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Clemons v. Citizens Medical Center8/9/2001
Opinion by Justice Yanez
Appellants Paula Clemons, individually and as next friend of Charles Ryan Faupel, a minor; Chad Aaron Clemons; David Eric Clemons and Robyn Renee Clemons Faupel, individually and as next friend of Charles Ryan Faupel, a minor; brought suit against Citizens Medical Center ("CMC") and several other defendants. CMC filed a motion for summary judgment and severance, which was granted. With two issues, appellants challenge the granting of the summary judgment. We affirm.
Background
Appellants filed suit on July 9, 1998, alleging several causes of action arising from alleged medical negligence which resulted in the death of Robert Clemons. Appellants alleged that Clemons had been admitted to CMC and had been treated by the doctor defendants. CMC filed a motion for summary judgment on December 1, 1999. Appellants responded to CMC's motion for summary judgment on January 6, 2000, by filing a response to CMC's motion and a separate motion for continuance of the hearing on the motion for summary judgment. On January 14, 2000, the trial court granted the summary judgment, dismissing, with prejudice, all of the appellants' claims and severing all of the appellants' claims into a new cause of action.
Appellants challenge the summary judgment with two issues on appeal. With their first issue, appellants argue that the trial court erred by denying their motion for continuance. Appellants argue in their second issue that the trial court erred by granting the summary judgment. We will address the summary judgment issue first.
The Summary Judgment
In their second issue on appeal, appellants argue that the trial court erred by granting a no-evidence summary judgment prior to the completion of discovery. A no- evidence summary judgment is restricted in that it cannot be granted prior to the passage of an "adequate time for discovery." Tex. R. Civ. P. 166a(i); Crow v. Rockett Special Util. Dist., 17 S.W.3d 320, 328 (Tex. App.-Waco 2000, pet. denied). This time restriction does not apply to a traditional motion for summary judgment. Tex. R. Civ. P. 166a(b). CMC argues that the summary judgment was not a no-evidence summary judgment, although it was "inartfully drafted in that it alleged that it was filed under the 'no evidence' provision of Rule 166a(i)." CMC contends that the summary judgment motion was actually a traditional motion for summary judgment, with the "no-evidence" language being based on the affirmative defense of sovereign immunity. The motion was supported with an affidavit.
To determine if the trial court erred by granting the summary judgment prior to the discovery cutoff date, we must first determine whether this is a traditional motion for summary judgment, or a no-evidence summary judgment under Texas Rule of Civil Procedure 166a(i). If the summary judgment is a traditional summary judgment, then the discovery deadline would have no impact on the court's decision to grant the judgment.
No-Evidence Summary Judgment
A no-evidence summary judgment is based on the ground that the opposing party has no evidence of one or more essential elements of a claim or defense on which the opposing party has the burden of proof at trial. Tex. R. Civ. P. 166a(i). A party may move for a no-evidence summary judgment after an "adequate time for discovery." Id. The moving party cannot attach evidence to the motion. See id.; Crow, 17 S.W.3d at 328; Ethridge v. HCEC, 995 S.W.2d 292, 295 (Tex. App.-Houston [14th Dist.] 1999, no pet.). CMC's motion was supported by an affidavit stating that CMC is a governmental entity.
CMC's motion alleged that it was entitled to the defe
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