O'Donald v. Texarkana Memorial Hospital9/28/2005
James Michael O'Donald, on behalf of the Estate of Ross Eugene O'Donald, deceased, and all wrongful death beneficiaries, brought suit against T. Michael Hillis, M.D., Malcolm A. Smith, M.D., Collom and Carney Clinic Association, and Texarkana Memorial Hospital, Inc., doing business as Wadley Regional Medical Center, seeking damages for the death of Ross Eugene O'Donald, allegedly as a result of an aortofemoral bypass surgery and an esophageal perforation.
The trial court granted summary judgment in favor of Doctors Hillis and Smith and the Collom and Carney Clinic. The trial court also severed the claims against those defendants from the claims against Wadley Regional Medical Center, and on October 1, 2004, rendered summary judgment in favor of Wadley Regional Medical Center. The O'Donalds appealed from that judgment.
Wadley's motion for summary judgment was a joint one that combined a no-evidence motion pursuant to Tex. R. Civ. P. 166a(i) and a traditional motion pursuant to Tex. R. Civ. P. 166a(b) and (c).
Wadley's summary judgment motion was filed on August 20, 2004. The hearing on the motion was originally set for September 27, 2004. At the request of counsel for the O'Donalds, the hearing was by agreement reset for 9:00 a.m. on October 1, 2004. The O'Donalds filed their response to Wadley's summary judgment motion at 8:39 a.m. on October 1, 2004, the day set for hearing Wadley's motion.
A response to a motion for summary judgment must be filed at least seven days before the hearing on the motion unless the trial court grants leave to file the response late. Tex. R. Civ. P. 166a(c). The O'Donalds did not request leave of the court to file their late response, and there is nothing in the record to indicate that the trial court granted leave to file the late response.
When a defendant files a motion for a no-evidence summary judgment, properly alleging a lack of evidence supporting one or more specific essential elements of the plaintiffs' cause of action, the trial court must grant the summary judgment unless the plaintiffs timely respond, presenting to the trial court evidence, more than a scintilla, that raises a genuine issue of fact on the challenged elements. Tex. R. Civ. P. 166a(i); Wal-Mart Stores, Inc. v. Rodriguez, 92 S.W.3d 502, 511 (Tex. 2002); Trusty v. Strayhorn, 87 S.W.3d 756, 759 (Tex. App.---Texarkana 2002, no pet.); Garrett v. L. P. McCuistion Cmty. Hosp., 30 S.W.3d 653, 655 (Tex. App.---Texarkana 2000, no pet.); McCombs v. Childrens' Med. Ctr. of Dallas, 1 S.W.3d 256, 258 (Tex. App.---Texarkana 1999, pet. denied).
If the record contains no order or other affirmative evidence that the trial court granted leave to late file a response or summary judgment evidence, it is presumed that the late filing was not before the trial court, and it cannot be considered on appeal to defeat summary judgment. Benchmark Bank v. Crowder, 919 S.W.2d 657, 663 (Tex. 1996); INA of Tex. v. Bryant, 686 S.W.2d 614, 615 (Tex. 1985); Alford v. Thornburg, 113 S.W.3d 575, 586 (Tex. App.---Texarkana 2003, no pet.); Pinnacle Data Servs., Inc. v. Gillen, 104 S.W.3d 188, 192 (Tex. App.---Texarkana 2003, no pet.); Merch. Ctr., Inc. v. WNS, Inc., 85 S.W.3d 389, 394--95 (Tex. App.---Texarkana 2002, no pet.); Johnston v. Vilardi, 817 S.W.2d 794, 796 (Tex. App.---Houston [1st Dist.] 1991, pet. denied).
Wadley's motion for summary judgment combined a traditional motion with a no-evidence motion. There is no prohibition against filing such a joint motion, so long as the two bases for summary judgment are clearly distinguished, as they are in Wadley's motion. The no-evidence portion of Wadley's motion clearly challenges the duty and pr
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