Court of Appeals of Texas, Twelfth District, Tyler
RONDAL L. HITE D/B/A METRON CONSTRUCTION, APPELLANT
ARK-LA-TEX ELECTRIC, INC., APPELLEE
FROM THE 188TH JUDICIAL DISTRICT COURT GREGG COUNTY, TEXAS
consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
T. Worthen Chief Justice
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.
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.
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.
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.
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.
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.
of Review and Applicable Law
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.)).
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 ...