law-motion for continuance | MFC | M4C |
MOTION FOR CONTINUANCE / TRIAL RESET - TEXAS CASE LAW
Motion for Continuance responsive to motion for summary judgment
A trial court may order a continuance of a summary judgment hearing if it appears “from the affidavits of a party
opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition.”
Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004) (quoting Tex. R . Civ. P. 166a(g)).
Motion for Continuance to conduct additional discovery
When deciding whether a trial court abused its discretion in denying a motion for continuance requesting
additional time to conduct discovery, we consider the following non-exclusive factors: the length of time the case
has been on file, whether the party seeking the continuance has exercised due diligence to obtain the discovery
sought, and the materiality and the purposes of the discovery sought. Id.
SOURCE: Draker v. Schreiber, a minor, No. 04-07-00692-CV (Tex.App.- San Antonio, Aug. 13, 2008)(Opinion by
Justice Angelini, Concurrence by Justice Stone) (Internet IIED claim was defamation claim and was properly
dismissed because IIED is a gap-filler tort) (summary judgment for defendant students affirmed)
Here, Draker failed to show materiality of the discovery sought. Draker filed a pleading entitled “Motion for
Continuance and Response to Defendants’ Second Motion for Summary Judgment.” In the portion of the pleading
relating to a continuance, Draker stated she was seeking a continuance “until she has had an opportunity to
depose the defendants in this matter.” Specifically, Draker complained that the defendants had refused to allow
her to take depositions. Then, in the portion of the pleading in which she responded to defendants’ second motion
for summary judgment, Draker more specifically articulated her reasons for the need to conduct further discovery.
According to Draker, she needed to take the minor plaintiffs’ depositions so that she could determine the intent of
the authors who created the web page. Then, she referenced a specific need to take the depositions of the
defendant parents, arguing that her negligence allegations against them required a factual determination.
However, because we have held that the tort of intentional infliction of emotional distress is unavailable to Draker
as a “gap-filler” cause of action, the intent of the minor plaintiffs is not material. Further, because the negligence
claims against the defendant parents are dependent upon liability findings against the minors, any facts pertaining
to negligence obtained from the defendant parents in a deposition are likewise immaterial.
Beyond the statements set forth above as contained in Draker’s pleadings, Draker did not articulate any further
reasons why the discovery sought was material to her cause of action or for what purpose she sought the
discovery. Under these circumstances, we cannot say the trial court abused its discretion in refusing to grant
Draker’s motion for continuance. See Joe, 145 S.W.3d at 161. Draker’s second issue is denied.