Cervantes, Maria Del Refugio, et al. v. The Goodyear Tire & Rubber Company--Appeal from County Court at Law No 7 of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

MARIA DEL REFUGIO CERVANTES, Indiv. )

 and as Representative of the Estate of TOMAS )

ROGELIO RETANA, and as Next Friends of )

TOMAS ROGELIO RETANA CERVANTES, )

DANIELA ANALI RENTANA CERVANTES, )

BLANCA ABIGAIL RETANA CERVANTES, )

VIANEY ANGELICA RETANA )

CERVANTES, Minor Children, EDGAR )

 ALEJANDRO CERVANTES, GUSTAVO ) No. 08-01-00174-CV

ALONSO HERNANDEZ, PETRA VALLES )

VALDEZ, ROGELIO RETANA MELENDEZ, ) Appeal from the

EMETERIO HERNANDEZ, ROBERTO )

HOLGUIN, ROBERTO HOLGUIN, JR., ) County Court at Law #7

BENITO MERJIL, JUAN LUIS MERJIL, JOSE )

JESUS MUNOZ BADILLO, DANIEL ) of El Paso County, Texas

MURILLO, IGNACIO MURILLO, JOSE )

ANTONIO REYES, and MANUEL VENZOR, ) (TC# 2001-877)

)

Appellants, )

)

 v. )

)

GOODYEAR TIRE AND RUBBER )

COMPANY, )

)

 Appellee. )

O P I N I O N

This is an appeal from the granting of summary judgment. For the reasons stated, we affirm.

 Tomas Rogelio Retana (ARetana@) and others were involved in a bus accident in January 1998. The first group of Appellants, Maria Del Refugio Cervantes, Tomas Rogelio Retana Cervantes, Daniela Anali Retana Cervantes, Blanca Abigail Retana Cervantes, Vianey Angelica Retana Cervantes, Edgar Alejandro Cervantes, Gustavo Alonso Hernandez, Petra Valles Valdez, and Rogelio Retana Melendez, are Retana=s heirs, beneficiaries, and/or relatives. The second group of Appellants, Emeterio Hernandez, Roberto Holguin, Roberto Holguin, Jr., Benito Merjil, Juan Luis Merjil, Jose Jesus Munoz Badillo, Daniel Murillo, Ignacio Murillo, Jose Antonio Reyes, and Manuel Venzor, were injured in the bus accident.[1]

 Appellants originally filed suit against the bus operator, Golden Star Tours, Inc. (AGolden Star@) and its driver, Manuel E. Avila (AAvila@) in August 1998. Appellee, Goodyear Tire and Rubber Company (AGoodyear@), and other parties were joined in the lawsuit in January 2000. Goodyear filed its motion to transfer venue with original answer in March 2000. Appellants settled with Golden Star and Avila in April 2000.

Goodyear filed its no-evidence motion for summary judgment in February 2001. Appellants filed a response on February 28, 2001, in which they argued that Goodyear had not yet responded to their requests for disclosure. Appellants did not attach any controverting evidence to the motion. Instead they argued that summary judgment should be denied because an adequate time for discovery had not passed.

 On March 5, 2001, Goodyear filed its motion to quash Appellants= notice of oral deposition of

a company representative. The trial court granted Goodyear=s no-evidence summary judgment on March 7, 2001. On March 12, 2001, the trial court denied Appellants= motion for continuance. This appeal follows.

 Appellants bring four issues on appeal. Appellants do not directly attack the trial court=s granting of the no-evidence summary judgment motion. Instead, Appellants argue they have had inadequate time to conduct discovery. A trial court=s determination that there has been an adequate time for discovery is reviewed under an abuse of discretion standard. McClure v. Attebury, 20 S.W.3d 722, 729 (Tex.App.--Amarillo 1999, no pet.); Specialty Retailers, Inc. v. Fuqua, 29 S.W.3d 140, 145 (Tex.App.--Houston [14th Dist.] 2000, pet. denied); Dickson Const., Inc. v. Fidelity & Deposit Co. of Maryland, 5 S.W.3d 353, 357 (Tex.App.--Texarkana 1999, pet. denied). A trial court abuses its discretion when it acts arbitrarily, unreasonably or without reference to any guiding rules or principles. City of Brownsville v. Alvarado, 897 S.W.2d 750, 754 (Tex. 1995); Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 243 (Tex. 1985). The question of whether a nonmovant has had an adequate time for discovery under Rule 166a(i) is case specific. Tempay, Inc. v. TNT Concrete & Constr., Inc., 37 S.W.3d 517, 522 (Tex.App.--Austin 2001, pet. denied); McClure, 20 S.W.3d at 729.

To determine whether adequate time for discovery has passed, appellate courts have considered the following non-exclusive list of factors: (1) the nature of the case; (2) the nature of the evidence necessary to controvert the no-evidence summary judgment; (3) the length of the time the case was active; (4) the amount of time the no-evidence motion had been on file; (5) whether the movant had requested stricter deadlines for discovery; (6) the amount of discovery which has already taken place; and (7) whether the discovery deadlines were specific or vague. Martinez v. City of San Antonio, 40 S.W.3d 587, 591 (Tex.App.--San Antonio 2001, pet. denied); Specialty Retailers, Inc., 29 S.W.3d at 145; Dickson Constr., Inc., 5 S.W.3d at 356.

 In Issue No.One, Appellants allege that Appellee failed to answer their Requests for Disclosure, filed a Motion to Quash the deposition of a company representative, and failed to answer Interrogatories and Requests for Production.

 In Issue No.Two, Appellants argue that the trial court did not issue a Docket Control Order or an Order setting the case for trial. Appellants assert that Rule 190 of the Texas Rules of Civil Procedure  Arequires discovery control plans in all cases filed on or about January 1, 1999. For cases filed before this date, the trial court may adopt appropriate discovery control plans.@ This suit was filed August 21, 1998, before the implementation of the new discovery rules. Tex.R.Civ.P. 190, adopted eff. Jan. 1, 1999, by order of Nov. 9, 1998, Misc. Docket No. 98-9196, 977 S.W.2d 39. Thus, there is no affirmative duty placed upon the trial court in this case to issue a discovery control plan or to set a trial date. The authority cited by Appellants supports this position. Moreover, the trial court has the inherent authority to control the disposition of cases on its docket. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 240 (Tex. 2001). The trial court did not abuse its discretion in failing to issue a docket control order or in failing to set a trial date. Issue No. Two is overruled.

 In Issue No.Three, Appellants argue that the trial court erred in failing to grant their motion for continuance.

 No continuance shall be granted  Aexcept for sufficient cause supported by affidavit, or by consent of the parties, or by operation of law.@ Tex.R.Civ.P. 251. We will not disturb the trial court=s denial of a motion for continuance except for a clear abuse of discretion. Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986); Verkin v. Southwest Ctr. One, Ltd., 784 S.W.2d 92, 94 (Tex.App.--Houston [1st Dist.] 1989, writ denied). If a motion for continuance is not verified or supported by affidavit, the appellate court will presume 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)(court of appeals must presume trial court did not abuse its discretion in denying motion for continuance not verified, as required by Tex.R.Civ.P. 251, 252). This presumption is rebuttable, not absolute. Thrower v. Johnston, 775 S.W.2d 718, 720-21 (Tex.App.--Dallas 1989, no writ). In this case, Appellants filed an unverified motion for continuance. Therefore, we presume that the trial court did not abuse its discretion in denying the motion. See Blackbird, 658 S.W.2d at 272. Issue No. Three is overruled.

 In Issue No.Four, Appellants allege that the trial court denied their right to a jury trial when it granted Appellee=s motion for summary judgment. The Texas Constitution provides,  AThe right of trial by jury shall remain inviolate.@ Tex.Const. art. I, ' 15. The right to a jury trial in civil cases is not absolute, but rather is regulated by rules specifying its availability. Green v. W.E. Grace Mfg. Co., 422 S.W.2d 723, 725 (Tex. 1968). The purpose of the summary judgment rule is not to provide trial by affidavit, but rather to provide a method of summarily terminating a case when it clearly appears that only questions of law are involved and that there are no genuine issues of fact. Port Distrib.Corp. v. Fritz Chem. Co., 775 S.W.2d 669, 670 (Tex.App.--Dallas 1989, writ dism=d by agr.). The rule does not deprive litigants of a jury trial where there exists a material question of fact. When a party cannot show a material fact issue, there is nothing to submit to a jury, and the grant of summary judgment to the opposing party does not violate the constitutional right to a jury trial. Querner Truck Lines, Inc. v. Alta Verde Indus., Inc., 747 S.W.2d 464, 469 (Tex.App.--San Antonio 1988, no writ); Carrabba v. Employers Cas. Co., 742 S.W.2d 709, 717 (Tex.App.--Houston [14th Dist.] 1987, no writ); Mills v. Rice, 441 S.W.2d 290, 292 (Tex.Civ.App.--El Paso 1969, no writ); see also 68 Tex.Jur. 3rd Summary Judgment  ' 3 (1989)(summary judgment procedure does not infringe right to trial by jury).

 Here, Appellants failed to bring forth more than a scintilla of probative evidence to raise a genuine issue of material fact as to an essential element of the nonmovant=s claim on which the nonmovant would have the burden of proof at trial. Tex.R.Civ.P. 166a(i). As noted, Appellants did not attach any controverting evidence to their response. Thus the trial court did not err in granting Goodyear=s no-evidence summary judgment motion and did not deny Appellants their right to a jury trial. Issue No. Four is overruled.

We affirm the judgment of the trial court.

June 27, 2002

DAVID WELLINGTON CHEW, Justice

Before Panel No. 5

McClure, J., Chew, J., and Preslar, C.J. (Ret.)

Preslar, C.J. (Ret.)(Sitting by assignment)

[1] We will refer to both groups collectively as  AAppellants.@