                           NUMBER 13-15-00599-CV

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                   CORPUS CHRISTI – EDINBURG

ALFREDO LOSOYA,                                                         Appellant,


                                         v.


MISSION HOUSING AUTHORITY,
SELF-INSURED,                                                           Appellee.


                 On appeal from the 398th District Court of
                         Hidalgo County, Texas.


                        MEMORANDUM OPINION
             Before Justices Rodriguez, Garza and Longoria
               Memorandum Opinion by Justice Longoria

      Appellant Alfredo Losoya sought to recover benefits under the Texas Workers’

Compensation Act, claiming that he sustained an aggravation of a preexisting condition
while in the course and scope of his employment. See TEX. LABOR CODE ANN. § 409.002

(West, Westlaw through 2015 R.S.). The Texas Department of Insurance, Division of

Workers’ Compensation (Division) rejected his claim.               Losoya exhausted his

administrative remedies and filed suit against his employer, appellee Mission Housing

Authority (MHA). MHA filed a no-evidence motion for summary judgment. The trial court

granted the motion. Losoya argues on appeal that the trial court erred because it: (1)

denied his motion for continuance; (2) did not allow Losoya to orally testify concerning his

injury at the summary judgment hearing; and (3) used the incorrect legal standard in

granting the no-evidence motion for summary judgment. We affirm.

                                      I. BACKGROUND

       Summary judgment evidence established that Losoya worked for MHA as a

manual laborer, performing duties such as cutting grass and driving a tractor. On January

6, 2012, Losoya attempted to turn on a cement mixer for a particular job he had been

assigned. However, as Losoya pulled the handle, it “locked” and hit his left wrist. He

worked for several more months but eventually quit because the pain in his hand

prevented him from fulfilling his job duties.

       On July 3, 2013, the Division conducted a contested benefit hearing. The hearing

officer determined that Losoya did not sustain damage or harm to the physical structure

of his body. The hearing officer noted that the evidence regarding his physical injury was

contradictory, including evidence that the condition of his left wrist was due to preexisting

arthritis. Acting pro se, Losoya sued MHA on December 9, 2013, again claiming that he

sustained an aggravation of a preexisting condition.




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       In September of 2014, pursuant to a docket control order, the court set the case

for jury trial on June 8, 2015. On April 7, 2015, MHA filed a no-evidence motion for

summary judgment, asserting that Losoya had not provided evidence for each element

of his aggravation of a preexisting injury claim. The court set the summary judgment

motion for a hearing two months later on June 4, 2015. However, on April 14, 2015, the

trial court moved the summary judgment hearing forward several weeks to May 19, 2015.

On May 8, 2015, eleven days before the summary judgment hearing, Losoya filed a notice

of appearance and designation of counsel, identifying his newly retained counsel. On the

same day, Losoya filed a motion for continuance of both the summary judgment hearing

and the agreed trial setting. On May 12, 2015, Losoya filed a response to MHA’s no-

evidence motion for summary judgment.

       On May 19, 2015, the trial court held a hearing on Losoya’s motion for continuance

before the summary judgment hearing. Losoya requested that the summary judgment

hearing be continued for “whatever time the court would allow.” The trial court granted

the motion for continuance, setting the summary judgment hearing to be held on the same

day as the trial, June 8, 2015.

       On June 2, 2015, Losoya filed a pro-se motion to continue the case, arguing that

he was not ready for trial “due to the fact that his attorney has withdrawn from the case.”

However, our review of the record reveals that Losoya’s counsel had not withdrawn at

that point. Instead, on the day of the trial, June 8, 2015, Losoya’s counsel orally moved

to withdraw from the case but did not move for a continuance. The trial court denied the

motion to withdraw, reset the jury trial setting, and took MHA’s no-evidence motion for

summary judgment and Losoya’s response to the motion under consideration.              On



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November 19, 2015, the trial court granted MHA’s motion for summary judgment. This

appeal ensued.

                              II. MOTION FOR CONTINUANCE

      In his first issue, Losoya argues that the trial court should have granted his motion

for continuance.

A. Standard of Review and Applicable Law

      A trial court’s decision to deny a motion for continuance will not be disturbed absent

a showing that it clearly abused its discretion. BMC Software Belg., N.V. v. Merchand,

83 S.W.3d 789, 800 (Tex. 2002) (citing Villegas v. Carter, 711 S.W.2d 624, 626 (Tex.

1986)); Ngo v. Ngo, 133 S.W.3d 688, 692–93 (Tex. App.—Corpus Christi 2003, no pet.).

The trial court shall not grant a motion for continuance “except for sufficient cause

supported by affidavit, or by consent of the parties, or by operation of law.” TEX. R. CIV.

P. 251. Generally, the “denial of a motion for continuance based on a lack of time to

prepare for trial will not be found an abuse of discretion.” Hatteberg v. Hatteberg, 933

S.W.2d 522, 527 (Tex. App.—Houston [1st Dist.] 1994, no writ).

B. Discussion

      Losoya contends that the trial court abused its discretion by denying his motion for

continuance, but he did not specify which motion for continuance he complains of on

appeal. However, we note that to properly preserve error, the party alleging error must

have made a timely, specific objection or motion to the trial court and must have received

an adverse ruling on the objection. TEX. R. APP. P. 33.1; see Grant v. State, 345 S.W.3d

509, 512 (Tex. App.—Waco 2011, pet. ref’d).




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      When Losoya moved for a continuance on May 19, 2015, the trial court granted

the continuance, resetting the summary judgment hearing several weeks later. Thus,

even though the first continuance was not as long as he requested, Losoya received a

favorable ruling. He did not receive an adverse ruling on his first motion for continuance

and cannot complain about it on appeal. Cf. TEX. R. APP. P. 33.1.

      Losoya’s second motion for continuance was based on a lack of time to prepare

for trial and the incorrect assumption that his attorney would be allowed to withdraw from

the case. However, even if his attorney had been allowed to withdraw, lack of time to

prepare is an insufficient ground to grant a motion for continuance. See TEX. R. CIV. P.

253; Hatteberg, 933 S.W.2d at 527; see also Perrotta v. Farmers Ins. Exch., 47 S.W.3d

569, 577 (Tex. App.—Houston [1st Dist.] 2001, no pet.) (“[T]he denial of a motion for

continuance based on lack of time to prepare for trial is not an abuse of discretion.”).

Therefore, the trial court did not abuse its discretion in denying the second motion for

continuance. See Merchand, 83 S.W.3d at 800. We overrule Losoya’s first issue.

                                 III. SUMMARY JUDGMENT

      In issues two and three, respectively, Losoya complains that he should have been

allowed to orally testify to defeat MHA’s motion for summary judgment and that the trial

court used the improper standard to rule on the summary judgment.

A. Oral Testimony at a Summary Judgment Hearing

      1. Applicable Law

      “[O]ral testimony cannot be adduced in support of or in opposition to a motion for

summary judgment.” Martin v. Martin, Martin & Richards, Inc., 989 S.W.2d 357, 359 (Tex.

1998); see TEX. R. CIV. P. 166a(c).



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      2. Discussion

       There is no basis for Losoya’s complaint that the trial court erred by failing to let

him orally testify to present summary judgment evidence because parties are not allowed

to present oral testimony during a summary judgment hearing. TEX. R. CIV. P. 166a(c);

see Martin, 989 S.W.2d at 359. Instead, parties must rely on deposition transcripts,

interrogatory answers, other discovery responses, pleadings, affidavits, stipulations, and

certified public records. See TEX. R. CIV. P. 166a(c). Therefore, the trial court did not err

in refusing to allow Losoya to give oral testimony. We overrule Losoya’s second issue.

B. No-Evidence Motion for Summary Judgment

      1. Standard of Review

      The trial court must grant a motion for no-evidence summary judgment if the

respondent does not produce summary judgment evidence raising a genuine issue of

fact. See TEX. R. CIV. P. 166a(i). In other words, a no-evidence summary judgment is

“essentially a pretrial directed verdict.” King Ranch, Inc. v. Chapman, 118 S.W.3d 742,

750 (Tex. 2003). The legal standard for reviewing a no-evidence summary judgment is

the same legal sufficiency standard used in reviewing a directed verdict. See id.

       No evidence points must, and may only, be sustained when the record
       discloses one of the following situations: (a) a complete absence of
       evidence of a vital fact; (b) the court is barred by rules of law or of evidence
       from giving weight to the only evidence offered to prove a vital fact; (c) the
       evidence offered to prove a vital fact is no more than a mere scintilla; (d)
       the evidence establishes conclusively the opposite of the vital fact.

City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005) (internal quotations

omitted).




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      2. Applicable Law

         The Texas Labor Code defines “injury” as “damage or harm to the physical

structure of the body and a disease or infection naturally resulting from the damage or

harm.”     TEX. LABOR CODE ANN. § 401.011(26) (West, Westlaw through 2015 R.S.)

“Compensable injury” is defined as “an injury that arises out of and in the course and

scope of employment for which compensation is payable under this subtitle.”        Id. at

401.011(10). To prove an aggravation of a preexisting condition, “there must be some

enhancement, acceleration, or worsening of the underlying condition from the injury and

not just a mere recurrence of symptoms inherent in the etiology of the preexisting

condition.” State Office of Risk Mgmt. v. Adkins, 347 S.W.3d 394, 399 (Tex. App.—Dallas

2011, no pet.). “[E]xpert testimony is required to establish aggravation of a preexisting

medical condition.” Id.

      3. Discussion

         Losoya insinuates that even though MHA’s motion was labeled as a motion for no-

evidence summary judgment, it was in reality a traditional motion for summary judgment.

Using the standard for a traditional motion for summary judgment, Losoya asserts that he

should have prevailed because he presented more than a scintilla of evidence that he

sustained a compensable injury. See id. Thus, he argues that there was not a complete

absence of evidence to sustain his claim. However, MHA claims that it properly labeled

its motion as a no-evidence motion for summary judgment and that the trial court properly

granted the motion for summary judgment using the appropriate legal standard. After

reviewing the motion, we agree with MHA that its motion for no-evidence summary

judgment was in substance a no-evidence motion for summary judgment; accordingly,



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we will review MHA’s motion on that basis. See Tex. Integrated Conveyor Sys., Inc. v.

Innovative Conveyor Concepts, Inc., 300 S.W.3d 348, 375 (Tex. App.—Dallas 2009, pet.

denied) (“A court should determine the standard of proof on the summary judgment

motion after considering the substance of the motion, rather than categorizing the motion

strictly by its form or title.”).

        After a sufficient time for discovery had passed, MHA filed a no-evidence motion

for summary judgment, asserting that there was no evidence that Losoya had sustained

an injury on January 6, 2012. The type of injury Losoya allegedly sustained—aggravation

of a preexisting injury—can only be established by expert medical evidence. See Adkins,

347 S.W.3d at 399. Losoya presented no evidence other than his own affidavit to support

the claim that he received a compensable injury. See id. There was no medical evidence

to raise a genuine issue of fact on this element of his aggravated injury claim. See id.

Thus, the trial court did not err in finding that Losoya had not raised a genuine issue of

material fact on each element of his claim. See Chapman, 118 S.W.3d at 750. We

overrule Losoya’s third issue.

                                          IV. CONCLUSION

        We affirm the trial court’s judgment.



                                                       NORA L. LONGORIA,
                                                       Justice


Delivered and filed the
8th day of December, 2016.




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