COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-09-241-CV
MATT MANCUSO APPELLANT
V.
CHEAHA LAND SERVICES, LLC APPELLEE
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FROM THE 141ST DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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I. Introduction
Appellant Matt Mancuso appeals a no-evidence summary judgment granted
against him and in favor of Appellant Cheaha Land Services, LLC. Mancuso
contends in three issues that the trial court erred by granting the no-evidence
summary judgment, by not permitting him to file his summary judgment response on
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See Tex. R. App. P. 47.4.
the day of the summary judgment hearing, and by denying his motion to continue the
hearing on the motion for summary judgment. W e affirm.
II. Factual and Procedural Background
On July 21, 2008, Mancuso filed a lawsuit against Cheaha for breach of
contract relating to the alleged nonpayment of commissions. On January 6, 2009,
Mancuso filed a letter with the trial court requesting that the case be set for trial the
week of April 27, 2009. The trial court, as requested, set the case for trial on April
27, 2009. On January 12, 2009, Cheaha served a request for disclosure on
Mancuso. Mancuso’s counsel did not calendar the deadline for responding to the
request for disclosure, and Mancuso did not serve any response to the request for
disclosure on Cheaha. Thereafter, Cheaha filed a no-evidence motion for summary
judgment on March 31, 2009, and the trial court set a hearing on the motion for April
24, 2009, three days before the requested trial date.
On April 17, 2009, Mancuso’s attorney drafted a motion to continue the
summary judgment hearing and a motion to continue the trial so that Mancuso could
conduct more discovery. Mancuso requested a seventy-five day continuance of the
trial to supplement and complete discovery related to the compensation due him and
to obtain witnesses who could provide testimony about the services that Cheaha and
its affiliated companies provided to Cheasapeake Energy Corporation. Mancuso’s
attorney also drafted a response to Cheaha’s motion for summary judgment and a
response to Cheaha’s previously served request for disclosure. The attorney’s legal
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assistant, however, failed to mail the packages containing the motions for
continuance, the summary judgment response, and the discovery responses. Thus,
they were not timely filed with the trial court or served on opposing counsel.
Mancuso’s attorney discovered her assistant’s failure to mail the packages the
evening before the summary judgment hearing, and on April 24, 2009, the day of the
summary judgment hearing, Mancuso’s attorney filed the motions to continue the
summary judgment hearing and the trial; she also delivered the late discovery
responses to Cheaha and the trial court. Mancuso’s attorney stated at the hearing
that she did not timely respond to Cheaha’s request for disclosure due to a clerical
error. Unable to explain exactly what happened, Mancuso’s attorney stated that the
calendaring of the responses was not done properly and that she did not realize
there was a due date for discovery responses in February. She said that the
oversight was unintentional and entirely due to the error in calendaring the response
due date.
After hearing argument, the trial court denied both the motion to continue the
summary judgment hearing and the motion for leave to file the late summary
judgment response. W hile arguing its no-evidence motion for summary judgment,
Cheaha contended that because Mancuso did not timely respond to the request for
disclosure, he was barred from presenting evidence on any of the elements of his
breach of contract claim. The trial court granted Cheaha’s no-evidence summary
judgment motion, and Mancuso timely filed this appeal.
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III. Continuance of Summary Judgment Hearing
In his third issue, Mancuso argues that the trial court should have continued
the hearing on the motion for summary judgment so that he could obtain additional
discovery, specifically the deposition of a representative from Cheasapeake Energy
Company. Mancuso contends that the failure to grant his motion to continue the
summary judgment hearing was an abuse of discretion because the motion identified
the specific need for discovery and there had not been adequate time for that
discovery. In response, Cheaha argues that the trial court did not abuse its
discretion by denying Mancuso’s motion for continuance because Mancuso
specifically requested the April 27, 2009 trial setting but did not exercise due
diligence in obtaining the discovery he claims to need before proceeding to trial.
A. Applicable Law
A litigant who fails to diligently use the rules of civil procedure for discovery
purposes is not entitled to a continuance. State v. Wood Oil Distrib., Inc., 751
S.W .2d 863, 865 (Tex. 1988). In deciding whether a trial court abused its discretion
by denying a motion for continuance seeking additional time to conduct discovery,
we consider factors such as the length of time the case has 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. Joe v. Two
Thirty Nine Joint Venture, 145 S.W .3d 150, 161 (Tex. 2004) (citing BMC Software
Belgium, N.V. v. Marchand, 83 S.W .3d 789, 800 (Tex. 2002)) (diligence and length
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of time on file); Tenneco Inc. v. Enter. Prods. Co., 925 S.W .2d 640, 647 (Tex. 1996)
(materiality and purpose); Wood Oil Distrib., Inc., 751 S.W .2d at 865 (diligence);
Green v. Cook, No. 2-08-00087-CV, 2009 W L 279384, at *7 (Tex. App.—Fort W orth
Feb. 5, 2009, no pet.) (mem. op.) (nature and complexity of the case); see also
Perrotta v. Farmers Ins. Exch., 47 S.W .3d 569, 576 (Tex. App.—Houston [1st Dist.]
2001, no pet.) (using these factors to decide whether a trial court abused its
discretion by denying a motion for continuance).
B. Analysis
Mancuso argues that the trial court erred by not continuing the hearing on the
motion for summary judgment so that discovery could be completed. However,
Mancuso has not shown that the trial court’s denial of the continuance motion was
so arbitrary and unreasonable as to amount to a clear and prejudicial error of law.
See Marchand, 83 S.W .3d at 800–01.
The discovery Mancuso identifies as necessary is clearly material to the case;
Mancuso argues that the deposition of a Cheasapeake Energy Company
representative is necessary to identify damages resulting from Cheaha’s alleged
breach of contract. Although the discovery sought is material to the case, Mancuso
never offered the trial court any reason or explanation for not seeking the discovery
during the more than eight months that the case had been on file.
As to the length of time on file, Mancuso cannot complain that this case was
only on file for eight months because Mancuso himself requested the April 27, 2009
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trial setting. See Perrotta, 47 S.W .3d at 576; see also Karen Corp. v. Burlington N.
& Santa Fe Ry. Co., 107 S.W .3d 118, 124 (Tex. App.—Fort W orth 2003, pet.
denied) (holding that the trial court’s refusal to grant a continuance of a summary
judgment hearing was not an abuse of discretion since the appellant had “well over
eight months of discovery” and did not challenge the lack of notice of the hearing).
The summary judgment hearing was set three days before trial. Because Mancuso
requested the trial date, he knew the exact amount of time he had before trial and
presumably knew how much discovery he needed to prepare the case for trial by
that time. But he did nothing to conduct discovery in the three and one half months
between his request and the requested trial date. See Wood Oil Distrib., Inc., 751
S.W .2d at 865. The trial court did not abuse its discretion by denying Mancuso’s
motion for continuance. W e therefore overrule Mancuso’s third issue.
IV. No-Evidence Summary Judgment
In his second issue, Mancuso contends that the trial court erred by granting
a no-evidence summary judgment for Cheaha.
A. Standard of Review
A no-evidence summary judgment is essentially a pretrial directed verdict
because it requires the nonmovant to present evidence sufficient to raise a genuine
issue of material fact on each challenged element. Timpte Indus., Inc. v. Gish, 286
S.W .3d 306, 310 (Tex. 2009). W e apply the same legal sufficiency standard in
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reviewing a no-evidence summary judgment as we apply in reviewing a directed
verdict. King Ranch, Inc. v. Chapman, 118 S.W .3d 742, 750–51 (Tex. 2003).
B. Applicable Law
To defeat the no-evidence motion for summary judgment, Mancuso, as the
nonmovant, must prove there is a genuine issue of material fact on the elements of
breach of contract. See Tex. R. Civ. P. 166a(i).
Rule 193.6 governs untimely discovery responses and provides the following:
193.6 Failing to Timely Respond – Effect on Trial
(a) Exclusion of Evidence and Exceptions. A party who fails to make,
amend, or supplement a discovery response in a timely manner may
not introduce in evidence the material or information that was not timely
disclosed, or offer the testimony of a witness (other than a named
party) who was not timely identified, unless the court finds that:
(1) there was good cause for the failure to timely make, amend,
or supplement the discovery response; or
(2) the failure to timely make, amend, or supplement the
discovery response will not unfairly surprise or unfairly prejudice
the other parties.
(b) Burden of Establishing Exception. The burden of establishing good
cause or the lack of unfair surprise or unfair prejudice is on the party
seeking to introduce the evidence or call the witness. A finding of good
cause or of the lack of unfair surprise or unfair prejudice must be
supported by the record.
Tex. R. Civ. P. 193.6(a), (b).
The penalty under rule 193.6 for a party’s failure to respond to a discovery
request is the mandatory exclusion of the evidence requested. See Alvarado v.
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Farah Mfg. Co., 830 S.W .2d 911, 914 (Tex. 1992); F & H Invs., Inc. v. State, 55
S.W .3d 663, 669 (Tex. App.—W aco 2001, no pet.). A party who fails to make,
amend, or supplement a discovery response in a timely manner may not introduce
in evidence the material or information that was not timely disclosed unless the court
finds that (1) there was good cause for the failure to timely disclose or (2) the failure
will not unfairly surprise or prejudice the other parties. Tex. Mun. League
Intergovernmental Risk Pool v. Burns, 209 S.W .3d 806, 817 (Tex. App.—Fort W orth
2006, no pet.) (citing Tex. R. Civ. P. 193.6(a)). The trial court has discretion to
determine whether the offering party has met its burden. Id. (citing Alvarado, 830
S.W .2d at 914).
C. Analysis
On appeal, Mancuso does not request the relief he needs to defeat a no-
evidence motion for summary judgment. W hile he sought a continuance of the
summary judgment hearing and leave to file the late summary judgment response,
he did not seek relief in the trial court relating to his untimely response to Cheaha’s
request for disclosure. In other words, Mancuso never asked the trial court for leave
to serve late responses to Cheaha’s request for disclosure, nor does he contend on
appeal that he should have been permitted to serve the late discovery responses.
Therefore, Mancuso was barred from presenting evidence in response to Cheaha’s
no-evidence motion for summary judgment. See Tex. R. Civ. P. 193.6.
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Because Mancuso is barred from presenting evidence in response to the no-
evidence motion for summary judgment, the trial court appropriately granted
Cheaha’s motion for no-evidence summary judgment. Supposing that Mancuso had
timely responded to the no-evidence motion for summary judgment, he was still
barred by rule 193.6 from introducing any evidence on damages or any argument
relating to his legal theories since he failed to timely respond to Cheaha’s request
for disclosure.2 See Tex. R. Civ. P. 193.6. Thus, even if Mancuso’s attorney’s legal
assistant had correctly delivered the package containing Mancuso’s responses on
April 17, 2009, Mancuso would still have been barred from presenting evidence in
response to the no-evidence motion for summary judgment. Id.
Because Mancuso is barred by the rules of civil procedure from offering any
evidence, he cannot meet his burden in responding to Cheaha’s no-evidence motion
for summary judgment. See Tex. R. Civ. P. 166a(i). Therefore, the trial court did not
err by granting Cheaha’s no-evidence motion for summary judgment. 3 W e overrule
Mancuso’s second issue.
V. Conclusion
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As recently reaffirmed by the Texas Supreme Court, rule 193.6 of the
Texas Rules of Civil Procedure applies to summary judgment proceedings. Fort
Brown Villas III Condo. Ass'n, Inc. v. Gillenwater, 285 S.W .3d 879, 882 (Tex. 2009)
(holding trial court properly struck expert’s affidavit when nonmovant did not timely
disclose the expert pursuant to scheduling order deadlines).
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In light of our disposition of Mancuso’s second issue, we need not address
his first issue. See Tex. R. App. P. 47.1.
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Having overruled Mancuso’s second and third issues, which are dispositive,
we affirm the trial court’s judgment.
ANNE GARDNER
JUSTICE
PANEL: GARDNER and MEIER, JJ.; and W ILLIAM BRIGHAM (Senior Justice,
Retired, Sitting by Assignment).
DELIVERED: August 12, 2010
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