Mehanna Mehanna v. International Gourmet Foods, Inc ( 2013 )

AFFIRM; Opinion Filed March 26, 2013.
In The
Qtiurt nf Apjiiahi
Fiftt! 1istrict rif cxa it 1a1hu5
No. 05-1 1-01548-CV
MEHANNA MEI-IANNA, Appellant
V.
INTERNATIONAL GOURMET FOODS, INC., Appdllee
On Appeal from the 14th Judicial District Court
Dallas County, Fexas
Trial Court Cause No. DC-10-08946
MEMORANDUM OPINION
Before Justices Moseley. Fillmore. and Myers
Opinion by Justice Moseley
Mehanna Mehanna sued International Gourmet Foods, Inc. d/b/a Zituna World lood
Market a/k/a Zituna International Gourmet Foods (“Zituna”) in connection with a slip-and-fall
accident, At the trial, the trial court denied several motions for continuance. The case was tried
to a jury, which returned a verdict against Mehanna, and the trial court entered a take-nothing
judgment. Mehanna filed a motion for new trial, which was overruled by operation of law.
Mehanna asserts three issues on appeal, all related to the trial court’s denial of’ the
motions for continuance. Specifically, Mehanna argues the trial court abused its discretion by:
(1) denying a joint—but unveritied—motion for continuance; (2) denying Mehanna’s verified—
and-unopposed motion for continuance; and (3) violating Texas Rule of Civil Procedure 330(d)
by failing to address how a continuance would “unreasonably delay or interfere with other
business of the court.” The background and fticts of the case are well known to the parties; thus,
v e (.10 not recite them here. Because a! dispositi e issues are settled n law, n e issue this
memorandum opinlon liX, R .Ae. P. 4/2(a), 47.4. \‘ve ahirm the trial courts judgment,
We review the denial of a motion fir continumce for an abuse of discretion. 14’7i1—Mai’t
.Stoi’’c lcx.. LP r (‘i’osbv. 295 S.\V .3(1 34(. 35( (Tex. App.—- Dallas 21)09. pet. denied). A trial
court abuses its discretion by makin a decision that is arbitrary or unreasonable. Downer i’.
Aquamarine Operators, Inc., 701 S.W.2d 23, 242 (Tex 1985). In determining whether the trial
court abused its discretion, the reviewing court considers three nonexelusive factors: (1) the
length of time the case been on tile, (2) the materiality and purpose of the discovery sought: and
(3) v1iether the party seeking the continuance has exercised due diligence to obtain the discovery
sought. Strong r, Strong. 350 S.W.3d 759, 763 (Tex. App.—-Dallas 201!, pet. denied).
Mehanna argues the trial court abused its discretion by denying the joint motion for
continuance on grounds the motion WiS not verified. Mehanna and Zituna tiled their joint
motion for continuance on July 15, 2011, before the July 26th trial setting. The motion stated,
“Prior to trial, both parties require additional time to complete discovery and conduct mediation.
To date, this case is No.4 on the Court’s docket.” On July 22. 2011, the trial court held a hearing
on the joint motion for continuance. At the hearing, the trial court stated the joint motion for
continuance violated the court’s scheduling order and the rules of civil procedure because it was
not verified. After hearing argument on the motion from both parties, the trial court denied the
joint motion for continuance.
We agree a motion for continuance “made by consent of the parties” does not need to be
verified. TEx. R. Ctv. P. 251 (stating that no continuance shall be granted “except for sufficient
cause supported by affidavit, or by consent of the parties, or by operation of law”). However, if a
movant seeks a continuance to conduct further discovery, “the motion must describe the evidence
sought, explain its materiality, and show the party requesting the continuance has used due
diligence to obtain the evidence.” Crosby, 295 S.W.3d at 356 (citing Pape i: Guadalupe-Blanco
.3
River. lath., 4 SW.3d 90X, 914 ([cx. App. Austin 2001, pet. denied)); See lEx. R. (iv, R 252.
Because Mehanna’s motion failed to comply with Rule 252. the trial court did not abuse its
(1 iscretion in denying the joint motion fir continuance. See TEX. R. ( iv. P. 252. We overrule
Mehanna’s lirst issue.
In his second issue, Mehanna argues the trial court abused its discretion by denying his
verified-and-unopposed motion for continuance, which was filed one day before trial. Like the
joint motion for continuance, however, Mehanna’s verified—and—unopposed motion for
continuance does not explain the materiality of the evidence sought or show Mehanna used due
diligence to obtain such evidence. See Tex. R. Civ. P. 252; Crosby, 295 S.W.3d at 356. As a
result. the trial court did not abuse its discretion in denying Mehanna’s verified—and—unopposed
motion for continuance. We overrule Mehanna’s second issue.
Lastly. Mehanna argues that under rule 330(d), the trial court is required to grant a motion
for continuance if it is done by agreement of the parties, unless the continuance will
“unreasonably delay or interfere with other business of the court.” TEx. R. Civ. P. 330(d). This
part of rule 330(d), however, applies to cases that are not tried despite being “set and reached in
its due order and called for trial two (2) or more times.” Id. Because this case does not fit within
that category, rule 330(d) did not limit the trial court’s discretion to rule on the motions for
continuance. We overrule Mehanna’s third issue.
We affirm the trial court’s judgment.
Th
.JIMMOSFLEY
JUSTICE
11 1548F.P05
Qtnirt ot ApicaI
Dhtrirt uf Jixa at Ja1Iaa
JUDGMENT
MEI-IANNA MEIIANNA, Appellant Vu Appeal t’rom the 14th Judicial District
Court.Dallas County. Texas
No. 05-li -() I 548-CV V Trial Court Cause No. DC- 10-08946.
Opinion delivered by Justice Moseley.
INTERNATIONAL GOURMET FOODS, Justices Fillmore and Myers participating.
INC.. Appellee
In accordance with this Court’s opinion of this date the judgment oF the trial court is
AFFIRMEI).
It is ORDEREI) that appellee INTERNATIONAL GOURMET FOODS, INC. recover
its costs of this appeal from appellant MEI-IANNA MFHANNA.
Judgment entered this 26th day of March, 2013.
I.. I /LJ
/ ‘Ii
OLEY
JUSTICE