Russell Lloyd Justice

On Appeal from the 129th District Court Harris County, Texas
Trial Court Case No. 2014-52469-A

MEMORANDUM OPINION

Appellant, Christine Singleterry, as independent administrator of the estate of James Singleterry, Jr., deceased, appeals the trial court's order granting summary judgment in favor of appellees, Elegy Leon Etter, II, M.D. and E. Leon Etter, II, M.D., P.A. (collectively "Etter"), on Singleterry's health care liability and survival action. In one issue, Singleterry contends that the trial court abused its discretion in granting Etter's no-evidence motion for summary judgment before an adequate period of time for discovery had passed. We affirm.

Background

On September 12, 2014, Singleterry filed a health care liability and survival action against Etter, University General Hospital, and University Hospital Systems LLP d/b/a University General Hospital, based on the post-surgical care and treatment of James Singleterry, Jr. following a gastrectomy in the treatment of his gastric cancer. On October 3, 2014, Etter filed an answer and request for disclosures.

On January 28, 2015, the trial court entered a docket control order setting, among other things, Singleterry's expert designation deadline as October 26, 2015. On February 2, 2015, Singleterry filed and served an expert report and, on February 20, 2015, Etter filed objections to the report. On February 26, 2015, Etter filed a motion to show authority and plea in abatement and, subject thereto, motion to dismiss.

On March 23, 2015, Etter filed a no-evidence motion for summary judgment arguing that Singleterry's claims should be dismissed because there was no evidence of a breach of the applicable duty of care or of causation. Etter's motion was set for hearing on April 27, 2015.

On April 6, 2015, the trial court granted Etter's motion to show authority and plea in abatement, abating the case for sixty days until June 5, 2015, for appointment of an administrator. On June 12, 2015, Singleterry filed her application for the appointment of an administrator and, on July 29, 2015, the trial court appointed Singleterry as administrator of the estate. On August 25, 2015, Singleterry filed her first amended original petition.

On January 7, 2016, Etter filed a no-evidence motion for summary judgment and motion to sever, asserting that there was no evidence of a breach of the applicable duty of care or of causation. In the motion, Etter further argued that (1) despite the October 26, 2015 expert designation deadline imposed by the trial court's docket control order, Singleterry had failed to designate any experts, and (2) although the case had been on file for more than six months, Singleterry had not initiated any written discovery or sought to depose Dr. Etter.

On February, 22, 2016, Singleterry filed a motion to strike Etter's no-evidence summary judgment motion or, alternatively, motion for continuance of the summary judgment. Singleterry requested that the trial court strike the no-evidence motion because co-defendant University General Hospital's bankruptcy had stayed all further action or, alternatively, grant a continuance to permit her to conduct discovery in order to identify expert witnesses and respond to the summary judgment motion.

On February 29, 2016, the trial court granted Singleterry's motion for continuance, extending the hearing date for Etter's no-evidence motion expressly to allow Singleterry to obtain discovery. The trial court further stated that University General Hospital's bankruptcy did not stay Singleterry's claims against Etter.

On March 1, 2016, Singleterry agreed in writing to designate her experts by April 29, 2016. On March 9, 2016, the trial court entered a second docket control order setting Singleterry's expert designation deadline as May 30, 2016. Singleterry did not file an expert designation by either date. Singleterry also did not file a response to Etter's no-evidence summary judgment motion.

On June 6, 2016, the trial court held a hearing on Etter's no-evidence summary judgment motion. On the day of the hearing, Singleterry filed another motion for continuance stating that she had just designated her expert witnesses and needed additional time to obtain an affidavit to oppose Etter's no-evidence motion. At the conclusion of the hearing, the trial court granted Etter's motion and severed Singleterry's claims against appellees.

On July 6, 2016, Singleterry filed a motion for new trial and motion for reconsideration which were subsequently overruled by operation of law. This appeal followed.

Discussion

In one issue, Singleterry contends that the trial court abused its discretion when it granted Etter's no-evidence motion for summary judgment before an adequate time for discovery had passed.

"A party may move for a no-evidence summary judgment only '[a]fter an adequate time for discovery.'" Specialty Retailers, Inc. v. Fuqua, 29 S.W.3d 140, 145 (Tex. App.—Houston [14th Dist.] 2000, pet. denied) (citing TEX. R. CIV. P. 166a(i)). In determining whether the trial court has permitted an adequate time for discovery, we generally consider the following non-exclusive factors: (1) the nature of the cause of action; (2) the nature of the evidence necessary to controvert the no-evidence motion; (3) the length of time the case has been active in the trial court; (4) the amount of time the no-evidence motion has been on file; (5) whether the movant has requested stricter time deadlines for discovery; (6) the amount of discovery that has already taken place; and (7) whether the discovery deadlines that are in place are specific or vague. Madison v. Williamson, 241 S.W.3d 145, 155 (Tex. App.—Houston [1st Dist.] 2007, pet. denied). We review the trial court's determination that an adequate time for discovery passed in granting a no-evidence summary judgment motion for an abuse of discretion. See Specialty Retailers, 29 S.W.3d at 145.

There is little dispute about the nature of the cause of action. Singleterry's health care liability and survival action alleges negligence against Etter. Singleterry does not argue that her case is complex. See Stryker v. Broemer, No. 01-09-00317-CV, 2010 WL 4484176, at *6 (Tex. App.—Houston [1st Dist.] Nov. 10, 2010, pet. denied) (mem. op.) (noting plaintiff did not argue that her case was complex or address other factors courts consider when determining adequate time for discovery).

Expert testimony was required to controvert Etter's no-evidence motion, specifically with regard to the elements of breach and causation challenged in the motion. Although the trial court's docket control order required Singleterry to designate her experts by October 26, 2015, she failed to designate any experts by that date. The trial court subsequently granted Singleterry a three-month continuance, expressly to allow her to obtain further discovery, and entered a second docket control order setting Singleterry's expert designation deadline to May 30, 2015. Despite the continuance, Singleterry again failed to designate an expert and filed no evidence or response to Etter's pending motion.

The trial court granted Etter's no-evidence motion on June 6, 2016. At that point, the case had been active for more than seventeenth months (excluding the approximate four-month abatement period). See Specialty Retailers, 29 S.W.3d at 145 (noting plaintiff's suit had been ongoing for approximately sixteen months at time of summary judgment motion). Etter's no-evidence motion had been on file for more than fourteen months. See Carter v. MacFadyen, 93 S.W.3d 307, 311 (Tex. App.—Houston [14th Dist.] 2002, pet denied) (affirming no-evidence summary judgment in health care liability case where motion was filed eight months after suit was filed). Moreover, a trial court may presume a plaintiff has investigated her own case prior to filing. Id. This is especially true of health care liability claims, which require that the claimant file an expert report that provides a fair summary of the expert's opinion regarding the applicable standard of care, breach, and causation within 120 days after the date each defendant's answer is filed. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a) (West 2014); see Carter, 93 S.W.3d at 311.

The trial court entered a docket control order in this case. There is nothing in the record indicating that Etter requested stricter deadlines for discovery. The trial court also granted Singleterry a ninety-day continuance of Etter's no-evidence motion, specifically to allow Singleterry to obtain further discovery.

Although suit was filed on September 12, 2014, Singleterry did not request any depositions or propound written discovery until March 1, 2016. The record reflects that Etter subsequently responded to written discovery and presented Dr. Etter for deposition on May 5, 2016.

In support of her contention that an adequate time for discovery had not passed, Singleterry points out that the trial court granted Etter's no-evidence motion on June 6, 2016, before the end of the discovery period on July 29, 2016. While a comment to rule 166a states that "ordinarily a motion . . . would be permitted after the [discovery] period but not before," see TEX. R. CIV. P. 166a cmt., we do not read the comment to prohibit the filing of a motion before the period has ended. See Elgohary v. Lakes on Eldridge v. Community Ass'n, Inc., No. 01-14-00216-CV, 2016 WL 4374918, at *5 (Tex. App.—Houston [1st Dist.] Aug. 16, 2016, no pet.) (mem. op.) (affirming no-evidence summary judgment granted three months before discovery period ended); Thibodeaux v. Toys "R" Us-Delaware, Inc., No. 01-12-00954-CV, 2013 WL 5885099, at *3-5 (Tex. App.—Houston [1st Dist.] Oct. 31, 2013, no pet.) (mem. op.) (affirming no-evidence summary judgment granted three weeks before discovery period under docket control order expired); see also Lucio v. John G. and Maria Stella Kennedy Mem'l Found., 298 S.W.3d 663, 670 (Tex. App.—Corpus Christi 2009, pet. denied) (noting "Rule 166a(i) begins with the phrase, '[a]fter adequate time for discovery' not 'after a pretrial scheduling order's discovery period has concluded,' and therefore, it does not support" plaintiff's argument that trial court abused its discretion in granting no-evidence summary judgment during discovery period).

Singleterry also argues that discovery in this case was stayed pursuant to Civil Practice and Remedies Code section 74.351(s), which provides:

(s) Until a claimant has served the expert report and curriculum vitae as required by Subsection (a), all discovery in a health care liability claim is stayed except for the acquisition by the claimant of information, including medical or hospital records or other documents or tangible things, related to the patient's health care through:

(1) written discovery as defined in Rule 192.7, Texas Rules of Civil Procedure;

(2) depositions on written questions under Rule 200, Texas Rules of Civil Procedure; and

(3) discovery from nonparties under Rule 205, Texas Rules of Civil Procedure.

Singleterry asserts that University General Hospital's bankruptcy operated to stay all proceedings in the case and further prohibited her from conducting discovery. However, in its February 29, 2016 order, the trial court stated that University General Hospital's bankruptcy did not stay Singleterry's claims against Etter. We also note that Etter never asserted that University General Hospital's bankruptcy applied to stay the case against appellees. Further, the trial court's order did not overturn a bankruptcy stay that was otherwise in effect; rather, the court rejected Singleterry's conclusion that the bankruptcy stay extended to Etter and prevented her from proceeding against Etter with discovery.

After applying the relevant considerations to the facts of this case, we conclude that Singleterry failed to demonstrate that the trial court abused its discretion by granting Etter's no-evidence motion for summary judgment without allowing adequate time for discovery. We overrule Singleterry's issue.

Conclusion

We affirm the trial court's judgment.

Russell Lloyd

Justice Panel consists of Chief Justice Radack and Justices Brown and Lloyd.