                                      COURT OF APPEALS
                                   EIGHTH DISTRICT OF TEXAS
                                        EL PASO, TEXAS


    JAMIE STIERWALT AND                               §
    ARNOLD LEE STIERWALT, JR.                                          No. 08-14-00107-CV
                                                      §
                                 Appellants,                              Appeal from the
                                                      §
    v.                                                                  153rd District Court
                                                      §
    FFE TRANSPORTATION SERVICES,                                      of Tarrant County, Texas
    INC., CONWELL CORPORATION,                        §
    FROZEN FOOD EXPRESS                                                (TC# 153-257322-12)
    INDUSTRIES, INC., AND                             §
    JEFFREY PRESTON LEAR,

                                 Appellees.

                                               OPINION

         Following a traffic accident, Plaintiffs Jamie and Arnold Stierwalt sued the driver of a

semi-truck (Jeffrey Lear) along with the owners and operators of the truck (FFE Transportation

Services Inc., Conwell Corporation, and Frozen Food Express Industries, Inc). The trial court

granted summary judgment to all the Defendants. On appeal, Plaintiffs contend the trial court

abused its discretion in refusing to continue the summary judgment hearing so they could obtain

additional evidence. Plaintiffs also contend the trial court erred in granting the Defendants’

summary judgment motion. We affirm.1


1
  This appeal was transferred from the Fort Worth Court of Appeals pursuant to a docket equalization order. We
apply the precedent of that Court to the extent required by TEX. R. APP. P. 41.3.
                                                BACKGROUND

         In January 2010, Jamie Stierwalt was driving on Interstate 20 in Tarrant County when her

vehicle was struck from behind by a vehicle being driven by Ngoc Pham.                                 According to

witnesses, Pham was driving approximately 100 miles per hour prior to the collision. The impact

caused Jamie’s vehicle to spin out of control toward the outside shoulder of the roadway. After

skidding over 300 feet, Jamie’s vehicle struck the tractor trailer of a semi-truck, which was parked

on the shoulder of the roadway. Lear had been driving the semi-truck, but only moments before

the accident occurred, he had parked the truck on the west-bound shoulder of the highway to

consult a map. Jamie’s vehicle was totaled in the accident, and Jamie was transported to the

hospital where she spent four days.

         Plaintiffs alleged that Lear had negligently parked the truck on the shoulder of the roadway

and that the Corporate Defendants (FFE, Conwell, and Frozen Food Express) were vicariously

liable because Lear had done so in the scope of his employment. 2 Plaintiffs also raised a

negligence per se claim, asserting Lear had parked the truck in violation of Section 545.302(a)(9)

of the Texas Transportation Code, which provides that: “An operator may not stop, stand, or park

a vehicle . . . where an official sign prohibits stopping.”                       TEX. TRANSP. CODE ANN. §

545.302(a)(9) (West 2011). Plaintiffs claimed that Jamie would have been “knocked harmlessly

off of the roadway into a field” after her collision with Pham, if Lear had not been illegally parked

on the shoulder of the roadway.




2
  In addition to asserting vicarious liability, Plaintiffs also alleged FFE, Conwell, and Frozen Food Express had failed
to properly train Lear and had negligently entrusted the semi-truck to him.

                                                           2
       In June 2013, FFE, Conwell, and Frozen Food Express filed a motion for summary

judgment. In support of their motion, they relied on a “crash report” by the investigating police

officer that indicated Pham had been traveling at an excessive rate of speed when she attempted an

unsafe lane change and that Pham had been cited for failing to control her speed. There was no

indication Lear had been cited for illegal parking. The Corporate Defendants also relied on the

investigating officer’s deposition, in which he concluded the accident was the sole fault of the

other driver, Pham. The Corporate Defendants also relied on Jamie’s deposition in which she

expressed her belief that Pham was responsible for causing the accident, and that the accident

would have occurred regardless of whether Lear’s truck had been parked on the shoulder of the

highway.

       In their response to the motion for summary judgment, Plaintiffs focused almost

exclusively on their claim that Defendants were liable under their negligence per se theory that

Lear had violated the Transportation Code by stopping on the shoulder of the highway. Plaintiffs

requested additional time to respond to the summary judgment motion in order to take Lear’s

deposition. They claimed they had not had the opportunity to take Lear’s deposition and that they

intended to promptly notice Lear’s deposition and to “provide evidence of same [to the court]

shortly thereafter.” The Corporate Defendants opposed this request, pointing out that Plaintiffs’

petition had been on file for over 1-1/2 years, and that discovery had already closed in early June

2013, after previously being extended by agreement of the parties, and that Plaintiffs’ attorney,

Christopher Payne, had taken no action to try to schedule Lear’s deposition until two weeks after

the close of the second discovery deadline.




                                                3
       On July 25, 2013, the trial court granted summary judgment in part, dismissing all of

Plaintiffs’ claims, with the exception of their negligence per se claim. Plaintiffs subsequently

failed to notice Lear for deposition. Instead, the Corporate Defendants noticed Lear’s deposition,

and his deposition was taken on October 11, 2013 in Macon, Georgia, with Plaintiffs’ counsel,

Christopher Payne, attending by phone. Shortly thereafter, the trial court continued the upcoming

November 2013 trial setting, and entered an amended scheduling order setting a new trial date for

March 2014, a dispositive motion deadline of December 2, 2013, and a discovery deadline of

December 15, 2013.

       On November 14, 2013, two weeks before the new deadline for filing dispositive motions,

the Corporate Defendants filed a motion for summary judgment, both based on traditional and

no-evidence grounds, seeking dismissal of the remaining negligence per se claim. Defendants

pointed out that although the discovery deadline for discovery had been extended by agreement of

the parties twice, and although “adequate time for discovery had passed,” Plaintiffs had still not

come forward with any evidence that Lear had violated any laws or regulations when he parked his

truck on the shoulder of the roadway, and that the summary judgment evidence actually pointed to

a contrary conclusion. In support of their motions, the Defendants relied on the same exhibits

previously attached to the first motion for summary judgment, i.e., the “Crash Report” and the

excerpts from the depositions of the investigating officer and Jamie Stierwalt. Defendants also

attached an excerpt from Lear’s deposition in which Lear stated that he did not recall seeing any

no-parking signs in the area where he had parked before the accident occurred and that he was not

cited for any parking violations. In his testimony, Lear further recalled that the investigating




                                                4
officer had informed him that the accident was not his fault and that he had not done anything

wrong.

         The summary judgment hearing was set for December 20, 2013, thereby requiring

Plaintiffs to file a response to the summary judgment motions no later than Friday, December 13,

2013, seven days before the hearing. See TEX. R. CIV. P. 166a(c) (“Except on leave of court, the

adverse party, not later than seven days prior to the day of hearing may file and serve opposing

affidavits or other written response.”). Plaintiffs failed to file a timely response. Instead, on

Monday, December 16, 2013, Plaintiffs filed a verified “Motion for Continuance of Summary

Judgment Hearing, Objection, and Preliminary Response.” Plaintiffs sought a continuance on the

ground they needed Lear’s deposition testimony in order to “respond to the motion for summary

judgment[.]”

         In support of the motion, Appellants attached the affidavit of their attorney, Christopher

Payne, which Payne had executed on Friday, December 13, 2013. In his affidavit, Payne stated

that he had participated in Lear’s deposition, and recalled hearing Lear testify to the following two

statements:

        Lear stated that he was aware “of signage on Interstate 20 that stopping on the shoulder was
         forbidden except in an emergency.”

        Lear admitted that “there was no emergency” when he stopped on the shoulder of Interstate
         20 prior to the accident.

Payne further averred that he had made a request to the Defendants’ attorney “to inspect and copy”

Lear’s deposition pursuant to TEX. R. CIV. P. 203.3(c), on an unspecified date, but that “thus far the

defense counsel has not made the deposition of defendant Lear available to inspect and copy.” In

reply, Defendants pointed out Plaintiffs had filed their motion for continuance two days after the


                                                  5
discovery period had ended. Defendants also argued that Payne’s request to inspect and copy the

Lear deposition was not made in a reasonable manner as required by Rule 203.3, claiming that

Payne made his request on December 13, 2013, the same day Plaintiffs’ response to the summary

judgment motion was due, and that Defendants’ counsel, Peyton Inge, was out of the office that

day and did not receive any call or message from Payne seeking to inspect or copy the deposition.

The Defendants did not provide an affidavit to support these factual assertions of how and when

Payne’s request had been made.

       Defendants also argued that Payne had ample time to obtain the deposition transcript

before Plaintiffs’ summary judgment response was due, pointing out that Lear’s deposition was

taken on October 11, 2013, and that Payne could have obtained the transcript any time after that

from either the court reporter or from Defendants’ counsel, noting that Payne expressly declined to

order the transcript at the close of Lear’s deposition. In this regard, Defendants attached the last

page of Lear’s deposition transcript in which the court reporter asked the parties if they wished to

purchase a copy of the transcript. Plaintiffs’ attorney Payne responded that he had not yet decided

whether to order a copy and advised the court reporter that he would be “in touch” with her.

Defendants pointed out that there was nothing in the record to explain why Payne waited until two

months later, on the very day that his summary judgment response was due, to make his request to

inspect and copy the deposition transcript.

       The trial court held the summary judgment hearing on December 20, 2013, as scheduled.

Defendants’ counsel, Peyton Inge, was present at the hearing, but Plaintiffs’ counsel failed to

attend. At the hearing, the trial court expressly found that Plaintiffs had received proper and

timely notice of the hearing, adding that the court coordinator had contacted Plaintiffs’ counsel to


                                                 6
remind him of the hearing the day before, and that the court had further attempted to contact

counsel “just now,” and had left a voicemail on counsel’s answering machine. At the hearing,

Inge again made statements to the effect that Payne had “waited until the day the [summary

judgment] response was due to request a copy of the transcript” from his office, despite the fact

that Payne had ample opportunity to obtain the transcript from either his office or the court reporter

since October 2013. The trial court denied Plaintiffs’ motion for continuance on the record,

noting that their counsel had the opportunity to obtain Lear’s deposition testimony prior to the

hearing but had failed to do so. That same day, the trial court entered a written order denying the

motion for continuance, and granting summary judgment for all Defendants and dismissing all of

Plaintiffs’ claims with prejudice.

       Plaintiffs thereafter filed a motion for new trial, renewing their allegation that they had

made a reasonable request under Rule 203.3(c) to obtain and inspect the Lear deposition, but that

Defendants’ attorney violated the Rule by refusing his request. Plaintiffs once again relied solely

on Payne’s affidavit in support of their claim, and did not provide any additional evidence

regarding when or how that request was made. Defendants opposed the motion for new trial,

once again asserting that Payne’s request was not reasonable because it was not made until

December 13, 2013, the day Appellants’ summary judgment response was due. Defendants once

again did not provide an affidavit from their attorney to support their factual assertions regarding

how and when the request was made. The trial court denied Appellants’ motion for new trial by

written order on March 6, 2014, and this appeal followed.

                                           DISCUSSION

                                     Motion for Continuance


                                                  7
         Plaintiffs moved for a continuance of the summary judgment hearing based on their alleged

need to obtain the Lear deposition transcript, claiming that Payne heard Lear testify at the

deposition that he was aware “of signage on Interstate 20 that stopping on the shoulder was

forbidden except in an emergency[,]” and that Lear admitted he did not stop for an emergency.

Plaintiffs contend this missing evidence was critical to their case, arguing it would have created a

fact issue whether Defendants could be found liable on a negligence per se theory that Lear

violated Section 545.302(a)(9) of the Texas Transportation Code, by parking his vehicle on the

shoulder of the roadway where an official sign prohibits non-emergency stopping.3 We conclude

the trial court did not abuse its discretion in denying the motion for continuance.

                                              Standard of Review

         We review a trial court’s ruling on a motion for continuance of a summary judgment

hearing for an abuse of discretion. See D.R. Horton–Tex., Ltd. v. Savannah Props. Assocs., 416

S.W.3d 217, 222 (Tex.App. – Fort Worth 2013, no pet.) (citing BMC Software Belg., N.V. v.

Marchand, 83 S.W.3d 789, 800 (Tex. 2002)); see also Gen. Motors v. Gayle, 951 S.W.2d 469, 476

(Tex. 1997) (orig. proceeding). We do not substitute our judgment for that of the trial court. See

In re Nitla S.A. de C.V., 92 S.W.3d 419, 422 (Tex. 2002) (orig. proceeding). Instead, we

determine whether the trial court’s action “was so arbitrary and unreasonable as to amount to a

clear and prejudicial error of law.” See D.R. Horton-Texas, Ltd., 416 S.W.3d at 222 (citing Joe v.

Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004)). The test is whether the trial

3
  Plaintiffs frame the issue on appeal as whether a “party [can] prevail on a summary judgment by refusing to produce
a deposition that negates their motion.” The question whether Defendants refused to produce the Lear deposition,
however, is just one factor among many that we must analyze in determining whether the trial court abused its
discretion in denying the motion for continuance. See, e.g., Tempay, Inc. v. TNT Concrete & Constr., 37 S.W.3d 517,
522-23 (Tex.App. – Austin 2001, pet. denied) (fact that a defendant had “successfully resisted” the plaintiff’s timely
efforts to take a deposition was one factor among many that the court considered in determining whether plaintiff had
been given an adequate opportunity to conduct discovery before the defendant filed its no-evidence motion for
summary judgment).
                                                          8
court acted without reference to guiding rules or principles. Id. (citing Cire v. Cummings, 134

S.W.3d 835, 838–39 (Tex. 2004)); see also See BMC Software, 83 S.W.3d at 800 (the denial of a

motion for continuance will only be reversed if the denial was arbitrary, unreasonable, or without

reference to any guiding rules and principles). Absent a showing that the trial court acted

arbitrarily and unreasonably, we will not disturb its decision on appeal. Medford v. Medford, 68

S.W.3d 242, 247-48 (Tex.App. – Fort Worth 2002, no pet.); see also Karen Corp. v. The

Burlington N. & Santa Fe Ry. Co., 107 S.W.3d 118, 124 (Tex.App. – Fort Worth 2003, pet.

denied).

                                         Applicable Law

       Rule 166a(g) permits a trial court to grant a continuance to the party opposing a motion for

summary judgment if that party files an affidavit setting forth the reasons the party cannot present

the facts necessary to respond to the summary judgment motion. TEX. R. CIV. P. 166a(g)

(“Should it appear from the affidavits of a party opposing the motion that he cannot for reasons

stated present by affidavit facts essential to justify his opposition, the court may refuse the

application for judgment or may order a continuance to permit affidavits to be obtained or

depositions to be taken or discovery to be had or may make such other order as is just.”); see also

D.R. Horton-Texas, Ltd., 416 S.W.3d at 222; Two Thirty Nine Joint Venture, 145 S.W.3d at 161.

An affidavit seeking a continuance to obtain additional evidence must describe the evidence

sought, explain its materiality, and demonstrate that the party requesting the continuance has used

due diligence to timely obtain the evidence. D.R. Horton-Texas, Ltd., 416 S.W.3d at 222-23.

       In deciding whether a trial court abused its discretion in denying a motion for continuance

seeking additional time to conduct discovery or to obtain additional evidence, a court should


                                                 9
consider the following “nonexclusive” factors: (1) the length of time the case has been on file; (2)

the materiality and purpose of the discovery sought; and (3) whether the party seeking the

continuance has exercised due diligence to obtain the discovery sought. Two Thirty Nine Joint

Venture, 145 S.W.3d at 161; see also D.R. Horton-Texas, Ltd., 416 S.W.3d at 223. The court may

also consider whether the party seeking the continuance has given an explanation for its failure to

obtain the testimony and whether “the testimony cannot be procured from another source.” See

Tri-Steel Structures, Inc. v. Baptist Found. of Texas, 166 S.W.3d 443, 448 (Tex.App. – Fort Worth

2005, pet. denied). In general, a litigant is not entitled to a continuance if he or she fails to

diligently use the rules of civil procedure for discovery purposes prior to filing a motion for

continuance. D.R. Horton-Texas, Ltd., 416 S.W.3d at 223 (citing State v. Wood Oil Distrib., Inc.,

751 S.W.2d 863, 865 (Tex. 1988)).

                                               Analysis

                                Length of Time the Case was on File

        Plaintiffs filed their lawsuit in January 2012. Even before filing their lawsuit, Plaintiffs

were obligated to ensure that the factual allegations contained in their petition had evidentiary

support or were likely to receive such support after a reasonable opportunity for discovery has

passed. See generally Nath v. Texas Children’s Hosp., 446 S.W.3d 355, 369 (Tex. 2014) (the

Texas Civil Practice and Remedies Code requires that each factual contention in a pleading must

have evidentiary support at the time the pleading is filed, or is likely to receive such support after a

reasonable opportunity for discovery has passed); see also Tarrant County v. Chancey, 942

S.W.2d 151, 155 (Tex.App. – Fort Worth 1997, no writ) (plaintiff’s pleading must be “factually

well grounded and legally tenable” at the time it is filed). The accident in this case occurred in


                                                  10
January 2010, and thus Plaintiffs had two years before filing suit to investigate the circumstances

of the accident and to garner evidence to support their claim that Lear had violated a no-parking

statute when he parked on the shoulder of the roadway at the time of the accident. Moreover,

Plaintiffs had an almost additional two years after they filed their lawsuit to garner evidence in

support of their claim, since Defendants did not file their second motion for summary judgment

until November 2013. Yet, Plaintiffs assert they were still unprepared by the December 13, 2013

deadline for filing their response to come forward with any evidence to support that claim.

       Numerous courts, including the Fort Worth Court of Appeals, have found that a trial court

does not abuse its discretion by refusing to grant a motion for a continuance of a summary

judgment hearing when the party had an even shorter period of time to obtain evidence necessary

to support their case. See, e.g., Allen v. United of Omaha Life Ins. Co., 236 S.W.3d 315, 325-26

(Tex.App. – Fort Worth 2007, pet. denied) (no abuse of discretion in denying party’s motion for

continuance of summary judgment hearing based on the need to take witness depositions where

case was on file 14 months before summary judgment motion was filed); Sevier Enters., Inc. v.

Euclid Chem. Co., No. 02-13-00452-CV, 2014 WL 5791559, at *3-6 (Tex.App. – Fort Worth Nov.

6, 2014, no pet.) (mem. op.) (no abuse of discretion where case was on file 19 months before

plaintiff filed its motion for continuance of summary judgment hearing); Idniarti v. Bell

Helicopter Textron, Inc., No. 02-12-00045-CV, 2013 WL 1908291, at *3-4 (Tex.App. – Fort

Worth May 9, 2013, pet. denied) (mem. op.) (no abuse where case had been pending for over two

years when summary judgment motion was filed). We similarly conclude the trial court did not

abuse its discretion in denying Plaintiffs’ motion for continuance based on the length of time




                                                11
Plaintiffs’ case was pending before Defendants filed their motion for summary judgment and

before Plaintiffs filed their motion for continuance.

                            Due Diligence in Obtaining the Discovery Sought

        Similarly, there is nothing in the record to suggest that Plaintiffs made any effort to obtain

evidence to support their claim that Lear had violated the Transportation Code before filing their

motion for continuance. Even though they had other means to document whether there were

signs in place on the highway prohibiting parking in the area where the accident occurred at the

time Lear stopped his truck, Plaintiffs instead determined that the only way to establish this critical

element of their claim was to depose Lear. 4 Further, it appears Plaintiffs made this tactical

decision as early as July 2013, when they opposed the first summary judgment motion and advised

the trial court they needed additional time to depose Lear in order to obtain evidence to support

their negligence per se claim.          Moreover, despite advising the trial court they intended to

“promptly notice” Lear’s deposition, Plaintiffs never noticed Lear’s deposition, and instead, relied

on Defendants to notice and take Lear’s deposition three months later on October 11, 2013.

        Importantly, although Payne alleged in his affidavit that he heard critical testimony during

the Lear deposition in October 2013—testimony that Plaintiffs now assert is the only evidence that

could save their case from dismissal—Payne himself stated on the record at the close of the

deposition that he was uncertain whether he would be ordering a copy of the transcript. And,

there is nothing in the record to suggest that counsel ever contacted the court reporter at any time to

obtain the deposition transcript, as is permitted under Rule 203.3(c) of the Texas Rules of Civil


4
  We note that there is nothing in the record to suggest that Plaintiffs made any attempt to take photographs of any
existing signage on the highway, or to contact the Texas Department of Transportation to determine if any such signs
existed in that location at the time of the accident.

                                                        12
Procedure.5 See TEX. R. CIV. P. 203.3(c) (“[a]ny party or the witness is entitled to obtain a copy

of the deposition transcript or nonstenographic recording from the deposition officer upon

payment of a reasonable fee”).

         When Defendants filed their motions for summary judgment on November 14, 2013, they

provided clear notice to Plaintiffs that they were challenging Plaintiffs to come forward with

evidence to support their negligence per se claim, thereby alerting Plaintiffs they had a limited

time to obtain a copy of the Lear transcript or face dismissal of their lawsuit. Yet, Plaintiffs then

waited almost a month—until December 16, 2013, three days after their response deadline—to file

a motion for continuance claiming they had been unable to obtain a copy of the transcript, but

providing no explanation why they did not seek to obtain a copy sooner. Although the rules do

not require that a motion for continuance be filed on or before the summary judgment response

date, filing the motion after that date is evidence of a party’s lack of due diligence. See, e.g.,

Landers v. State Farm Lloyds, 257 S.W.3d 740, 747 (Tex.App. – Houston [1st Dist.] 2008, no pet.)

(court took into account fact that party did not file its motion for continuance of a summary

judgment hearing until after the deadline had passed for filing a response to a summary judgment

motion in determining whether party used due diligence); Harden v. Merriman, No.

02-12-00385-CV, 2013 WL 5874708, at *1-4 (Tex.App. – Fort Worth Oct. 31, 2013, no pet.)

(mem. op.) (a trial court does not abuse its discretion by denying a motion for continuance when

the movant first informs the trial court about the reason for a continuance shortly before the setting

at issue).

5
  We are not suggesting Plaintiffs were required to make a “full price” purchase of the Lear deposition transcript from
the court reporter. Rule 203.3(c) also permitted them to make a request on the opposing party to inspect and copy the
deposition. We are simply pointing out that Plaintiffs had alternate means to obtain a copy of the deposition
transcript.

                                                         13
       The only evidence Plaintiffs presented indicating that they made any attempt to obtain the

Lear deposition transcript came from attorney Payne’s affidavit attached to their late-filed motion

for continuance. In his affidavit, Payne contended that he had requested a copy of the Lear

deposition from Defendants’ attorney and that the attorney had failed to make the transcript

available to him. Plaintiffs rely solely on this affidavit to support their contention that Defendants

improperly withheld the deposition transcript from them in violation of Rule 203.3, which

provides that a party may make a “reasonable request” to inspect and copy the transcript from the

party who has received the original copy of it. TEX. R. CIV. P. 203.3(c) (the “party receiving the

original deposition transcript or nonstenographic recording must make it available upon

reasonable request for inspection and copying by any other party”).

       A party moving for a continuance of a summary judgment hearing based on the need to

obtain additional evidence bears the burden to convince the court that he used due diligence in

seeking to obtain the needed evidence, and must do so by providing the trial court with an affidavit

specifying not only the evidence sought, but explaining why it was not obtained earlier in order to

avoid the need for a continuance. See Landers, 257 S.W.3d at 747 (party seeking continuance of

a summary judgment hearing based on need to conduct further discovery must support its motion

with an affidavit stating with particularity what due diligence the party used to obtain the needed

evidence); Cooper v. Circle Ten Council Boy Scouts of Am., 254 S.W.3d 689, 696 (Tex.App. –

Dallas 2008, no pet.) (same).

       An affidavit that is general and conclusory does not meet this standard. Therefore, a trial

court does not abuse its discretion by denying a motion for continuance when the affidavit

submitted does not state with particularly what diligence was used to obtain the needed evidence or


                                                 14
testimony. See, e.g., Landers, 257 S.W.3d at 747; see also Schronk v. Laerdal Med. Corp., 440

S.W.3d 250, 264 (Tex.App. – Waco 2013, pet. denied) (trial court did not abuse its discretion in

denying parties’ motion for continuance of summary judgment hearing based on the need to

conduct additional discovery where the parties failed to failed to demonstrate that they exercised

due diligence in obtaining the additional discovery needed); Dozier v. AMR Corp., No.

02-09-186-CV, 2010 WL 3075633, at *2-3 (Tex.App. – Fort Worth Aug. 5, 2010, no pet.) (mem.

op.) (motion for continuance of summary judgment hearing based on needed evidence must be

supported by affidavit stating with particularity what diligence the moving party used to obtain

that evidence, and therefore conclusory allegations are not sufficient); Rocha v. Faltys, 69 S.W.3d

315, 319 (Tex.App. – Austin 2002, no pet.) (same); Gabaldon v. Gen. Motors Corp., 876 S.W.2d

367, 370 (Tex.App. – El Paso 1993, no writ) (the record failed to establish that the trial court

abused its discretion in denying motion to “defer ruling” on a summary judgment motion based on

a request to obtain additional discovery, where the continuance motion did not provide details of

what steps, if any, the movant had made toward obtaining the needed discovery); Martinez v.

William C. Flores, M.D., P.A., 865 S.W.2d 194, 197 (Tex.App. – Corpus Christi 1993, writ

denied) (trial court did not abuse its discretion in denying motion for continuance of a summary

judgment hearing, where appellants requested more time to conduct additional discovery to

respond to the summary judgment motion, but failed, among other things, to explain why the

needed discovery had not occurred before the submission date of the motion).

       Further, a party attempting to blame the opposing party for its inability to obtain needed

discovery or evidence, claiming they have violated discovery or other rules, must be specific in

making any such accusation. See Allen v. United of Omaha Life Ins. Co., 236 S.W.3d 315, 325-26


                                                15
(Tex.App. – Fort Worth 2007, pet. denied). The mere accusation that a party abused the

discovery process, without sufficient explanation of how that abuse occurred, is insufficient to

justify overturning a trial court’s ruling on a motion to continue a summary judgment hearing. Id.

(trial court did not abuse its discretion in denying a motion for continuance of summary judgment

hearing where party claimed that they were unable to obtain needed evidence due to opposing

party’s dilatory discovery tactics, but failed to explain exactly how that party abused the discovery

process).

         Although Plaintiffs claimed that Defendants violated Rule 203.3 by failing to allow their

attorney to copy and inspect the Lear deposition transcript, their attorney’s affidavit did not

provide any basis for the trial court to determine that his request met the requirements of that Rule.

The affidavit failed to make any reference to the date on which the request was made, the manner

in which the request was made, or how Defendants’ attorney responded to the request. We

conclude the affidavit was too general and conclusory to mandate a conclusion by the trial court

that Defendants violated Rule 203.3 or otherwise prevented Plaintiffs from timely obtaining the

Lear deposition transcript before their summary judgment response was due. 6 See Clark v.

Compass Bank, No. 02-07-00050-CV, 2008 WL 2168292, at *2 (Tex.App. – Fort Worth May 22,

2008, no pet.) (mem. op.) (when a movant fails to include a proper affidavit in support of a motion

for a continuance, an appellate court must presume that the trial court did not abuse its discretion in

denying the continuance) (citing Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986)).

6
  Plaintiffs argue it would have only taken a minimal effort to respond to their request to copy and inspect the
deposition, and that Defendants’ counsel could have easily complied with the request by simply having “a legal
assistant retrieve the deposition from the file and place it on the conference room table” at their office for inspection
and copying. Plaintiffs failed to present any evidence, however, to suggest that Payne made his request in time for
even this simple act to occur before the summary judgment response deadline expired. It was Plaintiffs’ burden to
produce evidence that their request was reasonable. In the absence of any such evidence, we cannot not presume the
request was reasonable.

                                                          16
           Although Plaintiffs had numerous opportunities to do so, they failed to meet their burden to

present evidence to the trial court that they acted with due diligence in seeking to obtain a copy of

the Lear deposition transcript.7 We therefore conclude the trial court did not abuse its discretion

in denying the motion for continuance on this basis.

                                       The Materiality of Lear’s Testimony

           We also conclude that Plaintiffs failed to establish that Lear’s deposition transcript would

have provided the “key” evidence needed to support Plaintiffs’ claim that Lear violated the

Transportation Code by parking in a location where non-emergency parking was prohibited at the

time of the accident. Payne represented in his affidavit that Lear testified in his deposition that he

was “aware” of signs somewhere along Interstate 20, which prohibited stopping except in an

emergency. Assuming this is competent evidence and that Payne did in fact hear Lear so testify,

Payne does not indicate in his affidavit where along I-20 Lear may have observed the signage.

Significantly, Payne also does not indicate that he heard Lear testify that he observed the signage at

the location where Lear stopped the truck, or that any signage Lear observed prohibited parking in

that particular location.8 In fact, Appellees presented an excerpt from Lear’s deposition transcript

indicating that Lear testified to the contrary—that he observed no signs prohibiting parking in the

location where he was stopped at the time of the accident.

           Accordingly, we conclude Plaintiffs have failed to establish the trial court abused its

discretion in denying their motion for a continuance of the summary judgment hearing based on

their claimed need to obtain the Lear deposition transcript. See generally Patten v. Johnson, 429

7
 Since Plaintiffs failed to meet their burden to show due diligence, we need not consider Plaintiffs’ contention that
Defendants failed to present competent summary judgment evidence to show that Plaintiffs’ Rule 203.3 request was
not reasonable.
8
    We note that I-20 is 1,535 miles long and goes through five different states.
                                                            17
S.W.3d 767, 776 (Tex.App. – Dallas 2014, pet. denied) (there was no abuse of discretion in

denying a motion for continuance to obtain additional discovery when the trial court could have

reasonably concluded that the additional discovery was unnecessary or irrelevant to the legal

issues in the case).

                              Order Granting Summary Judgment

                                        Standard of Review

        A party may move for both a traditional and a no-evidence summary judgment at the same

time. Hall v. RDSL Enters. LLC, 426 S.W.3d 294, 299-300 (Tex.App. – Fort Worth 2014, pet.

denied). In a no-evidence summary judgment motion, the defendant alleges that adequate time

for discovery has passed and that the plaintiff has failed to produce any evidence to support one or

more essential elements of a claim for which the plaintiff would bear the burden of proof at trial.

KCM Fin. LLC v. Bradshaw, 457 S.W.3d 70, 79 (Tex. 2015). The trial court must grant the

motion unless the plaintiff raises a genuine issue of material fact on each challenged element.

Hall, 426 S.W.3d at 300 (citing Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex. 2008)).

Similarly, a defendant moving for traditional summary judgment must state the specific grounds

for the motion, and must negate at least one essential element of the plaintiff’s cause of action, and

if successful, the defendant is entitled to summary judgment as a matter of law. KCM Fin. LLC,

457 S.W.3d at 79; see also Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002) (to

prevail on a traditional summary-judgment motion, a movant must show that no genuine issue of

material fact exists and that it is entitled to judgment as a matter of law).          Although the

nonmoving party is not required to marshal its proof in response to a summary judgment motion, it




                                                 18
must present countervailing evidence that raises a genuine fact issue on the challenged elements.

Sw. Elec. Power Co., 73 S.W.3d at 215.

       An appellate court reviews a trial court’s order granting summary judgment de novo.

KCM Fin. LLC, 457 S.W.3d at 79 (citing Nall v. Plunkett, 404 S.W.3d 552, 555 (Tex. 2013)); see

also Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010). When, as here, a party

moves for both a traditional and a no-evidence summary judgment, an appellate court typically

first reviews the trial court’s summary judgment under no-evidence standards. RDSL Enters.

LLC, 426 S.W.3d at 300 (citing Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004)).

An appellate court reviews a no-evidence motion for summary judgment under the same legal

sufficiency standard that is used to review a directed verdict. See Timpte Indust., Inc., 286

S.W.3d at 310. Once such a motion is filed, the burden shifts to the nonmoving party to present

evidence raising an issue of material fact as to the elements specified in the motion. Mack Trucks,

Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006). When reviewing a no-evidence summary

judgment, we “review the evidence presented by the motion and response in the light most

favorable to the party against whom the summary judgment was rendered, crediting evidence

favorable to that party if reasonable jurors could, and disregarding contrary evidence unless

reasonable jurors could not.” Mack Trucks, 206 S.W.3d at 582 (citing City of Keller v. Wilson,

168 S.W.3d 802, 827 (Tex. 2005); Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 208

(Tex. 2002)); see also Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009).

                               The Summary Judgment Evidence

       Both parties agree that after the trial court granted Defendants’ first motion for summary

judgment, Plaintiffs had only one claim that remained viable, i.e., their negligence per se claim.


                                                19
In order to prevail on a theory of negligence per se, a plaintiff must first, and foremost, establish

that the defendant violated a statute or ordinance. If a violation is not established, we need not

consider any other elements of the negligence per se claim. See generally Johnson v. Enriquez,

460 S.W.3d 669, 673 (Tex.App. – El Paso 2015, no pet.) (negligence per se requires a plaintiff to

prove that a statute or ordinance was violated, and if so, that the violation was the proximate cause

of the plaintiff’s damages, and that the statute was designed to prevent an injury to the class of

persons to which the plaintiff belongs); see also Carter v. William Sommerville & Son, Inc., 584

S.W.2d 274, 278 (Tex. 1979) (in a negligence per se case, the only inquiry for the jury is whether

or not the defendant violated the statute and, if so, whether this was a proximate cause of the

accident).

       The motion for summary judgment expressly contended, among other things, that

Plaintiffs had no evidence to support their claim that Lear violated a law when he momentarily

stopped on the side of the highway shortly before the accident occurred. Moreover, Defendants

came forward with their own summary judgment evidence to support an opposite conclusion, i.e.,

that Lear did not violate any laws when he pulled over on the shoulder of the road. In particular,

Defendants attached excerpts from Lear’s deposition testimony in which he testified that he did

not recall seeing any no-parking signs in the area where he was parked and that he was not cited for

improperly parking his vehicle by the investigating officer at the scene. Defendants also attached

the “crash report” from the investigating officer, which indicated that Lear was not cited for a

parking violation.

       Defendants’ motion shifted the burden to Plaintiffs to come forward with their own

competent evidence to establish that Lear did in fact park in an area where non-emergency parking


                                                 20
was prohibited in violation of the Transportation Code. Although Plaintiffs’ response to the

summary judgment motion was due on December 13, 2013, Plaintiffs did not file any response

until December 16, 2013, three days after the deadline for filing had passed. Further, there is

nothing in the record to indicate that Plaintiffs sought or obtained leave of court to file a late

response.

        When there is no affirmative evidence in the record indicating that a late-filed summary

judgment response was filed with leave of court, we must presume that the trial court did not

consider the response, and therefore, we cannot consider it on appeal. See E.B.S. Enterprises, Inc.

v. City of El Paso, 347 S.W.3d 404, 407-08 (Tex.App. – El Paso 2011, pet. denied) (citing

Benchmark Bank v. Crowder, 919 S.W.2d 657, 663 (Tex. 1996)); Goswami v. Metro. Sav. & Loan

Ass’n, 751 S.W.2d 487, 491 n.1 (Tex. 1988)); see also INA of Tex. v. Bryant, 686 S.W.2d 614, 615

(Tex. 1985) (court would not consider late-filed response to summary judgment motion where

“nothing appears of record to indicate that the late filing was with leave of court”); Sauls v. Munir

Bata, LLC, No. 02-14-00208-CV, 2015 WL 3905671, at *4 (Tex.App. – Fort Worth June 11,

2015, no pet.) (mem. op.) (where there was nothing in the record to indicate that the trial court

considered plaintiff’s second, late-filed response to the defendant’s summary judgment motion,

court would not consider the evidence on appeal).

        Further, even if we were to consider the late-filed “preliminary response,” it did not contain

evidence sufficient to create a material issue of fact whether Lear violated the Transportation

Code. Even assuming it contained competent summary judgment evidence,9 Payne’s affidavit

failed to establish there were any signs prohibiting non-emergency parking in the area where Lear

9
  It is questionable whether the statements in Payne’s affidavit concerning what he overheard Lear say during his
deposition could even be considered competent summary judgment evidence since summary judgment evidence must
set forth “such facts as would be admissible in evidence[.]” TEX. R. CIV. P. 166a(f).
                                                       21
had parked his truck. Even considering Payne’s affidavit in its most favorable light, it stated only

that Lear testified at his deposition that he was aware of signs prohibiting non-emergency parking

somewhere along Interstate 20. This evidence did not raise a fact issue that there were signs

prohibiting parking in the area where Lear had stopped prior to the accident, or that Lear had

parked in violation of any such signs. To the contrary, Defendants presented evidence that

established just the opposite—that Lear specifically testified that he did not observe any signs

where he had parked, and that he was not cited for any parking violation at the time of the accident.

As such, Payne’s affidavit was insufficient to create a material issue of fact that Lear violated the

Transportation Code, and was consequently insufficient to support Plaintiffs’ negligence per se

claim.    Accordingly, we conclude the trial court properly granted summary judgment for

Defendants. All of Plaintiffs’ issues on appeal are overruled.

                                         CONCLUSION

         We affirm.

                                              STEVEN L. HUGHES, Justice
July 15, 2016

Before McClure, C.J., Rodriguez, and Hughes, JJ.




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