpts from four individuals. rights tional process due and equal pro- addition, In body motion, within the of its grant tection. Whether to a motion for Intco specific set forth the testimony it continuance is within the sound discretion *4 believed demonstrated that Blake had not Tenneco, of the trial court. See Inc. v. and present any could not evidence of what Co., 640, Enter. Prods. 925 S.W.2d 647 caused her fall. Because Intco complied (Tex.1996). party When a contends that it requirements with the on the use of un- has not adequate had an opportunity for discovery 166a(d), filed as set forth Rule discovery before a summary judgment we overrule point Blake’s second of error. hearing, it must file an affidavit explaining No Evidence Motion the need for discovery further or a verified motion for continuance. Id. Blake did nei- error, In point her next Blake Therefore, ther. the trial court did not maintains the trial court erred in granting abuse its discretion in denying her motion the summary judgment “based on conclu for continuance. We overrule issue one. sions not founded law or facts.” Blake specifically argues that Intco asked Blake Deposition Testimony
Use of go beyond her proof. burden of error, In point her second Blake Our review of the trial court’s rendition complains that Intco supported their no- of summary judgment is de Reyno novo. evidence motion for summary judgment 510, sa v. 21 Huff, 512 (Tex.App.- S.W.3d excerpts with deposition from Blake’s own 2000, San Antonio no pet.). When a trial which she claims were not properly before court does not state the basis for its deci Specifically, the court. Blake maintains order, summary sion in its inas deposition was not on file with the case, uphold any this we must the order if Court and proper Intco did not file a state grounds summary judgment ment of intent to use the non-filed discov motion can be sustained. Dow Chem. Co. ery summary as judgment proof. We dis Francis, 237, v. (Tex.2001); 46 242 S.W.3d agree. White, Bradley v. State rel ex 990 S.W.2d (Tex.1999). 245, 247
Discovery used to
a
support
sum
mary judgment
sepa
motion can be filed
In a no-evidence motion for summary
rately or attached to the motion.
judgment,
specify
McCo
the movant must
what
nathy
341,
v. McConathy, 869 S.W.2d
342 element or elements of the adverse claim
(Tex.1994).
166a(d)
n. 2
Rule
being
of the Texas
challenged
lacking
as
evidentiary
Rules of
permits discovery
166a(i);
Civil Procedure
support. Tex.R.
P.
Graves v.
Civ.
Komet,
not on file with the court to be used as
(Tex.App.-San
982 S.W.2d
553
summary judgment
long
evidence
pet.).
as
as the Antonio
no
Although not re-
party files and serves a
quired by
evidence,
statement of intent
any
the rule to submit
discovery
to use unfiled
as
judg
deposition
Intco attached
excerpts to its
proof
copies
ment
and attaches
un-
motion and then
specific
detailed the
sum-
166a(d).
discovery.
filed
mary judgment
Civ. P.
evidence on which it relied.
Tex.R.
cite,
point
otherwise
out
quote,
had
alleged
sponse,
Intco
that Blake
not
also
any
of what
relied on to
present
could not
evidence
she
trial
fall to
a
caused her
establish
breach
The
court was
a fact issue.
create
duty
by Intco to Blake or that
owed
for evi
required to search
record
inju-
caused Blake’s
proximately
breach
fact
without
raising material
issue
dence
sufficiently challenged
find Intco
ries. We
guidance from Blake. See
specific
more
liability
of Blake’s premise
two elements
Inc.,
Enters.
772 S.W.2d
Rogers v. Ricane
166a(i).
P.
claim.
Tex.R. Crv.
See
(Tex.1989)
(holding
refer
general
to Blake to
burden then shifted
record do
direct
ences
a voluminous
more than a scintilla of
produce
parties
to evidence
trial courts
fact on
genuine
to raise a
issue of material
relies);
movant
Guthrie
Sui
which the
challenged
elements. See Howell
ter,
(Tex.App.-Hous
(
708, 715
Corp.,
Hilton Hotels
1996, writ)(stating a trial
[1st Dist.]
ton
Dist.]) 2002, pet.
(Tex.App.-Houston [1st
when it
not abuse its discretion
court does
Restaurants,
denied);
Mills
Inc.
General
summary judgment
not consider
does
*5
Inc.,
827,
Wings,
12
832
v. Texas
S.W.3d
directed).
to
it was not
proof which
2000,
pet.).
no
The com-
(Tex.App.-Dallas
166a(i)
ment
rule
states that
defeat
“[t]o
to
not
appeal,
Even on
Blake does
(i),
paragraph
a motion made under
the
summary
quote testimony from the
cite or
its
respondent
required
is not
to marshal
that she believes creates
judgment record
response
proof;
only point
need
out
its
to
duty
An
has a
appellant
a fact issue.
evidence that raises a fact issue on the
supports her conten
show that the record
challenged elements.” Tex.R. Crv. P. 166a
454,
Stephenson,
tions. Hall v.
cmt.;
Co.
Saenz
Southern Union Gas
1996, writ de
(Tex.App.-Forth
466
Worth
(Tex.App.-El
999
493
Paso
S.W.2d
nied).
court,
appellate
we
not
As an
are
denied).
explicitly pro-
The rule
for a scintilla
required to search
record
however,
vides,
in
no-
response
that
to a
raising a material fact issue
of evidence
motion,
respondent
evidence
must
specific guidance.
Id. at
more
without
summary
present
judgment
some
evidence
addition,
In
court
appellate
an
is
raising
genuine
issue of material fact on
record, including
free to search
entire
attacked,
must
elements
the motion
by
not cited to or relied on
materials
166a(i); Saenz,
granted.
be
Tex.R. Civ. P.
City
v. Clear
trial court.
Houston
999
at 494.
S.W.2d
Auth., 589
678
Creek Basin
S.W.2d
case,
summary
In this
Blake filed a
(Tex.1979);
Naficy,
Nicholson
response, but
to attach
failed
(Tex.App.-Houston
4 n.
[1st
S.W.2d
any
Although
to
response.
evidence
her
writ)
Dist.]1987,
(stating
to
that
search
to “need-
required
the nonmovant is not
appel
an
require
record would
entire
already
lessly duplicate evidence
found
extraordinary steps to
late court to take
file,”
to
required
the court’s
she is
ensure
judgment, contrary to stan
support
that
properly
the evidence
before
review).
the circumstances
dard
Under
in ruling
trial court for
consideration
on
its
case, we
that Blake failed
of this
conclude
summary judgment.
the motion for
carry
produce
to
her burden
evidence.
to
Saenz,
Here,
judgment. First Orig Plaintiffs Amended Having all overruled of Blake’s issues on inal Petition adds specific the more claim appeal, we affirm the trial court’s order. that Intco “negligently created an unsafe condition when it permitted the stairs to
be carpeted an unsafe or dangerous L. Dissenting Opinion-by ALMA manner, ...” Previously, simply Blake had LÓPEZ, Chief Justice.
claimed duty Intco owed a of reasonable LÓPEZ, Justice, ALMA L. Chief care keep “to premises reasonably condition, dissenting. safe inspect premises to dis defects, cover any latent and make safe law majority stating on relies case give defects or an adequate warning of appellate required an court is not dangers.” record for through search a voluminous An injured invitee who is on a issue. raising a material fact See premise may bring business suit based Inc., Rogers v. Ricane Enters. *6 negligent either activity theory a or a 76, (Tex.1989) (noting 81 to volu reference premise theory. defect Keetch Kroger v. insufficient); minous Guthrie v. record Co., 262, (Tex.1992); 845 S.W.2d 264 Wal- Suiter, 820, 934 (Tex.App. 826 S.W.2d Stores, Bazan, Mart Inc. v. S.W.2d 966 writ) (court 1996, —Houston[1st Dist.] no 745, 1998, (Tex.App.-San 746 Antonio no required page depo through to sift 500 writ). Recovery negligent activity for a sition); Stephenson, Hall v. requires plaintiff injured by that the was 1996, 466 writ (Tex.App. Worth — Fort or contemporaneous as a result of ac the denied) (reference 1,000 of pages to enclo tivity by itself rather than a condition cre insufficient). ma sures schedules Keetch, by ated activity. the 845 S.W.2d jority stating also on case that relies law 264; Stores, Garza, at Inc. Wal-Mart 27 an is not search an appellate free to 67 (Tex.App.-San S.W.3d Antonio entire record materials that are not for denied). contrast, By recovery for a Naficy, 747 cited. See Nicholson premises defect claim is based the on 3, 4 (TexApp. [1st n. 1 S.W.2d — Houston premises being themselves unsafe. writ) to (refusing consider Dist.] Keetch, Garza, 264; S.W.2d at page deposition of that attached to was not S.W.3d at 67. major any or the response). motion What however, At summary judgment, ity why the time of fails to is this explain, review, court, First of Blake’s Amended Petition did not under a novo de standard injured by assert she was ongoing deposition that an should not at look at least Instead, activity. only in excerpts she she cited in Intco’s context asserted motion injured by was improperly carpet. prop installed to determine the trial court whether particu Blake did not assert that the of erly granted judgment, installation states, carpet contemporaneous inju response with “The larly was when the ex Keetch, ry. See at Sub discussed cerpts witnesses’ testimonies motion, pain from all the A. mentioned in Plaintiff was She Defendant’s show experienced she’s problems that when she fell.” walking down stairs that felt she was the accident she since trial court to Intco’s motion cites the going I to say, she was going to—like deposition of lines on 25 of the page 19-22 know, of, possibility you look into the son; however, Blake, plaintiffs Willard stayed liable. holding place we court to Intco fails cite say why going she was Q. Did she re- Simply in its context. excerpt proper that? do page single the remainder of that viewing testimony is sufficient deposition it I because she felt that was A. believe raise issue material fact genuine a on the condition that existed because of Placing this lines 19-22 context case. stairs, it their fault that she that was by reviewing page 7-25 that same lines injured. was follow- deposition reveals the you Q. Blake has never told that Ruth testimony: ing the stairs the stairs or condition of HOBBS) (BY Q. is the last MS. When fall, her to has she? what caused you photographs saw those time A. No. today? before here to offer Q. you’re And couple years ago. A. It would be testimony that the condition of stairs Q. you photo- And did see those where fall, you? are caused her is what you couple when saw them a graphs it personally A. I believe was. years ago? Q. you her fall? Did witness my A. if I honestly I don’t know was at Yes, I just A. did. my house. mother’s house She happened to show them to me. Finally, reviewing page lines 2-8 of 35 of Q. you why And did tell was she she conjunction with deposition Deadson’s showing you? them to lines 22-24 cited Intco from excerpt A. *7 just At time she said this is following testimony: reveals the I where fell. are A. down the stairs there sev- Going Q. you pointed never out to on She places carpet that have—where the eral photographs, step of the this is the of the overlaps beginning end of the the fall, began my I she? where did places gave step, there were several A. I Not that remember. foothold, one to approximately a false step, of it Q. your what inches over the end so And were comments two it, you step you if you photo- her would be went when she showed platform have a firm wooden would not graphs. on. carpet to stand underneath improper- A. The was installed carpet ly- disagree reviewing I eleven of reviewing page 1-20 Similarly, lines deposition testimony of attached pages Deadson, the testimony of David beyond scope of Intco’s motion was grandson-in-law, puts the ex- plaintiffs in a de novo required of this court what mo- cerpt 11-14 cited Intco’s from lines searching be would not review. We of context. Lines 1-20 proper tion into cited for materials not entire record testimony con- page deposition the same of reviewing the be trial court. We would following testimony: tain the by Int- cited deposition pages context. Q. proper in its motion you why? Did she co tell The trial court’s order states that motion, response,
court considered the I
“supporting evidence.” Just as would
expect court to have taken the deposition
time to read the eleven pages
excerpts attached to Intco’s motion and response,
referenced Blake in I also
expect Berry the same of this court. See Reno, (Tex. City (conduct pet.)
App.-Fort Worth
ing close of 90 pages review
judgment evidence in reviewing whether
summary judgment properly granted); was Co.,
Barraza v. Eureka
229-30 (Tex.App.-El Paso de
nied) (distinguishing which Guthrie is cited
by majority where record totaled 278 novo).
pages reviewing record de Af reviewing
ter these I excerpts, would hold
that the deposition excerpts genu raise a
ine material challenged issue of fact on the
elements. Because majority holds to I contrary, respectfully dissent. DIETZ, Appellant,
Richard *8 Texas, Appellee.
The STATE of
No. 04-02-00771-CR. Texas, Appeals
Court Antonio.
San
Oct. 2003.
Rehearing Overruled Nov.