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Cunningham v. Columbia/St. David's Healthcare System10/13/2005
been on file, the materiality and purpose of the discovery sought, and whether the party seeking the continuance has exercised due diligence to obtain the discovery sought." Id. (quoting Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004)).
By the time Columbia sought summary judgment, this case had been on file for over a year. Cunningham filed Marable's 4590i report in August 2003 and agreed in January 2004 that she would designate all testifying experts by June 2004. Thus, Cunningham had almost a year to consider whether she would call Marable as a testifying expert, and she was on notice for five months of the deadline by which she had to make this decision and properly designate him. Also, as is evidenced by Cunningham's initial response to Columbia's requests for disclosure, she was aware in December 2003 (eight months before Columbia sought summary judgment) that she needed to supplement her response to designate an expert. Nonetheless, Cunningham failed to follow through with the designation. Although Cunningham attempts to blame this failure on the mistake of a legal assistant, it is established that an attorney's misplaced reliance on an assistant does not constitute due diligence. See Agristor Credit Corp., 568 S.W.2d at 426; Williams v. Basham, No. 05-93-00471-CV, 1995 Tex. App. LEXIS 3855, at *6-7 (Tex. App.--Dallas, April 19, 1995, no writ) (not designated for publication).
Moreover, the trial court had discretion to deny Cunningham a continuance based on procedural deficiencies in her motion. Rule 251 requires that a motion for continuance state a sufficient cause that is supported by an affidavit. Tex. R. Civ. P. 251. When a movant fails to comply with the requirement that a supporting affidavit be attached, we generally presume that the trial court acted within its discretion to deny the continuance. Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986). Cunningham requested a continuance as an alternative argument in her response to Columbia's summary judgment motion. Cunningham attached only the affidavits of the legal assistant and Marable, both of which related to her claim that the expert's affidavit should be considered as evidence to preclude summary judgment. Cunningham did not attach an affidavit supporting her motion for continuance. Further, Cunningham did not offer any sufficient cause for the continuance; her motion merely recited the language of Rule 193.6(c) and "respectfully requested" that the court grant a continuance in the event that it determined Cunningham failed to show good cause or a lack of prejudice or surprise.
Given Cunningham's lack of diligence in designating an expert and her failure to provide an affidavit in support of her motion, we cannot say that the trial court abused its discretion by denying Cunningham a continuance.
CONCLUSION
The trial court committed no error in refusing to consider the affidavit of Cunningham's non-designated expert, in granting Columbia's no-evidence summary judgment motion, and in denying Cunningham's motion for continuance. We overrule each of Cunningham's issues and affirm the judgment of the trial court.
Before Chief Justice Law, Justices Patterson and Puryear
Affirmed
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