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Clemons v. Citizens Medical Center8/9/2001
than an appellate judge in similar circumstances, the test is whether the trial judge's action was arbitrary and unreasonable. Id.
In the summary judgment context, it is generally not an abuse of discretion to deny a motion for continuance if the party moving for continuance has received the twenty-one days' notice required by rule 166a(c) of the Texas Rules of Civil Procedure. Dallas Indep. Sch. Dist. v. Finlan, 27 S.W.3d 220, 234-35 (Tex. App.-Dallas 2000 pet. denied); White v. Mellon Mortgage Co., 995 S.W.2d 795, 803 (Tex. App.-Tyler 1999 no pet.); McAllister v. Samuels, 857 S.W.2d 768, 773 (Tex. App.-Houston [14th Dist.] 1993, no writ). Factors considered when determining whether a trial court has abused its discretion by denying a motion for continuance of a summary judgment hearing include 1) the length of time the case was on file; 2) the materiality of the discovery sought; and 3) whether due diligence was used in obtaining discovery. Holguin v. Ysleta Del Sur Pueblo, 954 S.W.2d 843, 854 (Tex. App.-El Paso 1997, writ denied); Levinthan v. Kelsey-Seybold Clinic, 902 S.W.2d 508, 510 (Tex. App.-Houston [1st Dist.] 1994, writ denied). When considering a continuance request, a trial court can presume that a plaintiff has investigated its case prior to filing the petition. Finlan, 27 S.W.3d at 235; White, 995 S.W.2d at 804; McAllister, 857 S.W.2d at 773.
In Holguin, the El Paso Court of Appeals found the second factor to be dispositive. Holguin, 954 S.W.2d at 854. InHolguin, the plaintiff brought suit against a federally recognized Indian tribe. Id. at 845. The tribe argued that it was protected by tribal sovereign immunity. Id. The El Paso court held that " urther discovery would not have been material to the legal issue on which the trial court granted summary judgment; the inability of a private plaintiff under the Texas Dram Shop Act to bring suit for money damages against a federally recognized Indian tribe." Id. at 854. Similarly, we find this factor dispositive in the case now before us. Further discovery would not have been material to the legal issue of CMC's entitlement to sovereign immunity. Issue number one is overruled.
The judgment of the trial court is AFFIRMED.
Publish. Tex. R. App. P. 47.3.
Opinion delivered and filed this the 9th day of August, 2001.
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