Opinion issued May 16, 2019




                                       In The

                               Court of Appeals
                                      For The

                           First District of Texas
                             ————————————
                               NO. 01-18-00106-CV
                            ———————————
                      EDWARD FOUSSADIER, Appellant
                                         V.
                     TRIPLE B SERVICES, LLP, Appellee


                     On Appeal from the 55th District Court
                             Harris County, Texas
                       Trial Court Case No. 2016-03307A


                          MEMORANDUM OPINION

      Appellant Edward Foussadier sued Triple B Services and the Texas

Department of Transportation after he was injured in a bicycle accident on a public

road. Foussadier alleged that Triple B’s improperly performed roadwork caused a

defect that, in turn, caused his accident. He alleged claims for negligence and breach
of implied warranty against Triple B. The trial court granted a take-nothing no-

evidence summary judgment in favor of Triple B, and it denied Foussadier’s motion

to reconsider the interlocutory summary judgment. The trial court severed the claims

against Triple B, making the summary judgment final.

      On appeal, Foussadier raises two issues. He contends that the trial court erred

by granting the no-evidence summary judgment because an adequate time for

discovery had not passed. He also contends that the trial court erred by denying his

motion for reconsideration because he filed additional evidence that created a fact

question.

      We affirm.

                                    Background

      The Texas Department of Transportation maintains FM 2978 between

Hufsmith Road and Bogs Road in Hufsmith, which is northeast of Tomball, Texas.

Between 2012 and 2014, Triple B Services performed roadwork on FM 2978

between Hufsmith Road and Bogs Road under contract with the Department. About

a year after Triple B completed its work, Foussadier, an avid cyclist who was training

for a charity cycling event, was riding on the same stretch of road where Triple B

had worked when his wheel fell into a “gaping hole.” Foussadier lost control and fell

from his bicycle, breaking his collarbone.




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      In January 2016, Foussadier sued the Department for premises liability and

Triple B for negligence, premises liability, and breach of the implied warranty of

good and workmanlike performance of repair or modification services. He alleged

that the defect that caused his accident “would not have existed but for Triple B’s

negligent roadwork.”

      In November 2017, Triple B moved for summary judgment on no-evidence

grounds. It asserted that there was no evidence that it had caused the condition that

allegedly caused Foussadier’s injuries. Triple B asserted that there was no evidence

that: (1) it had acted in a grossly negligent manner, with malice or bad faith; (2) it

breached a legal duty owed to Foussadier that proximately caused his accident; and

(3) it had created the alleged premises defect that caused Foussadier’s injuries. Triple

B further asserted that there was no evidence that: (1) its work was not performed in

a good and workmanlike manner, (2) it warranted its work to Foussadier, or (3)

Foussadier’s injuries were caused by a breach of warranty.1

      Foussadier responded with transcripts of his deposition taken on June 15,

2016 and October 17, 2017. He also attached the Department’s answers to his second

and third sets of interrogatories. Some of the interrogatory responses provided the



1
      Triple B also moved for summary judgment on traditional grounds, but because the
      trial court specifically granted only the no-evidence motion for summary judgment,
      we do not need to discuss the alternative traditional grounds for summary judgment.
      See TEX. R. APP. P. 47.1.
                                           3
opinions of John Elam, a professional civil engineer. Elam acknowledged that he did

not inspect the site of the accident and road defect. He opined that normal use would

not have caused the defect one year after repairs. He asserted that the “[d]efect was

caused by poor compaction of sub-grade, base and not following plans building a

drainage ditch adjacent to the failed area.” In other words, he opined that the defect

was caused by Triple B’s faulty work.

      Triple B objected to Foussadier’s summary judgment evidence on the grounds

that Elam’s expert opinion was speculative because Elam did not provide the factual

basis for his conclusion. Triple B also objected to an errata sheet that was made after

the motion for summary judgment was filed and that altered Foussadier’s testimony

about the open and obvious nature of the hole or crack in the road.

      The trial court sustained Triple B’s objections to Foussadier’s deposition

errata sheet and to Elam’s opinion as reflected in the interrogatory responses. The

court called Elam’s opinions “the very definition of ipse dixit testimony” because

there was “no support for his opinion.”

      Foussadier filed a motion for reconsideration seeking denial of Triple B’s

motion for summary judgment. The trial court denied the motion for reconsideration

and severed the claims against Triple B. Foussadier appealed.




                                          4
                                       Analysis

      Foussadier raised two issues on appeal. First, he challenged the granting of

the no-evidence motion for summary judgment, arguing that there had not been an

adequate time for discovery. Second, he challenged the trial court’s denial of his

motion for reconsideration, arguing that he had filed additional evidence, the Helmer

Engineering expert report, which identified a fact issue. We review a trial court’s

ruling on a motion for summary judgment de novo. Tex. Workforce Comm’n v.

Wichita Cty., 548 S.W.3d 489, 492 (Tex. 2018).

I.    Foussadier waived his first issue by not seeking a continuance in the trial
      court.

      Texas Rule of Civil Procedure 166a(i) provides that “after an adequate time

for discovery,” a party may move for summary judgment “without presenting

summary judgment evidence” and “on the ground that there is no evidence of one or

more essential elements of a claim or defense on which the adverse party would have

the burden of proof at trial.” TEX. R. CIV. P. 166a(i); see Mack Trucks, Inc. v. Tamez,

206 S.W.3d 572, 581–82 (Tex. 2006). Under Rule 166a(i), discovery need not be

complete. Madison v. Williamson, 241 S.W.3d 145, 155 (Tex. App.—Houston [1st

Dist.] 2007, pet. denied). Rather, the adequacy of the time for discovery is evaluated

based on the nature of the case, the litigation history, and the type of evidence needed

to refute the summary judgment motion. Id. We review a trial court’s determination



                                           5
of whether there has been an adequate time for discovery under an abuse of

discretion standard. Id.

      “When a party argues it has not had an adequate opportunity for discovery

before a no-evidence summary judgment hearing, that party must file an affidavit

explaining the need for further discovery or a verified motion for continuance.” G.R.

Auto Care v. NCI Grp., Inc., No. 01-17-00068-CV, 2018 WL 4087295, at *8 (Tex.

App.—Houston [1st Dist.] Aug. 28, 2018, no pet.) (mem. op.) (citing TEX. R. CIV.

P. 166a(g), and Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex.

2004)); see TEX. R. APP. P. 33.1 (to preserve error for appellate review, party must

make complaint known to trial court). “The affidavit must demonstrate why the

continuance is necessary; conclusory allegations are insufficient.” Id.; see Carter v.

MacFadyen, 93 S.W.3d 307, 310 (Tex. App.—Houston [14th Dist.] 2002, pet.

denied) (same).

      Foussadier filed neither a verified motion for continuance nor an affidavit

explaining why he needed additional time for discovery. He relies on his response

to the motion to sever, which was filed after the trial court ruled on the summary

judgment motion. In his response to Triple B’s motion to sever, Foussadier stated

that the discovery period allotted by the Texas Rules of Civil Procedure had not

ended, but he did not explain why he needed additional time for discovery to respond

to the motion for summary judgment.


                                          6
      In response to the motion for summary judgment, Foussadier did not identify

what additional information he needed to respond to the motion or why he had not

been able to obtain that information. He did not seek additional time to obtain the

information. Absent the required showing of need for further discovery, we conclude

that trial court did not abuse its discretion by implicitly determining that an adequate

time for discovery had passed and ruling on the motion for summary judgment. See

G.R. Auto Care, 2018 WL 4087295, at *8; Madison, 241 S.W.3d at 155.

      We overrule Foussadier’s first issue.2

II.   The trial court did not abuse its discretion by denying Foussadier’s
      motion for reconsideration.

      In his second issue, Foussadier argues that the trial court erred by denying his

motion for reconsideration because the expert report that he filed with it raised a

question of fact on causation. Nearly three weeks after the trial court granted a take-

nothing summary judgment in favor of Triple B, Foussadier filed a motion for

reconsideration in which he asked the court to set aside its prior order and deny

Triple B’s previously filed motion for summary judgment. The trial court denied the

motion for reconsideration in an order that stated: “On this day, the Court considered

Plaintiff’s Motion for Reconsideration. After considering the motion, pleadings, the



2
      Foussadier is not entitled to rely on Triple B’s motion for continuance. Triple B’s
      motion did not explain why Foussadier needed additional time for discovery or
      identify what information he needed.
                                           7
response, evidence and taking judicial notice of the case file, the Court DENIES the

Motion for Reconsideration.”

      A motion for reconsideration of a prior summary judgment is like a motion

for new trial, and we review a trial court’s ruling on a motion for reconsideration for

an abuse of discretion. Mullins v. Martinez R.O.W., LLC, 498 S.W.3d 700, 705 (Tex.

App.—Houston [1st Dist.] 2016, no pet.); Chapman v. Mitsui Eng’g & Shipbuilding

Co., 781 S.W.2d 312, 315 (Tex. App.—Houston [1st Dist.] 1989, writ denied). A

trial court abuses its discretion when it acts without reference to any guiding rules

or principles. Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 687

(Tex. 2002); Martinez R.O.W., 498 S.W.3d at 705.

      When the trial court granted the motion for summary judgment, it specifically

sustained Triple B’s objections to Foussadier’s errata sheet and the opinion evidence

of John Elam, a Department witness, whose opinions the court called “the very

definition of ipse dixit testimony.” Foussadier maintains that the expert report from

Helmer Engineering cured the ipse dixit defects the court found in Elam’s opinion.

The court did not sustain Triple B’s objection to Helmer’s report. Foussadier argues

that this demonstrates that the court considered the report. He further asserts that the

report was more than a scintilla of evidence on the causation issue.

      “After a court grants a summary judgment motion, the court generally has no

obligation to consider further motions on the issues adjudicated by the summary


                                           8
judgment.” Macy v. Waste Mgmt., Inc., 294 S.W.3d 638, 651 (Tex. App.—Houston

[1st Dist.] 2009, pet. denied). When a motion for reconsideration of a summary

judgment is filed, the trial court ordinarily may consider only the record as it existed

when it first heard and ruled on the summary judgment motion. NMRO Holdings,

LLC v. Williams, No. 01-16-00816-CV, 2017 WL 4782793, at *5 (Tex. App.—

Houston [1st Dist.] Oct. 24, 2017, no pet.) (mem. op.); see Chapman, 781 S.W.2d at

315; see also First Gibraltar Bank, FSB v. Farley, 895 S.W.2d 425, 430 (Tex.

App.—San Antonio 1995, writ denied) (“A trial court, when considering the motion

for new trial, does not abuse its discretion by refusing to consider proof filed after

the rendition of a summary judgment.”).

      “Summary judgment evidence may be filed late, but only with leave of court.”

Benchmark Bank v. Crowder, 919 S.W.2d 657, 663 (Tex. 1996). “Except on leave

of court,” the nonmovant’s summary judgment evidence must be filed and served at

least seven days before the summary judgment hearing. TEX. R. CIV. P. 166a(c).

“[T]he court has discretion to accept late-filed evidence, but it is not obliged to do

so.” Barnett v. Veritas DGC Land Inc., No. 14-05-01074-CV, 2006 WL 2827379, at

*5 (Tex. App.—Houston [14th Dist.] Oct. 5, 2006, pet. denied) (mem. op.) (court

did not abuse its discretion by refusing to consider evidence attached to motion for

reconsideration).




                                           9
       “A trial court may accept summary judgment evidence filed late, even after

summary judgment, as long as the court affirmatively indicates in the record that it

accepted or considered the evidence.” Mathis v. RKL Design/Build, 189 S.W.3d 839,

842–43 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (citing Stephens v. Dolcefino,

126 S.W.3d 120, 133–34 (Tex. App.—Houston [1st Dist.] 2003, pet. denied). “Leave

to late-file summary-judgment evidence may be reflected in a separate order, a

recital in the summary judgment, or an oral ruling contained in the reporter’s record.”

Lesikar v. Moon, No. 14-16-00299-CV, 2017 WL 4930851, at *11 (Tex. App.—

Houston [14th Dist.] Oct. 31, 2017, no pet.) (mem. op.); see Pipkin v. Kroger Tex.,

L.P., 383 S.W.3d 655, 663 (Tex. App.—Houston [14th Dist.] 2012, pet. denied)

(“Where nothing appears in the record to indicate that late-filed summary judgment

evidence was filed with leave of court, we presume that the trial court did not

consider it.”).

       “In determining what constitutes sufficient ‘affirmative evidence’ to indicate

that a trial court granted leave to file late pleadings or evidence, other Texas courts

have looked to the record as a whole . . . .” Wright v. Hernandez, 469 S.W.3d 744,

755 (Tex. App.—El Paso 2015, no pet.). Courts of appeals have found that late-filed

summary judgment evidence was considered by a trial court when: (1) the trial court

stated on the record at the summary judgment hearing that the evidence was




                                          10
considered or could be filed;3 (2) an order granting summary judgment stated that it

had considered the response;4 and (3) the trial court granted permission to file a

surreply.5

      Courts of appeals have found that late filed summary judgment evidence was

not considered by a trial court when: (1) an order expressly struck the evidence;6 (2)

the nonmovant relied on a docket entry as an affirmative indication of leave to late

file evidence;7 (3) the order denying the motion for reconsideration or new trial

recited that the court considered the motions, pleadings, responses, and papers on

file but did not expressly state that the court considered the late filed evidence.8

3
      Wright v. Hernandez, 469 S.W.3d 744, 756 (Tex. App.—El Paso 2015, no pet.);
      Lesikar v. Moon, No. 14-16-00299-CV, 2017 WL 4930851, at *11 (Tex. App.—
      Houston [14th Dist.] Oct. 31, 2017, no pet.) (mem. op.); Stephens v. Dolcefino, 126
      S.W.3d 120, 134 (Tex. App.—Houston [1st Dist.] 2003, no pet.); Morris v. JTM
      Materials, Inc., 78 S.W.3d 28, 47 n.19 (Tex. App.–Fort Worth 2002, no pet.).
4
      Adi v. Rapid Bail Bonding Co., No. 01-08-00290-CV, 2010 WL 547474, at *3 n.6
      (Tex. App.—Houston [1st Dist.] Feb. 18, 2010, no pet.) (mem. op.).
5
      Partin v. Superior Energy Servs., Inc., No. 01-17-00629-CV, 2018 WL 3849077, at
      *6 (Tex. App.—Houston [1st Dist.] Aug. 14, 2018, pet. filed) (mem. op.).
6
      PNP Petroleum I, LP v. Taylor, 438 S.W.3d 723, 730 (Tex. App.—San Antonio
      2014, pet. denied).
7
      SP Terrace, L.P. v. Meritage Homes of Tex., LLC, 334 S.W.3d 275, 282 (Tex.
      App.—Houston [1st Dist.] 2010, no pet.) (quoting Miller v. Kendall, 804 S.W.2d
      933, 944 (Tex. App.—Houston [1st Dist.] 1990, no writ) (“This rule results, in part,
      from the inherent unreliability of docket entries.”)) .
8
      NMRO Holdings, LLC v. Williams, No. 01-16-00816-CV, 2017 WL 4782793, at *5
      (Tex. App.—Houston [1st Dist.] Oct. 24, 2017, no pet.) (mem. op.); Wakefield v.
      Ayers, No. 01-14-00648-CV, 2016 WL 4536454, at *7 (Tex. App.—Houston [1st
                                           11
      In 2006, the Fourteenth Court of Appeals held that an order reciting that the

trial court considered “other evidence” along with the motions, responses, and

pleadings was an affirmative indication that it considered the late filed evidence.9

Eight years later, the same court of appeals determined that an order stating that the

trial court considered “the pleadings, the motion, affidavits, and other evidence on

file” was not an affirmative indication that the trial court considered the late filed

evidence because there was no order that expressly permitted the filing or

consideration of the late filed summary judgment evidence.10

      In this case, Foussadier attached new summary judgment evidence to his

motion for reconsideration. The appellate record does not include a request for leave

to late file summary judgment or an express ruling permitting the late filing of

evidence, specifically the Helmer report.

A.    The trial court’s failure to strike the Helmer report does not affirmatively
      indicate that it considered the report.

      Foussadier argues that the court implicitly permitted the late filing of the

report by declining to strike the report as requested by Triple B. Rule 166a(c)


      Dist.] Aug. 30, 2016, no pet.) (mem. op.); In re Estate of Alexander, 250 S.W.3d
      461, 467 (Tex. App.—Waco 2008, pet. denied).
9
      Auten v. DJ Clark, Inc., 209 S.W.3d 695, 702 (Tex. App.—Houston [14th Dist.]
      2006, no pet.).
10
      Alphaville Ventures, Inc. v. First Bank, 429 S.W.3d 150, 155 (Tex. App.—Houston
      [14th Dist.] 2014, no pet.).

                                            12
requires the party who wants the court to consider late filed evidence to obtain an

affirmative ruling permitting the late filing. See TEX. R. CIV. P. 166a(c); Alphaville

Ventures, Inc. v. First Bank, 429 S.W.3d 150, 154–55 (Tex. App.—Houston [14th

Dist.] 2014, no pet.). The absence of a ruling expressly striking the evidence is not

equivalent to permission to late file summary judgment evidence. See Alphaville

Ventures, 429 S.W.3d at 155.

B.    The Helmer report was not timely filed.

      In his amended reply brief, Foussadier asserts that the Helmer report was

timely filed because it was on file for more than seven days before the hearing on

the Motion for Reconsideration. But the Helmer report was not on file for more than

seven days before the hearing on the motion for summary judgment, and a motion

for reconsideration is akin to a motion for new trial not a motion for summary

judgment. See TEX. R. CIV. P. 166a(c); Mullins, 498 S.W.3d at 705; Chapman, 781

S.W.2d at 315.

C.    The order denying reconsideration did not affirmatively indicate that the
      trial court considered the Helmer report.

      Foussadier also asserted in his amended reply brief that the order denying

reconsideration affirmatively indicates that the court considered the late filed Helmer

report because the order recited that the court considered “evidence” and took

“judicial notice of its case file.” A trial court may take judicial notice of an

adjudicative fact only when the fact “is generally known within the trial court’s

                                          13
territorial jurisdiction,” or it “can be accurately and readily determined from sources

whose accuracy cannot reasonably be questioned.” TEX. R. EVID. 201(a), (b). The

trial court could not have taken judicial notice of Helmer’s opinion that Triple B’s

work was faulty and caused Foussadier’s accident. See id.; see also D Magazine

Partners, L.P. v. Rosenthal, 529 S.W.3d 429, 445 n.20 (Tex. 2017).

      The order does not expressly state that it considered the evidence attached to

the motion for reconsideration or that it considered the Helmer report. The statement

that it considered “evidence” is consistent with the rule that on motion for

reconsideration, a court may consider only the record as it existed when the court

first ruled on the motion for summary judgment. See NMRO Holdings, 2017 WL

4782793, at *5.

      Moreover, a party is generally not entitled to rely on new evidence in a motion

for rehearing, reconsideration, or new trial without showing that the evidence was

newly discovered and could not have been discovered by the exercise of due

diligence before the court ruled on the motion. See Bridgestone Lakes Cmty.

Improvement Ass’n, Inc. v. Bridgestone Lakes Dev. Co., 489 S.W.3d 118, 125 (Tex.

App.—Houston [14th Dist.] 2016, pet. denied); see also Waffle House, Inc. v.

Williams, 313 S.W.3d 796, 813 (Tex. 2010) (addressing the standard for a motion

for new trial based on newly discovered evidence). In March 2017, Foussadier

disclosed Helmer Engineering as a testifying witness on matters relating to his


                                          14
claims. The record does not explain why the expert report attached to the motion for

reconsideration could not have been discovered or obtained before the summary

judgment hearing. (The report itself was dated January 25, 2018, more than two

weeks after the summary judgment hearing.)

      Based on the facts of this case, we conclude that the trial court’s use of the

word “evidence” was not an affirmative indication that it considered the Helmer

report. See NMRO Holdings, 2017 WL 4782793, at *5. Foussadier did not show that

the trial court abused its discretion by denying the motion for reconsideration. See

id.; Macy, 294 S.W.3d at 650–51.

      We overrule Foussadier’s second issue.

                                    Conclusion

      We affirm the judgment of the trial court.




                                             Peter Kelly
                                             Justice

Panel consists of Justices Lloyd, Kelly, and Hightower.




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