¶1dissenting.
¶2I respectfully dissent. My disagreement is not so much with the majority and the authority they rely upon. My disagreement is with the way these other courts have reviewed the issue.
¶3The purpose of a summary judgment is to eliminate patently unmeritorious claims or untenable defenses. Swilley v. Hughes, 488 S.W.2d 64, 68 (Tex.1972). Since summary judgment is a harsh remedy, appellate courts should review the practice very closely. I believe Tex.R.Civ.P. 166a(g) acts in a limiting manner. It states: “Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.” I read the rule to allow the trial judge only three options once an opposing party states reason why he cannot present, by affidavit, facts essential to justify his opposition. To grant the motion for summary judgment is not one of those options. This interpretation of subsection (g) is consistent with' summary judgment intent. The subsection only “kicks in” when there is a response raising the issue of inability to obtain controverting affidavits. Pat Gregg certainly raised that issue. The court should have taken some less severe action than granting the motion. See, e.g. Kubinsky v. Van Zandt Realtors, 811 S.W.2d 711 (Tex.App.—Fort Worth 1991, writ denied). The court’s failure to do so was, in my judgment, an abuse of discretion. I would reverse and remand.