Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-12-00120-CV
Rebecca DESROCHERS,
Appellant
v.
John W. THOMAS, M.D., and South Texas Radiology Group,
Appellees
From the 225th Judicial District Court, Bexar County, Texas
Trial Court No. 2008-CI-21278
Honorable Martha Tanner, Judge Presiding
Opinion by: Sandee Bryan Marion, Justice
Sitting: Karen Angelini, Justice
Sandee Bryan Marion, Justice
Patricia O. Alvarez, Justice
Delivered and Filed: March 27, 2013
AFFIRMED
This is an appeal from a take-nothing summary judgment rendered in favor of appellees.
On appeal appellant, Rebecca Desrochers, asserts (1) the trial court abused its discretion when it
denied her motion for enlargement of time to conduct discovery, and (2) the trial court erred
when it granted appellees’ no-evidence summary judgment motion.
04-12-00120-CV
BACKGROUND
Desrochers sued Dr. John W. Thomas and South Texas Radiology Group on December
29, 2008, alleging medical negligence for departures from accepted standards of medical care. 1
On November 17, 2010, the trial court set the case for trial on November 14, 2011, with a
discovery deadline of October 14, 2011. 2
Appellees filed their no-evidence summary judgment motion on August 15, 2011. On
August 31, 2011, Desrochers’s trial counsel was allowed to withdraw and a stay on proceedings
was imposed. On September 23, 2011, after expiration of the stay, a hearing was set for
appellees’ no-evidence summary judgment motion for October 17, 2011. Appellees filed a
motion to strike plaintiff’s expert witness on September 26, 2011, and Desrochers filed her
response to the motion to strike, which also included a request for enlargement of time of the
discovery deadlines. 3 A hearing was held on October 5, 2011. In an order entered October 7,
2011, the appellees’ motion to strike plaintiff’s expert witness was granted in part.
Desrochers responded to appellees’ no-evidence motion for summary judgment on
October 14, 2011, and appellees filed objections to Desrochers’s summary judgment evidence.
At the summary judgment hearing on October 17, 2011, the trial court sustained appellees’
1
Desrochers asserted claims against South Texas Radiology Group for being vicariously liable for Dr. Thomas’s
alleged medical negligence.
2
There were numerous discover disputes, with Desrochers and her counsel being sanctioned multiple times for
failure to comply with discovery orders.
3
On September 30, 2011, in addition to the request for enlargement of time of the discovery deadline in
Desrochers’s response to the motion to strike, she also filed a separate motion entitled “Plaintiff’s Motion for
Enlargement of Time of the Discovery Deadlines and Motion to Change Trial Dates and Objection to Trial Date as
Set.” The record does not contain a ruling on this motion and appellees argue on appeal that her complaint about the
denial of her motion for enlargement of time is not preserved for our review. However, the order granting in part
appellees’ motion to strike expert witness specifically states the trial court reviewed Desrochers’s response and
denies all other relief requested by the parties. We conclude this ruling is a denial of Desrochers’s request for
enlargement of time contained within her response to appellees’ motion to strike expert witness. Therefore,
Desrochers’s complaint is preserved. See TEX. R. APP. P. 33.1 (requiring record to demonstrate complaint was made
to trial court by timely motion, stating grounds of complaint with sufficient specificity, and trial court ruled on the
motion, either expressly or implicitly as prerequisite to presenting complaint for appellate review).
-2-
04-12-00120-CV
objections to the summary judgment evidence presented by Desrochers and granted their
summary judgment motion. This appeal followed.
ENLARGEMENT OF TIME
In her first issue, Desrochers asserts the trial court abused its discretion when it denied
her motion for enlargement of time to conduct discovery.
Trial was set to commence November 14, 2011, with a discovery deadline of October 14,
2011. Desrochers’s first counsel was allowed to withdraw from the case on August 31, 2011.
Desrochers’s second counsel filed an appearance on September 26, 2011. Desrochers argues an
enlargement of discovery deadlines was required because her second counsel had only eighteen
days before the discovery deadline when he made his appearance.
We review a trial court’s decision to deny a motion to modify a discovery-control plan
for an abuse of discretion. See BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 800
(Tex. 2002) (applying abuse of discretion standard to denial of motion for continuance
requesting extension to complete discovery); Brown v. Brown, 145 S.W.3d 745, 749–50 (Tex.
App.—Dallas 2004, pet. denied) (applying abuse of discretion standard to denial of motion for
enlargement of time and modification of discovery procedures). A trial court “abuses its
discretion when it reaches a decision so arbitrary and unreasonable as to amount to a clear and
prejudicial error of law.” BMC, 83 S.W.3d at 800. We consider the following nonexclusive
factors when deciding whether a trial court abused its discretion in denying a request for
additional time to conduct discovery: (1) the length of time the case has been on file, (2) the
materiality and purpose of the discovery sought, and (3) whether the party seeking the
continuance has exercised due diligence to obtain the discovery sought. Joe v. Two Thirty Nine
Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004). We apply the factors from Joe to the instant
case:
-3-
04-12-00120-CV
(1) Nearly three years had passed between the date Desrochers filed suit and her request for
enlargement of the discovery period.
(2) In her motion, Desrochers asserted the discovery period should be extended in order to
take the deposition of the defendant and defendant’s experts.
(3) Her motion states: “[Her] counsel indicated to [defense counsel] that ‘we need to depose’
his client and his expert but was denied both unless and until we paid for his legal fees for
the deposition of our expert.”
See id. While the second factor, materiality, weighs in her favor, the first and third weigh
strongly against her. The case had been on file for almost three years and Desrochers’s motion
does not explain how due diligence was used to obtain the discovery sought. In an order dated
October 7, 2011, the trial court ordered Desrochers to present her expert for deposition in Bexar
County at a specified time and to pay all fees associated with the deposition. Desrochers did not
comply with the order and then, in her motion, characterized the appellees’ attempt to enforce
the order as their “refusal” to provide her with the discovery she sought an enlargement of time
to conduct. Also factoring into due diligence, the deposition she sought extra time to conduct
was not of some person whose identity was not known until recently—appellees were a party to
the lawsuit since Desrochers filed it nearly three years prior. 4
After an analysis of the Joe factors, coupled with the fact that Desrochers was sanctioned
multiple times for failure to comply with discovery orders, we conclude the trial court did not
abuse its discretion when it denied her motion for enlargement of time to conduct discovery.
4
Desrochers repeatedly makes the assertion that her attorney was left with only eighteen days to conduct discovery.
However, we note that the third Joe factor places the burden on the party rather than the attorney to show whether
due diligence was exercised to obtain the discovery sought. See Joe, 145 S.W.3d at 161 (“. . . whether the party
seeking the continuance has exercised due diligence to obtain the discovery sought.”) (emphasis added); see also
State v. Wood Oil Distributing, Inc., 751 S.W.2d 863, 865 (Tex. 1988) (“[T]he failure of a litigant to diligently
utilize the rules of civil procedure for discovery purposes will not authorize the granting of a continuance.” (citing
Fritsch v. J.M. English Truck Line, Inc., 151 Tex. 168, 246 S.W.2d 856, 858–59 (1952))).
-4-
04-12-00120-CV
SUMMARY JUDGMENT
In her second issue on appeal, Desrochers asserts the trial court erred when it granted
appellees’ no-evidence summary judgment motion and entered judgment against her. Appellees
respond the trial court properly granted their no-evidence summary judgment motion because
Desrochers presented no evidence to raise a genuine issue of material fact regarding the elements
of her health care liability claim.
Appellees filed their no-evidence summary judgment motion on August 15, 2011, and a
hearing was set for October 17, 2011. Desrochers filed her response October 14, 2011. Attached
to Desrochers’s response was her 120-day expert report 5, an internet article on Thoracic Outlet
Syndrome from the National Library of Medicine, and an excerpt from Desrochers’s medical
records. Appellees objected to Desrochers’s evidence asserting the attached evidence was
inadmissible because (1) the evidence was not admissible under Texas Rule of Civil Procedure
166(a); (2) Dr. Howe’s expert report was not admissible because he had been stricken from
testifying in the case by operation of the trial court’s October 7, 2011 order; 6 and (3) the
response was untimely because it was filed less than seven days before the hearing.
We review de novo the trial court’s decision to grant summary judgment. Valence
Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). A party may move for summary
5
This was the report served on appellees in compliance with section 74.351 of the Texas Civil Practice and
Remedies Code, which requires a health care liability claimant to provide the defendant with an expert report within
120 days after filing the petition. TEX. CIV. PRAC. & REM. CODE § 74.351(a) (West 2008).
6
After appellees attempted to depose Desrochers’s expert witness, Dr. Steven C. Howe, without success, they filed
a motion to strike Dr. Howe and requested sanctions on May 23, 2011. The trial court granted the motion to strike
in part and ordered the deposition take place in Bexar County on an agreed upon date. Desrochers’s new counsel
appeared on September 26, 2011, but he did not present Dr. Howe for deposition in Bexar County on September 28,
despite an order from the trial court. Thereafter, appellees filed another motion to strike Dr. Howe. The trial court
heard appellees’ motion and granted it in part, again ordering the deposition of Dr. Howe be taken in accordance
with the previous order no later than the discovery deadline (October 14), failing which Dr. Howe would be stricken
from testifying in the case. Dr. Howe was never presented for deposition, thus, appellees argued in their objections
to Desrochers’s summary judgment evidence that Dr. Howe’s report was inadmissible because he had been stricken
from the case when he was never deposed in accordance with the trial court’s order.
-5-
04-12-00120-CV
judgment on the ground that there is no evidence of one or more essential elements of a claim on
which an adverse party has the burden of proof. TEX. R. CIV. P. 166a(i). The court must grant
the motion unless the non-movant produces summary judgment evidence raising a genuine issue
of material fact on the elements the movant has raised. Id. Except with leave of court, a party
may not file a response to a motion for summary judgment with supporting evidence later than
seven days prior to the day of the hearing. Carpenter v. Cimarron Hydrocarbons Corp., 98
S.W.3d 682, 686 (Tex. 2002); TEX. R. CIV. P. 166a(c). If a non-movant files a late response to a
motion for summary judgment, it must get the trial court’s permission in writing or the response
will not be before the court. INA of Tex. v. Bryant, 686 S.W.2d 614, 615 (Tex. 1985). “It is
well-established . . . that unless there is a basis in the record to conclude that untimely material
was filed with leave of court, we presume that the trial court did not consider it.” Envtl.
Procedures, Inc. v. Guidry, 282 S.W.3d 602, 612 (Tex. App.—Houston [14th Dist.] 2009, pet.
denied).
Here, the hearing on appellees’ motion for summary judgment was set for October 17,
2011. Therefore, unless she received leave of court, Desrochers was required to file her response
not later than seven days prior to the hearing. The record demonstrates Desrochers filed her
response to appellees’ no-evidence motion for summary judgment on October 14—only three
days before the hearing. The record reveals no motion requesting leave to file a late response
and no order granting leave of court to file a late response; therefore, Desrochers’s summary
judgment evidence was not presented to the trial court. See Benchmark Bank v. Crowder, 919
S.W.2d 657, 663 (Tex. 1996) (concluding summary judgment evidence was not properly before
the trial court when it was filed two days before the hearing and the record contained no order
granting leave to file the late evidence). Accordingly, the trial court did not err in granting
appellees’ motion for no-evidence summary judgment because the trial court “must grant the
-6-
04-12-00120-CV
motion unless the respondent produces summary judgment evidence raising a genuine issue of
material fact.” See TEX. R. CIV. P. 166a(i).
CONCLUSION
We conclude the trial court did not abuse its discretion in denying Desrochers’s motion
for enlargement of time to conduct discovery. We also conclude the trial court did not err by
granting appellees’ no-evidence summary judgment motion when leave of court was not granted
to file the late response and, therefore, Desrochers produced no evidence to raise a genuine issue
of material fact sufficient to defeat appellees’ entitlement to a no-evidence summary judgment.
The trial court’s judgment is affirmed.
Sandee Bryan Marion, Justice
-7-