PHYLLIS MCNEAL AND MARK WRIGHT v. HUGHES THOMAS--Appeal from 156th District Court of San Patricio County

NUMBER 13-03-347-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

PHYLLIS McNEAL AND MARK WRIGHT, Appellants,

v.

HUGHES THOMAS, Appellee.

On appeal from the 156th District Court

of San Patricio County, Texas.

MEMORANDUM OPINION ON REHEARING

Before Chief Justice Valdez and Justices Hinojosa and Castillo

Memorandum Opinion by Justice Castillo

Appellee Hughes Thomas filed a motion for rehearing, asserting that we made a dispositive error by: (1) applying Tuloma Gas Prods. Co. v. Lehmberg, 430 S.W.2d 281 (Tex. Civ. App. San Antonio 1968, writ ref'd n.r.e.); and, (2) holding that the duty to warn attached to a person at the scene who did not own livestock that had roamed onto the highway. We requested a response to the motion, and one was filed. Tex. R. App. P. 49.2. We grant Thomas's motion for rehearing. Tex. R. App. P. 49.3. We withdraw our opinion and, in its place, substitute this opinion.

This is an appeal from a summary judgment. Appellants Phyliss McNeal and Mark Wright sued appellee Hughes Thomas for personal injuries and property damage after Wright's pickup truck ran into a cow on U.S. Highway 181 in San Patricio County. The trial court granted Thomas's motion for summary judgment. We affirm.

I. BACKGROUND

About 8:30 the evening of March 13, 2000, Wright was driving his truck northbound on U.S. Highway 181, less than a mile from county road 22 in San Patricio County. McNeal was his passenger. A cow started to cross the highway. The truck hit the cow. McNeal and Wright sued Thomas, alleging that his negligence caused the accident. // Thomas filed both traditional and no-evidence motions for summary judgment. See Tex. R. Civ. P. 166a(b), (i). The trial court granted summary judgment without specifying the grounds on which it did so. This appeal ensued.

II. SUMMARY-JUDGMENT ANALYSIS

By seven issues, McNeal and Wright assert that the trial court erred in granting: (1) Thomas's traditional summary-judgment motion because there are genuine issues of material fact; (2) the traditional motion because it was legally insufficient; (3) the traditional motion because the asserted deficiencies in the pleadings can be cured by amendment; (4) the no-evidence motion because the evidence brought forth more than a scintilla of probative evidence to raise a genuine issue of material fact; (5) the no-evidence motion because it was legally insufficient; (6) the no-evidence motion because the asserted deficiencies in the pleadings can be cured by amendment; and (7) the no-evidence motion because there had not been adequate opportunity for discovery.

A. Summary-Judgment Grounds

1. Traditional Grounds and Response

In his traditional motion, Thomas asserted: (1) absent a common-law rule of restraining cattle, he cannot be held to a common-law duty; (2) even if McNeal and Wright pleaded a statutory cause of action under section 143.102 of the Texas Agriculture Code, // there is no evidence Thomas owned the cow; (3) the owner of the livestock, not the owner of the land, has the statutory duty to prevent livestock from roaming onto a state or federal highway; and, (4) even if Thomas owned the cow, there was no evidence he knew or should have known that the cow was roaming at large on U.S. Highway 181. Thomas's traditional summary-judgment evidence included his affidavit:

I am not the owner of the cow hit by Mark Wright on March 13, 2000. I saw the dead cow and the brand was not mine. I have not owned cattle for 20 years. Prior to the accident there was a strong, windy storm. The wind was sufficient to blow down a tree which damaged part of the fence sufficient to allow the cow to escape. I have no knowledge of any prior incidents involving that tree. I had no reason to believe it would fall down. I am a part-owner of the land and I lease the land to another. I do not have right of control over the land. The brad [sic] recorded in San Patricio County in 1972 is still my brand. I have used no other brand. The brand on the cow is EH."

2. No-Evidence Grounds

In his no-evidence motion, Thomas asserted that there was no evidence to raise a genuine issue of material fact regarding duty. In his factual overview, he characterized McNeal and Wright's suit as claiming he had a duty to prevent the cow from wandering or escaping onto the highway.

3. Summary-Judgment Response

In their summary-judgment response, McNeal and Wright argued that disputed issues of material fact precluded summary judgment, including: (1) ownership of the cow; and (2) ownership or lease of the land from which the cow roamed. In their summary-judgment affidavits, McNeal and Wright stated that they spoke to a deputy sheriff and a Texas Department of Public Safety ("DPS") trooper at the scene. Both affidavits stated: (1) each heard Thomas tell the trooper to bury the cow after the trooper stated that only the owner of the cow could direct how to dispose of it; (2) each verified that the brand on the cow matched Thomas's brand on file in the county clerk's records and on the gate to his property; (3) each heard Thomas admit after the accident that he called the cow from across the highway immediately before the collision; (4) Thomas did not tell the trooper he leased the land to anyone; (5) Thomas did not tell the trooper that someone else owned the cow; (6) Thomas gave his address on the accident report as owner of the cow; (7) each heard Thomas say "it was one cow down and four to go"; and (8) each had been in the area several days and did not experience any storms.

B. Summary-Judgment Standards of Review

On appeal, the standard of review for the grant of a motion for summary judgment is determined by whether the motion was brought on no-evidence or traditional grounds. Tex. R. Civ. P. 166a(i), (c); Ortega v. City Nat'l Bank, 97 S.W.3d 765, 771 (Tex. App. Corpus Christi 2003, no pet.). The difference in relative burdens between the parties in the two types of summary-judgment motions is significant. Ortega, 97 S.W.3d at 771. Determination of the nature of the motion for summary judgment under analysis is critical. Id. Accordingly, we first address how we will review Thomas's motions.

We note that the mere existence of evidence attached to a no-evidence summary-judgment motion is not sufficient to allow the court to disregard the no-evidence motion. See Binur v. Jacobo, 135 S.W.3d 646, 651 (Tex. 2004) (holding that evidence attached to no-evidence motion shall not be considered but motion should not be disregarded or treated as traditional motion); see also Oasis Oil Corp. v. Koch Ref. Co., 60 S.W.3d 248, 250 (Tex. App. Corpus Christi 2001, pet. denied). The no-evidence portion of Thomas's motion contained no argument, analysis, or case law. Even so, "[i]f a motion clearly sets forth its grounds and otherwise meets Rule 166a's requirements, it is sufficient." Jacobo, 135 S.W.3d at 651. Accordingly, we separately analyze Thomas's traditional and no-evidence motions.

The function of summary judgment is to eliminate patently unmeritorious claims and defenses, not to deprive litigants of the right to a jury trial. Alaniz v. Hoyt, 105 S.W.3d 330, 344 (Tex. App. Corpus Christi 2003, no pet.). In both traditional and no-evidence summary-judgment motions, we review the evidence "in the light most favorable to the nonmovant, disregarding all contrary evidence and inferences." See KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999); Branton v. Wood, 100 S.W.3d 645, 646 (Tex. App. Corpus Christi 2003, no pet.). The movant bears the burden of showing both no genuine issue of material fact and entitlement to judgment as a matter of law. Hoyt, 105 S.W.3d at 345. We affirm a trial court's ruling on a summary-judgment motion if any of the theories advanced in the motion is meritorious. State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex. 1993); Boren v. Bullen, 972 S.W.2d 863, 865 (Tex. App. Corpus Christi 1998, no pet.). We review a summary judgment de novo to determine whether a party established its right to prevail as a matter of law. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985); Ortega, 97 S.W.3d at 771.

1. Traditional Motion under Rule 166a(c)

The non-movant has the burden to respond to a traditional summary-judgment motion if the movant conclusively: (1) establishes each element of its cause of action or defense; or (2) negates at least one element of the non-movant's cause of action or defense. Hoyt, 105 S.W.3d at 345. Thus, summary judgment for a defendant is proper if the defendant disproves at least one element of each of the plaintiff's claims or affirmatively establishes each element of an affirmative defense to each claim. Id. 2. No-Evidence Motion under Rule 166a(i)

We review a no-evidence motion for summary judgment under the same legal-sufficiency standard as a directed verdict. See Tex. R. Civ. P. 166a(i); see also Branton, 100 S.W.3d at 646. The movant must assert that there is no evidence of an essential element of a particular claim or defense which the nonmovant would have the burden of proving at trial. Branton, 100 S.W.3d at 647. By definition, the movant does not produce any evidence. See Tex. R. Civ. P. 166a(i). Rather, the nonmovant must produce sufficient evidence to raise a genuine issue of material fact as to the challenged elements. Id.; Branton, 100 S.W.3d at 647. We consider any quantum of evidence greater than a scintilla sufficient to raise a genuine issue of material fact. Branton, 100 S.W.3d at 647. More than a scintilla of evidence exists when the proffered evidence "would enable reasonable and fair-minded people to differ in their conclusions." Id. Conversely, less than a scintilla of evidence exists when the proffered evidence merely "creates a . . . surmise or suspicion of a fact" as to the material elements. Id.

C. Disposition of Thomas's Traditional Summary-Judgment Motion

1. Roaming Livestock

The Texas Legislature has not been oblivious to safety concerns raised by roaming livestock. Gibbs v. Jackson, 990 S.W.2d 745, 750 (Tex. 1999). With its policymaking authority, the Legislature has considered fence and livestock restraint laws for virtually every type of roadway over which it has jurisdiction. Id. A landowner or occupier may have a duty to create and maintain a fence enclosing his property to keep livestock in or out. William V. Dorsaneo III, Texas Litigation Guide 280.04 at 18-280 (2004). Livestock owners may be liable for negligence if their animals stray onto highways. Gibbs, 990 S.W.2d at 749; Beck v. Sheppard, 566 S.W.2d 569, 572-73 (Tex. 1978); see Weaver v. Brink, 613 S.W.2d 581, 583-84 (Tex. Civ. App. Waco 1981, writ ref'd n.r.e.). However, there is no common-law duty in Texas for an owner of livestock to restrain the animals within fences. Gibbs, 990 S.W.2d at 747; Goode v. Bauer, 109 S.W.3d 788, 791 (Tex. App. Corpus Christi 2003, pet. denied). Any duty to restrain livestock is statutory. Bauer, 109 S.W.3d at 791.

Two types of statutes in Texas address an owner's obligation regarding livestock: (1) section 143.102 of the agriculture code, // which prohibits all owners of livestock from knowingly allowing their animals to roam at large on the right of way of a state or federal highway in Texas, regardless of whether the local county has adopted a stock law requiring the restraint of livestock; and (2) local option stock laws in those counties that have adopted them. // Id. Whether under the statutory prohibition against livestock running at large on state or federal highways or under a local option stock law, some fault must be attributed to the owner of an animal that strayed onto a highway for liability to attach. Id. at 792; Straitway Transp., Inc. v. Mundorf, 6 S.W.3d 734, 741 (Tex. App. Corpus Christi 1999, pet. denied); Hanna v. Wright, 504 S.W.2d 779, 782-83 (Tex. Civ. App. Tyler 1974, no writ). The presence of livestock on a roadway does not create a presumption that the owner was negligent. See Beck v. Sheppard, 566 S.W.2d 569, 572 (Tex. 1978). 2. Discussion

In their first issue, McNeal and Wright assert generally that the trial court erred in granting Thomas's traditional motion for summary judgment because material issues of fact preclude summary judgment. The trial court's order granting Thomas summary judgment does not state the grounds on which the trial court did so. Thus, McNeal and Wright, as the nonmovants, must show on appeal that each independent ground alleged by Thomas is insufficient to support the summary judgment. Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970); Meru v. Huerta, 136 S.W.3d 383, 387 (Tex. App. Corpus Christi 2004, no pet.).

a. Legal Sufficiency of Thomas's Traditional Motion

As grounds for his traditional motion for summary judgment, Thomas asserted that his summary-judgment evidence proved he did not own the cow. Even if he owned the cow, he added, his summary-judgment evidence negated the "knowingly" element of any statutory cause of action McNeal and Wright asserted. In their second issue, McNeal and Wright contend that Thomas's traditional motion for summary judgment was legally insufficient. However, Thomas's traditional motion presented summary-judgment proof that disproved at least one element of each of McNeal and Wright's claims. See Hoyt, 105 S.W.3d at 345. We conclude that Thomas's motion for traditional summary judgment met the requirements of rule 166a(b). See id.; see also Tex. R. Civ. P. 166a(b). We overrule McNeal and Wright's second issue.

b. The "Knowingly" Element of McNeal and Wright's

Causes of Action for Failure to Maintain and Inspect the Fence and

Failure to Maintain a Proper Lookout over the Livestock and Enclosure

Section 143.102 of the agriculture code requires a person who owns or has responsibility for the control of a cow to not "knowingly" permit the animal to traverse or roam at large, unattended, on the right-of-way of a state or federal highway. Tex. Agric. Code Ann. 143.102 (Vernon 1982). Construing the evidence favorable to McNeal and Wright as true, as we must, even if Thomas owned the cow, nothing in the summary judgment evidence established that he knowingly permitted the cow to traverse or roam at large, unattended, on the right-of-way of Highway 181. McNeal and Wright urge us to construe evidence that Thomas knew that the cow was loose and was on the scene actively looking for her as evidence that Thomas knowingly permitted the animal to roam at large, unattended, on U.S. Highway 181.

"A fact issue is raised by circumstantial evidence if, from the evidence, a reasonable person would conclude that the existence of the facts is more reasonable than its nonexistence." Estate of Murphy, 694 S.W.2d 10, 12 (Tex. App. Corpus Christi 1984, writ ref'd n.r.e.). "All that is required is that the circumstances point to ultimate facts sought to be established with such a degree of certainty as to make the conclusion reasonably probable." Id. (citing Smith v. Tenn. Life Ins. Co., 618 S.W.2d 829, 834 (Tex. Civ. App. Houston [1st Dist.] 1981, no writ). Although an ultimate fact may be proved by circumstantial evidence, such a finding must be based on inferences fairly drawn from the facts in evidence and not on surmise or speculation. See Briones v. Levine's Dept. Store, 446 S.W.2d 7, 10 (Tex. 1969). The circumstances relied on must not be equally consistent with the non-existence of the ultimate fact. Summers v. Fort Crockett Hotel, Ltd., 902 S.W.2d 20, 25 (Tex. App. Houston [1st Dist.] 1995, writ denied). Meager circumstantial evidence from which equally plausible but opposite inferences may be drawn is speculative and legally insufficient. Wal-Mart Stores, Inc. v. Gonzales, 968 S.W.2d 934, 936 (Tex. 1998).

In this case, we find that McNeal and Wright's summary-judgment proof that Thomas knowingly permitted the cow to roam onto U.S. Highway 181 consisted solely of speculation. Thomas's summary-judgment motion advanced the theory and provided summary-judgment proof that he did not knowingly permit the cow to roam onto the highway. McNeal and Wright did not counter with controverting summary-judgment proof that Thomas knew that cows had a propensity for escaping from the property or that Thomas knowingly failed to maintain the fence. See Beck, 566 S.W.2d at 573. The evidence, at most, established that Thomas was alongside the highway in search of the cow after a windy storm downed the fence and allowed the cow to escape.

Accordingly, we hold that McNeal and Wright's summary-judgment proof did not raise a fact issue that Thomas knowingly failed to maintain and inspect the fence and maintain a proper lookout over the livestock and enclosure. We must affirm the trial court's ruling if any of the theories advanced in Thomas's motion for summary judgment is meritorious. See State Farm Fire & Cas. Co., 858 S.W.2d at 380; see also Bullen, 972 S.W.2d at 865. We overrule McNeal and Wright's first issue as it relates to their common-law or statutory failure-to-maintain causes of action.

D. Disposition of Thomas's No-Evidence Summary-Judgment Motion

1. Duty to Warn

Texas law requires proof of three familiar elements to sustain a cause of action for negligence: (1) a legal duty owed by one party to another; (2) a breach of that duty; and (3) damages proximately caused by the breach. D. Houston, Inc. v. Love, 92 S.W.3d 450, 454 (Tex. 2002). The non-existence of a duty ends the inquiry into whether negligence liability may be imposed. Van Horn v. Chambers, 970 S.W.2d 542, 544 (Tex. 1998).

The question of legal duty is a multifaceted issue requiring us to balance a number of factors such as the risk and foreseeability of injury, the social utility of the actor's conduct, the consequences of imposing the burden on the actor, and any other relevant competing individual and social interests implicated by the facts of the case. Otis Eng'g Corp. v. Clark, 668 S.W.2d 307, 309 (Tex. 1983); see 1 J. Hadley Edgar, Jr. & James B. Sales, Texas Torts and Remedies 1.03[2][b] (2000). Although the formulation and emphasis varies with the facts of each case, three categories of factors have emerged: (1) the relationship between the parties; (2) the reasonable foreseeability of harm to the person injured; and (3) public policy considerations. See Graff v. Beard, 858 S.W.2d 918, 919 (Tex. 1993); Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990); Wilheim v. Flores, 133 S.W.3d 726, 733 (Tex. App. - Corpus Christi 2003, pet. filed).

2. Discussion

a. Legal Sufficiency of Thomas's No-Evidence Motion

In their fifth issue, McNeal and Wright argue that Thomas's no-evidence motion was legally insufficient because it did not comply with Rule 166a's requirements. // See Tex. R. Civ. P. 166a(i). The no-evidence portion of Thomas's motion contained no argument, analysis, or case law. Even so, we already have noted that "[i]f a motion clearly sets forth its grounds and otherwise meets Rule 166a's requirements, it is sufficient." See Jacobo, 135 S.W.3d at 651; see also Oasis Oil Corp., 60 S.W.3d at 250. Thomas's motion sufficiently challenged the "duty" element of McNeal and Wright's failure-to-maintain and failure-to-warn claims. We overrule McNeal and Wright's fifth issue.

b. The Duty Element of McNeal and Wright's Failure-to-Warn Cause of Action In response to Thomas's no-evidence motion, McNeal and Wright were required to produce sufficient evidence to raise a genuine issue of material fact as to Thomas's duty to warn. See Branton, 100 S.W.3d at 647. We consider any quantum of evidence greater than a scintilla sufficient to raise a genuine issue of material fact. Id.

Here, the summary-judgment evidence: (1) placed Thomas at the scene before the accident; (2) showed that Thomas called the cow involved in the accident from across the highway; and (3) established that Thomas knew that five cows were astray. Despite McNeal and Wright's contention that Thomas had a duty to warn of roaming livestock, we find nothing in the record showing that such a duty exists. McNeal and Thomas cite no Texas law, and we have found none, imposing a duty to warn of roaming livestock. Further, after considering risk, foreseeability, and likelihood of injury as weighed against the social utility of the actor's conduct, the magnitude of the burden of guarding against the injury, and the consequences of imposing such a burden, we are not willing to impose a new common law duty.

We conclude that the summary-judgment evidence did not constitute a quantum of evidence greater than a scintilla to prove that Thomas had a duty to warn travelers on the road of roaming livestock. Thus, the evidence was not sufficient to raise a genuine issue of material fact on the duty element of McNeal and Wright's failure-to-warn cause of action. See Branton, 100 S.W.3d at 647. Accordingly, we hold that the trial court did not err in granting Thomas's motion for summary judgment on the issue of duty. We overrule McNeal and Wright's fourth issue. E. Disposition of Remaining Issues

1. Judgment on the Pleadings

In his motion for summary judgment, Thomas asserted that "Plaintiffs have pled a cause of action which does not exist." In their third and sixth issues, McNeal and Wright complain that any pleading deficiencies could have been cured by amendment, making summary judgment improper under both traditional and no-evidence standards.

We note that Thomas filed special exceptions but did not obtain a ruling on them. Ordinarily, summary judgment cannot be based solely on the failure of a plaintiff to plead a cause of action unless the defendant levels a special exception to the deficiency, and the trial court affords the plaintiff an opportunity to amend the pleading to state a cause of action. Austin v. Healthtrust, Inc., 951 S.W.2d 78, 79 (Tex. App. Corpus Christi 1997), affirmed, 967 S.W.2d 400 (Tex. 1998). Where the plaintiff pleads facts that affirmatively negate the cause of action, summary judgment on the pleadings is proper. Id. In this case, Thomas attached McNeal and Wright's live pleading to his summary-judgment motion. He contended that the facts as alleged did not plead a cause of action. See id. After Thomas filed his motion for summary judgment, McNeal and Wright did not replead or complain they were not given an opportunity to amend. See id. Accordingly, even if the trial court granted summary judgment on the pleadings, McNeal and Wright waived any complaint that it did so without giving them an opportunity to amend. See id.; see also Tex. R. App. P. 33.1(a). We overrule McNeal and Wright's third and sixth issues.

2. Inadequate Time for Discovery

In their seventh issue, McNeal and Wright argue that the trial court erred in granting the no-evidence motion for summary judgment because: (1) they did not have adequate time for discovery contrary to rule 166a(i); (2) McNeal's injuries prevented her from participating or assisting in discovery; and (3) the parties had agreed to extend the time for Thomas to respond to propounded discovery.

Ordinarily, a no evidence summary judgment is restricted in that it cannot be granted prior to the passage of an "adequate time for discovery." Creative Thinking Sources, Inc. v. Creative Thinking, Inc., 74 S.W.3d 504, 515 (Tex. App. Corpus Christi 2002, no pet.). Accordingly, Thomas bore the burden of proving that a no- evidence motion for summary judgment was not premature when filed before the deadline for the completion of discovery. Id.

Similarly, we review a trial court's determination that there has been an adequate time for discovery under an abuse of discretion standard. Specialty Retailers, Inc. v. Fuqua, 29 S.W.3d 140, 145 (Tex. App. Houston [14th Dist.] 2000, pet. denied); McClure v. Attebury, 20 S.W.3d 722, 729 (Tex. App. Amarillo 1999, no pet.); Dickson Constr. v. Fidelity & Deposit Co., 5 S.W.3d 353, 357 (Tex. App. Texarkana 1999, pet. denied). The test for abuse of discretion is not whether, in the opinion of the reviewing court, the facts present an appropriate case for the trial court's action. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241 (Tex.1985). Rather, it is a question of whether the court acted without reference to any guiding rules and principles. Id. at 241-42. Another way of stating the test is whether the act was arbitrary or unreasonable. Id. at 242. The mere fact that a trial judge may decide a matter within his discretionary authority in a different manner than an appellate judge in a similar circumstance does not demonstrate that an abuse of discretion has occurred. Id.

A party may move for a no-evidence summary judgment "after adequate time for discovery." Tex. R. Civ. P. 166a(i). The rule does not require that discovery must have been completed, only that there was "adequate time." Specialty Retailers, 29 S.W.3d at 145 (citing In re Mohawk Rubber Co., 982 S.W.2d 494, 498 (Tex. App. Texarkana 1998, orig. proceeding)). 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 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, 29 S.W.3d at 145; Dickson Constr., 5 S.W.3d at 356. In the summary judgment context, it is generally not an abuse of discretion to deny a motion for continuance if the party moving for a continuance has received the twenty-one days' notice required by rule 166a(c). Tex. R. Civ. P. 166a(c); Clemons v. Citizens Medical Center, 54 S.W.3d 463, 469 (Tex. App. Corpus Christi 2001, no pet.).

When a party contends that it has not had adequate opportunity for discovery before a summary judgment hearing, it must file either an affidavit explaining the need for further discovery or a verified motion for continuance. See Tex.R. Civ. P. 166a(g), 251, 252; Tenneco, Inc. v. Enter.Prods. Co., 925 S.W.2d 640, 647 (Tex.1996); Tempay, 37 S.W.3d at 521-22; Triad Home Renovators, Inc. v. Dickey, 15 S.W.3d 142, 145 (Tex. App. Houston [14th Dist.] 2000, no pet.).

Here, McNeal and Wright filed their lawsuit on March 11, 2002. Thomas propounded interrogatories and requests for disclosure on April 17, 2002. On May 31, 2002, McNeal and Wright responded to discovery requests. // On April 14, 2003, Hughes filed his summary-judgment motion. On May 6, 2003, McNeal and Wright propounded requests for disclosure, interrogatories and requests for production. On May 9, 2003, McNeal and Wright filed their response to the summary-judgment motion. In the response, they included a request for continuance asserting they needed additional time to complete discovery including the recent discovery propounded to Thomas. The response contained their counsel's affidavit in support of the motion for continuance. Their counsel's affidavit stated that his ability to conduct meaningful discovery in the case was limited by McNeal's physical condition. He explained that McNeal had undergone significant medical treatment since the collision and her ability to assist in the preparation of the case was greatly limited by her inability to walk, surgery, and rehabilitation. He further stated that her current condition allowed her to actively participate in needed depositions and the development of the case on a limited basis. Similarly, in a separately filed, verified motion for continuance, McNeal and Wright asserted as grounds inadequate time for discovery due to McNeal's physical condition.

Thomas responded to the motion for continuance asserting that: (1) he met the nine-month deadline in rule 190.3 for conducting discovery; (2) the motion did not state how McNeal's condition limited Wright's ability to assist in the preparation of the case; (3) their summary-judgment affidavits indicated they had performed an investigation prior to filing suit; (4) they served no meaningful discovery until after Thomas filed his summary-judgment motion; and, (5) McNeal's physical condition appeared to be irrelevant because discovery was commonly done by counsel.

On May 16, 2003, the trial court: (1) denied the motion for continuance by written order; (2) issued notice setting the summary-judgment motion for submission on May 16, 2003; and, (3) granted Thomas's motion for summary judgment. On June 6, 2003, unaware that the trial court granted Thomas's summary-judgment motion, the parties filed a rule 11 agreement to extend the deadline for Thomas's responding to discovery.

The record establishes that: (1) the case was a personal injury case arising from a vehicular collision with a roaming cow; (2) evidence necessary to controvert the no-evidence summary judgment primarily focused on ownership of the cow; (3) the case was active from March 11, 2002 to May 16, 2003; (4) the no-evidence motion had been on file thirty-two days before entry of judgment; (5) Thomas had not requested stricter deadlines for discovery; (6) although Thomas had propounded discovery, McNeal and Thomas propounded discovery after the summary-judgment motion was filed; and (7) the parties relied on the rule 190.3 discovery control plan. We conclude that, on this record, the trial court did not abuse its discretion in denying the motion for continuance. McNeal and Thomas had adequate time for discovery. Similarly, we conclude that the trial court did not abuse its discretion in denying the motion for continuance based on McNeal's physical condition. The record establishes that: (1) Thomas met the nine-month discovery period under rule 190.3; // (2) the motion for continuance did not state how McNeal's condition limited Wright's ability to assist in the preparation of the case; (3) McNeal and Wright performed an investigation prior to filing suit; and (4) they served no discovery until after Thomas filed his summary-judgment motion.

Further, we conclude that McNeal and Wright waived their right to complain on appeal that the parties had agreed to extend the time for Thomas to respond to propounded discovery. They did not raise the issue before the trial court. Thus, they have waived error. Tex. R. App. P. 33.1(a)(1).

Accordingly, we overrule McNeal and Wright's seventh issue.

III. CONCLUSION

We affirm the trial court's judgment on McNeal and Wright's common-law and statutory claims that Thomas failed to: (1) maintain and inspect the livestock fences; (2) maintain a proper lookout over the livestock and their enclosures; and (3) warn them and persons similarly situated that livestock were loose in the area of the roadway.

ERRLINDA CASTILLO

Justice

Memorandum Opinion delivered and

filed this 17th day of February, 2005.