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Reed v. Star Chevrolet-Buick3/7/2000
alcohol served to Jackson and (ii) take necessary steps to prevent her from driving when intoxicated. We disagree.
Rule 166a(c) provides that the non-movant may file affidavits no later than seven days prior to the summary judgment hearing. Tex. R. Civ. P. 166a(c); Sullivan v. Bickel & Brewer, 943 S.W.2d 477, 486 (Tex. App._Dallas 1995, writ denied). To file within seven days, the adverse party must obtain leave of court. Tex. R. Civ. P. 166a(c); Sullivan, 943 S.W.2d at 486. It is entirely within the trial judge's discretion to allow the late filing of opposing proof. Sullivan, 943 S.W.2d at 486 (citing Bell v. Moores, 832 S.W.2d 749, 755 (Tex. App._Houston [14th Dist.] 1992, writ denied). Nevertheless, a trial judge does not abuse his discretion by refusing to consider untimely filed evidence opposing a motion for summary judgment. See Sullivan, 943 S.W.2d at 486 (citing Bell, 832 S.W.2d at 755).
If nothing in the record shows the trial judge granted leave to file otherwise untimely summary judgment evidence, we presume the trial judge did not consider the evidence or response. Benchmark Bank v. Crowder, 919 S.W.2d 657, 663 (Tex. 1996) (citing INA of Texas v. Bryant, 686 S.W.2d 614, 615 (Tex. 1985)). This presumption applies to documents filed within seven days of a summary judgment hearing and documents filed after the hearing. Dominguez v. Kelly, 786 S.W.2d 749, 753 (Tex. App._El Paso 1990, writ denied).
Although Reed argues Tallant's deposition testimony raised fact issues, we cannot agree. The record shows Star filed its motion for summary judgment on August 26, 1997. Reed filed a response to the motion on November 25, 1997. On December 8, 1997, the trial judge granted Star summary judgment. On December 15, 1997, Reed filed a motion for leave to file summary judgment evidence with Tallant's deposition testimony attached as an exhibit. Although the motion requested leave to file Tallant's deposition testimony in support of Reed's response, it clearly stated that the deposition testimony was "not received until after the Court's hearing on Defendant's motion." (Emphasis added.) Reed did not secure a ruling on the motion. Because Tallant's deposition testimony was untimely and Reed did not obtain leave of court to file it, we presume the trial judge did not consider the evidence. See Benchmark Bank, 919 S.W.2d at 663; Dominguez, 786 S.W.2d at 753. Therefore, Reed's argument on appeal that the trial judge erred in granting summary judgment because Tallant's deposition testimony created fact issues lacks merit. Reed does not challenge Star's summary judgment evidence or otherwise contend the summary judgment was improper. Accordingly, we overrule Reed's sole point of error.
We affirm the trial court's judgment.
MARK WHITTINGTON JUSTICE
Do Not Publish
Tex. R. App. P. 47 980011F.U05
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