CHRISTINE SINGLETERRY, AS INDEPENDENT ADMINISTRATOR OF THE ESTATE OF JAMES SINGLETERRY, JR., DECEASED, Appellant
ELEGY LEON ETTER, II, M.D. AND E. LEON ETTER, II, M.D., P.A., Appellees
Appeal from the 129th District Court Harris County, Texas
Trial Court Case No. 2014-52469-A.
consists of Chief Justice Radack and Justices Brown and
Russell Lloyd Justice
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.
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
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.
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.
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.
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.
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.
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.
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.
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