Jose Elias Zepeda, Sr. v. Industrial Site Services, Inc. and Richard O. Gingrich, Jr. ( 2008 )

NUMBER 13-07-00579-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
JOSE ELIAS ZEPEDA, SR., Appellant,
v.
INDUSTRIAL SITE SERVICES, INC.
AND RICHARD O. GINGRICH, JR., Appellees.
On appeal from the 36th District Court of Bee County, Texas.
MEMORANDUM OPINION
Before Justices Yañez, Garza, and Vela
Memorandum Opinion by Justice Garza
This appeal involves a claim for defamation. Appellant, Jose Elias Zepeda, Sr.,
appeals the trial court’s granting of a no-evidence motion for summary judgment in favor
of appellees, Industrial Site Services, Inc. and Richard O. Gingrich, Jr. By two issues,
Zepeda contends that the trial court erred in granting appellees’ no-evidence motion for
summary judgment. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Zepeda was employed by Industrial Site Services, Inc. (“Industrial”) as a tractor
operator. Industrial is a subcontractor of Flint Hills Resources (“Flint Hills”) and Gingrich
is the president of Industrial. The underlying dispute pertained to a criminal background
check conducted on Zepeda, which yielded an erroneous finding that Zepeda had been
convicted of a felony in El Paso County, Texas.
As part of his job, Zepeda was required to enter the premises of a Flint Hills refinery.
Prior to obtaining access to the refinery, employees were required to pass a criminal
background check and attend training at the Contractors Safety Council in Corpus Christi,
Texas. Zepeda had previously obtained a badge authorizing him to enter the refinery.
However, in 2004, Zepeda damaged his badge and requested “a new identification badge.”
Gingrich had Zepeda write down, among other things, his birth date, driver’s license
number, and social security number on a sheet of paper. Gingrich subsequently provided
Zepeda’s information to Prime Information Center, Inc. (“Prime”) to conduct the criminal
background check. Based on the information provided by Industrial, Prime conducted the
background check and notified Industrial that Zepeda had been convicted of felony
possession of marihuana in El Paso County, Texas.1 On May 5, 2005, Zepeda’s
employment with Industrial was terminated.
1
Zepeda contends that he has never been convicted of a felony and that the results of the
investigation conducted by Prim e Inform ation Center, Inc. (“Prim e”) were incorrect. In his original petition,
Zepeda contended that his personal inform ation was either erroneously provided to Prim e, or Prim e
erroneously entered the inform ation into its com puterized system for background checks. Zepeda also
asserted that he had been em ployed by Industrial for seven years, and had never been absent from work to
participate in a crim inal trial in El Paso, Texas, or “to report to a probation or parole officer.”
2
On May 3, 2006, Zepeda filed his original petition, asserting that Prime,2 Industrial,
Gingrich, and Todd Owens3 had published to others that he had been convicted of a
felony. Zepeda contended that the defendants’ actions were “defamatory, libelous and
slanderous per se,” that a false statement of fact pertaining to his alleged conviction was
made by defendants, and that the defendants had acted with “actual malice, negligence
and/or without regard to fault.” Zepeda claimed that he suffered “actual injury, including
pecuniary injury, loss of employment, loss of or damage to reputation, personal humiliation,
mental and emtional [sic] anguish and suffering, and, general, specific and exemplary
damages.” Appellees filed their original answer, special exceptions, and motion to transfer
venue on July 21, 2006.
On May 30, 2007, appellees filed a no-evidence motion for summary judgment,
contending that Zepeda had failed to provide evidence of the elements required for
defamation. Even though the motion was entitled, “DEFENDANTS’ MOTION FOR NO
EVIDENCE SUMMARY JUDGMENT,” appellees provided, among other things, the
following documents as summary judgment evidence: (1) an affidavit executed by
Gingrich; (2) a photocopy of the sheet of paper on which Zepeda provided his personal
information to Gingrich; (3) a copy of the report issued by Prime regarding Zepeda’s
criminal background check; and (4) a copy of a criminal background check conducted by
2
On July 18, 2007, Zepeda and Prim e stipulated to the dism issal of Zepeda’s claim s against Prim e
with prejudice. The parties agreed to bear attorneys’ fees and costs of court in accordance with the parties’
confidential settlem ent agreem ent. On July 24, 2007, the trial court entered an order of dism issal with
prejudice as to Zepeda’s claim s against Prim e. This order is not the subject of this appeal.
3
Todd Owens was a Prim e em ployee who, as Zepeda alleged in his original petition, appeared “to
have authority of a supervisor or officer.” On January 15, 2008, Owens was non-suited.
3
the Bee County Sheriff’s Office at Zepeda’s request.4
Zepeda filed several responses and supplemental responses to appellees’ no-
evidence motion for summary judgment, asserting that: appellees had improperly attached
summary judgment evidence to a no-evidence motion for summary judgment; appellees’
motion was not timely filed; appellees failed to address all the claims alleged in the original
petition; Gingrich’s affidavit contained impermissible legal conclusions and statements not
based on personal knowledge; and an affidavit executed by Zepeda himself raised a
genuine issue of material fact, which precluded summary judgment.
On July 13, 2007, the trial court granted appellees’ no-evidence motion for summary
judgment and dismissed Zepeda’s defamation claim against appellees. In its order, the
trial court specifically noted that “[t]his judgment finally disposes of Plaintiff’s defamation
cause of action against INDUSTRIAL SITE SERVICES, INC. and RICHARD O.
GINGRICH, JR.”
On August 15, 2007, Zepeda filed a motion for new trial, in which he (1) asserted
that the trial court had improperly granted appellees’ no-evidence motion for summary
judgment, and (2) challenged Gingrich’s affidavit. Specifically, Zepeda alleged that: (1)
Industrial had submitted the wrong social security number in conducting its criminal
background check; (2) Gingrich’s affidavit was inadmissible because he was an interested
witness and his affidavit was “not clear, positive, direct, credible or free from contradictions
and inconsistencies”; (3) the sheet of paper upon which Zepeda wrote down his personal
information was not admitted as a business record and was, therefore, hearsay; and (4)
4
The Bee County Sheriff’s O ffice conducted a crim inal background check of Zepeda on May 10,
2005, which indicated that Zepeda had no crim inal record.
4
the summary judgment evidence submitted by appellees was not available for discovery,
and thus constituted a surprise. The trial court did not rule on Zepeda’s motion for new
trial; therefore, it was overruled by operation of law. See TEX . R. CIV. P. 329b(c). This
appeal ensued.
II. STANDARD OF REVIEW
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. See
TEX . R. CIV. P. 166a(c), (i); see also Ortega v. City Nat’l Bank, 97 S.W.3d 765, 771 (Tex.
App.–Corpus Christi 2003, no pet.) (op. on reh’g). A no-evidence summary judgment is
equivalent to a pretrial directed verdict, and this Court applies the same legal sufficiency
standard of review. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006);
Ortega, 97 S.W.3d at 772. In an appeal of a no-evidence summary judgment, this Court
reviews the evidence in the light most favorable to the non-movant, disregarding all
contrary evidence and inferences. City of Keller v. Wilson, 168 S.W.3d 802, 825 (Tex.
2005) (noting that review of a “no-evidence” motion for summary judgment is effectively
restricted to the evidence contrary to the motion); Ortega, 97 S.W.3d at 772. If the non-
movant produces evidence to raise a genuine issue of material fact, summary judgment
is improper. TEX . R. CIV. P. 166a(i).
All that is required of the non-movant is to produce a scintilla of probative evidence
to raise a genuine issue of material fact. Ortega, 97 S.W.3d at 772. “Less than a scintilla
of evidence exists when the evidence is ‘so weak as to do no more than create a mere
surmise or suspicion of a fact.’” Id. (quoting Kindred v. Con/Chem., Inc., 650 S.W.2d 61,
5
63 (Tex. 1983)). Conversely, more than a scintilla of evidence exists when the evidence
“rises to a level that would enable reasonable and fair-minded people to differ in their
conclusions.” Id. (quoting Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 25 (Tex. 1994)). In
determining whether the non-movant has produced more than a scintilla of evidence, we
review the evidence in the light most favorable to the non-movant, crediting such evidence
if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors
could not. Tamez, 206 S.W.3d at 582; City of Keller, 168 S.W.3d at 827. The burden of
producing evidence is entirely on the non-movant; the movant has no burden to attach any
evidence to the motion. TEX . R. CIV. P. 166a(i). We may not consider any evidence
presented by the movant unless it creates a fact question. Binur v. Jacobo, 135 S.W.3d
646, 651 (Tex. 2004); Newkumet v. Allen, 230 S.W.3d 518, 521 (Tex. App.–Eastland 2007,
no pet.).5
III. ANALYSIS
A. Zepeda’s Defamation Claim
In his first issue, Zepeda contends that the trial court erred in granting appellees’
motion for summary judgment because the “evidence was legally and factually insufficient
5
Zepeda argues that because appellees attached sum m ary judgm ent evidence to their no-evidence
sum m ary judgm ent m otion, their m otion should be reviewed as a traditional sum m ary judgm ent m otion. See
Michael v. Dyke, 41 S.W .3d 746, 751 (Tex. App.–Corpus Christi 2001, no pet.) (holding that the requirem ents
of rule 166a(i) of the rules of civil procedure are to be strictly construed and noting that “[w]hen it is not readily
apparent to the trial court that sum m ary judgm ent is sought under rule 166a(i), the court should presum e that
it is filed under the traditional sum m ary judgm ent rule and analyze it according to those well-recognized
standards”). However, in their no-evidence m otion for sum m ary judgm ent, appellees stated that Zepeda failed
to produce any evidence of the elem ents of a defam ation cause of action on which he had the burden of proof
at trial. See T EX . R. C IV . P. 166a(i). Therefore, the substance of appellees’ m otion was that of a no-evidence
m otion for sum m ary judgm ent, and we will analyze it according to those well-recognized standards. See id.
W e will not review the evidence appellees attached to their no-evidence m otion for sum m ary judgm ent unless
it creates a genuine issue of m aterial fact. See Binur v. Jacobo, 135 S.W .3d 646, 651 (Tex. 2004); Newkumet
v. Allen, 230 S.W .3d 518, 521 (Tex. App.–Eastland 2007, no pet.).
6
to contradict Zepeda’s evidence or support summary judgment.” Specifically, Zepeda
takes issue with the erroneous finding that he was a convicted felon and the alleged
publication of this falsehood to others. Appellees counter by arguing that Zepeda did not
raise an issue of material fact as to the elements for defamation. Appellees further argue
that Zepeda’s affidavit is conclusory and cannot constitute competent summary judgment
evidence.
1. Applicable Law
A defamatory statement is one that tends to injure a person's reputation and thereby
exposes the person to public hatred, contempt, ridicule, or financial injury. See TEX . CIV.
PRAC . & REM . CODE ANN . § 73.001 (Vernon 2005); Einhorn v. LaChance, 823 S.W.2d 405,
410-11 (Tex. App.–Houston [1st Dist.] 1992, writ dism'd w.o.j.). To maintain a defamation
cause of action, the plaintiff must establish that the defendant: “(1) published a statement;
(2) that was defamatory concerning the plaintiff; (3) while acting with either actual malice
if the plaintiff was a public official or public figure, or negligence if the plaintiff was a private
individual, regarding the truth of the statement." WFAA-TV, Inc. v. McLemore, 978 S.W.2d
568, 571 (Tex. 1998).
There are two types of defamation: per quod and per se. Moore v. Waldrop, 166
S.W.3d 380, 384 (Tex. App.–Waco 2005, no pet.). Statements that are defamatory per
quod are actionable only upon allegation and proof of damages. Alaniz v. Hoyt, 105
S.W.3d 330, 345 (Tex. App.–Corpus Christi 2003, no pet.). Thus, the plaintiff must carry
his burden of proof on both the existence of and amount of damages. See Leyendecker
& Assoc., Inc. v. Wechter, 683 S.W.2d 369, 374 (Tex. 1984); Peshak v. Greer, 12 S.W.3d
7
421, 427 (Tex. App.–Corpus Christi 2000, no pet.).
Statements that are defamatory per se are actionable without proof of injury.
Bentley v. Bunton, 94 S.W.3d 561, 605 (Tex. 2002); Knox v. Taylor, 992 S.W.2d 40, 50
(Tex. App.–Houston [14th Dist.] 1999, no pet.). Therefore, if the alleged statements have
been classified as defamatory per se, general damages are presumed without requiring
specific evidence of harm to the plaintiff’s reputation. Bentley, 94 S.W.3d at 604 (“As a
matter of law . . . [defamatory per se statements] entitle [plaintiff] to recover actual
damages for injury to his reputation and for mental anguish.”); see Tex. Disposal Sys.
Landfill, Inc. v. Waste Mgmt. Holdings, Inc., 219 S.W.3d 563, 581 (Tex. App.–Austin 2007,
pet. denied). Texas courts have classified the following statements as defamatory per se:
(1) a statement which injures a person in his office, profession, or occupation, see Knox,
992 S.W.2d at 50; (2) a statement which charges a person with the commission of a crime,
see Wechter, 683 S.W.2d at 374; (3) a statement imputing sexual misconduct, see Moore,
166 S.W.3d at 384; and (4) a statement accusing one of having a loathsome disease. See
Bolling v. Baker, 671 S.W.2d 559, 570 (Tex. App.–San Antonio 1984, no writ).6
2. Discussion
We begin by analyzing the publication element of Zepeda’s defamation claim. As
6
In his original petition, Zepeda alleged that appellees published a statem ent of fact that “was,
defam atory, libelous and slanderous per se, was false, and defendants acted with actual m alice, negligence
and/or without regard to fault.” Zepeda further alleged that the statem ent pertained to the denial of an
identification badge and his subsequent dism issal from em ploym ent, which was based upon an erroneous
report dem onstrating that he had been convicted of a felony in El Paso. Because the alleged statem ent
injured Zepeda in his em ploym ent and charged him with the com m ission of a crim e, it is defam atory per se.
See Knox v. Taylor, 992 S.W .2d 40, 50 (Tex. App.–Houston [14th Dist.] 1999, no pet.); see also Leyendecker
& Assoc., Inc. v. W echter, 683 S.W .2d 369, 374 (Tex. 1984). Although the alleged statem ent is properly
classified as defam atory per se, Zepeda m ust still prove that the statem ent is false and that appellees
negligently published a false statem ent about him . See W FAA-TV, Inc. v. McLemore, 978 S.W .2d 568, 571
(Tex. 1998).
8
previously mentioned, appellees, in their summary judgment motion, contended that
Zepeda failed to prove that: (1) appellees published a false and defamatory statement; (2)
with some degree of fault; (3) which referred to Zepeda; and (4) caused Zepeda to sustain
injuries. In response to appellees’ no-evidence motion for summary judgment, Zepeda
executed an affidavit stating the following:
Any time I had to fill out paper work that required my social security
number or driver’s license number, I would look at the card to make sure I
was putting the right numbers on the paper. I do not have a very good
memory for number sequences, so I carry these two pieces of identification
with me every where [sic] I go in case I need the information.
....
My information, including my birth date, social security number and
other data, was provided to Prime Information Center, Inc. by Richard O.
Gingrich, Jr. on behalf of Industrial Site Services, Inc. for an employee
background check. Industrial Site Services had all pertinent information to
provide accurate information to Prime Information Center. . . . The
information was either erroneous when provided to Prime Information Center
or erroneously entered into the computerized system for background checks
used by Prime Information Center, Inc.
The resulting information of the background check produced by Prime
Information Center, Inc. concerning me was information about another
person. According to that information, the other person had been convicted
of a felony in El Paso County, Texas. Even though the information was
actually about someone other than me, the information was presented by
Prime Information Center, Inc. and treated by Industrial Site Services, Inc.
as though the information reported accurate facts about me.
I had worked for Industrial Site Services, Inc. (or its predecessor) for
more than seven years. I had never been absent from work for a criminal
trial in El Paso County, Texas, or to report to a probation or parole officer.
Despite informing Richard O. Gingrich, Jr. that I had never been in El Paso
or convicted of a felony, I was relieved of my duties as a tractor driver on
May 5, 2005.
....
Because I could get no help from anyone else, I asked the Bee
9
County [S]heriff’s [O]ffice to run a background check on me. That check
showed no convictions for me any where [sic]. When I presented that
background check to the [sic] Mr. Gingrich, I was told I still could not enter
the plant, but needed to contact Prime Information Center, Inc. to clear up
the background check. He gave me a telephone number that he said was
for Prime Information Center. I repeatedly called the number but could never
get a live person on the telephone.
By the time I was terminated from Industrial Site Services on May 19,
2005, everyone employed by Industrial Site Services knew about the “felony”
conviction that I supposedly had. Mr. Gingrich, the only person with reason
to know at Industrial Site Services, had published the information to others
and those persons had further published the information to others.
I was embarrassed and humiliated by the experience. I was out of
work for several months. I was depressed. I suffered actual injury, including
but not limited to pecuniary injury, loss of employment, loss of past and
future earning, loss of earning capacity, loss of or damage to reputation,
personal humiliation, mental and emotional anguish and suffering, and,
general special and exemplary damages.
(Emphasis added.)
In his affidavit, Zepeda stated that everyone employed by Industrial knew about his
alleged criminal conviction and that Gingrich had published the information to the
employees at Industrial.7 In reaching this conclusion, Zepeda apparently assumes that:
(1) Gingrich was the only employee of Industrial that was provided the results of the
criminal background check from Prime; and (2) by virtue of his status, Gingrich must have
informed all Industrial employees of the results of Zepeda’s criminal background check.
We conclude that Zepeda’s statements as to the publication of a defamatory statement of
fact are speculative and conclusory and do not constitute competent summary judgment
evidence. See Hightower v. Saxton, 54 S.W.3d 380, 389 (Tex. App.–Waco 2001, no pet.)
7
Other than the conclusory statem ents in Zepeda’s affidavit, the record does not contain evidence
dem onstrating that other em ployees knew about his alleged crim inal conviction or that Gingrich had published
the inform ation to others.
10
(“Conclusory affidavits are not enough to raise fact issues.”); see also Ryland Group, Inc.
v. Hood, 924 S.W.2d 120, 122 (Tex. 1996) (noting that affidavits consisting of nothing more
than conclusions or expressions of subjective belief are not competent summary judgment
proof). Besides the speculative and conclusory statements contained in his affidavit,
Zepeda did not provide any additional summary judgment evidence demonstrating that
appellees negligently published a defamatory statement. Consequently, Zepeda has not
produced evidence creating a fact issue as to the element of publication; therefore,
appellees were entitled to summary judgment as a matter of law. See Ortega, 97 S.W.3d
at 772; Kindred, 650 S.W.2d at 63; see also W. Invs., Inc v. Urena, 162 S.W.3d 547, 550
(Tex. 2005) (stating that a party may move for summary judgment on the ground that there
is no evidence of one or more essential elements of a claim on which an adverse party
would have had the burden of proof at trial and that if the adverse party fails to raise a
genuine issue of material fact as to the element, the court must grant the motion) (citing
TEX . R. CIV. P. 166a(i); Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 207 (Tex.
2002)). As such, the trial court did not err in granting appellees’ summary judgment
motion. We overrule Zepeda’s first issue.
B. Zepeda’s Motion for Continuance and Discovery Issue
In his second issue, Zepeda asserts that the trial court abused its discretion in
granting appellees’ motion for summary judgment because no discovery had taken place
and he had requested additional time to conduct discovery. We disagree.
1. Applicable Law
All courts have inherent power to grant or deny a continuance. McClure v. Attebury,
11
20 S.W.3d 722, 729 (Tex. App.–Amarillo 1999, no pet.) (citing Bray v. Miller, 397 S.W.2d
103, 105 (Tex. Civ. App.–Dallas 1965, no writ)). Texas Rule of Civil Procedure 166a(i)
provides that a party, after adequate time for discovery, may move for summary judgment
on the ground that there is no evidence of one or more essential elements of a claim or
defense that the adverse party would have the burden of proof at trial. See TEX . R. CIV.
P. 166a(i). There is no specific minimum amount of time that a case must be pending
before a trial court may entertain a no-evidence summary judgment motion. See id.; see
also McInnis v. Mallia, No. 14-06-00354-CV, 2008 Tex. App. LEXIS 4749, at *12 (Tex.
App.–Houston [14th Dist.] June 17, 2008, no pet.). The amount of time necessary to
constitute an “adequate time” depends on the facts and circumstances of each case. See,
e.g., Restaurant Teams Int’l, Inc. v. MG Secs. Corp., 95 S.W.3d 336, 340 (Tex.
App.–Dallas 2002, no pet.); McClure, 20 S.W.3d at 729 (concluding that adequate time
had passed when a case was pending for seven months).
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). The affidavit must
describe the evidence sought, explain its materiality, and set forth facts showing the due
diligence used to obtain the evidence. See MKC Energy Invs., Inc. v. Sheldon, 182
S.W.3d 372, 379 (Tex. App.–Beaumont 2005, no pet.) (“The affidavit must show why the
continuance is necessary; conclusory allegations are not sufficient.”).
When reviewing a trial court’s order denying a motion for continuance, we consider
12
whether the trial court committed a clear abuse of discretion on a case-by-case basis. See
BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 800 (Tex. 2002). A trial court
abuses its discretion when it reaches a decision so arbitrary and unreasonable as to
amount to a clear and prejudicial error of law. Id. Before the reviewing court will reverse
the trial court’s ruling, it should clearly appear from the record that the trial court has
disregarded the party’s rights. See Yowell v. Piper Aircraft Corp., 703 S.W.2d 630, 635
(Tex. 1986).
The Texas Supreme Court has considered the following nonexclusive factors in
deciding whether a trial court abused its discretion in denying a motion for continuance
seeking additional time to conduct discovery: (1) the length of time the case has been on
file; (2) the materiality and purpose of the discovery sought; and (3) whether the party
seeking the continuance has exercised due diligence to obtain the discovery sought. BMC
Software, 83 S.W.3d at 800 (diligence and length of time on file); Tenneco Inc., 925
S.W.2d at 647 (materiality and purpose); Nat’l Union Fire Ins. Co. v. CBI Indus., Inc., 907
S.W.2d 517, 521-22 (Tex. 1995) (materiality); State v. Wood Oil Distrib., Inc., 751 S.W.2d
863, 865 (Tex. 1988) (diligence); see Perrotta v. Farmers Ins. Exch., 47 S.W.3d 569, 576
(Tex. App.–Houston [1st Dist.] 2001, no pet.) (applying these factors to decide whether a
trial court abused its discretion in denying a motion for continuance).
2. Discussion
a. The Length of Time the Case Was on File
As previously mentioned, Zepeda first filed suit on May 3, 2006. Appellees filed
their summary judgment motion on May 30, 2007. In Zepeda’s verified motion for
13
continuance,8 Zepeda noted that the suit was governed by a Level 2 discovery control plan
and that discovery had ended on May 26, 2007, as the case had been set for a hearing on
June 25, 2007. The trial court granted appellees’ summary judgment motion and
effectively denied Zepeda’s motion for continuance on July 13, 2007. Therefore, more
than one year had elapsed during which the parties had the opportunity to conduct
discovery.
However, in her affidavit accompanying Zepeda’s verified motion for continuance,
Zepeda’s trial counsel stated that she was diagnosed with, and was being treated for,
cancer. Because of her diagnosis, she was “unable to prosecute this case for a period of
about seven months.” However, assuming that no discovery took place during trial
counsel’s treatment for cancer, Zepeda still had from May 3, 2006 to August 27, 2006, and
March 30, 2007 to May 26, 2007—a period of approximately six months—to conduct
discovery. See BMC Software, 83 S.W.3d at 800 (holding that a seven-month period of
time from filing of the case to the summary judgment hearing was sufficient time for
discovery); see also Garza v. Gonzales, No. 13-05-200-CV, 2006 Tex. App. LEXIS 9978,
at *9 (Tex. App.–Corpus Christi Nov. 16, 2006, no pet.) (mem. op.) (upholding a denial of
a motion for continuance when the case had been on file for nearly a year). Moreover,
Zepeda noted in his verified motion for continuance that trial counsel’s colleague
“substituted in Court hearings and received service of Court notices and defendants’
pleadings” in her absence. Therefore, it is conceivable that the substitute counsel could
8
Zepeda’s verified m otion for continuance does not bear a file stam p from the trial court, indicating
that the m otion was filed. However, the m otion was included in the supplem ental clerk’s record upon a m otion
filed by Zepeda to supplem ent the record.
14
have continued with discovery in Zepeda’s case during trial counsel’s unfortunate illness.
Zepeda’s motion is silent as to the substitute counsel’s participation in the discovery
process. Based on the foregoing, we conclude that Zepeda had adequate time within
which to conduct discovery. See BMC Software, 83 S.W.3d at 800.
b. Materiality and Purpose of the Discovery Sought and Due Diligence
Additionally, in his verified motion for continuance, Zepeda did not identify specific
evidence to justify the additional time needed for discovery. Zepeda noted that “[a]lthough
Defendants represent to the Court that ‘an adequate time for discovery has passed,’
Defendants served discovery on Plaintiff two days prior to the filing of their Motion for a No
Evidence Summary Judgment” and that “Plaintiff would be unfairly prejudiced without
modification of the discovery plan and additional discovery.” However, on appeal, Zepeda
contends that additional time for discovery would allow him to “learn how information
regarding the felony conviction was obtained by Contractors Safety Council and/or Flint
Hills and who else may have received information about the defamatory information that
was ‘solely’ in Gingrich’s control and which he claimed he shared with no one.” This
information has been at the heart of Zepeda’s defamation claims since the lawsuit was
originally filed; Zepeda should have foreseen that it was necessary for him to conduct
discovery on this element. See Tenneco Inc., 925 S.W.2d at 647; CBI Indus., Inc., 907
S.W.2d at 521-22. Moreover, the record does not reflect that Zepeda filed any written
discovery requests on appellees, and Zepeda did not aver that he exercised due diligence
in attempting to obtain the information needed. See BMC Software, 83 S.W.3d at 800;
Wood Oil Distrib., Inc., 751 S.W.2d at 865.
15
Because an adequate time for discovery had passed, and because Zepeda did not
specifically describe the additional discovery sought and the record does not demonstrate
that Zepeda filed any written discovery requests on appellees, we cannot conclude that the
trial court abused its discretion in denying Zepeda’s verified motion for continuance to
conduct further discovery. See Perrotta, 47 S.W.3d at 577 (noting that a denial of a motion
for continuance based on lack of time to prepare due to personal matters and other
lawsuits pending is not an abuse of discretion). We overrule Zepeda’s second issue.
IV. CONCLUSION
Having overruled both of Zepeda’s issues on appeal, we affirm the judgment of the
trial court.
DORI CONTRERAS GARZA,
Justice
Memorandum Opinion delivered and
filed this the 6th day of November, 2008.
16