Raoger Corp. v. Myers, No. 23-0662 (Tex. Apr. 11, 2025) – one of the Texas Supreme Court's most recent opinions on the summary judgment standard – highlights the importance of diligent discovery practices and the potentially harsh consequences for failing to exercise the requisite diligence. While the bulk of the Court's opinion in Myers grappled with the sufficiency of evidence required to establish liability under the Texas Dram Shop Act, the Court also addressed the “adequate time for discovery” standard under Texas's summary judgment rule. See TEX. R. CIV. P. 166a(i) (requiring courts to provide “adequate time for discovery” before ruling on a no-evidence summary-judgment motion). It found that though certain depositions had not yet taken place at the time of the underlying summary judgment hearing, the trial court did not abuse its discretion when it denied Plaintiff's motion to continue the summary judgment hearing and granted Defendant's no-evidence summary judgment motion.
In Myers, Plaintiff sued the defendant restaurant for allegedly violating the Texas Dram Shop Act by providing alcohol to a third-party patron, who ultimately rear-ended Plaintiff and caused Plaintiff's injuries. At issue was whether the trial court abused its discretion in granting Defendant's no-evidence summary judgment motion. Ultimately, the Court found it did not because Plaintiff failed to present competent evidence to establish that the patron's intoxication was apparent to the defendant provider, a prerequisite for liability under the Texas Dram Shop Act.
In so holding, the Texas Supreme Court reiterated the obligations of litigants to diligently pursue the discovery needed to support their summary judgment position. In challenging the dismissal of his claims, Plaintiff complained that the trial court abused its discretion in denying Plaintiff's motion to continue the summary judgment hearing until after Plaintiff had an opportunity to depose the restaurant owner, which was noticed for 8 days after the summary judgment hearing. The Court rejected this argument, finding that Plaintiff had “ample opportunity to depose the owner” with “561 days to be exact” between the time the restaurant was joined as a party and when the trial court heard the no-evidence summary judgment motion. The Court further pointed out that (i) the summary judgment motion was filed almost three months before the hearing, and (ii) Plaintiff “did not attempt to request an earlier date for the owner's deposition, even though the hearing was set for a week before the deposition date,” indicating a failure to “exercise ‘due diligence' in obtaining the discovery.” Further, the Court faulted Plaintiff for “fail[ing] to establish how the owner's deposition would elicit any new and material evidence.”
The Court's adherence to this diligence standard is a good reminder to all litigants of the potentially harsh implications of deferring discovery. The opinion serves to endorse early and persistent discovery practice, reminding practitioners that delay in depositions and discovery is not necessarily an appropriate basis with which to postpone a summary judgment hearing or avoid a no-evidence motion.
Raoger Corp. v. Myers, No. 23-0662 (Tex. Apr. 11, 2025), available at https://www.txcourts.gov/media/1460290/230662.pdf.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
