law-motion for continuance | MFC | M4C |


Motion for Continuance responsive to motion for summary judgment

A trial court may order a continuance of a summary judgment hearing if it appears “from the affidavits
of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to
justify his opposition.” Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex.  2004)
(quoting Tex. R . Civ. P. 166a(g)).

Motion for Continuance to conduct additional discovery    

When deciding whether a trial court abused its discretion in denying a motion for continuance
requesting additional time to conduct discovery, we consider the following non-exclusive factors: the
length of time the case has been on file, whether the party seeking the continuance has exercised
due diligence to obtain the discovery sought, and the materiality and the purposes of the discovery
sought. Id.
SOURCE: Draker v. Schreiber, a minor, No. 04-07-00692-CV (Tex.App.- San Antonio, Aug. 13, 2008)
(Opinion by Justice Angelini, Concurrence by Justice Stone) (Internet IIED claim was defamation claim
and was properly dismissed because IIED is a gap-filler tort) (summary judgment for defendant
students affirmed)

Here, Draker failed to show materiality of the discovery sought. Draker filed a pleading entitled
“Motion for Continuance and Response to Defendants’ Second Motion for Summary Judgment.” In the
portion of the pleading relating to a continuance, Draker stated she was seeking a continuance “until
she has had an opportunity to depose the defendants in this matter.” Specifically, Draker complained
that the defendants had refused to allow her to take depositions. Then, in the portion of the pleading
in which she responded to defendants’ second motion for summary judgment, Draker more
specifically articulated her reasons for the need to conduct further discovery. According to Draker,
she needed to take the minor plaintiffs’ depositions so that she could determine the intent of the
authors who created the web page. Then, she referenced a specific need to take the depositions of
the defendant parents, arguing that her negligence allegations against them required a factual
However, because we have held that the tort of intentional infliction of emotional distress is
unavailable to Draker as a “gap-filler” cause of action, the intent of the minor plaintiffs is not material.
Further, because the negligence claims against the defendant parents are dependent upon liability
findings against the minors, any facts pertaining to negligence obtained from the defendant parents in
a deposition are likewise immaterial.

Beyond the statements set forth above as contained in Draker’s pleadings, Draker did not articulate
any further reasons why the discovery sought was material to her cause of action or for what purpose
she sought the discovery. Under these circumstances, we cannot say the trial court abused its
discretion in refusing to grant Draker’s motion for continuance. See Joe, 145 S.W.3d at 161. Draker’s
second issue is denied.