Opinion filed August 8, 2013

In The

Eleventh Court of Appeals __________

No. 11-11-00221-CV

__________

LARRY R. MILLER, Appellant

V.

ECTOR COUNTY HOSPITAL DISTRICT D/B/A 

MEDICAL CENTER HOSPITAL, Appellee

On Appeal from the 161st District Court

Ector County, Texas

Trial Court Cause No. B-128,999

M E M O R A N D U M O P I N I O N

 Larry R. Miller, a former Medical Center Hospital1 pharmacist, appeals the 

trial court’s order in which it granted Medical Center’s plea to the jurisdiction. In 

the order, the trial court dismissed Miller’s libel, slander, defamation, and 

intentional-infliction-of-emotional-distress claims that he alleged arose because 

Medical Center fired him or forced him to resign. We affirm.

 1

Ector County Hospital District d/b/a Medical Center Hospital.
2

Miller alleged that Medical Center fired or forced him to resign in March 

2009 after it received a letter from an anonymous person who alleged that Miller 

had come to work intoxicated and had stolen prescription medication. Miller 

claimed that the allegations were false, that another employee instigated the 

investigation, that Medical Center published false statements, and that he suffered 

damages based on lost income, vacation, and retirement; he also sought his

attorneys’ fees.

Medical Center included a general denial in its answer. The parties began 

discovery, and nearly a year later, Medical Center filed a plea to the jurisdiction 

and motion for summary judgment claiming sovereign immunity because Miller’s 

claims did not fall within the narrow waiver under the Texas Tort Claims Act 

(TTCA). TEX. CIV. PRAC. & REM. CODE ANN. §§ 101.001–.109 (West 2011 & 

Supp. 2012). “The Tort Claims Act expressly waives sovereign immunity in three 

general areas: ‘use of publicly owned automobiles, premises defects, and injuries 

arising out of conditions or use of property.’”2 Cnty of Cameron v. Brown, 80 

S.W.3d 549, 554 (Tex. 2002) (quoting Tex. Dep’t of Transp. v. Able, 35 S.W.3d 

608, 611 (Tex. 2000)). Public hospitals are immune from suit unless the TTCA 

expressly waives immunity. See CIV. PRAC. & REM. § 101.001(3)(D). A

governmental unit is not liable for intentional torts. Id. § 101.057. The trial court 

granted the plea to the jurisdiction and entered a final judgment dismissing Miller’s 

claims with prejudice.

 2Sovereign immunity is immunity from suit and liability. Reata Constr. Corp. v. City of 

Dallas, 197 S.W.3d 371, 374 (Tex. 2006) (citing Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 

638 (Tex. 1999)). The TTCA waives sovereign immunity in limited circumstances. TEX. CIV.

PRAC. & REM. CODE ANN. § 101.025(a) (West 2011); State ex rel. State Dep’t of Highways & 

Pub. Transp. v. Gonzalez, 82 S.W.3d 322, 326 (Tex. 2002). 
3

In his brief, Miller alludes to several issues but only challenges the trial 

court’s failure to grant a continuance. Miller mentioned in his brief that the trial 

court erred in granting the plea to the jurisdiction because (1) Medical Center

failed to comply with his discovery requests, (2) the trial court failed to grant his 

motions to compel and for sanctions, (3) the trial court failed to grant a 

continuance, and (4) Medical Center’s motions were premature because more 

discovery was needed. However, Miller only briefed and cited authority for his 

complaint that the trial court abused its discretion when it granted Medical 

Center’s plea to the jurisdiction “without allowing plaintiff to complete discovery.”

Specifically, Miller contends that the trial court abused its discretion because it did 

not analyze the three factors related to motions for continuance “or even address on 

the record Plaintiff’s request for a continuance.” 

We review the denial of a motion for continuance for an abuse of discretion. 

Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004). In 

conducting our review, we consider the length of time the case has been on file, the 

materiality of the discovery sought, and the due diligence exercised to obtain the 

evidence. Id. But we must first address the requirements that a motion for 

continuance must be in writing, verified, and supported by affidavit. 

TEX. R. CIV. P. 251; TEX. R. CIV. P. 166a(g); Tri-Steel Structures, Inc. v. Baptist 

Found. of Tex., 166 S.W.3d 443, 447–48 (Tex. App.—Fort Worth 2005, pet. 

denied). If the motion is not verified, we will presume that the trial court did not 

abuse its discretion. See Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986). 

Although Miller did not file a motion for continuance and does not argue 

that he filed one, we do note that he did request a continuance in his response to 

the plea to the jurisdiction and that he did attach an affidavit. Miller stated, in his 

response to the summary judgment motion and plea to the jurisdiction, that “he 

would be able to satisfy the exception for sovereign immunity for personal injury 
4

caused by the condition or use of tangible personal property.” But Miller did not 

outline anything in his response or affidavit that, if produced, would support any 

claim under the TTCA, and Medical Center was immune from suit for all of his 

intentional tort claims. Miller states that, in his motion to compel, he “stated that 

he could not adequately answer a pending motion for summary judgment until 

MCH had answered his second request for production.” Miller argues that, in his 

motion for sanctions and frivolous pleadings, he “again mentioned the pending 

motion for summary judgment and the need for discovery.” 

Although Miller identified (1) in his affidavit, “Medicare/Medicaid billing 

records,” and “prescription inventories” and (2) in his appeal brief, “records of 

swipe-card activity and camera images,” respectively, as “material” evidence 

needed in additional discovery, he never explained to the trial court in his plea 

response how any of that information, if produced, waived immunity under the 

TTCA; he also never filed a motion for continuance. He, only now, attempts to 

make the argument for the first time on appeal. Thus, we hold that the trial court 

did not abuse its discretion in denying Miller’s “request for a continuance.” 

Miller’s single issue is overruled.

This Court’s Ruling

We affirm the judgment of the trial court.

TERRY McCALL

JUSTICE

August 8, 2013

Panel consists of: Wright, C.J., 

McCall, J., and Willson, J.