NO. 07-02-0378-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TE XAS

AT AMARILLO PANEL B JANUARY 31, 2005

______________________________ JAMES E. GOLLEHER, APPELLANT

V. ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY, APP ELLEE

________________________________ FROM THE 223RD DISTRICT COURT OF GRAY COUNTY; NO. 32039 -B; HONOR ABLE LE E WATERS , JUDGE

_______________________________ Before JOHNSON, C.J., and QUINN and CAMPBELL, JJ.
MEMORAND UM OPINION
James E. Golle her appe als from asummary judgment in favor of Allstate Prope rty
a nd Casu alty Insurance Company in Golleher’s suit for uninsured/unde rinsured motorist benefits . We affir m.-2- BACKGROUND
On December 11, 1996 , J ames E. Golleher was a passenger in a veh icle being driven by Scott Davis. A collision occurred be tween Davis’ vehicle and a vehicl e driven by Norma McBee. As a result of this accident McBee died and Davis and Golleher sustained injuries. At the ti me of th e acc ident McBee had liability insurance coverage with policy limits of $300,000 per accident and $100,000 per perso n. Davis had ins urance w ith Alls tate Property and Casualty Insurance Co mpany which included uninsured/underinsured motorist ( UIM) bene fits.
Davis and Golleher brought suit against McBee’sexecuto r (“McBee” ). Golleher and McBee’s liability insurer settled Golleher’s claim aga inst McBee and Golleher dismissed his suit with prejudice. Golleher did not obtain Al lstate’s consent before settling his claim or dismissi ng the su it.
Golleher then sued All sta te for UIM benefits . Allsta te filed a motion for summary judgment, asserting that it was not liable to Golleher as a m atter of law based on two contractual provisions: (1) Allstate’s liability for damages was limited to those damages which a covere d person was “leg ally ent itled to recover fr om the owner or operator of an [uninsured/underinsured] motor veh icle . . . ” ; and ( 2) coverage was not provided if “[the covered] person or the legal representative settles the claim without our written consent.” Allstateurged that Golleher materially breached the terms of the insurancecontract when he did not obtain A llstate’ s consen t before s ettling h is claim against McBee. A llstate claimed that the breach was material because the settlement of Golleher’s claims against1 The court directed that the summary judgment motion would be submitted without

oral argu ment. -3- McBee prejudiced Allstate’s subrogation rights against McBee’s solv ent estate . Allstate further asserted that Golleher’s dismissal with p reju dice precluded Golleher from establis hing tha t he was legally entitled to recove r from McBe e. The trial court set October 22, 2002 as submissi on date 1 for the summary judgment motion. By written order pursuant to Golleher’s motion, the trial court extende d the time for Golleher to file “additional summary judgment evidence” in support of his response to Allstate’s motion until October 29th. The order did not vacate o r continue the October

22nd submissi on date.
The court had not ruled on Allstate’s motion by the time the case was set on a trial docket for

November 13, 2002. Pursuan t to Golle her’s mot ion at th e Novemb er 6th docket call, the trial court ex

tended th e discov ery deadl ine. Thecourt’s N ovember 6t h docket sheet e ntry indicates th at Golleher requested extension of the discovery dead line to depose two Allstate adjusters, and that the case was contin ued sub ject to depositions and the “Court’s ruling on pending SJ.” This entry doe s not evidence any change in the submission date.
The case was continued from several subsequent trial dockets and was eventuall y set on a September 2003 trial docket. In June 20 03, counsel for Allstate sent a letter reminding the trial court of the pending motion for summary judgment and seeking a ruling. Golleher responded to Allstate’s request with an unsworn letter request for furthe r time to-4-

engage in discovery, including depositions, and to submit evidence in opposition to the motion fo r summary j udgment.
Without addressing Golleher’s request and without stating the basis for its ruling, the court entered summary judgmentin favor of Allstate. Golleher filed a motion for new trial, which wa s denied

. On appeal, Gollehe r does no t present a genera l issue challen ging thesummary judgment. See Malooly Bros., Inc. v. Napier , 461 S.W. 2d 119, 1 21 (Tex. 1970). R ather, by three is sues, he contendsthat the trial cou rt erred by g ra nting Al lstate su mmary judgment. In issue one he alleges that Allstate did no t establish, as a matter of law, that it had bee n actual ly prejud iced by G olleher’ s settleme nt o f hi s claim a gainst Mc Bee. In is sue two he urges that he raised a genuine issue of material fact regarding whether Allstatehad been actually prejudiced by hissettleme nt. In is sue threehe conte sts the trial court’s action i n g ranting summary judgment without first setting another specific date or deadline by which Golleher was required to file evidence con troverting Allstate’s motion for summary ju dgment. W e will b egin by addressi ng the th ird issu e.

ISSUE THREE: FAILURE TO SET A DDITIONAL DATE FOR FILING SUMMARY JUDGMENT EVIDENC E
Rule 166a(c) of the Texas Rules of Civil Proce dure requires that a motion for summary

judgment and notice of a hearing date be served on the non-movant at least 212 Further re ference to rules of civil p rocedure will beby refere nce to “R ule ___. ” -5- days before the time spe cified fo r hearing . T EX . R. C IV . P. 166a(c). 2 Rule 166a also directs that the non-movant may file a respo nse, with or without supporting evidence, at least
seven days bef

ore the h earing. Becausethe hear ing datedetermines when the response to the motion is due, notice of a specific hearin g da te is r equired. See Martin v. Martin, Martin & Richards, Inc. , 989 S.W. 2d 357, 3 59 (Tex. 1998). P rovided that the r equireme nts contained in Rule 166a are satisfied, a trial cou rt has broad discretion in setting reasonable deadlin es in sum mary judgm ent proce edings. See McClure v . Attebury , 20 S.W.3d 722, 729 (Tex .App.–Ama rillo 19 99, no pe t.).
The record does not show that the trial court ever altered the original October 22nd submission date. The trial court’s granting of extensions for filing o f evidence and discovery, and further

subsequent delay in ruling on Allstate’s motion, increased Golleher’s time to file, or to atte mpt to fil e, evide nce. He did not do so. The trial court’s ruling in the face o f Go lleher’s request for more time to attempt to engage in discovery wa s not an abuse of discre tion and was not error. See Brown v. Capital Bank, N.A. , 703 S.W.2d 231, 234 (Tex.App.–Houston [14 th Dist.] 19 85, writ r ef’d n.r.e .).
We have reviewed the cases Golleher references as authority, an d find them inapposite. The cases he references deal with the requirement that each party to a suit is entitled to timely notice of a specific date for hearing or submission of a summary judgment motion. Golleher does not dispute his receipt of timely notice of the October 22nd submission date. Ad ditional ly, Golle her did n ot reques t a new submission date in his June-6-

2003 letter se eking ti me for further discovery; his motion for new trial did not protest the trial court’s failure to set a new submission date; and his appella te issue references only the trial
c ourt’s failure to set a second specific date for filing of controverting summary judg men t evidence

. Moreover, Golleher does not contend that he was preclu ded from filing evidence because an additio nal datefor filing of the evidence was not provided. Rather, he argues that resolution of

discovery disputes and possible depositions after June 2003 might have y ielded ev idence w hich mig ht have c reated a fact ques tion suff icient to avoid su mmary judgment. Under

th is record, however, speculation as to what evidence additional discover y mighthave yielded does not warrant o ur conclu ding tha t the tria l court’s failure to set a second spec ific date by which Golleher was to file su mmary judgment evidence,
even if error, probably

caused r

endition of an imp ro per judgme nt. See T EX . R. A PP . P. 44.1(a).
Accordin gly, we o verrule i ssue thre e. ISSUES O NE AND T

WO: FAILURE TO OBTAIN CONSENT TO SETTLE
Golleher’ s first two issues are closely related. They assert, in effect, that the summary

judgment evidence presented an issue of materi al fact a s to whet her Alls tate had been actuallyprejudiced by Golleher’s settlement with McBee. Golleher does not present
a general issue challenging the summary judg m ent. Nor does he present an issue challenging the secon d ground of Allstate’s sum mary judgm ent motio n by whi ch Allstate-7-

asserted that Golleher was precluded from showing that he was legally entitled to recover from McBee

. When the trial court

does not specify grounds f

or its gra nt of summa ry judgment, an appellant

must chal lenge al l ground s urged i n the moti on for sum mary judgment to avoid waiving the right to challenge those grounds. The cha llenge may be either by a general issue complai ning of s ummary jud gment, or byspecific appellate issues directed to each possible basis fo r summary j udgment. See Malooly Bros., Inc. , 461 S .W.2d at 121; Capstead Mortgage Corp. v. Sun America Mortgage Co rp . , 45 S.W.3d 233, 238 (Tex.App.–Amarillo 2001, no pet.). If summary judgment mayhave been granted, properly
or improperly, on a ground not challenged, the summary judgment must be affirmed. See Williams v. United Pentecostal Church Int’l , 115 S.W.3d 612, 614 (Tex.App.–Beaumont 2003, no pet.); Ellis v. Precision Engine Rebuil ders, Inc. , 68 S.W.3d 894, 898 (Tex .App.– Houston [1st Dis t.] 2002, no pet.); Hollowa y v. Sta rnes , 840 S.W.2d 14, 23 (Tex.App .–Dalla s 1992, w rit denie d).
Because Golleher does not challenge the second ground on which Allstate sought summary

judgment, the summary judgment must be affirmed. See Malooly , 461 S.W.2d at 121; Williams , 115 S.W. 3d at 614 ; Holloway , 840 S.W.2d at 23. Having thus determined that we must affirm the summar y judg ment, we need not and do not consider Gollehe r’s first and second issues which challenge the first ground o f Allstat e’s motio n for summa ry judgment. See T EX . R. A PP . P. 47.1.-8-

The judgm ent of thetrial co urt is affi rmed.

Phil Johnson Chief Justice