NO. 07-09-0243-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL C AUGUST 4, 2010

DARYL LONG and NICOLE LONG, Appellants v. CIBOLO LIVERY STABLES, INC. and TROY “TREY” S. MARTIN, III, Appellees

_____________________________ FROM THE 433RD DISTRICT COURT OF COMAL COUNTY; NO. 2008-280D; HONORABLE DIBRELL “DIB” WALDRIP, PRESIDING

Memorandum Opinion

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ. Daryl Long and his wife Nicole Long (the Lo ngs) sued Cibolo Livery Stables, Inc. (Cibolo) and Troy “Trey” S. Martin, III, (Marti n) for personal injuries received by Daryl when he attended a rodeo. The rodeo was held on property that Martin owned. Several summary judgments were granted in favor of Cibolo and Martin. The Longs complain about that on appeal. We will a ffirm the court’s decisions and its final judgment for the reasons discussed below.Background Martin owns fifty-three acres in Coma l County which he developed as a horse business. In 1998, he formed Cibolo as a corporation to conduct all horse-related business on the property. Eventually, he l eased the fifty-three acres to Cibolo, and the latter eventually leased them to Yancey James (James) to produce events on the property. One such event wa s a rodeo held on March 4, 2006, which Daryl attended. Seated on a four-bench bleacher without side railing and having drunk several beers, he allegedly leaned to the side to spit, lost his bal ance, and fell. This purportedly resulted in a leg injury. The trial court granted fi nal summary judgment against him, however, after he sued Cibolo and Martin. Standard of Review The standards by which we review both traditional and no-evidence motions for summary judgment are discussed in Western Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005)

. When the summary judgment does not specify the ground s upon which it was granted, it may be affirmed on any ground in the motion that is meritorious. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003). Premises and Products Liability Martin and Cibolo initially sought a tr aditional summary judgment on the basis that they owed no duty to the Longs. Thei r supplemental motion , however, interjected an allegation that there was no evidence supporting any elemen t of that claim or the one sounding in products liability. The Longs do not contest that allegation in their appellate brief by arguing that such evid ence does indeed exist. Rather, they seek reversal on the basis that the supplemental motion for summary j udgment was untimely

2and that granting it was pr emature. In particular, they av er that the trial court should not have heard it on August 28, 2008, because 1) the date fell within twenty-one days of the day the motion was filed and 2) it shoul d have granted a continuance enabling the Longs to conduct discovery. We overrule both contentions. Timeliness of Hearing According to the Texas Rules of Civil Procedure, a motion for summary judgment shall be “filed and served” at least twent y-one days before the hearing. T EX

. R. C IV

. P. 166a(c). Per this provision, the Texas Supr eme Court has held that the hearing may be set as early as the twenty-first day after the motion is served by hand or twenty-four days if served by mail. Lewis v. Blake, 876 S.W.2d 314, 316 (Tex . 1994). The Longs do not deny that a copy of the supplemental motion for summary judgment was hand delivered to them on August 7, 2008, as disclosed by the certificate of service. 1 Nor do they deny that the original wa s mailed to the district clerk on that same date. Rather, they contend that because it was filed mark ed on August 11, 2008, the trial court could not have heard the supplemental motion on the day it did. Th is is so, they continue, because there are less than twenty-one days bet ween August 11th and the 28th. Yet, as previously mentioned, the Supreme C ourt authorized the hear ing to occur on the twenty-first day after service of the motion, if the motion was hand delivered, and here, the twenty-first day is August 28th. We further note the absenc e of any allegation by th e Longs that they did not have notice of the August 28th hearing date when the motion was hand delivered to

1 The certificate of service is prima facie evidence of the fact of service. T EX

. R. C IV

. P. 21a; Davis v. West, No. 01-08-01006-CV, 2009 Tex. App. L EXIS 9921 at *27 (Tex. App.–Houston [1st Dist.] December 31, 2009, no pet.). Moreover, the Longs do not contend that they di d not receive the motion for summary judgment with attachments on August 7, 2008, that is, twenty-one days before the hearing.

3them on August 7th. Indeed, th e motion itself would belie any such contention, had it been made, since it also disclosed the hearing date. So, this aspect of their issue is overruled. As for the continuance, the Longs posit that they lacked “adequate time for discovery,” as required by Te xas Rule of Civil Procedure 166a(i), and the trial court was wrong in not according it to them. We overrule this contention as well. Whether to grant a continuance lies wi thin the trial court’s discretion. Draker v. Schreiber, 271 S.W.3d 318, 325 (Tex. App.

– San Antonio 2008, no pet.). So, we cannot alter that decision unless it failed to com port with controlling rules and principles. See id. One such rule obligates the movant to illustrate the need for the postponement through an affidavit or verified motion. Triad Home Renov ators v. Dickey , 15 S.W.3d 142, 145 (Tex. App.

– Houston [14 th Dist.] 2000, no pet.). And, if the movant seeks time to conduct further discovery, another rule mandates that he specify the discovery sought and explain its materiality. See Lee v. Haynes & Boone, L.L.P. , 129 S.W.3d 192, 198 (Tex. App.

– Dallas 2004, pet. denied). So t oo must he address the topic of diligence and illustrate that he has exercised it viz obtaining the discovery in question. Landers v. State Farm Lloyds , 257 S.W.3d 740, 747 (Tex. App.

– Houston [1st Dist.] 2008, no pet.). And, while a litigant normally has the right to conduct discovery after suit is filed, the trial court is nonetheless entitl ed to presume that plantiffs, such as the Longs, investigated the legitimacy of t heir claims before pursuing them. Levinthal v. Kelsey-Seybold Clinic , P.A. , 902 S.W.2d 508, 511 (Tex. App.

– Houston [1 st Dist.] 1994, no writ). With that said, we turn to the record before us.

4The suit was filed on March 3, 2008. The defendants’ initial summary judgment motion (the traditional one) was f iled three months later on Ju ne 8th. Martin and Cibolo then filed a supplement on August 7th allegi ng that their opponent s had no evidence supporting their claims, and a hearing on it as well as the original was scheduled for and held on August 28th. From this we see that the suit was slig htly older than five months when the hearing convened. While that may s eem to be a rather short period of time, the Longs nonetheless acknowledge d that “the case [was] not complex” in their response to the motion. Furthermore, th ey had approximately two years between the date of the incident and filing suit to investi gate the legal and factual basis for a suit. And, though the Longs attested that they needed more time to find an expert who could opine about whether the bleache rs at issue were unreasonably defective, it would seem as though the aforementioned two-year period would ha ve provided them ample opportunity to begin that quest. Indeed, by si gning the original petition, both counsel and client represented t hat they not only read the document but also that it was not groundless “to the best of their know ledge, information, and belief formed after reasonable inquiry . . . .” T EX

. R. C IV

. P. 13 (emphasis added). Why they had not used the two-year period before suit to find wit nesses supporting such elemental aspects of their choses-in-action was not explained below or here. We do note that effort was made to show why the requisite expert testimony was not secured during the period between suit and summary judgment. Yet, that explanation is less than compelling. For in stance, they assert that they were busy responding to “extensive discovery,” but w hat that discovery was and why it was considered extensive went undisclosed. More importantly, the information before us

5could reasonably be interpreted as controvert ing the proposition. Indeed, in May of 2008, one defendant moved to compel them to reply to his requests for disclosure. Such a motion hardly supports the noti on that the Longs were busy completing discovery. And, as for their being entangled in depositions, it appears that the only one which we know of was taken in July of 2008, after the initial motion for summary judgment was filed. So too does the record tend to belie the representation that the Longs had not “known of the immediate need to obtain an expert to opine on the defective and dangerous nature of the bleachers prior to t he filing of the ‘no evidence’ motion for summary judgment.” Given that answers to questions regarding the defective design and dangerousness of an item most likely lay outside the realm of general knowledge, it would seem rather basic that an expert w ould be needed to opine on those topics. And, to the extent that the Longs and their counsel certified, per Texas Rule of Civil Procedure 13, that they made “r easonable inquiry” into the l egitimacy of their claims, it is somewhat difficult to accept that they believed they had no need to contact or secure an expert to address a pivotal aspect of thei r claim before the no-evidence motion was filed. Simply put, the trial court could we ll have extended the Longs further opportunity to conduct the discovery. But, we cannot say that it abused its discretion in refusing to do so in view of the circumstances of record. Thus, we overrule the i ssue. This, in turn, leaves us with no choice but to affirm t he no-evidence summary judgment on the claims of premises and product liability. Again, the Longs did not attack it substantively but

6only asserted procedural grounds for secu ring a reversal, and we have shown why those procedural grounds are deficient. §359 of the Restatement of Torts Finally, we will addr ess the applicability of §359 of the Restat ement of Torts to the case at bar. That provision was invoked through an amended petition filed in preparation for the August 28th hearing. Furthermore, it states that: A lessor who leases land for a purpose which involves the admission of the public is subject to liability for physi cal harm caused to persons who enter the land for that purpose by a condition of the land existing when the lessee takes possession, if the lessor (a) knows or by the exercise of re asonable care could discover that the condition involves an unreasonable risk of harm to su ch persons, and (b) has reason to expect that the less ee will admit them before the land is put in safe condition for their reception, and (c) fails to exercise reasonable care to discover or remedy the condition, or otherwise to protect such persons against it.

R ESTATEMENT (S ECOND ) OF T ORTS §359 (1965). The Longs reco gnize, as do the Martins and Cibolo, that this section of the Rest atement has yet to be adopted as the law of Texas by the Supreme Court. Indeed, the la tter expressly postponed considering the matter until a later date. Johnson County Sheriff’s Posse v. Endsley , 926 S.W.2d 284, 286 (Tex. 1996). Nonetheless, we are invited to complete what the Supreme Court postponed. That is a gracious invitation which we decline. As judges, it is our duty to interpret, not create, law for the State of Texas. See Slaughter v. State, 110 S.W.3d 500, 502 (Tex. App. –Waco 2003, pet. dism’d)

. The latter is left to the Texas Legislature. Should it deign to adopt the section as controlling in Texas, we will abide by t he decision. Until then, we, like the litigants at bar, will

78 continue to recognize that §359 of the Restatement is i napplicable and overrule the issue. Having no need to address the remaining argument posed by the Longs, we affirm the trial cour t’s final judgment.

Brian Quinn Chief Justice