Opinion issued October 31, 2013




                                   In The

                             Court of Appeals
                                  For The

                        First District of Texas
                            ————————————
                             NO. 01-12-00954-CV
                            ———————————
                    REGINA THIBODEAUX, Appellant
                                     V.
                TOYS "R" US-DELAWARE, INC., Appellee


                  On Appeal from the 269th District Court
                           Harris County, Texas
                     Trial Court Case No. 2011-41048


                        MEMORANDUM OPINION

     This is a personal-injury case. Appellant Regina Thibodeaux appeals the

trial court’s no-evidence summary judgment in favor of appellee Toys “R” Us-

Delaware, Inc. We affirm.
                                 BACKGROUND

       On July 11, 2011, Thibodeaux sued Toys “R” Us and other defendants (i.e.,

“unknown minor bike rider, and unknown parents of minor bike rider, and

unknown guardian of minor bike rider”) for negligence, alleging that she was

injured when an unsupervised minor riding a bicycle in a Toys “R” Us store ran

into her. The trial court entered a docket control order, requiring that amended

pleadings be filed by August 17, 2012, and that discovery be completed by October

19, 2012. Trial was set for November 5, 2012.

       On August 20, 2012, Toys “R” Us filed a no-evidence motion for summary

judgment directed at Thibodeaux’s negligence claim and set it for hearing on

September 28, 2012.      On September 21, 2012, Thibodeaux filed a summary-

judgment response arguing that summary judgment was inappropriate before the

expiration of the discovery period set by the docket-control order. She attached an

affidavit stating,

              The discovery period as contained by the Docket Control Order
       issued by the Honorable Judge in the case on January 20, 2012
       established a deadline to complete the discovery on October 19, 2012.

              I pray that the court would allow me to use the entire discovery
       period to take the deposition of the following persons: Amanda
       Mooty, Assistant Manager for Defendant and Alex Valera, Assistant
       Manager for Defendant who made the incident report. The testimony
       of these two individuals is necessary to establish the amount of care
       that the defendant owes to its invitees (customers) and the policies and
       procedures concerning the safety of its customers.


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      On September 24, 2012, four days before the summary-judgment hearing,

Thibodeaux filed her First Amended Petition adding a claim for premises liability.

Two days later, on September 26, Toys “R” Us filed a motion to strike that

amended petition, arguing that it was filed after the docket-control deadline and

that it amounted to a prejudicial surprise. On September 28, the trial court granted

Toys “R” Us’s motion for summary judgment, and ordered that Thibodeaux “take

nothing on her negligence claim.”

      On October 8, Thibodeaux filed a Motion for Leave to File Amended

Pleadings acknowledging that her September 24 filing of the First Amended

Petition was untimely, but arguing that it did “not operate as a surprise to any other

party.” On October 10, the trial court signed an order granting Toys “R” Us’s

motion to strike Thibodeaux’s amended petition, and denying Thibodeaux’s

motion for leave to file her amended petition.

      On November 27, 2012, Thibodeaux nonsuited her claims against the

remaining unnamed defendants, rendering the trial court’s no-evidence summary

judgment on her negligence claim against Toys “R” Us final and appealable.

                   NO-EVIDENCE SUMMARY JUDGMENT

      In her first two related points, Thibodeaux challenges the trial court’s

summary judgment. First, she argues that summary judgment was granted without




                                          3
an adequate time for discovery. Alternatively, she argues that she responded to

Toys “R” Us’s motion with sufficient evidence to raise an issue of material fact.

A.    Standard of Review

      We review summary judgments de novo. Valence Operating Co. v. Dorsett,

164 S.W.3d 656, 661 (Tex. 2005). After an adequate time for discovery, the party

without the burden of proof may move for a no-evidence summary judgment on

the basis that there is no evidence to support an essential element of the non-

moving party’s claim. TEX. R. CIV. P. 166a(i); see Hamilton v. Wilson, 249 S.W.3d

425, 426 (Tex. 2008). Summary judgment must be granted unless the non-movant

produces competent summary judgment evidence raising a genuine issue of

material fact on the challenged elements. TEX. R. CIV. P. 166a(i); Hamilton, 249

S.W.3d at 426. A non-moving party 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 (Notes & Comments 1997).

      A no-evidence summary judgment motion is essentially a motion for a

pretrial directed verdict. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 581–82

(Tex. 2006). Accordingly, we apply the same legal-sufficiency standard of review

that we apply when reviewing a directed verdict. City of Keller v. Wilson, 168

S.W.3d 802, 823 (Tex. 2005). Applying that standard, a no-evidence point will be

sustained when (1) there is a complete absence of evidence of a vital fact, (2) the


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court is barred by rules of law or evidence from giving weight to the only evidence

offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no

more than a mere scintilla, or (4) the evidence conclusively establishes the opposite

of a vital fact. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003);

see City of Keller, 168 S.W.3d at 810.

B.    Adequate Time for Discovery

      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.

TEX. R. CIV. P. 166a(g), 251, 252; Joe v. Two Thirty Nine Joint Venture, 145

S.W.3d 150, 161 (Tex. 2004). The affidavit must explain why the continuance is

necessary; conclusory allegations are insufficient. Carter v. MacFadyen, 93

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

generally consider the following nonexclusive factors in determining whether the

trial court abused its discretion: (1) the nature of the cause of action; (2) the nature

of the evidence necessary to controvert the no-evidence motion; (3) the length of

time the case has been active in the trial court; (4) the amount of time the no-

evidence motion has been on file; (5) whether the movant has requested stricter

time deadlines for discovery; (6) the amount of discovery that has already taken

place; and (7) whether the discovery deadlines that are in place are specific or


                                           5
vague. Madison v. Williamson, 241 S.W.3d 145, 155 (Tex. App.—Houston [1st

Dist.] 2007, pet. denied); see also Joe, 145 S.W.3d at 161. When reviewing a trial

court’s order denying a motion for continuance, we consider whether the trial court

committed a clear abuse of discretion on a case-by-case basis. BMC Software

Belg., N.V. v. Marchand, 83 S.W.3d 789, 800–01 (Tex. 2002). 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.

      Thibodeaux points us to the comment to Rule 166a(i), which states that the

“discovery period set by pretrial order should be adequate opportunity for

discovery unless there is a showing to the contrary, and ordinarily a motion under

paragraph (i) would be permitted after the period but not before.” (emphasis

added). And she cites McInnis v. Mallia, 261 S.W.3d 197, 200, 205 (Tex. App—

Houston [14th Dist.] 2008, no pet.), a case characterizing the granting of a no-

evidence motion for summary judgment before the expiration of the discovery

period as “an exception to the ordinary rule,” and holding that the trial court’s

granting such a motion in that case to be an abuse of discretion. Toys “R” Us

responds that the propriety of a trial court’s granting of a no-evidence motion

during the discovery period rests upon the particular circumstances presented, and

that it was within the trial court’s discretion here. E.g., Carter, 93 S.W.3d at 311




                                               6
(Tex. App.—Houston [14th Dist.] 2002, pet. denied) (“[W]e do not read the

comment to prohibit an earlier motion in all cases.”).

      Applying the relevant considerations to the facts of this case, we conclude

that the trial court did not abuse its discretion in granting Toys “R” Us’s no-

evidence motion for summary judgment before the expiration of the discovery

period on October 19, 2012. Toys “R” Us’s motion was set for submission, and

granted, on September 28, 2012. At that point, the case had been on file for more

than fourteenth months, since July 11, 2011. Thibodeaux does not dispute that she

had the opportunity, but did not seek, any discovery during this fourteenth-month

period. The subject matter of the suit—alleged personal injury as the result of a

child running into Thibodeaux with a bicycle—is not complex. Thibodeaux’s

affidavit, submitted with her summary-judgment response, stated only that she

needed “the entire discovery period” to depose two of Toys “R” Us’s assistant

managers to “establish the amount of care that the defendant owes to its invitees

(customers) and the policy and procedures concerning the safety of its customers.”

She did not specify why or how these two particular people would be the relevant

ones to supply this information; nor did she allege that she had been unable to

obtain their deposition testimony during the previous year that the case was on file

but she did not seek discovery.




                                          7
      McInnis v. Mallia, the case upon which Thibodeaux relies for the

proposition that the trial court erred by granting summary judgment before the

expiration of the discovery period, is distinguishable. In that case, the appellant

McInnis sued appellee law firm for legal malpractice, complaining that its

representation of her in a prior medical-malpractice case was deficient in several

respects. McInnis, 261 S.W.3d at 199. The law firm filed a no-evidence motion

for summary judgment well before the end of the discovery period, and served

responses to McInnis’s discovery requests on the day that her response to its no-

evidence motion for summary judgment was due. McInnis filed a motion for

continuance, explaining that she needed further discovery and that she needed to

review over eighty boxes of discovery production. Id. at 200. The trial court

denied the requested continuance and granted the no-evidence motion for summary

judgment.    Id.   The court of appeals reversed, holding that the trial court’s

determination that an adequate time for discovery had passed amounted to an

abuse of discretion. Id. at 203.

      The McInnis court noted that McInnis exercised diligence in pursuing

discovery, having already served the law firm with multiple written discovery

requests before the law firm moved for summary judgment. Id. at 204. Moreover,

the law firm’s responses were not served on McInnis until after its no-evidence

motion for summary-judgment was filed. Id. at 204. McInnis also specifically


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alleged in her motion for continuance that the law firm had withheld from its

responses evidence that she characterized as necessary to respond to its summary

judgment motion. Id. Given all these facts, coupled with the complexity of the

claims and the relatively short time the case had been on file, the McInnis court

concluded that the trial court had abused its direction in granting the law firm’s

motion. Id.

      This case presents none of the considerations that were relevant to the

McInnis court. The facts here are more similar to cases in which the trial court’s

granting of a motion for summary judgment has been affirmed despite arguments

that there was an inadequate time for discovery.      For example, in Stryker v.

Broemer, the appellant complained that the trial court should have granted her

motion to continue a no-evidence summary-judgment hearing because the

defendant’s bankruptcy stay had deprived her of a portion of the discovery period.

No. 01-09-00317-CV, 2010 WL 4484176, at *6–7 (Tex. App.—Houston [1st Dist.]

Nov. 10, 2010, pet. denied) (mem. op.) We rejected that argument, in large part

because her assertion was conclusory and she failed to address the factors relevant

to determining whether a continuance was warranted:

      Stryker does not contend that the time during which the case was
      actively pending in the trial court was insufficient to conduct
      discovery. She does not argue that her case is complex, nor does she
      state the discovery she needed to obtain to controvert Broemer’s no-
      evidence motion. Stryker does not state what discovery she had
      already conducted, nor does she state the additional discovery yet to
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      be completed and why she could not obtain this discovery before
      submission of the summary judgment motion. See Brown v. Brown,
      145 S.W.3d 745, 750 (Tex. App.—Dallas 2004, pet. denied)
      (considering appellant’s failure to move for enlargement of discovery
      period until several weeks after no-evidence motion filed and failure
      to explain what further discovery he needed in affirming denial of
      motion for continuance). Beyond stating that the stay “prevented
      discovery,” she does not argue why the time she did have to conduct
      discovery was inadequate.

Id.; see also Lucio v. John G. and Maria Stella Kenedy Mem’l Found., 298 S.W.3d

663, 670 (Tex. App.—Corpus Christi 2009, pet. denied) (“Rule 166a(i) begins with

the phrase, ‘[a]fter adequate time for discovery’ not ‘after a pretrial scheduling

order’s discovery period has concluded,’ and therefore, it does not support”

appellant’s argument that trial court abused its discretion in granting no-evidence

summary judgment during the discovery period); Spencer v. GC Servs. Ltd. P’ship,

No. 01-12-00159-CV, 2013 WL 1908160, at *6 (Tex. App.—Houston [1st Dist.]

May 7, 2013, no pet.) (mem. op) (trial court did not abuse its discretion in granting

no-evidence summary judgment; case had been on file eight months and three

months remained in discovery period, but other than arguing that appellee filed its

“no-evidence summary judgment motion ‘long before the discovery period was

complete’ and that ‘[t]here had not been adequate time for discovery’ [appellant

did] not address any of the factors that courts consider when determining whether

adequate time for discovery has passed.”).




                                         10
         “The mere fact that a trial court decided an issue in a manner differently than

an appellate court would under similar circumstances does not establish an abuse

of discretion.” Zeifman v. Michels, 212 S.W.3d 582, 587 (Tex. App.—Austin 2006,

no pet.). Because we conclude that, on this record, Thibodeaux has not established

that the trial court abused its discretion by granting Toys “R” Us’s motion for no-

evidence summary judgment approximately three weeks before the discovery

period under the docket-control order expired, we overrule Thibodeaux’s first

issue.

C.       Evidence in Support of Negligence Claim

         In its motion for summary judgment, Toys “R” Us argued that Thibodeaux

could not produce evidence in support of three elements of her negligence claim,

i.e., (1) that Toys “R” Us owed Thibodeaux a legal duty, (2) that Toys “R” Us

breached any duty, or (3) that any breach proximately caused Thibodeaux’s injury.

Thibodeaux argues in her second issue here that the “evidence necessary to defeat

the no-evidence motion is minimal, and is contained in the affidavit of the

Appellant, wherein she swears that she needed the deposition of two of the

Defendant’s employees to establish that the policy and procedures of the

Defendant were violated and to establish the level of care owed to the Plaintiff

while in the Defendant’s store, which is [in] essence a dispute that Defendant owed

Plaintiff a duty, that the duty was breached and the result of Defendant’s breach


                                            11
caused the Plaintiff to suffer damages and therefore create a material issue of fact.”

This affidavit, which was offered in support of Thibodeaux’s request that the trial

court continue the summary-judgment hearing to a later date, does not provide

evidence raising a fact issue on the elements of her negligence claim. Malcomson

Rd. Util. Dist. v. Newsom, 171 S.W.3d 257, 263 (Tex. App.—Houston [1st Dist.]

2005, pet. denied) (“The trial court must grant the [no-evidence summary

judgment] motion unless the nonmovant produces more than a scintilla of evidence

raising a genuine issue of material fact on the challenged elements.”). Thus, we

overrule Thibodeaux’s second issue.

                             AMENDED PLEADING

      In her third issue, Thibodeaux argues that “because the court considered the

plaintiff’s first amended petition and the defendant failed to file a motion to strike

the plaintiff’s amended pleading the trial court should not have dismissed

plaintiff’s amended petition.”1

      Rule 63 of the Texas Rules of Civil Procedure sets forth the guidelines

applicable to amending petitions:

      Parties may amend their pleadings . . . provided, that any amendment
      offered for filing within seven days of the trial . . . shall be filed only
      after leave of the judge is obtained, which leave shall be granted by

1
      Although Thibodeaux’s third issue statement states that Toys “R” Us “failed to file
      a motion to strike the plaintiff’s amended pleading,” she acknowledges elsewhere
      in her argument that Toys “R” Us did in fact file a motion to strike her amended
      petition two days after the petition was filed.
                                          12
         the judge unless there is a showing that such amendments will operate
         as a surprise of the opposite party.

TEX. R. CIV. P. 63. “Texas courts have held that in the absence of a sufficient

showing of surprise by the opposing party, the failure to obtain leave of court when

filing a late pleading may be cured by the trial court’s action in considering the

amended pleading.” Goswami v. Metro. Sav. & Loan Ass’n, 751 S.W.2d 487, 490

(Tex. 1988).      The seven-day ruling applies to summary-judgment hearings.

Mensa-Wilmot v. Smith Intern., Inc., 312 S.W.3d 771, 778 (Tex. App.—Houston

[1st Dist.] 2009, no pet.) (“A summary judgment hearing is a trial for purposes of

rule 63.”). The trial court’s decision striking an untimely petition “will not be

disturbed unless the opposite party clearly shows an abuse of discretion.” Nairn v.

Killeen Indep. Sch. Dist., 366 S.W.3d 229, 249 (Tex. App.—El Paso 2012, no

pet.).

         Thibodeaux’s amended petition was filed less than seven days before the

summary-judgment hearing. When the trial court granted summary judgment on

Thibodeaux’s negligence claim, her amended pleading had been on file for four

days. At the time of the hearing, Toys “R” Us’s motion to strike the amended

pleading had been on file for two days, but had not yet been ruled upon. It was

approximately another week after the hearing that Thibodeaux filed her motion for

leave to file the amended petition on October 8, 2012. Finally, on October 10, the

trial court denied leave and struck the amended petition.

                                          13
      Thibodeaux argues that (1) we should apply the presumption that the trial

court considered her amended petition because “the record does not show that the

trial court did not consider the amended petition,”2 and (2) the trial court’s later

striking the amended petition was thus erroneous:

             Because the trial court considered the amended petition at the
      summary judgment hearing and the Defendant’s motion to strike the
      Plaintiff’s First Amended petition, was also on file, the trial court
      should not have then denied the amended petition after considering it.

      Thibodeaux does not cite any authority for the proposition that the trial

court’s failure to rule on Toys “R” Us’s motion to strike her untimely amended

petition that added a new claim until after the court ruled on the pending summary-

judgment motion renders ineffective the court’s order striking the petition. She

does not otherwise demonstrate how the trial court abused its discretion in striking

the pleading. We overrule Thibodeaux’s third issue.


                                   CONCLUSION

      We affirm the trial court’s judgment.




2
      She also argues that the trial court specifying in its summary judgment order that it
      was granting summary judgment on her “negligence claim” demonstrates that the
      trial could was considering her premises liability claim from her amended petition.
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                                            Sherry Radack
                                            Chief Justice

Panel consists of Chief Justice Radack and Justices Bland and Huddle.




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