Wednesday, November 16, 2011

Lack of Diligence: After more than 4 years, continuance for further discovery was not warranted in debt collection suit brought by Citibank

After the debt collection case had been pending for longer than the limitations period, a continuance of hearing on Citibank's motion for summary judgment for the purpose of taking depositions was not warranted. So found the trial court and the court of appeals agreed. But the motion for continuance by the credit-card debtor/defendant also suffered from formal defects. It was not verified (sworn) as required.

Motion for Continuance

In his second issue,[Credit card holder/defendant] argues that the trial court erred in granting Citibank summary judgment because his motion for continuance "included an affidavit showing sufficient cause for the continuance."

We review for an abuse of discretion a trial court's decision to deny a motion for continuance. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004). The denial will be reversed only if the trial court acted in an arbitrary or unreasonable manner or without reference to any guiding rules or principles. BMC Software Belg., N.V. v. Marchland, 83 S.W.3d 789, 800 (Tex. 2002). The party complaining of an abuse of discretion has the burden to present a record showing the abuse. See Simon v. York Crane & Rigging Co., 739 S.W.2d 793, 795 (Tex. 1987).

When a party contends that it has not had an adequate opportunity for discovery before a summary judgment, it must file either an affidavit explaining the need for further discovery or a verified motion for continuance. Tenneco, Inc. v. Enter. Prods. Co., 925 S.W.2d 640, 647 (Tex. 1996) (citing TEX. R. CIV. P. 166a(g)); see TEX. R. CIV. P. 251 ("No application for a continuance shall be heard before the defendant files his defense, nor shall any continuance be granted except for sufficient cause supported by affidavit, or consent of the parties, or by operation of law."); TEX. R. CIV. P. 252 (providing, among other things, that if motion for continuance is filed on ground of "want of testimony," movant must present affidavit "showing the materiality" of such testimony and that he "used due diligence to procure such testimony" and "stating such diligence, and the cause of failure, if known"). If a motion for continuance is not verified or supported by affidavit, an appellate court must presume that the trial court did not abuse its discretion in denying the motion. City of Houston v. Blackbird, 658 S.W.2d 269, 272 (Tex. App.-Houston [1st Dist.] 1983, writ dism'd). The affidavit or motion must describe the evidence sought, state with particularity the diligence used to obtain the evidence, and explain why the continuance is necessary. Rocha v. Faltys, 69 S.W.3d 315, 319 (Tex. App.-Austin 2002, no pet.). If these requirements are met, then the appellate court considers three non-exclusive factors in determining the propriety of a trial court's ruling on a motion for continuance: (1) the length of time the case was on file; (2) the materiality and purpose of the discovery sought; and (3) whether the party seeking the continuance exercised due diligence to obtain the discovery sought. Joe, 145 S.W.3d at 161.

It is undisputed that[Credit card holder/defendant]'s motion for continuance was not verified and was not supported by an attached affidavit. However,[Credit card holder/defendant] argues that although his motion for continuance did not contain an affidavit "per se," his motion was supported by an affidavit attached to his summary-judgment response in which he listed "the names of the employees of Citibank whom he would seek to depose."

[Credit card holder/defendant] alleged in his motion for continuance that Citibank's representatives "had been effectively non-responsive" to his discovery requests and it was "unclear" whether Citibank's counsel had the "proper want of authority to prosecute this suit." Even assuming that we could consider[Credit card holder/defendant]'s affidavit attached to his summary-judgment response, this affidavit was deficient in multiple respects. See Rocha, 69 S.W.3d at 319. Despite his assertions on appeal, the record reflects that his affidavit did not list the names of the Citibank employees that he wanted to depose, describe the anticipated testimony of these representatives, or explain how such testimony was essential to his summary-judgment response. See West v. SMG, 318 S.W.3d 430, 443-44 (Tex. App.-Houston [1st Dist.] 2010, no pet.). [Credit card holder/defendant]'s motion for continuance also failed to show that he had used due diligence in procuring the desired depositions and that such testimony was material to his summary-judgment response. See TEX. R. CIV. P. 252.

As noted above, Citibank filed its summary-judgment motion more than four and one-half years after the case's commencement, providing [Credit card holder/defendant] more than enough time to conduct discovery and seek the aid of the trial court, if any, in compelling discovery. See Rest. Teams Int'l v. MG Secs. Corp., 95 S.W.3d 336, 339-41 (Tex. App.-Houston [1st Dist.] 2002, no pet.). Accordingly, we hold that the trial court did not abuse its discretion in denying[Credit card holder/defendant]'s motion for continuance.

We overrule[Credit card holder/defendant]'s second issue.

SOURCE: First Court of Appeals Houston - No. 01-10-00768-CV 11/10/11

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