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Risner v. McDonald's Corporation6/8/2000
by Danrose Corporation to interrogatories, as to what the employees of the restaurant did after the substance was sprayed. Considering Danrose Corporation's answers to the interrogatories, we do not find that there is a fact issue concerning what the employees did after the accident. We believe that the only reasonable construction of Danrose Corporation's answers is that the employees opened up all the doors, attempted to air out the restaurant, and advised the customers. We see no evidence that they failed to warn the customers that the substance had been sprayed.
Risner states in her brief that there are several eye witnesses who would testify that the employees did not warn customers or air out the restaurant. An examination of Risner's response to Danrose Corporation and Tina Dunham's motion for summary judgment indicates no reference to such evidence before the trial court at the time of the summary judgment hearing. The fact that Risner attached such affidavits to her motion for new trial, filed after the trial court's ruling on the motions for summary judgment, is of no consequence. We overrule points of error two and three.
After submission, this Court granted Risner leave to file a post-submission brief in which she presents two additional points of error. In point of error four she urges that the trial court abused its discretion in denying her motion for continuance, and in point of error five she asserts that the trial court abused its discretion in denying her motion for new trial.
We first consider Risner's claim that the trial court abused its discretion in denying her motion for continuance. Risner has not referred us to any portion of the record indicating that she presented her motion for continuance to the trial court and obtained a ruling denying her motion. A court is not required to consider a motion that is not called to its attention. See Greenstein, Logan & Co. v. Burgess Marketing, 744 S.W.2d 170, 179 (Tex. App.--Waco 1987, writ denied). If her motion was presented to the trial court, our record does not contain a statement of facts of any hearing on the motion. There is no indication that Risner requested but was denied a hearing on her motion for continuance. Risner's request for continuance was included in her response to the motion for summary judgment. Neither the request for continuance nor the attached affidavit contains an assertion that she has exercised due diligence in obtaining any needed discovery nor any assertion indicating the reason for her failure to obtain such discovery in a timely fashion. Such an assertion is required by Rule 252, Texas Rules of Civil Procedure.
This case was initially filed on December 26, 1996. Both motions for summary judgment were filed on March 13, 1998. The court heard the motions and granted them on May 6, 1998, nearly eighteen months after suit was filed. The record reflects that during that eighteen months, plaintiff had propounded interrogatories, requests for admissions, and request for production to one or more of the appellees. Risner attached affidavits to her motion for new trial that arguably would have been sufficient at least to defeat the no-evidence motion for summary judgment. She does not refer us to any portion of the record in which any evidence was presented to the trial court as to why such affidavits could not have been obtained earlier and timely presented. We hold that the trial court did not abuse its discretion in failing to grant Risner's motion for continuance. We overrule point of error four.
Risner contends in point of error five that the trial court abused its discretion in denying her motion for new trial. Her contention is based in part on the discov
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