Glenda Sayles, Individually and as a Representative of the Estate of Roy Broadwell v. Senior Care Resources, Inc. D/B/A Senior Care Health & Rehabilitation-Wichita Falls Foursquare Healthcare, Ltd. Foursquare SNF, Inc. NC Resources, Inc. Wichita NH Realty, Ltd. And NTF Realty, Inc.

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-20-00124-CV
___________________________
GLENDA SAYLES, INDIVIDUALLY AND AS REPRESENTATIVE OF THE
ESTATE OF ROY BROADWELL, Appellant
V.
SENIOR CARE RESOURCES, INC. D/B/A SENIOR CARE HEALTH &
REHABILITATION-WICHITA FALLS, FOURSQUARE HEALTHCARE, LTD.;
FOURSQUARE SNF, INC.; NC RESOURCES, INC.; WICHITA NH REALTY,
LTD.; AND NTF REALTY, INC., Appellees
On Appeal from the 89th District Court
Wichita County, Texas
Trial Court No. 187,559-C
Before Bassel, Womack, and Wallach, JJ.
Memorandum Opinion by Justice Womack
MEMORANDUM OPINION
I. INTRODUCTION
This is a health care liability case arising from Roy Broadwell’s (Broadwell) care
by Appellee Senior Care Resources, Inc. d/b/a Senior Care Health & Rehabilitation-
Wichita Falls (Senior Care). In two issues, Appellant Glenda Sayles, Individually and
as Representative of the Estate of Roy Broadwell (Sayles), complains of the trial
court’s (1) denial of her motion for continuance of the summary judgment hearing
and the trial, and (2) granting a no-evidence summary judgment in favor of Appellees
Foursquare Healthcare, Ltd.; Foursquare SNF, Inc.; NC Resources, Inc.; Wichita NH
Realty, Ltd.; and NTF Realty, Inc. (collectively, the Non-Operators). We will affirm.
II. BACKGROUND
A. Sayles files suit and serves discovery on Senior Care and later amends and
adds the Non-Operators.
In December 2017, Sayles filed suit against Senior Care alleging that Broadwell
had been transferred to Senior Care after being diagnosed with an acute kidney
infection and prescribed ongoing antibiotic therapy. At the time of the transfer,
Sayles contends that Broadwell “had a bump on his backside the size of a pimple.”
According to the pleadings, after approximately six weeks, Broadwell was sent to a
different facility “to have his blood pressure and a wound checked.” After several
surgical debridements, Broadwell was placed on hospice care until his death on
November 24, 2017. Sayles alleged that Senior Care “failed to properly monitor and
2
care for Mr. Broadwell and left him immobile in his bed, which ultimately led to his
development of a pressure ulcer on his coccyx.”
After being served with the original petition and request for disclosures in
April 2018,1 Senior Care filed its answer in May 2018.2 Also in May, Sayles served
written discovery in the form of interrogatories, request for admissions, and request
for production on Senior Care. Senior Care responded to the request for disclosures
in the same month, provided a link to its facility chart, and stated, “Pursuant to Tex.
Civ. Prac. & Rem. Code Ann. § 74.351(s), ‘all discovery . . . 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.’” In June
2018, Senior Care supplemented its responses to the request for disclosures and
responded to the interrogatories, request for admissions, and request for production.
In response to an interrogatory requesting the identity of certain facility employees
and/or staff members, Senior Care named the medical directors, administrator,
director of nursing, assistant directors of nursing, and dietary manager and/or
consultant dietician during the relevant time period.
1
Citation was not issued until March 8, 2018.
2
In its first amended answer filed on October 2, 2018, Senior Care stated that it
was “incorrectly named” as Senior Care and should be named “Nocona Hospital
District d/b/a Senior Care Health & Rehabilitation Center-Wichita Falls.” Senior
Care also filed special exceptions stating that it was “not properly named and thus had
not been sued in its proper capacity.” The trial court overruled the special exception.
3
In October 2018, Sayles filed her first amended petition, adding the five Non-
Operators to the lawsuit. Other than adding their names and addresses for service of
process, the amended petition made no specific factual allegations and stated no
separate basis for liability against any of the Non-Operators.3 NC Resources and
Wichita NH Realty were served and answered in November 2018. Although the
record reflects no service on NTF Realty, it also answered in November 2018.
Foursquare Healthcare and Foursquare SNF4 did not answer until August 2019.5
3
In their brief, Appellees note that, “[f]or example, Appellant did not plead that
the Non-Operator Defendants were vicariously liable, engaged in a joint enterprise or
a conspiracy with Senior Care, or the like.”
4
According to its answer, Foursquare SNF was “incorrectly named as
Foursquare JNF, Inc.” in the amended pleadings.
5
While Appellees state in their joint brief that the delay in answering by
Foursquare Healthcare and Foursquare SNF was “[d]ue to an apparent oversight,” we
note that the returns of service on both of these parties showed only that “John E.
Miller” was served with citation. While “John E. Miller” was alleged to be the
registered agent of both Foursquare Healthcare and Foursquare SNF, neither return
showed service on the entities themselves. See Benefit Planners, L.L.P. v. RenCare, Ltd.,
81 S.W.3d 855, 861 (Tex. App.—San Antonio 2002, pet. denied) (holding that
“[b]ecause the return failed to recite that citation was delivered to Benefit Planners by
serving its registered agent, the service of process was invalid”); see also Barker CATV
Constr., Inc. v. Ampro, Inc., 989 S.W.2d 789, 793 (Tex. App.—Houston [1st Dist.] 1999,
no pet.) (holding that the return was fatally defective because it “does not state, as it
must, that it was delivered to the defendant, Barker CATV Construction, Inc.,
through its registered agent James M. Barker”).
4
B. Sayles requests and is granted a scheduling order with a discovery cut-off
and trial date.
On February 20, 2019, Sayles filed her “Plaintiffs’ Motion to Enter a
Scheduling Order” in which she noted that counsel had failed to come to an
agreement on a discovery control plan and, therefore, requested the trial court “to
enter into the proposed scheduling order filed herewith or in the alternative set a trial
date of December 9, 2019.” The proposed scheduling order included a discovery
cutoff of November 1, 2019, and a trial date of December 9, 2019. One day later and
without making any changes, the trial court signed the order. Five days after the order
was signed, Sayles’s deposition was taken.
C. Sayles serves Chapter 74 expert reports.
Sayles served the first Chapter 74 expert report, which was only against Senior
Care, on September 4, 2018, the 120th day after Senior Care’s answer was filed. See
Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a) (“In a health care liability claim, a
claimant shall, not later than the 120th day after the date each defendant’s original
answer is filed, serve on that party or the party’s attorney one or more expert reports,
with a curriculum vitae of each expert listed in the report for each physician or health
care provider against whom a liability claim is asserted.”). Senior Care did not file
objections to this report. See id. (“Each defendant physician or health care provider
whose conduct is implicated in a report must file and serve any objection to the
sufficiency of the report not later than the later of the 21st day after the date the
5
report is served or the 21st day after the date the defendant’s answer is filed, failing
which all objections are waived.”).
On March 4, 2019, Sayles served an amended Chapter 74 expert report
addressing the Non-Operators, Senior Care, and Senior Care’s staff. On March 20,
Senior Care, NC Resources, Wichita NH Realty, and NTF Realty filed their objections
to the amended expert report. Foursquare Healthcare and Foursquare SNF did not
object to the amended report.6 In their objections, the three objecting Non-
Operators complained that the report failed to show that the expert was qualified to
opine regarding the standard of care applicable to them. On March 28, 2019, Senior
Care and the three objecting Non-Operators also filed their “Defendants’ Motion to
Dismiss for Failure to Comply with Tex. Civ. Prac. & Rem. Code § 74.351.” The
motion was overruled on June 11, 2019.
D. The Non-Operators move for summary judgment, and Sayles moves for
continuance.
On October 11, 2019, the Non-Operators moved for a no-evidence summary
judgment. In the motion, they alleged that “[t]here is no evidence of any act of direct
negligence” by any of them “with regard to the care and treatment provided to Roy
6
According to Appellees’ brief, due to Foursquare Healthcare’s and Foursquare
SNF’s delay in answering the lawsuit, “[a]n expert report addressing [their] conduct
had already been served at that point, and objections to the expert report had already
been overruled.”
6
Broadwell while he was a patient at [Senior Care].” In addition, the motion noted that
Sayles
has served multiple sets of written discovery requests but, as to movants,
has only served a Request for Disclosure. And it is too late to serve
further written discovery. Discovery closes in just three weeks from the
date of filing of this Motion. See Discovery Control Order, on file with the
Court and incorporated herein the same as if fully set forth herein for all purposes.
Discovery will have already closed by the time this Motion is heard. Id.
More than an adequate time for discovery has passed.
The hearing on the motion was set for November 25, 2019.
Sayles noticed the deposition of Senior Care and the Non-Operators’ expert on
November 6, 2019, for a deposition to occur on November 26, 2019. Sayles’s counsel
voluntarily withdrew the deposition notice on November 26, 2019. Also on
November 6, 2019, Sayles served her first set of interrogatories and request for
production to Foursquare JNF,7 Foursquare Healthcare, NC Resources, NTF Realty,
and Wichita Realty. According to Senior Care and the Non-Operators’ counsel, this
was the first discovery that was served on them since the discovery served on Senior
Care as part of the original and first amended petition and the discovery served on
Senior Care on May 22, 2018.
Sayles did not file a response to the motion for summary judgment. Instead,
Sayles filed her verified motion for continuance. In the motion, Sayles asserted the
following:
7
See note 4, supra.
7
[Sayles] seeks a continuance of the trial and the [Non-Operators’] no[-]
evidence motion for summary judgment in this case for at least six
months so that [Sayles] can actually conduct meaningful discovery.
Here, several of the defendants have moved for a no-evidence motion
for summary judgment, claiming incorrectly that adequate time for
discovery has passed, when the discovery period has officially been open
for less than six months.
....
. . . [Sayles] has been unable to conduct meaningful discovery
from the Defendants due to the automatic stays that arise each time the
new defendants to the case have answered the suit.
Later the same day, Sayles’s counsel filed an amended verification stating in part that
Sayles
has not conducted discovery on four of the five defendants.
Additionally, [Sayles] needs to procure the deposition of the facilities
nursing home administrator and/or the director of nursing. Discovery
in this case beyond the scope of [Broadwell’s] healthcare, has not been
open for a period long enough for [Sayles] to engage in meaningful
discovery. [Sayles] cannot obtain the discovery sought from any other
source. [Sayles] has been unable to conduct discovery due to the
limitations Chapter 74 places on parties to conduct [] discovery and a
stay on all discovery, including depositions, except for the discovery
related to [Broadwell’s] healthcare.
In the motion, Sayles requested six months to conduct additional discovery, including
“depos[ing] the nursing home administrator and [] the director of nursing,” having her
“motion to compel heard on matters already requested from” Senior Care,
propounding discovery to the Non-Operators, and seeking “the time cards, staffing
matrices and deposition of the [Senior Care and the Non-Operators’] Expert
Witnesses.”
8
The motion for continuance was heard on November 25, 2019, the date set to
hear the motion for summary judgment. At the hearing, Sayles’s counsel argued,
If you count up the amount of time that discovery was open in this case
from between the first expert report to the second expert report and
even through the final answer of the last two outstanding Defendants,
discovery was open for a combined total of 133 days. 76 days the first
time from September to October and then 57 days from the date you
issued your ruling, 6/11 to 8/7/2019, . . . .
The trial court denied Sayles’s motion for continuance and granted the Non-
Operators’ motion for summary judgment.
E. The case against Senior Care goes to trial, and a final take-nothing
judgment is entered.
The jury trial against Senior Care started on December 11, 2019. The next day,
the jury returned a unanimous verdict finding no negligence by Senior Care. The trial
court entered a final take-nothing judgment the following month, and Sayles now
appeals from the denial of her continuance motion and the granting of summary
judgment in favor of the Non-Operators.
III. DISCUSSION
On appeal, Sayles first complains that the trial court abused its discretion in
denying her motion for continuance of both the summary judgment hearing and the
trial. Senior Care and the Non-Operators respond that the denial of Sayles’s motion
for continuance was well within the trial court’s discretion because Sayles failed to
make the necessary showing to obtain a continuance, Sayles has not accurately
calculated the time that was available for discovery, and Sayles’s “own tactical
9
decisions” were the primary factors dictating the time that was available to her for
discovery. Relying on the same arguments made in her first issue, Sayles complains in
her second issue that the trial court erred in granting a no-evidence summary
judgment in favor of the Non-Operators.
A. We first set out the standards of review.
We review a trial court’s ruling on a motion for continuance for an abuse of
discretion. See BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 800 (Tex. 2002).
We do not substitute our judgment for the trial court’s. In re Nitla S.A. de C.V.,
92 S.W.3d 419, 422 (Tex. 2002) (orig. proceeding). Instead, we must determine
whether the trial court’s discretion was so arbitrary and unreasonable that it amounts
to a clear and prejudicial error of law. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d
150, 161 (Tex. 2004). The test is whether the trial court acted without reference to
guiding rules or principles. Cire v. Cummings, 134 S.W.3d 835, 838–39 (Tex. 2004). A
litigant who fails to diligently use the rules of civil procedure for discovery purposes is
not entitled to a continuance. State v. Wood Oil Distrib., Inc., 751 S.W.2d 863, 865 (Tex.
1988); D.R. Horton-Tex., Ltd. v. Savannah Props. Assocs., L.P., 416 S.W.3d 217, 223 (Tex.
App.—Fort Worth 2013, no pet.).
With regard to continuances of summary judgment motions, Texas Rule of
Civil Procedure 166a(g) permits a trial court to deny a summary judgment motion or
to grant a continuance to the party opposing summary judgment if that party files an
affidavit setting forth the reasons the party cannot present the facts necessary to
10
respond to the motion. Tex. R. Civ. P. 166a(g); Ford Motor Co. v. Castillo, 279 S.W.3d
656, 662 (Tex. 2009). When a nonmovant “contends that it has not had an adequate
opportunity for discovery before a summary judgment hearing, it must file either an
affidavit explaining the need for further discovery or a verified motion for
continuance.” Tenneco Inc. v. Enter. Prods. Co., 925 S.W.2d 640, 647 (Tex. 1996); see
Tex. R. Civ. P. 166a(g), 251, 252.
With regard to no-evidence motions for summary judgment, after an adequate
time for discovery, the party without the burden of proof may, without presenting
evidence, move for summary judgment on the ground that no evidence supports an
essential element of the nonmovant’s claim or defense. Tex. R. Civ. P. 166a(i). The
motion must specifically state the elements for which no evidence exists. Id.; Timpte
Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009). The trial court must grant the
motion unless the nonmovant produces summary judgment evidence that raises a
genuine, material fact issue. See Tex. R. Civ. P. 166a(i) and 1997 cmt.; Hamilton v.
Wilson, 249 S.W.3d 425, 426 (Tex. 2008) (per curiam).
When reviewing a no-evidence summary judgment, we examine the entire
record in the light most favorable to the nonmovant, indulging every reasonable
inference and resolving any doubts against the motion. Sudan v. Sudan, 199 S.W.3d
291, 292 (Tex. 2006) (per curiam). We review a no-evidence summary judgment for
evidence that would enable reasonable and fair-minded jurors to differ in their
conclusions. Hamilton, 249 S.W.3d at 426 (citing City of Keller v. Wilson, 168 S.W.3d
11
802, 822 (Tex. 2005)). We credit evidence favorable to the nonmovant if reasonable
jurors could, and we disregard evidence contrary to the nonmovant unless reasonable
jurors could not. Timpte Indus., 286 S.W.3d at 310 (citing Mack Trucks, Inc. v. Tamez,
206 S.W.3d 572, 582 (Tex. 2006)). If the nonmovant brings forward more than a
scintilla of probative evidence that raises a genuine issue of material fact, then a no-
evidence summary judgment is not proper. Smith v. O’Donnell, 288 S.W.3d 417, 424
(Tex. 2009); King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003).
B. We next apply the law to the facts of this case.
1. Sayles’s first issue complains of the trial court’s denial of her motion
for continuance of the summary judgment hearing and the trial.
Sayles first complains that the trial court abused its discretion by considering
the arguments of Senior Care and the Non-Operators’ counsel as evidence. In
making this contention, Sayles relies on the following statement by the trial court at
the summary judgment hearing: “The Court, after hearing argument of counsel and
reviewing the proposed orders, rules as follows: The Court will grant the order
denying [Sayles’s] Motion for Continuance to Obtain Additional Discovery on Two
Defendants, No-Evidence Motion for Summary Judgment and will sign same.” Based
on this statement by the trial court, Sayles argues that “the trial court’s reliance on the
arguments of Appellees’ trial counsel as support for [the trial court’s] denial of the
continuance, when no contravening evidence was submitted, was in error.”
12
While argument of counsel is not evidence, Tex. Dep’t of Pub. Safety v. Mendoza,
952 S.W.2d 560, 564 (Tex. App.—San Antonio 1997, no writ), the statement by the
trial court does not suggest that it relied on counsel’s statements as evidence. Rather,
it only shows that the court heard argument. See Nguyen v. Short, How, Frels & Heitz,
P.C., 108 S.W.3d 558, 561 (Tex. App.—Dallas 2003, pet. denied) (stating, in a case
where the judgment indicated that the trial court heard argument of counsel, that a
hearing on a motion for summary judgment is limited to a review of the written
motion, response, and attached evidence). Nothing in the reporter’s record indicates
that the trial court did not properly limit its review to the motions before it.
Sayles next argues that the trial court erroneously disregarded the Texas
Medical Liability Act’s discovery prohibition when it denied the continuance. See Tex.
Civ. Prac. & Rem. Code Ann. § 74.351(s). In making this argument, she relies on the
provisions of the Act that limit discovery until expert reports are filed:
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.
13
Id.
Because of this discovery prohibition, Sayles contends that “Appellees’
objections clearly frustrated the purpose of the docket control order; it reduced the
amount of fact discovery that could be obtained prior to the expert discovery deadline
from 144 days (February 21, 2019–July 15, 2019) to 34 days (34 days from June 11
through July 15, 2019).” Senior Care and the Non-Operators respond that Sayles’s
analysis of the amount of time she had for discovery is erroneous. They note the
following:
• While Sayles sued Senior Care in December 2017, citation was not issued
until March 8, 2018, and Senior Care was not served until April 10, 2018.
• Sayles served her initial expert report on Senior Care on September 4, 2018,
the last day she could do so; Senior Care did not object to the report;
therefore, any discovery stay ended this day.
• Sayles propounded discovery to Senior Care in violation of the discovery
stay, and Senior Care responded to the discovery, making objections and
providing substantive responses, including identifying the facility
administrator, director of nursing, assistant director of nursing, and dietary
manager during the relevant time period.
• Even under Sayles’s timeline, no discovery stay resumed until November 19,
2019, when NC Resources, Wichita NH Realty, and NTF Realty answered
the lawsuit; prior to the answers being filed, no discovery occurred.
• After NC Resources, Wichita NH Realty, and NTF Realty answered, Sayles
waited the full 120 days before filing an amended expert report, which
contained a single paragraph addressing the Non-Operators.
• NC Resources, Wichita NH Realty, and NTF Realty filed objections to the
amended report and moved to dismiss, but the trial court denied the motion
on June 11, 2019, and any discovery stay ended at that time.
14
• No discovery occurred for the next fifty-seven days, when Foursquare
Healthcare and Foursquare SNF answered on August 7, 2019.
• Foursquare Healthcare’s and Foursquare SNF’s objections to the amended
report were due August 28, 2019, see Tex. Civ. Prac. & Rem. Code Ann.
§ 74.351(a), (s), but no objections were filed.
• Because a report implicating the conduct of Foursquare Healthcare and
Foursquare SNF was served on their counsel prior to the date they
answered and because they did not object, no additional discovery stay came
into effect after the stay ended on June 11, 2019.
• Therefore, in addition to the seventy-six days from September 4, 2018 to
November 19, 2018, Sayles had time to conduct discovery from June 11,
2019 to November 1, 2019, when discovery ended pursuant to the trial
court’s docket control order.
We agree with Senior Care and the Non-Operators. In determining whether to
grant a continuance, the trial court must consider the procedural history and record of
the case, not just the sworn motions. Elberger v. Dub Miller Ford, No. 01-06-00926-CV,
2007 WL 3293725, at *3 (Tex. App.—Houston [1st Dist.] Nov. 8, 2007, no pet.)
(mem. op.). After doing so, we do not agree that the procedural stays required by
Texas Civil Practice & Remedies Code Ann. Section 74.351(s) prevented Sayles from
having adequate time to conduct discovery. Rather, while there were some stays,
there was still ample time to engage in discovery.
Sayles goes on to argue that continuances from summary judgment hearings
“need not be founded on the same level of evidence as that required by a trial
15
continuance.” Compare Tex. R. Civ. P. 166a(g), with Tex. R. Civ. P. 252. Rule 166a(g)
provides,
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.
Tex. R. Civ. P. 166a(g).8 Rule 252 states in part,
If the ground of such application be the want of testimony, the party
applying therefor shall make affidavit that such testimony is material,
showing the materiality thereof, and that he has used due diligence to
procure such testimony, stating such diligence, and the cause of failure, if
known; that such testimony cannot be procured from any other source;
and, if it be for the absence of a witness, he shall state the name and
residence of the witness, and what he expects to prove by him; and also
state that the continuance is not sought for delay only, but that justice
may be done; provided that, on a first application for a continuance, it
shall not be necessary to show that the absent testimony cannot be
procured from any other source.
Tex. R. Civ. P. 252.
We have previously addressed the interplay between Rules 166a(g) and 252. In
Tri-Steel Structures, Inc. v. Baptist Foundation of Texas, we stated,
If the “opportunity” is needed to take depositions, that is, for “want of
testimony,” the rule is silent as to whether a continuance motion must
meet the requirements of Rule 252. Tex. R. Civ. P. 252. No case law
appears to have addressed this specific issue. We hold that if additional
evidence is requested to be submitted through the initiation of discovery
for “want of testimony,” (1) the summary judgment hearing must be
continued to allow the new evidence to be presented to the court, and
8
Rule 166a(i) also indirectly addresses continuances by use of the words “[a]fter
adequate time for discovery.” Tex. R. Civ. P. 166a(i).
16
(2) a motion for continuance consistent with Rule 252 is required. Id.
Otherwise, summary judgment affidavits would be replete with hearsay,
with little impetus to obtain proper discovery before the hearing to avoid
hearsay rulings.
166 S.W.3d 443, 448 (Tex. App.—Fort Worth 2005, pet. denied). A motion for
continuance of a summary judgment hearing is subject to the same rules applicable to
a trial continuance. See D.R. Horton-Tex., Ltd., 416 S.W.3d at 222–23.
A motion for continuance asking to continue a summary judgment hearing or a
trial to allow more time for discovery must be supported by an affidavit describing the
evidence sought, explaining its materiality, and showing that the party requesting the
continuance has used due diligence to obtain the evidence. Tex. R. Civ. P. 251, 252;
Gadberry Constr. Co., Inc. v. Raney, No. 02-18-00263-CV, 2019 WL 3244519, at *3 (Tex.
App.—Fort Worth Jul. 18, 2019, no pet.) (mem. op.); see also Tenneco Inc., 925 S.W.2d
at 647 (“When a party contends that it has not had an adequate opportunity for
discovery before a summary judgment hearing, it must file either an affidavit
explaining the need for further discovery or a verified motion for continuance.”). The
failure of a litigant to diligently utilize the Rules of Civil Procedure for discovery
purposes will not authorize the granting of a continuance. Wood Oil Distrib., Inc.,
751 S.W.2d at 865.
In deciding whether the trial court permitted an adequate time for discovery
under Rule 166a(i), we consider the following factors: (1) the nature of the case,
(2) the nature of the evidence necessary to controvert the no-evidence motion, (3) the
17
length of time the case was active, (4) the amount of time the no-evidence motion was
on file, (5) whether the movant had requested stricter deadlines for discovery, (6) the
amount of discovery that already had taken place, and (7) whether the discovery
deadlines in place were specific or vague. McInnis v. Mallia, 261 S.W.3d 197, 201 (Tex.
App.—Houston [14th Dist.] 2008, no pet.). Ordinarily, a no-evidence summary
judgment motion is not permitted before the expiration of the discovery period set by
the pre-trial order. Id. at 200. And a discovery period set in a docket control order is
“a strong indicator of adequate time” for discovery. Id. at 203. The pertinent date for
determining whether the trial court permitted adequate time is the final date on which
the no-evidence motion is presented to the trial court for ruling. Id. at 200.
Here, by the summary judgment submission date of November 25, 2019, the
following had occurred or was about to occur:
• the case had been pending for twenty-three months;
• the Non-Operators had been parties for thirteen months;
• the discovery deadline in the scheduling order that was proposed by Sayles
had passed twenty-four days earlier;
• the motion for summary judgment had been on file for forty-five days;
and
• the trial date in the scheduling order that was proposed by Sayles was
fourteen days away.
Nevertheless, Sayles contends that, due to the failure of Senior Care to
controvert the motion for continuance, which was otherwise in substantial
18
compliance and verified, the reviewing court must accept the statements in the
motion as true. And, she contends, this is especially true in a first motion for
continuance. However, there is nothing in the continuance rules requiring the
granting of a first motion merely because it is in statutory form and is not
controverted by affidavit of the opposite party. Fritsch v. J.M. English Truck Line,
246 S.W.2d 856, 858 (Tex. 1952). Moreover, a trial court is not required to grant a
motion for continuance “when the allegations in the motion examined in the light of
the record show beyond a cavil a complete lack of diligence as measured by other
rules regulating procedure in the trial of cases.” Id.
In addition, Sayles’s motion was not in substantial compliance with the rules. It
did not attempt to state or show the materiality of any testimony sought, nor did it
allege any facts to show that Sayles used due diligence to procure such testimony. See
Tex. R. Civ. P. 252; see also Primdahl v. Keller Ladders, Inc., No. 05-00-00618-CV, 2001
WL 727325, at *2 (Tex. App.—Dallas June 29, 2001, no pet.) (not designated for
publication) (holding that the trial court did not abuse its discretion in denying the
motion for continuance that was not in substantial compliance with Rule 252). It is
axiomatic that the appellant must show that she has used due diligence and must state
with particularity such diligence used and the cause of the failure to produce a witness.
Gregg v. Cecil, 844 S.W.2d 851, 853 (Tex. App.—Beaumont 1992, no writ).
While Sayles asserted in her amended verification to the continuance motion
that she needed a continuance to procure the depositions of Senior Care’s nursing-
19
home administrator or director of nursing, Senior Care had provided the identities of
these individuals in its June 21, 2018 response to discovery. Despite this earlier
knowledge, the record reflects Sayles made no attempt to depose these individuals.
Sayles’s amended verification also included the conclusory statements that
discovery “has not been open for a period long enough . . . to engage in meaningful
discovery,” that Sayles “cannot obtain the discovery sought from any other source,”
and that Sayles “has been unable to conduct discovery due to the limitations
Chapter 74 places on parties.” An affidavit seeking a continuance of a summary
judgment hearing must show why the continuance is necessary; conclusory allegations
are not sufficient. Carter v. MacFadyen, 93 S.W.3d 307, 310 (Tex. App.—Houston
[14th Dist.] 2002, pet. denied).
Considering the entire procedural history and record of the case, we conclude
that Sayles failed to diligently seek discovery. Prior to the summary judgment hearing,
Sayles had served the following discovery on Senior Care: (1) a request for disclosure
(with the original and amended petition); (2) the first set of interrogatories, a request
for admissions, and a request for production; and (3) a second request for production.
Senior Care timely served objections and responses to each. According to Senior
Care and the Non-Operators’ counsel, other than this discovery, Sayles never served
any other written discovery on Senior Care or Non-Operators until November 6,
2019. On that day, Sayles noticed the deposition of Senior Care and the Non-
Operators’ expert and served written discovery on the Non-Operators. Sayles later
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withdrew the deposition notice. Sayles fails to show why she did not pursue discovery
in the time periods when the stay was not in effect. See Clark v. Compass Bank, No. 02-
07-00050-CV, 2008 WL 2168292, at *3 (Tex. App.—Fort Worth May 22, 2008, no
pet.) (mem. op.) (holding that the failure of a litigant to diligently use the rules of civil
procedure for discovery purposes will not authorize the granting of a continuance).
Finally, we note that both the discovery deadline and the trial date set out in the
discovery control order were dates selected by Sayles. See Tittizer v. Union Gas Corp.,
171 S.W.3d 857, 862 (Tex. 2005) (stating that “a party cannot complain on appeal that
the trial court took a specific action that the complaining party requested”); see also
Fields v. Houston Indep. Sch. Dist., No. 14-19-00010-CV, 2020 WL 6073758, at *8 (Tex.
App.—Houston [14th Dist.] Oct. 15, 2020, no pet. h.) (mem. op.) (holding that the
appellant cannot complain on appeal when the trial court granted appellant’s request
for the trial court to “enter a new Docket Control Order extending all deadlines by at
least 90 days” but did not ask for extension of approaching hearings). On
February 20, 2019, when Sayles requested a trial date and a discovery control cutoff
date, she was in the best position to know what, if any, discovery was still needed in
order to proceed to trial. Despite this knowledge, she chose the deadlines and dates
for the trial court to enter.
Considering the entire record, including the length of time the case had been
on file, Sayles’s agreement to the docket control order and discovery deadline, and her
failure to diligently conduct discovery under the rules, we cannot say that the trial
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court abused its discretion by denying the motion to continue the summary judgment
hearing and the trial. See Haven Chapel United Methodist Church v. Leebron, 496 S.W.3d
893, 902 (Tex. App.—Houston [14th Dist.] 2016, no pet.). Accordingly, we overrule
Sayles’s first issue.
2. Sayles’s second issue complains of the trial court’s granting of the no-
evidence motion for summary judgment.
In Sayles’s second issue complaining of the trial court’s error in granting the
Non-Operators’ no-evidence motion for summary judgment, Sayles makes no
substantive arguments, again argues that the trial court erred in denying her motion
for continuance of the summary judgment hearing, and “incorporates all arguments
made in support of diligence and materiality” in the earlier section of her brief.
Because we have already addressed all of these arguments, we overrule Sayles’s second
issue.
IV. CONCLUSION
Having overruled both of Sayles’s issues, we affirm the trial court’s judgment.
/s/ Dana Womack
Dana Womack
Justice
Delivered: January 7, 2021
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