Appellate courts review a trial court's determination of whether there was an adequate time for discovery on a
case-by-case basis 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). To preserve a complaint that the trial court's decision
on a summary judgment motion was premature, the party claiming it did not have adequate time for discovery
must file either an affidavit explaining the need for further discovery or a verified motion for continuance.
Tenneco, Inc. v. Enterprise Prods. Co., 925 S.W.2d 640, 647 (Tex. 1996). Ratcliff
did not file a motion for
continuance. He did, however, file an affidavit in support of his objections to LHR's combined motions for
summary judgment. Nevertheless, in this level-one discovery case, Ratcliff's affidavit fails to sufficiently explain
the necessity for further discovery on the issues raised by LHR's motions or to sufficiently explain the necessity
for further discovery on his counterclaims.
ELIJAH W. RATCLIFF v. LHR, INC.; from Polk County;
9th district (
09‑07‑00566‑CV, ___ SW3d ___, 05‑28‑09, pet. denied Oct 2009)
debt suit, breach of retail installment contract, summary judgment for plaintiff suing as assignee affirmed,
no-evidence motion for summary judgment on counterclaim granted and affirmed, adequacy of time prior to no-
evidence summary judgment)
For instance, Ratcliff's affidavit does not specify the additional necessary discovery he believed to be required
to adequately respond to LHR's motions for summary judgment. Rather, Ratcliff generally asserts that LHR had
not answered the interrogatories by fully disclosing related parties or other parties with knowledge concerning
the transaction. Further, while Ratcliff filed a motion to compel after LHR filed its motions for summary judgment,
the record does not show that he ever obtained a hearing on his motion. Moreover, Ratcliff propounded ten
interrogatories and LHR responded to them all, including supplementing its responses more than three months
before the summary judgment hearing. Even if the trial court had considered Ratcliff's objections, our review of
LHR's responses leads us to conclude that LHR's answers adequately responded to Ratcliff's interrogatories.
On appeal, because the record does not contain LHR's responses to the requests for disclosure, Ratcliff has
failed to produce a record to carry his burden of persuasion that the response to the disclosure requests are
inadequate. See Tex. R. Civ. P. 194.1; Tex. R. App. P. 44.1(a). Finally, at the summary judgment hearing,
Ratcliff did not request a continuance for lack of adequate discovery or identify the additional discovery, if any,
that he needed to adequately respond to LHR's motions. Under these circumstances, considering (1) the
amount of time that passed between Ratcliff filing his counterclaims against LHR and the date of the summary
judgment hearing, (2) Ratcliff's
lack of diligence in securing a hearing on his complaints about the
adequacy of LHR's discovery responses, (3) Ratcliff's failure to bring his complaints concerning the adequacy
of LHR's discovery responses to the trial court's attention during the summary judgment hearing, and (4)
failure to identify the additional discovery he believed necessary to respond at the hearing, we
cannot conclude that the trial court abused its discretion in proceeding to judgment. See Specialty Retailers, 29
S.W.3d at 145. To the extent that Ratcliff's issues complain that the court should have delayed proceeding to
judgment, they are overruled.