Be careful with motions for continuance of traditional and no-evidence summary judgment motions

When reviewing motions for continuance of summary judgment motions, some litigants forget that traditional and no-evidence motions for summary judgment are different. But you shouldn’t.

Any litigator knows that a motion for summary judgment (MSJ) filed under Texas Rule of Civil Procedure 166a(c) – a so-called “traditional” or “conclusive” motion – and one filed under Rule 166a(i) – a “no-evidence” motion – are very different creatures. It should come as no surprise, then, that the standard for review when determining whether a trial court abused its discretion in ruling on motions to continue hearings on them also differ.

Beware of MSJ motions that contain both a traditional and no-evidence MSJ. Some litigants seeking motions for continuance may use the standard of review for the “traditional” motion but fail to use the standard of review for the “no-evidence” MSJ.

Traditional MSJ. In Joe v. Two Thirty Nine Joint Venture 145 S.W.3d 150 (Tex. 2004), the Texas Supreme Court set out a three-part test to evaluate the trial court’s denial of a request (based on the need for additional discovery) for continuance of a hearing on a traditional MSJ. The test in a continuance of a traditional MSJ requires a showing of: (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.

No Evidence MSJ. The test for abuse of discretion in the denial of a no-evidence MSJ comes from McClure v. Attebury, 20 S.W.3d 722 (Tex.App. – Amarillo 1999, no pet.) that set out a seven-factor, case-specific test, that requires a showing of: (1) the nature of the case, (2) the nature of evidence necessary to controvert the no-evidence motion, (3) the length of time the case was active, (4) the amount of time the no-evidence motion was on file, (5) whether the movant had requested stricter deadlines for discovery, (6) the amount of discovery already taken place, and (7) whether the discovery deadlines in place were specific or vague. This test has been cited or adopted by eight courts of appeals – the First, Second, Third, Fourth, Fifth, Ninth, Tenth, Thirteenth, and Fourteenth. The Texas Supreme Court has never addressed this test. (Shoot me an email, and I’ll give you the cites.)

So, the next time you’re scrambling, trying to continue a hearing on an MSJ (or trying to hold your opponent’s feet to the fire), remember the distinction between traditional and no-evidence MSJs. It can make a world of difference on appeal.

Categories: Civil Litigation

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Perry has helped thousands of clients solve difficult problems for over thirty-eight years through his trial and appellate litigation experience. Clients trust him with their problems because of his expertise and his care about their best interests.

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