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Coleman v. Conway7/21/2005
Before Justices Rodriguez, Castillo and Garza
This is a personal injury suit in which Robert C. Coleman filed suit against Danny Allen Conway and the City of Kingsville Police Department. Conway, an officer with the City of Kingsville ("the City"), collided with Coleman's vehicle while operating a police vehicle. In his petition, Coleman alleged negligence, negligence per se, and negligence under the Texas Tort Claims Act. Conway and the City responded with various immunity claims. The trial court granted summary judgment in favor of Conway and the City, and it is from that judgment that Coleman appeals. We affirm.
I. Proceedings Below
In this case, Coleman filed his original petition on August 27, 2003, alleging negligence, negligence per se, and negligence under the Texas Tort Claims Act. Conway filed his original answer on September 15, 2003, denying the allegations against him. Conway alleged that Coleman was guilty of negligence, pleaded immunity from Coleman's claims, and invoked the protections of the Texas Tort Claims Act.
On February 11, 2004, Conway and the City filed a motion for summary judgment based on official and sovereign immunity. The City filed its answer on February 12, 2004, which (1) denied Coleman's allegations, (2) alleged that Coleman was himself guilty of negligence, and (3) asserted the affirmative defense of sovereign immunity and/or the protections of the Texas Tort Claims Act. Coleman filed a motion for continuance on April 15, 2004, along with a motion to strike the evidence attached to Conway and the City's motion for summary judgment. That same day, Coleman filed his response to Conway and the City's motion for summary judgment subject to his motion for continuance. On April 22, 2004, Conway and the City filed a response to Coleman's motion for continuance, a motion to strike evidence, and their objections and reply to Coleman's response to their motion for summary judgment.
The trial court, by an order dated April 22, 2004, (1) denied Coleman's motion for continuance, (2) denied Coleman's motion to strike Conway and the City's evidence, and (3) granted Conway and the City's motion for summary judgment.
II. Issues on Appeal
By three issues on appeal Coleman contends the trial court abused its discretion by (1) failing to grant his motion for continuance, (2) sustaining Conway and the City's objections to his summary judgment proof, and (3) granting summary judgment against him.
III. Coleman's Motion for Continuance
Coleman filed a motion for continuance contemporaneously with his motion to strike the evidence and his response to the motion for summary judgment. In his motion for continuance, Coleman moved that the hearing on Conway and the City's motion for summary judgment be continued until Coleman had the opportunity to (1) take the deposition of Conway, (2) receive the deposition transcript, and (3) incorporate it into Coleman's response to the motion for summary judgment. Coleman also asked for "costs of court, attorney's fees, and for any other such further relief to which [Coleman] show himself justly entitled to receive." Coleman attached the following to his verified motion for continuance: (1) a letter dated April 2, 2004, addressed to Thomas A. Silver, attorney for Conway; (2) a fax transmission print out; (3) a letter, also dated April 2, 2004, addressed to the City of Kingsville, specifically to the records department; (4) a copy of a check written in the amount of six dollars, payable to the City of Kingsville and drawn on the account of Cassidy and Raub PLLC; (5) a letter dated April 8, 2004, addressed to the City of Kingsville, specifica
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