ELTON CHATMAN, Appellant v. MARTIN PREFERRED FOODS, LP, Appellee

AFFIRM and Opinion Filed June 18, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-07-01263-CV
............................
ELTON CHATMAN, Appellant
V.
MARTIN PREFERRED FOODS, LP, Appellee
.............................................................
On Appeal from the 95th District Court
Dallas County, Texas
Trial Court Cause No. 07-01544-D
.............................................................
MEMORANDUM OPINION
Before Justices Morris, Whittington, and O'Neill
Opinion By Justice O'Neill
        Appellant Elton Chatman, appearing pro se, challenges the no-evidence summary judgment awarded to appellee Martin Preferred Foods, LP. He generally complains the trial court erred in granting the motion because adequate time for discovery had not passed, appellee failed to state the elements as to which no evidence exists, and he should have been given additional time to respond to the motion because he did not receive sufficient notice. We affirm.
        On February 24, 2005 at approximately 6:15 a.m., Chatman was injured when a bobtail truck struck him while he was walking in a crosswalk. Chatman filed a negligence suit on February 21, 2007 asserting (1) appellee failed to hire and train competent personnel and (2) the driver failed to keep a proper lookout, to yield the right of way to a pedestrian, to control his vehicle, and to apply the brakes in a timely fashion. He also asserted the driver drove the vehicle recklessly and in total disregard for the safety of others.
        On March 16, 2007 appellee served Chatman with requests for disclosure, interrogatories, and requests for production. Appellee filed the discovery with the trial court on April 30, 2007. It then filed a traditional and no-evidence motion for summary judgment on June 14, 2007. The trial court granted the motion on August 30, 2007 without specifying the grounds it relied upon in granting the motion.
        Chatman has only challenged the no-evidence motion for summary judgment; however, when there are multiple grounds for summary judgment and the order does not specify the ground on which the summary judgment was granted, Chatman must negate all grounds on appeal. Lewis v. Adams, 979 S.W.2d 831, 833 (Tex. App.-Houston [14th Dist.] 1998, no pet.). If he fails to negate each ground upon which the judgment may have been granted, we must uphold the summary judgment. Id. Because Chatman has not challenged the traditional motion for summary judgment, he has waived any argument regarding it, and it is affirmed. Id.
        Now we turn to Chatman's arguments involving the no-evidence summary judgment. In his first issue, appellant claims adequate time for discovery had not passed before the trial court granted the no-evidence summary judgment because discovery was scheduled to end either thirty days before the February 18, 2008 trial setting or nine months after the earlier of the date of the first oral deposition or the due date of the first response to written discovery. See Tex. R. Civ. P. 190.3(b)(1)(B)(i)-(ii). Because appellee filed its motion before the deadline, Chatman asserts it failed to meet its burden under Texas Rule of Civil Procedure 166(a)(i). Tex. R. Civ. P. 166(a)(i) (party may move on no-evidence grounds “[a]fter adequate time for discovery”).
        Our review of a trial court's determination that there has been an adequate time for discovery is governed by an abuse of discretion standard. Restaurant Teams Int'l, Inc. v. MG Sec. Corp., 95 S.W.3d 336, 339 (Tex. App.-Dallas 2002, no pet.). This Court has refused to read into the rule a bright-line requirement that the discovery period be completed before a party can file a no-evidence motion. Id.; see also Dishner v. Huitt-Zollars, Inc., 162 S.W.3d 370, 377 (Tex. App.-Dallas 2005, no pet.). We have stressed, instead, that whether a nonmovant has had adequate time for discovery under rule 166a(i) is case specific. Dishner, 162 S.W.3d at 377.
        We have further concluded when a party contends he has not had an adequate opportunity for discovery before a no-evidence summary judgment hearing, he must file either an affidavit explaining the need for further discovery or a verified motion for continuance. Id.; Brown v. Brown, 145 S.W.3d 745, 749 (Tex. App.-Dallas 2004, pet. denied). Chatman did neither. Accordingly, he cannot show the trial court abused its discretion in granting the motion prior to the discovery deadline. Thus, his first issue is overruled.
        In his second issue, he asserts appellee failed to state the elements for which there is no evidence of a genuine material fact. He also claims appellee attached evidence to its no-evidence motion for summary judgment, and it “should not be allowed to state that there is no evidence and then present the very evidence alleged to be missing.” We conclude both arguments lack merit.
        A review of appellee's summary judgment motion supports its contention that it alleged the elements for which there is no evidence. The motion specifically states “Defendant moves for a no- evidence motion for summary judgment. There is no evidence of any negligent hiring or training of an agent. There is no evidence of a breach of duty by the Defendant. There is no evidence of any damages suffered by the Plaintiff in this case.” If, despite the motion's clarity, Chatman purports to have been confused by the grounds for the motion, he was required to specially except to preserve error for appeal. Dishner, 162 S.W.3d at 376. This he did not do. Therefore, we conclude appellee's motion sufficiently states the elements for which there is no evidence as required by Texas Rule of Civil Procedure 166a(i). Tex. R. Civ. P. 166(a)(i).
        We likewise disagree with Chatman's assertions regarding appellee attaching evidence to its motion. The Texas Supreme Court has stated it disapproves of decisions that hold or imply that, if a party attaches evidence to a motion for summary judgment, any request for summary judgment under rule 166a(i) will be disregarded. Binur v. Jacobo, 135 S.W.3d 646, 650-51 (Tex. 2004); SSP Partners v. Gladstrong Inv. (USA) Corp., 169 S.W.3d 27, 32 (Tex. App.-Corpus Christi 2005, pet. granted). Further, Chatman relies on his interrogatory answers attached to the motion to allege some evidence exists to defeat the motion. However, rule 197.3 states answers to interrogatories may be used only against the responding party; therefore, the trial court was prevented from using the evidence to his advantage. Tex. R. Civ. P. 197.3; Yates v. Fisher, 988 S.W.2d 730, 731 (Tex. 1998); Crooks v. Moses, 138 S.W.3d 629, 641 (Tex. App.-Dallas 2004, no pet.) (using a party's interrogatory answers in that party's favor by relying on them to defeat a summary judgment is improper). Thus, we overrule appellant's second issue.
        In his third issue, Chatman claims the trial court should have given him additional time to respond to appellee's motion because he did not receive sufficient notice of it. Without any citation to the record, he alleges he told the trial court he failed to receive appellee's motion for summary judgment because his elderly father intercepted it and did not give it to him. First, without a transcript of the hearing, we cannot consider Chatman's allegations regarding what he told the trial court. Marshall v. Hous. Auth. of San Antonio, 198 S.W.3d 782, 789 (Tex. 2006) (noting court will not consider factual assertions that appear solely in briefs and are not supported by the record).
        Second, Texas Rule of Civil Procedure 21a provides that a presumption of receipt arises from the certificate of service. Tex. R. Civ. P. 21a; Etheredge v. Hidden Valley Airpark Ass'n, Inc., 169 S.W.3d 378, 381 (Tex. App.-Fort Worth 2005, pet. denied) (noting rule 21a creates a presumption that a motion, when properly mailed, was received by the addressee). Appellee sent its motion, certified mail, return receipt requested, on June 14, 2007. Thus, it is presumed Chatman received the motion. Although the presumption may be rebutted by an offer of proof of non-receipt, Chatman failed to present such evidence. See Wembley Inv. Co. v. Herrera, 11 S.W.3d 924, 927 (Tex. 1999). Thus, the trial court did not err in determining Chatman received sufficient notice of the motion.   See Footnote 1  We overrule his third issue.
        Having overruled all of Chatman's issues, we affirm the trial court's judgment.
 
 
                                                          
                                                          MICHAEL J. O'NEILL
                                                          JUSTICE
071263F.P05
 
 
 
 
 
 
 
 
        
 
Footnote 1 Although not argued by appellant, we further note appellee mailed its motion to Chatman twenty-nine days prior to the hearing, which complied with the twenty-four day notice requirement of rule 166a(c). See Tex. R. Civ. P. 166a(c); Tanksley v. CitiCapital Commercial Corp., 145 S.W.3d 760, 763 (Tex. App.-Dallas 2004, pet. denied) (“If the motion for summary judgment and the notice of hearing are served by mail, they must be mailed at least 24 days before the hearing.”).