Full Opinion (html_with_citations)

                                 MEMORANDUM OPINION
                                        No. 04-10-00313-CV

       Tammy Sue TURNER, Individually and as Next Friend of Katylnn Nicole Turner,
               and Claudella Kay Turner, Individually and as Next Friend of
          Joshua Andrew Turner and Stephen James Lewis Turner, minor children,
          and as Heir and Beneficiary of the Estate of Geraldine Turner, deceased,
                                        Appellants

                                                   v.

                                            Santiago V. CRUZ,
                                                 Appellee

                     From the 73rd Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2010-CI-04548
                            Honorable Gloria SaldaĂąa, Judge Presiding

Opinion by:       Karen Angelini, Justice

Sitting:          Karen Angelini, Justice
                  Sandee Bryan Marion, Justice
                  Phylis J. Speedlin, Justice

Delivered and Filed: December 29, 2010

AFFIRMED

           This is an appeal from the granting of summary judgment in favor of Santiago V. Cruz.

Cruz filed a no-evidence motion for summary judgment after a wrongful death lawsuit arising

out of an automobile accident was brought against him by the statutory beneficiaries of

Geraldine Turner, deceased (“the Turners”). On appeal, the Turners argue that the trial court
                                                                                    04-10-00313-CV


erred in (1) denying their motion for continuance and (2) in granting Cruz’s motion for summary

judgment. We affirm the trial court’s judgment.

                          FACTUAL AND PROCEDURAL BACKGROUND

       In December 2006, Geraldine Turner, the deceased, was killed in an automobile accident.

At the time of the accident, Turner was riding as a passenger in a car driven by John R. Gray.

Gray, who was intoxicated and speeding, hydroplaned on the wet roadway, crossed over into

oncoming traffic, and hit a vehicle driven by Cruz. Cruz’s wife, who was a passenger in Cruz’s

car, was injured in the accident. Gray was charged with and pled guilty to one count of

intoxication manslaughter (for the death of Geraldine Turner) and one count of intoxication

assault (for the injuries to Cruz’s wife). Gray is serving two concurrent seven-year sentences in

the Texas Department of Corrections.

       In December 2008, the Turners sued both Cruz and Gray, alleging both were negligent in

causing Geraldine Turner’s death. That same month, Cruz filed an answer to the lawsuit. One

month later, Gray filed a general denial, listing his address as the Texas Department of

Corrections, Garza West Unit, Beeville, Texas. A little over a year later, Cruz filed his no-

evidence motion for summary judgment. In his motion, Cruz contended there was no evidence he

breached any duty to Turner that caused or contributed to the accident that is the subject of the

suit. Cruz also attached evidence in the form of (1) an affidavit and report from the investigating

police officer, Officer Manuel Morales, Jr.; (2) Gray’s conviction records; and (3) Turner’s

autopsy records. In his affidavit, Officer Morales affirmed that he was trained and experienced in

automobile accident investigation; that he investigated the accident involved in this suit; that he

determined the sole cause of the collision to be the acts and omissions of Gray; and that he

determined Cruz did not cause or contribute to the collision.



                                               -2-
                                                                                   04-10-00313-CV


       In response to Cruz’s motion, the Turners filed a motion for continuance, contending that

they needed testimony from Gray before the motion could be heard. The Turners’ attorney

provided an affidavit in which he stated that Gray’s exact location had been unknown until

November 2009, and that Gray was entitled to notice of the motion for summary judgment

before it could be heard. Specifically, the Turners’ attorney stated Gray’s deposition was

“required to establish facts necessary to the disposition of this case” and that Gray “can

contribute to the factual dispute as the events immediately prior to the impact of the vehicles

[that] resulted in the death of Geraldine Turner, decedent.”

       The Turners also filed a response to Cruz’s no-evidence motion for summary judgment.

In their response, they claimed that a fact issue existed as to Cruz’s negligence in causing the

accident because the evidence showed that Cruz was aware of Gray’s vehicle, but was unable to

stop in time to avoid the collision.

       After holding a hearing, the trial court denied the Turners’ motion for continuance and

granted Cruz’s no-evidence motion for summary judgment. In their appeal, the Turners contend

the trial court erred in overruling their motion for continuance and in granting Cruz’s motion for

summary judgment.

                                           DISCUSSION

1.     Motion for Continuance

       In their first issue on appeal, the Turners argue the trial court erred in denying their

motion to continue the summary judgment hearing. Specifically, they complain that Gray did not

receive notice of the motion for summary judgment and that they needed additional time to take

Gray’s deposition.




                                                -3-
                                                                                    04-10-00313-CV


        We review the trial court’s denial of a motion for continuance under an abuse of

discretion standard. Joe v. Two Thirty Nine Joint Venture,
145 S.W.3d 150, 161
 (Tex. 2004). A

trial court abuses its discretion when it reaches a decision so arbitrary and unreasonable as to

amount to a clear and prejudicial error of law.
Id.
 Among the factors to consider when

determining whether a trial court has abused its discretion by denying a motion for continuance

of a summary judgment hearing are (1) the length of time the case has been on file; (2) the

materiality of the discovery sought; and (3) whether due diligence was used in obtaining

discovery.
Id.
 When a party argues it has not had adequate opportunity for discovery before the

summary judgment hearing, that party must file an affidavit explaining the need for further

discovery or a verified motion for continuance. TEX. R. CIV. P. 166a(g), 251, 252; Joe,
145 S.W.3d at 161
. The affidavit must explain why the continuance is necessary; conclusory

allegations are insufficient. Rocha v. Faltys,
69 S.W.3d 315, 319
 (Tex. App.—Austin 2002, no

pet.). The affidavit must specify what evidence the party hopes to procure and detail its

materiality.
Id.

        First, we find no merit to the Turners’ argument that the hearing could not go forward

until Gray received notice of the summary judgment and the hearing. The Turners failed to allege

or make a showing of how they were harmed by Gray’s lack of notice. Further, Cruz’s motion

for summary judgment concerned only the Turners’ allegations against Cruz, not those against

Gray.

        Second, we find no abuse of discretion in the trial court’s denial of the continuance based

on the Turners’ complaint that they had not had sufficient opportunity to take Gray’s deposition.

The first factor we consider is the length of time the case had been on file. The fatal accident

occurred in December 2006, and suit was filed two years later, in December 2008. In their first



                                               -4-
                                                                                  04-10-00313-CV


amended petition, which was also filed in December 2008, the Turners listed Gray’s address for

service of process as the Texas Department of Corrections, in Beeville, Texas. And, Gray was

obviously properly served there because he filed a pro se answer on December 29, 2008, and

another pro se answer on January 30, 2009. In his answer, Gray included his Texas Department

of Corrections address in Beeville, Texas. Cruz’s motion for summary judgment was filed on

January 22, 2010, over a year after the Turners filed suit. The hearing on Cruz’s motion for

summary judgment was held on February 18, 2010. Given that the Turners’ lawsuit had been on

file for more than a year when Cruz filed his motion for summary judgment, there was sufficient

time for the Turners to take Gray’s deposition.

       The second factor we consider is the materiality of the discovery sought. The only

explanation the Turners offered was in the affidavit of their attorney, which stated that Gray’s

deposition would “establish facts necessary to the disposition of this case” and that Gray “can

contribute to the factual dispute as the events immediately prior to the impact of the vehicles.”

We find these conclusory statements inadequate to detail the evidence the Turners hoped to

procure or its materiality.

       As to the third factor, a showing of due diligence in attempting to obtain the discovery,

we likewise find the Turners’ explanation inadequate. The Turners’ attorney alleges in his

affidavit that he did not know Gray’s exact location until November 2009 and that, through

examination of the court’s file, he determined Gray had filed a general denial. As noted above,

however, the Turners’ petition filed in December 2008 listed Gray’s Texas Department of

Corrections address, and Gray’s answer, in which he listed his Texas Department of Corrections

address, had been on file for approximately a year before Cruz filed his motion for summary

judgment. Thus, the Turners did have information regarding Cruz’s location when they filed the



                                                  -5-
                                                                                     04-10-00313-CV


lawsuit. And, they failed to show what efforts they made during the year the case was on file to

obtain Gray’s deposition. Therefore, we cannot say the trial court abused its discretion in

denying the Turners’ motion for continuance.

2.       Motion for Summary Judgment

         Under Rule 166a(i), a party may move for a no-evidence summary judgment on the

ground that there is no evidence of one or more essential elements of a claim or defense on

which an adverse party would have the burden of proof at trial. TEX. R. CIV. P. 166a(i). The trial

court must grant the motion unless the respondent produces summary judgment evidence raising

a genuine issue of material fact.
Id.
 The respondent is “not required to marshal its proof; its

response need only point out evidence that raises a fact issue on the challenged elements.” TEX.

R. CIV. P. 166a(i) cmt-1997. In reviewing a trial court’s order granting a no-evidence summary

judgment, we consider the evidence in the light most favorable to the respondent and disregard

all contrary evidence and inferences. King Ranch, Inc. v. Chapman,
118 S.W.3d 742, 750-51

(Tex. 2003). Thus, a no-evidence summary judgment is improperly granted if the respondent

brings forth more than a scintilla of probative evidence to raise a genuine issue of material fact.
Id. at 751
; see TEX. R. CIV. P. 166a(i). In determining if the respondent has brought forth more

than a scintilla of evidence, we consider whether the evidence would enable reasonable and fair-

minded jurors to differ in their conclusions. Hamilton v. Wilson,
249 S.W.3d 425, 426
 (Tex.

2008).

         In their petition, the Turners alleged that Cruz was negligent in the operation of his

vehicle and that such negligence was a proximate cause of Turner’s death. In his no-evidence

motion for summary judgment, Cruz contended there was no evidence he breached a duty to

Turner that caused or contributed to the accident made the basis of the suit. In their response, the



                                                -6-
                                                                                     04-10-00313-CV


Turners relied on Cruz’s answer to interrogatories and other evidence attached to Cruz’s motion

for summary judgment. On appeal, the Turners point to three specific items of evidence that they

contend raise a fact issue precluding summary judgment.

       The first is Cruz’s interrogatory response in which Cruz stated that, as he was driving

very slowly, he “saw Co-Defendant Gray swerving. [Cruz] applied his brakes but [Gray] struck

his vehicle.” The second is a quote from the medical examiner’s investigation report. The report

described the circumstances of the accident and, among other things, states that when Gray’s

vehicle veered into oncoming traffic, the Kia Sedona “was unable to stop in time.” The third item

the Turners point to is the Texas Peace Officer’s Crash Report, which identifies the driver of the

Kia Sedona as Cruz. The Turners argue this evidence raises a fact issue as to whether Cruz

operated his motor vehicle negligently. In other words, it appears the Turners are contending that

the fact that Cruz saw Gray swerving before applying his brakes and that Cruz was unable to

stop in time amounts to evidence of Cruz’s negligence.

       Cruz counters with the argument that this evidence does not raise a fact issue. In support,

Cruz cites Fannin v. Hall,
561 S.W.2d 952, 956
 (Tex. Civ. App.—Tyler 1978, no writ), which

states “[e]very motorist has a duty to keep a proper lookout, but he is not required to anticipate

negligence or other unlawful conduct on the part of another.” We agree. The mere fact that Cruz

saw Gray swerve into Cruz’s lane of traffic but was not able to stop in time to avoid a collision is

simply no evidence that Cruz breached any duty to Turner or that his acts and/or omissions were

a proximate cause of the collision. The Turners’ argument assumes, without evidentiary support,

that Cruz had time to see Gray’s vehicle and to take evasive action. See Kahng v. Verity, No. 01-

07-00695-CV,
2008 WL 2930195
, at *5 (Tex. App.—Houston [1st Dist.] 2008, no pet.).




                                                -7-
                                                                           04-10-00313-CV


       We conclude the trial court did not err in granting Cruz’s no-evidence motion for

summary judgment. We therefore affirm the trial court’s judgment.



                                               Karen Angelini, Justice




                                             -8-