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 Hospital 1 pharmacist, appeals the
trial court’s order in which it granted Medical Center’s plea to the jurisdiction. In the order, t he 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 employ ee 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). T EX

. C IV

. P RAC

. & R EM

. C ODE A NN

. §§ 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. 200 0 )). Public hospitals are immune from suit unless the TTCA expressly waives immunity. See C IV

. P RAC

. & R EM

. § 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 Mille r’s claims with prejudice.

2 Sovereign immunity is immunity from suit and liability. Reata Const r . 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 T TCA waives sovereign immunity in limited circumstances. T EX

. C IV

. P RAC

. & R EM

. C ODE A NN

. § 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 challenge s 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) M edical 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) M edical 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 it s discretion when it granted Medical
Center ’s plea to the jurisdiction “without allowing plaintiff to complete discovery.” Specifically, Miller contends tha t 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.
T EX

. R. C IV

. P. 251; T EX

. R. C IV

. P. 166a(g ); Tri

- Steel Structures, Inc. v

. Baptist
Found. o f 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
, i n 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 injury4 caused by the condition or use of tangible personal property.” But Miller did n ot 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 cou ld not adequately answer a pending motion for summary judgment until
MCH had answered his s econd request for production.” Miller argues that
, in his motion for sanctions and frivolous pleadings, he “again mentioned the pending motion for summary judgmen t 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

ma ke th e 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 M c CALL
JUSTICE

August 8 , 2013
Panel consists of : Wright, C.J., McCall, J., and Willson, J.