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Singleterry v. Etter

Court of Appeals of Texas, First District

June 13, 2017

CHRISTINE SINGLETERRY, AS INDEPENDENT ADMINISTRATOR OF THE ESTATE OF JAMES SINGLETERRY, JR., DECEASED, Appellant
v.
ELEGY LEON ETTER, II, M.D. AND E. LEON ETTER, II, M.D., P.A., Appellees

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

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

          MEMORANDUM OPINION

          Russell Lloyd Justice

         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[1] 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.[2] On February 26, 2015, Etter filed a motion to show authority and plea in abatement and, subject thereto, motion to dismiss.[3]

         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 ...


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