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Hite v. Ark-La-Tex Electric, Inc.

Court of Appeals of Texas, Twelfth District, Tyler

November 22, 2017



          Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.


          James T. Worthen Chief Justice

         Rondal L. Hite d/b/a Metron Construction (Hite) appeals the trial court's order granting summary judgment in favor of Ark-La-Tex, Inc. (Ark-La-Tex). Hite raises two issues on appeal. We affirm.


         Hite served as the general contractor on a project for improvements made to Top Fun, an indoor entertainment center in Longview, Texas, owned by Southern Sports Entertainment, L.L.C. and Southern Sports Holdings, Inc. (Southern Sports). Hite subcontracted with Ark-LaTex, an electrical company, to provide materials and services on the project.

         Ark-La-Tex provided $86, 673.94 worth of goods and services to Hite for the project. Hite paid Ark-La-Tex $18, 750.40, but failed to pay $67, 823.54. Consequently, on August 8, 2016, Ark-La-Tex filed a lawsuit against Hite for payment of its sworn account and breach of contract. Ark-La-Tex attached an affidavit from Jerry Jay Nance, the president of Ark-La-Tex, itemizing $67, 823.54 in past due and presently payable charges including all lawful offsets, payments, and credits. On November 8, Hite filed an unverified general denial.

         On January 4, 2017, Ark-La-Tex filed a motion for summary judgment on grounds that Hite's failure to file a verified denial entitled Ark-La-Tex to judgment as a matter of law. The court set the motion for a hearing on February 10. On January 16, Hite sought leave from the court to join Southern Sports to the suit, alleging that Southern Sports failed to pay for Hite's work and is liable for any and all damages Hite owes to Ark-La-Tex. The court granted Hite permission to join Southern Sports, and Hite filed a third party petition joining Southern Sports on January 17. Hite did not file a response to Ark-La-Tex's summary judgment motion. On February 10, the day of the summary judgment hearing, Hite filed a motion for continuance on grounds that Southern Sports had not yet been served with the third party petition. Ark-La-Tex opposed the continuance. The trial court denied the continuance and granted Ark-La-Tex's motion for summary judgment.

         Thereafter, Ark-La-Tex moved to sever its claims against Hite from the suit. Hite opposed the severance. Contemporaneously, Ark-La-Tex filed a cross-claim against Southern Sports based upon the judgment rendered against Hite. The trial court granted the severance and entered an appealable final judgment in favor of Ark-La-Tex in the amount of $67, 823.54 for the sworn accounts and pre-judgment interest, and $2, 448.53 in attorney's fees. This appeal followed.

         Motion for Continuance

         In Hite's first issue, he argues that the trial court erred in denying his motion to continue the hearing on Ark-La-Tex's motion for summary judgment.

         Standard of Review and Applicable Law

         The rules of civil procedure state that a trial court may grant a continuance on sufficient cause supported by affidavit, by consent of the parties, or by operation of law. Tex.R.Civ.P. 251; see also White v. Mellon Mortg. Co., 995 S.W.2d 795, 803 (Tex. App.-Tyler 1999, no pet.). We review a trial court's ruling on a motion for continuance of a summary judgment hearing for an abuse of discretion. Chico Auto Parts & Serv. v. Crockett, 512 S.W.3d 560, 578 (Tex. App.-El Paso 2017, pet. denied); see also BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 800 (Tex. 2002). We will not disturb the trial court's ruling on appeal unless the trial court acted without reference to guiding rules or principles, or if its action "was so arbitrary and unreasonable as to amount to a clear and prejudicial error of law[.]" Crocket, 512 S.W.3d at 578 (quoting D.R. Horton-Texas, Ltd. v. Savannah Prop. Assoc., L.P., 416 S.W.3d 217, 222 (Tex. App.-Fort Worth 2013, no pet.)).

         In a summary judgment context, it is generally not an abuse of discretion to deny a motion for continuance if the party has received the twenty-one days notice required by Rule 166a(c) of the rules of civil procedure. MKC Energy Invs., Inc. v. Sheldon, 182 S.W.3d 372, 379 (Tex. App.-Beaumont 2005, no pet.); Mellon Mortg. Co., 995 S.W.2d at 804; Tex.R.Civ.P. 166a(c). Furthermore, allegations stated in general terms, without specifics, are insufficient to support a motion for continuance. See Blake v. Lewis, 886 S.W.2d 404, 409 (Tex. App.- Houston [1st Dist.] 1994, no writ). When the reason stated to support a motion for continuance is ...

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