In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-04-00121-CV

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JAMES MICHAEL O'DONALD, ON BEHALF OF THE

ESTATE OF ROSS EUGENE O'DONALD, DECEASED, AND ALL WRONGFUL DEATH BENEFICIARIES, Appellants

v.

TEXARKANA MEMORIAL HOSPITAL D/B/A

WADLEY REGIONAL MEDICAL CENTER, Appellee

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On Appeal from the 5th Judicial District Court

Bowie County, Texas

Trial Court No. 01C1015-005

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Before Ross, Carter and Cornelius,* JJ.

Memorandum Opinion by Justice Cornelius

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*William J. Cornelius, Chief Justice, Retired, Sitting by Assignment

MEMORANDUM OPINION

            James Michael O'Donald, on behalf of the Estate of Ross Eugene O'Donald, deceased, and all wrongful death beneficiaries, brought suit against T. Michael Hillis, M.D., Malcolm A. Smith, M.D., Collom and Carney Clinic Association, and Texarkana Memorial Hospital, Inc., doing business as Wadley Regional Medical Center, seeking damages for the death of Ross Eugene O'Donald, allegedly as a result of an aortofemoral bypass surgery and an esophageal perforation.

            The trial court granted summary judgment in favor of Doctors Hillis and Smith and the Collom and Carney Clinic. The trial court also severed the claims against those defendants from the claims against Wadley Regional Medical Center, and on October 1, 2004, rendered summary judgment in favor of Wadley Regional Medical Center. The O'Donalds appealed from that judgment.

            Wadley's motion for summary judgment was a joint one that combined a no-evidence motion pursuant to Tex. R. Civ. P. 166a(i) and a traditional motion pursuant to Tex. R. Civ. P. 166a(b) and (c).

            Wadley's summary judgment motion was filed on August 20, 2004. The hearing on the motion was originally set for September 27, 2004. At the request of counsel for the O'Donalds, the hearing was by agreement reset for 9:00 a.m. on October 1, 2004. The O'Donalds filed their response to Wadley's summary judgment motion at 8:39 a.m. on October 1, 2004, the day set for hearing Wadley's motion.

            A response to a motion for summary judgment must be filed at least seven days before the hearing on the motion unless the trial court grants leave to file the response late. Tex. R. Civ. P. 166a(c). The O'Donalds did not request leave of the court to file their late response, and there is nothing in the record to indicate that the trial court granted leave to file the late response.

            When a defendant files a motion for a no-evidence summary judgment, properly alleging a lack of evidence supporting one or more specific essential elements of the plaintiffs' cause of action, the trial court must grant the summary judgment unless the plaintiffs timely respond, presenting to the trial court evidence, more than a scintilla, that raises a genuine issue of fact on the challenged elements. Tex. R. Civ. P. 166a(i); Wal-Mart Stores, Inc. v. Rodriguez, 92 S.W.3d 502, 511 (Tex. 2002); Trusty v. Strayhorn, 87 S.W.3d 756, 759 (Tex. App.—Texarkana 2002, no pet.); Garrett v. L. P. McCuistion Cmty. Hosp., 30 S.W.3d 653, 655 (Tex. App.—Texarkana 2000, no pet.); McCombs v. Childrens' Med. Ctr. of Dallas, 1 S.W.3d 256, 258 (Tex. App.—Texarkana 1999, pet. denied).

            If the record contains no order or other affirmative evidence that the trial court granted leave to late file a response or summary judgment evidence, it is presumed that the late filing was not before the trial court, and it cannot be considered on appeal to defeat summary judgment. Benchmark Bank v. Crowder, 919 S.W.2d 657, 663 (Tex. 1996); INA of Tex. v. Bryant, 686 S.W.2d 614, 615 (Tex. 1985); Alford v. Thornburg, 113 S.W.3d 575, 586 (Tex. App.—Texarkana 2003, no pet.); Pinnacle Data Servs., Inc. v. Gillen, 104 S.W.3d 188, 192 (Tex. App.—Texarkana 2003, no pet.); Merch. Ctr., Inc. v. WNS, Inc., 85 S.W.3d 389, 394–95 (Tex. App.—Texarkana 2002, no pet.); Johnston v. Vilardi, 817 S.W.2d 794, 796 (Tex. App.—Houston [1st Dist.] 1991, pet. denied).

            Wadley's motion for summary judgment combined a traditional motion with a no-evidence motion. There is no prohibition against filing such a joint motion, so long as the two bases for summary judgment are clearly distinguished, as they are in Wadley's motion. The no-evidence portion of Wadley's motion clearly challenges the duty and proximate cause elements of the O'Donalds' cause of action as having no evidence to support them. The traditional portion of Wadley's motion is supported by some deposition testimony, but attaching evidence to a combined motion does not invalidate the no-evidence portion of the motion or require that it be disregarded. Binur v. Jacobo, 135 S.W.3d 646, 651 (Tex. 2004).

            Because the O'Donalds did not timely respond to Wadley's no-evidence summary judgment motion or timely point the trial court to any summary judgment evidence raising an issue of fact on the challenged elements, the trial court properly rendered summary judgment in favor of Wadley.

            For the reasons stated, we affirm the judgment.

                                                                        William J. Cornelius

                                                                        Justice*

*Chief Justice, Retired, Sitting by Assignment

Date Submitted:          June 15, 2005

Date Decided:             September 28, 2005

OPINION ON MOTION FOR REHEARING

            James Michael O'Donald, on behalf of the Estate of Ross Eugene O'Donald, deceased, and all wrongful death beneficiaries have filed a motion for rehearing in which they contend we erred in our original opinion in that (1) we failed to hold that the record affirmatively shows the trial court considered their late-filed response to Wadley Regional Medical Center's motion for summary judgment, and (2) we failed to hold that Tex. R. App. P. 33.1 required that Wadley object to the timeliness of the O'Donalds' response.

            The O'Donalds argue that the record shows the trial court considered their late-filed response because the trial court's judgment contains this statement:

Before the Court for consideration is the Motion for Summary Judgment brought by Wadley Regional Medical Center, the remaining Defendant in this cause. Based upon a review of the Motion and any response thereto, and after being sufficiently advised in the premises, the Court finds the Motion well-taken and is of the opinion it should be granted.

            We have held that "[t]he mere mention of the response in the record, without more, does not overcome the presumption that the trial court did not consider the late response," and unless there is a showing in the record that the late-filed response was with leave of the court, we will not consider the response on appeal. Pinnacle Data Servs., Inc. v. Gillen, 104 S.W.3d 188, 193 (Tex. App.—Texarkana 2003, no pet.); see also Neimes v. Ta, 985 S.W.2d 132, 139 (Tex. App.—San Antonio 1998, pet. dism'd by agr.). We conclude that the phrase "any response thereto" does not constitute affirmative evidence that the trial court considered the O'Donalds' late-filed response, but rather is only a generic reference to any response that may have been properly filed.

            Wadley was not required to object to the timeliness of the O'Donalds' response under Tex. R. App. P. 33.1. Neimes v. Ta, 985 S.W.2d at 138; see also Luna v. Estate of Rodriguez, 906 S.W.2d 576, 582 (Tex. App. —Austin 1995, no writ). Moreover, from the record here, it is presumed that the trial court did not grant leave to file the late response and did not consider it. Therefore, there was no trial court action relating to the response to which Wadley could have objected.

            We respectfully overrule the motion for rehearing.

                                                                        William J. Cornelius

                                                                        Justice*

*Chief Justice, Retired, Sitting by Assignment

Date:   November 30, 2005