## In the Court of Appeals Second Appellate District of Texas

a t Fort Worth

___________________________ No. 02

- 20

- 00124

- CV

___________________________

On Appeal from the 89th District Court Wichita County, Texas Trial Court No. 18 7 , 559

- C
Before Bassel, Womack, and Wallach, JJ. Mem orandum Opinion by J us tice Womack 

### G LENDA 

### S AYLES 

### , I NDIVIDUALLY AND AS 

### R EPRESENTATIVE OF THE



### E STATE OF 

### R OY 

### B ROADWEL L 

### , Appellant

V


### . S E NI OR 

### C ARE 

### R ESOURCES 

### , I NC



### . D 

### / B 

### / A 

### S ENIOR 

### C ARE 

### H EALTH 

### & R EHABILITATI O N



### - W ICHITA 

### F ALLS 

### , F OURSQUARE 

### H EALTHCARE 

### , L TD 

### .; F OURSQUARE 

### SNF, I NC 

### .; NC R ESOURCES 

### , I NC 

### .; W ICHITA 

### NH R EALTY 

### ,

L TD 

### .; AND 

### NTF R EALTY 

### , I NC



### . , Appellees2 MEMORANDUM OPINION
I. I NTRODUCTION
This is a health care liability c ase arising fro m Roy Broadwell ’ s (Broadwell) care by Appellee Senior Care Resources, Inc. d/b/a Seni or Care Heal t h & Rehabilitation

Wichita Falls ( Senior Care ). In tw o issue s, Appellant Glenda Sayles, I ndividually and as Representative of t he Estate of Roy Broadw ell (Say les) , complains of the trial

court ’ s (1) d enial of her motion for continua n ce of the summ a ry judgment he aring
and the trial , and (2) grant ing a no

- ev id ence su mmary judgment in favor of Appellees Foursquare Healthcare, Ltd. ; Foursquare SNF, Inc

. ; NC Resources, Inc. ; Wichita NH Realty, Ltd. ; and NTF Realty, Inc. ( collectively, t he Non

- Opera t ors). We will affirm.
II. B ACKGROUND A. Sayles file s suit an d serves discovery on Senior Care and later amend s and adds the Non

- O perat ors. In December 201 7, Sayles filed suit against Senior Care alleging that Broadwel l
had been t ra nsferred to Senior Care after being diagno s ed with an acute kidney
infection and pr es cribed ongoing antibiotic the rapy. At the time of the transfer , Say les contend s that Broad well “ had a bump on his backside the size of a pimple. ”
A ccor d ing to the pleadings, a fter approximately si x weeks, Broadwell was sent to a different facility “ to ha ve his blood pressure an d a wound checked. ” A f te r sev eral surgical debridem ents, Broadwell was placed on hospice care until h is death on November 24, 2017. Sayles a lleged that Senior C a re “ failed to properly moni tor and3

c are for Mr. Broadwell and left hi m immob ile in his bed, which ultimately le d to his development of a pressure ulcer on his coccyx. ” After being served with the ori ginal petition and request for disclosure s in April 201 8 , 1 S enior Care filed its answer in May 2018

. 2 Also in May , Sayle s served
written discovery in t h e form of interrogatories, request for admissions, and r equest for production on Senior Care

. Senior Care r esponded to the re que s t f o r disclosures
in the same month, provided a link to its facility chart, and stated, “ Purs u an t to Te x. Civ. Prac . & Rem. Code Ann. § 74.351(s), ‘ all discovery . . . is stayed except for the

ac quisition by the claimant of information, including medic al o r h o spital records or other documents or tangible things, related to the patient ’ s health care

. ’ ” I n J u ne 2018, Senior Care supp lemented its re sponses to the request for disclosures a nd
respon ded to the interrogat ories, request for admissio n s , a n d request for production.
I n re sponse to a n interrogatory requesting the identity of certain fac ility e mp loyees and/or sta ff members, Senior Care named the medical directors, admin i strator, dir ector of nursing, assistant directors of nurs ing, a nd dietary manager and/or
consultant dietician during the relevant time period.

1 Citation wa s not issued until March 8, 2018.

2 I n its fir st amended answer fil ed on Octo ber 2, 2018, Sen ior Care stated t h at it
w a s “ inc orrectly name d ” as Senior Care and should be named “ Nocona Hos pital District d/ b/a Se nior Ca re Health & Rehabi li tation Ce nte r

- W ichita Falls. ” Sen ior Care also filed sp ecial exceptions sta t ing that i t was “ not proper l y named and thus had not been s u e d i n i ts pr oper capaci ty. ” The trial cou rt overrul ed the spec ial ex ception

.4

In Oct ober 2018, Sayl es filed he r first a mended petition, add ing the five Non

Operators to the lawsui t. Other than adding their names and addres ses f o r service of
p rocess, the amended petition made n o s pecific factual allegations and stated no separate basis for liab ility against any of t he Non

- Operators. 3 NC Resources and
Wichita NH R ealty w ere served a nd answered in November 2018. Although the
record reflects no service on NTF R e alty, it also a nswered in November 2018.
Fou r squ are Healthcare and Foursquare SNF 4 did not answer until A ug ust 201 9. 5

3 In their brie f, Appellees note that, “ [f]or example, Appellant did n ot plead t hat the No n

- Operator Defendants were vicariously liable, engaged in a jo int enterprise or a cons p i r ac y w

ith S eni or Care, or the like. ”

4 A ccord ing to its an s wer, Foursquare SNF was “ incorr ectly n amed as Foursquare JNF , Inc. ” in the amended p leadings.

5 While Appellees st ate in their joint brief th at the delay in answering by Four square Heal t hcare a n d Fo urs quare SNF was “ [ d] ue to an appar ent oversi ght , ” we note that the return s of service on both of these parties showed only that “ Joh n E. Miller ” wa s served w

ith ci tation

. While “

J ohn E. Mill er ” was alleg ed to be th e register ed agent of both F oursqua r e H ealt hcare and Fours quar e SNF, neither retur n show ed serv ice on the entities themsel ves . See Benefit Planner

s, L

. L

. P

. v. Re n C

are, Lt d

. , 81 S.W.3d 855, 861 (

Tex. App.

— San Ant onio 2002 , pet . denied) (holding that

“ [b]ec ause the r eturn failed to re cite th a t c itat ion was deliver ed t o Benefit Planners b y serv i ng its regis tered agent, the service of process was invali d ” ); see also B arker CAT V Cons t r ., Inc. v. Ampro, Inc. , 9 89 S.W.2 d 789, 793 (Tex. App.

— Houston [1 s t Dist.] 19 99, no pet .) (holding that t he retu r n w as f atally defectiv e be c ause it “ does not s tate, as it must, t hat it was delivered to the defendant, Barker CATV C onstructi on, Inc., throug h its registered ag ent Jam es M. Ba rker ” ).5

B. Sayles req uests and is granted a sche duling or der with a dis covery cut - off and trial date.
O n Fe bruary 20, 201 9 , Sayl es filed her “ Plain tiffs ’ Motion to Enter a
Sc hedu ling Order ” in which she noted that cou nsel had failed to come to an

a greeme nt on a d iscovery con trol plan and , therefore, r equested the trial cour t “ to

ente r into the proposed sch edul ing order filed herewi th or in the alternative se t a trial
date of D ecem ber 9, 2019. ” The prop osed scheduling order included a discovery

cu to ff of November 1, 2019, and a trial date of December 9 , 2019. O ne day later and without making any changes , t he tr ial court si gned the order. Fi ve day s af ter the order was signed, Sayles ’ s deposition was taken. C. Sayles serves C hapter 74 ex pert rep or ts. S ayles served the fir st Chapter 74 expert rep ort, which was only against Seni or Care , o n September 4, 2018, the 120 th day after Sen ior Care ’ s answer was filed. See
Tex. C iv. Prac. & Rem. Code Ann. § 74.351 (a) ( “ In a health care liability claim, a
cla ima nt shall , not later than the 120 th day after th e date eac h defendant ’ s original

answer is fil ed, serve on that party or the party ’ s attorney one or more exp ert reports, with a curriculum vitae of each expert listed in the report for each phy sician or he al t h

c ar e p rovider against whom a liability cl ai m is asserte d. ” )

. Senior Care did not file objectio ns to th is report. See i d. ( “ Ea ch defenda nt physician or healt h care provider whose conduct is implicated in a report must fil e and serve any objection to the

s u ffici en cy of the report not later tha n the later of the 21 st da y after the date the6

report is served or the 21 st day after the date the d e fe ndant ’ s answer is filed, f ail ing
which a ll objections are waived. ” )

. On March 4, 2019, Sayles serve d an amende d C h apte r 74 e xp ert report addressing the Non

- Op erator s, Senior Care, and Senior Care ’ s staff

. On March 2 0,
Sen i or C are , NC Resources , W ichita NH R ealty, and NTF Realty filed their objections
to th e amended expert rep ort. Fours qu are Healthcare and Foursq ua r e SNF did n ot object to the amended report. 6 In their o bjections, the three objecting Non

O perator s compl ained that th e report f ailed to show that the e xpert was qual ified to

o pin e regarding the standard of care applicable to the m. O n March 28, 2019, Se n ior
C are and the thre e objecting Non

- Operators also filed their “ Defenda nts ’ Motion to Dismiss for Failure to Comply with Tex. Civ. Prac. & Rem. Code § 74.351

. ” The
motion was overruled on June 11, 2019.
D
. The Non

- O perators move for summary j udgmen t , and S ayles moves for continuance
. On October 11, 2019, t he Non

- O perato rs moved for a no

- e vidence summary judgment. In the motion, the y all ege d that “ [t]here is no evidence of any act of direct

ne gligenc e ” by any of them “ with regard to the ca re and tre a tmen t provided to Roy

6 According to Appellees ’ brief, due to Foursqu are He althcare ’ s a nd Four s qu a re S NF ’ s delay in a nsw e r

ing the lawsuit, “ [a]n ex pert report addressing [their] conduct had alrea dy been se rved at that poi nt, and o bjecti ons to the expert report h ad alrea dy been overruled. ”7

Broadwell while he was a pa tient at [ Senior C are]

. ” In addition, the motion noted that Say les
has served mult iple sets o f wr i tten discovery requests but, as to movants, has on ly served a Request for Disclosure. And it is to o la te t o serv e further written discovery. Discovery closes in jus t three weeks from the date of filing of this Motion. See Discovery Contr ol Order, o n fil

e with the Court and incorporated herein the same as if full y set forth herein for all purposes. D isco very will have already closed by the ti me this Motion is heard. Id. More th an an adequate time for disco very has passed.
The hearing on the motion was set for November 25, 2019.
Sa yles noticed the deposition of Senior Care and the No n

- Operato rs ’ expert on No ve mber 6, 2019, for a deposition to occur on November 26, 2019

. Sayles ’ s counsel voluntarily w ithdr ew the depos ition notice on No vembe r 26, 2019. Also on November 6, 201 9, Sayles served her first se t of interrogatories and request for
pro du ction to Fours qu are JNF, 7 Foursquare H ealthcare , NC Reso urces , NTF Realty , and Wichita Realt y . Accordin g to Senior Care and the Non

- O perators ’ counsel, this
was the first discovery that was served on them since the discovery served on Senior
Care as par t of the o r

igina l and first amended petition and the discovery served on
Senior Care on May 22, 201 8. Sayle s did n ot file a response to the motion for summary judgment

. Instead, Sayles fi le d her verified motion for cont inua nce . I n the motion, Sayles ass erted th e fol l owing:

7 See n ote 4, supra

.8

[Sayles] seeks a continuance of the trial and th e [Non

- Operators ’ ] no [

- ] evidence motion for summary judgment in this case for at least six months so that [Sayles] can actual ly conduct meaningful discovery. Here, s everal of the defend ant s have m ove d for a no

- evidenc e motion for summary judgment, cl aimin g inc or rectly that adequate time for discover y has passed, when the discovery p er iod has officially been open for less tha n s ix months.

. . . .

. . . [Sayles] has been una ble to conduc t m e aning fu l d is covery f ro m the Defendants due to the automatic stays th at aris e each t ime the new defendants to the case have ans wered the suit. Later the same day, Sayles ’ s counsel fil ed an amended verifi cation stat ing i n par t that Sayles
has not cond uct ed dis co ver y on four of the five defendants. Addit ionally , [Sayles] nee ds to procure the deposition of the f a c ilitie s nursing hom e administrator and/ or the director o f nursing. Disc overy i n this case beyond the scope of [Bro adwell ’ s] healthcare, has n ot b een o pe n f or a p eriod long enough for [Sayles] to eng a ge in m eaningful disc ov ery . [Say

les] cannot obtain the di scovery sought from a ny other source. [S ayles ] has been unable to cond uct di sco very due to the limitations Chapt er 74 places on parties to con d uct [ ] dis cove ry and a stay on all discovery, includin g depos itions, except f or the discovery related to [Broadw ell ’ s] h ealthcare. In the motion, Sayles request ed six months to conduct additional discovery, inclu ding

“ depos [ ing ] the nursing home adm ini s trat o r and [] the d irector of nursing, ” hav ing her

“ mo tion to compel hea rd on matters already requested fr om ” Senior Care,
pro pound ing discovery to the Non

- O perators , and seeking “ the time cards, staffing
matrices and deposition of the [ Senior Care and th e Non

- Op era tors ’ ] Ex pert Witnesses

. ”9

The mot ion for continua nce was heard on Novem ber 25, 2019 , the da te set to he a r th e motion for summary judgment

. At the hearing, Sayles ’ s counsel argued , If you count up the amoun t of ti me that discovery was open in t his c as e f rom betwe en the first expert report to the s econd e xpert report an d even through the final answer o f th e last two outstanding Defendants, discovery was open for a combined total of 133 days. 76 days the firs t time from September to Oct ober a nd t hen 5 7 day s from th e date you issued your ruling, 6/11 to 8/7 /2019 , . . . . The trial court d enied Sa yles ’ s moti on for continu an ce and granted the Non

O perator s ’ motion for summary judgment

. E. The case a gains t Senior Care g oes to trial , and a fin al t ake

- n ot hin g judgmen t is entered
. The jury trial against Senior Care started on Decem ber 11, 2 019. The next day, the jury returned a unanimous verdict finding no negligence by Senior Care. The trial
court entered a f

inal take

- n othing judgme nt the fo llo w ing m on th, and Sayl es now appeals from the denial of her co n tinuance motion and the granting of summary judgme nt in favor of the Non

- Operators

. II I. D ISCUSSION On appea l, Sayle s first complains that the trial court abused its discretion in denying her motio n for continua nce of both the su mmary judgme nt hearing and the
trial

. Senior C a re and the Non

- Operators respond that the denial of Sayles ’ s motion
for cont inuance was well within the trial cour t ’ s disc retion because Sayles failed to
make t he nece ssa r

y sho wi ng to obtain a co ntinuance , S ayles h as not accurately
calculated the time that wa s avail a ble for discovery , and Sayles ’ s “ own tactical10

decision s ” wer e the pr

imary factors dictating the time th at was a vailable to her for discovery

. Re lying on th e s a me ar gu men ts made i n her first issue, Sayles complains in her second issue that the trial court erred in grant ing a no

- ev idence summary judgme nt in favor of the Non

- Operators.
A. We first set out th e s tandard s o f r eview
. W e review a trial court ’ s rul ing on a mo tio n for con tinuance f o r an a buse of
discr etion. See BMC Software Belg., N.V. v. Marchand , 83 S.W.3d 789, 800 (Tex. 200 2).
We do no t substitute our judgment for the trial court ’ s . I n re Nit l a S.A. de C. V. , 92 S.W.3d 419, 422 (Tex. 2002) (orig . p r oceed in g). In stead , we must d etermi ne whether th e t rial court ’ s d iscretion was so arbitrary and unreasonable that it amounts

t o a clear and p rejudicial error of law. Joe v. Two Thirty Nine Joint Ve nture , 145 S. W.3d 150, 161 (Tex. 2004). T he test is whe t her t he t r ial court acted with out re ference to
gu iding rules or principles. Cir e v. Cummings , 13 4 S.W.3d 835, 838

– 3 9 (Tex. 200 4). A litigant who fails to diligently use the rules of civil procedure for discover y p urposes is
not entitled to a continua nce . Sta te v. Wood Oil Distrib., Inc. , 751 S.W.2d 863, 865 (Tex.
1 988 ); D.R. Horton

- Tex., Ltd. v. Savan nah Props. Asso cs ., L.P. , 4 16 S.W.3d 217, 223 (Tex. App.

— Fort Worth 2013, no pet.).
W ith reg ard to continuances of summar y jud gment motion s , Tex as Rule of
Civil P roc edure 166 a(g) permits a trial cour t to deny a summary judgment motion or to grant a continuan ce to the par ty opposing summary j udgme nt if that party files an affidavit setting for t h the rea sons the part y cannot present the facts ne cessary to11

r es p ond t o the motion. Tex. R. Civ. P. 166a(g) ; Fo rd Motor Co. v. Castillo , 279 S.W .3d 656, 662 (T ex. 2009 ). When a no nmovant “ co ntends that it has not had an adequate opportunity for discovery before a summar y jud gment hearing, it must file e ither an
af f id a vit e xp lai ning the need for further discover y or a verified motion for
continuan ce. ” Tenneco Inc. v. E nter. Prods. Co. , 925 S. W.2d 640, 647 ( Tex. 1 996); see Tex. R. Civ. P. 1 66a(g), 251, 252.
With regard to no

- ev

idence motions for summary judgment, a fte r an a d e qua te time f or discovery, the party without the burden of proof may, with out presenting

ev idence, move for summary judgment on the grou nd that no evidence supports an essential element of t he nonmovant ’ s claim or defense. Tex. R. Civ. P. 166a(i ). T he

m ot i o n must spe cifically state the elements for which no evidence exists

. I d. ; Timp te Indus., Inc. v. Gish , 286 S. W. 3d 306, 310 (Tex. 200 9). The trial court must gran t the
moti o n unless the non movant produces summary judgment e vidence that raises a
g enuin e, ma terial fa ct issue. See Tex. R. Civ. P. 166a ( i) and 1997 cmt.; Hamilto n v. Wilson , 24 9 S.W.3d 425, 426 (T ex. 2008) (per curi am)

. When reviewing a no

- eviden ce summary judgment, we examine the entire

rec ord in the light most favorable to the n onm ovant, i nd u lgi ng every reasonable
infe rence and resolving any doubts against the motion. Suda n v. Sudan , 199 S.W.3d 291, 292 (Tex. 2006) (per curiam)

. We review a no

- e vidence summary judgment for
evidence that would enable r easonable and fair

- minded j uro rs to di ffe r in their

c on cl usions. Hamil

ton , 249 S.W.3d at 426 (citing C ity of Keller v. Wilson , 168 S.W.3 d12

802, 822 (Tex. 2005)). We credit evidence favorable to the non movant if reasonable jurors could, and we disr egard ev idence contrary to the nonm ova nt unl es s r ea sonable j u r ors could not. Timpte I ndus. , 286 S.W.3d at 310 (citing Mack Trucks, Inc. v. Tame z , 206 S.W.3d 572, 582 (Tex. 2006 )). If the nonmovant brings f orward more than a scintilla of probative evidence that r aises a ge nuine issue of ma ter ial fa ct , t hen a no

ev iden ce summary judgment is not proper. Smith v. O ’ Donnell , 288 S.W.3d 417, 424 (Tex . 2009); King Ranch, Inc. v. Chapman , 118 S.W.3d 742, 751 (Tex . 2003).
B. We next apply the law to the facts of this c ase. 1. Sayles ’ s first iss ue complai n s of the trial cour t ’ s deni al of her m otion for continuance of the summary judgment hearing a nd th e trial. Sayles first complains that the trial court abus ed its discretion by considering the argu ments o f Senior Car e and the No n

- Operators ’ coun sel as evi d ence . In
makin g t h is contenti on , Sayl es relie s on the f ollo wing statement by th e trial court at the summary judgment hearin g: “ The C ourt, aft er hearing argume nt of counsel and

r eviewing the proposed order s, rules as follows: The Court will gra nt the ord e r de nying [Sayl es ’ s ] Moti o n f or Contin uan ce to Obtain A dditional Discovery on Tw o Def endants, No

- Evidence Motion for Summary Judgment and will sign same. ” Based
on this state m ent b y the trial court, Sayles argues that “ the tria l court ’ s relianc e o n the

a r g ume n ts of Appe llee s ’ trial cou nsel as support for [the trial court ’ s] denial of t he continuance, when no contravening evidence was sub mitted, was in erro r. ”13

W hile ar gument of counsel is not evidence, Tex. De p ’ t of Pub

. Safety v. Mendoza , 952 S .W .2d 560 , 564 (Tex. App

. — San Antonio 1997, no w rit ) , t h e statement by the
trial court does not s u ggest that it r elied on cou nse l ’ s statements as evidence. Rather,
it on l y s ho ws that the cou rt heard argument

. See Nguyen v. Short, How, Fre ls & Heitz,
P.C

. , 108 S.W

. 3 d 5 58, 561 (T e x. A pp.

— Dallas 200 3, pe t
. denied) ( stating , in a case where the judgment indicate d that the trial court heard argument of counsel, that a hearing on a motion for summary judgment is limite d to a rev iew of the written motion, respo n se , and a t tach ed evidence )

. Nothing in the repo rte r ’ s record indicates that the trial court did not properly lim it its review to the motion s before it. Sayles next argu e s tha t the trial court erroneously disregarded the T exas Medical Liability Act ’ s dis c ov ery pro h ibit ion when it den ied the continuance

. See Tex.
Civ. Prac. & Rem. Code Ann. § 74.351(s). In making this argument, she relies on the
p rovisions o f the A ct that limit discovery until expert reports a re filed : Unt il a claimant has serv ed the expert r epo rt and c urri culum vitae as requ ired by Subsect ion (a), all discovery in a health care liabili ty claim is stayed except for the acqu i sition by the clai mant of information, includin g medical or ho spital records or other documents or tangibl e things, relat ed to the p atie nt ’ s health car e th rough : (1) w ri tten discovery as defined i n Rule 192.7, Texas Rules of Civil Procedure ; (2) dep ositio ns on written que stions under Rule 200, Texas R u l es of Civ il Procedure; and (3 ) discovery from nonparties under Rule 20 5, Te xas Ru les of Civil Pr o ced ure.14

Id.
Because o f this discovery prohibition, Sayles conten ds t ha t “ Appellees ’ objections clearly frus tr ated th e pu rpose of th e docket control order; i t reduced the
amount of fact di scovery that could be obta ined prior to t he ex pert d i sco very dea dli ne f rom 144 days (Febru ary 2 1, 2019

– July 15, 2019) to 34 days (34 days f rom June 11 through July 15, 201 9 ). ” Seni or Care and the Non

- Operators re spond that Say les ’ s analysis of the amount of time she had for discovery is erroneou s . T hey no te t h e followin g:

• W hile Sayles sued Se nior Care i n December 2017, citation was not is sued until March 8, 2 0 18, and Senior Care was not served until April 10, 2 0 1 8.

• Sayles served her initial expert re port on Senior Care on September 4, 2 018, t he la st day s he c ould do so ; Sen ior Care did not ob ject to the report ; therefore, any discovery stay ended this day

.

• S ayles pro pounded d iscovery to Senior C are in violation of the dis covery stay, and Senior Care respon ded to the discovery, making obj ectio ns an d provid ing substantive re s ponses , including i dentifying the f acility
a dministrator, d irector of n ursing, a ssistan t d irecto r o f n urs ing , and d iet ary manager during the relevant ti me period.

• Even under Sayles ’ s timeline, no discovery stay resumed unti l Nov em ber 19 , 20 19, when N C Res ou rces, Wichita NH Realty, and NTF Realty answered the lawsuit ; prior to the answer s be ing filed , n o disco very oc curred.

• After NC R esources, Wichi ta NH R ealty , and NTF R ealty ans we red, Sayles waited the full 120 days before f ili ng an am e nde d expert re port , which contain ed a single par agraph addressing the Non

- Operators

.

• NC Resou rces, Wi chi ta NH Realty, and N TF R ealty filed ob jections to the amended report and moved t o dismiss, but the trial court denied th e motion on Ju ne 1 1, 20 19 , and any discovery s tay ended at that time.15

• No discov ery occurred for the next fifty

- s even days , when Foursqua re Health care and Four square SNF answered on August 7, 2019.

• Foursqua re Health care ’ s and Four square SNF ’ s objections to the amended repo rt we re due A ugus t 28 , 2019, see Tex. Civ. Prac. & Rem. C ode A nn. § 74

. 351(a) , (s) , but no objections w ere filed.

• Beca use a report implicat ing th e co nduct of Foursq uare He alth care and Foursquare SNF was served o n their counsel prior t o the date th ey answe re d a nd becau se t hey d id not obj ect, no additional discovery s tay c ame into effect after the stay en ded on June 11, 201 9

.

• Therefore, in addition t o t he seventy

- six days from Septemb er 4, 2018 to Nove mber 19, 2018, Sayles had time to conduct di scovery from June 1 1, 2 019 to Nove mber 1, 20 19 , w hen discovery ended pur suant to th e trial court ’ s docket co ntrol order. We agree wi th Senior Care and the Non

- Operators

. In determining w hether to grant a continuance, the trial court must consider the pro cedural history a nd r eco rd of
th e case , not j us t th e sworn motions. E l berge r v. Dub Miller Ford

, No. 01

- 06

- 00926

- C V , 2007 WL 3293725 , at *3 (T ex. App.

— Houston [1 st Dist .] No v. 8, 2007, no pet.) (mem. op .). After doing so, we d o not a gree that the proc edu ral stays require d by
Te x as Civ i l Prac tice & Re m edi es Code Ann

. Sectio n 74.351(s) prevented Sayles from having adequ ate time to conduct discovery. Rat her, while there w ere some stay s , there was st

ill am ple time to eng age in dis covery . Sayles goes on to argue th at c ontinua nce s fr om summa ry judgment hea ring s

“ need not be fo un ded on the same level of evidence as that requ ired by a trial16

contin uance. ” Compare Tex. R. Civ. P. 166a(g ) , w ith Te x. R. Civ. P. 2 52

. Rule 1 66a(g) provides , Sho ul d it appea r f

rom the affidavits of a p arty op pos ing t he motion that he c a nnot for reasons s tated present by affidavit f acts essen tial to justify his opposition, the court may refuse the application for judgm ent or may order a continuance to permit affida vi ts to be o btained or depositions to be tak en or disco very to b e had or m a y make such other order as is just.
Tex. R. Civ. P. 16 6a(

g ). 8 Rule 252 state s in part,
If the ground of such application be th e wa nt of testimony , the party applying therefor sh al l make aff idavit that such testimony i s ma ter ial , sho wing the materi alit y there of, and that he has used due diligence t o procure s uc h testimony, stating such diligence, and the caus e of failure, if known ; th at such testimon y cann ot be pro cu red from any o th er source ; and, if it be for the absen ce o f a wi tness , he shal l stat e th e name and residenc e of the witness, and what h e expects t o prove by him; and also sta te that the continuance is not sought for del ay o nly, but that ju stice may be done; provided tha t, on a firs t application for a continua nce, it sh all n ot be nec essary to s how that the absen t testimony cannot b e procur ed from any other source.
Tex. R. Civ. P. 252

. W e have pre viously addressed the i nte rplay betw een Ru le s 1 66a (g) and 252. In
Tri

- St ee l Struct ur es, Inc. v. Baptist Foundati on o f T exa s , we stated,
If the “ op p ortunity ” is neede d to take depositions, that is, for “ want of testimony, ” the rule is silent as to whether a continuance moti o n must meet the require ments of Rule 252. Tex. R. C iv

. P. 252. N o case law appea rs to have a ddre sse d t his s pecific i ssue. We h old that if additi onal evidence is requ ested t o be submitted through the initiation of discovery for “ want o f testimony, ” (1) the summ ary judgment hea ring must be continued to all ow t he new e vi dence to be presented to the cou rt, an d

8 Rule 16 6a(i

) a lso indirectly a d dress e s c o ntin uanc es by use o f the words “ [ a ] fter adequate ti me for discovery. ” Tex. R. Ci v . P. 166a(i ).17

(2) a moti on for c o nti n ua nce consistent w ith R ule 252 is required. I

d. Otherwise, summary judgment affidavits would be replete wi th hear say, with little im petus to obtain proper dis cover y befo re th e h ea ri ng to avoi d hearsay rulings.
166 S.W. 3d 4 43, 44 8 (T e x. App.

— F ort Wo r th 2 005, pet. denied). A motion for
continuance o f a summary judgment hearing is subject to the same rules appl icable to
a trial continua nce. See D.R. Horton

- Tex

. , Ltd. , 416 S.W.3d a t 2 22

– 23

. A motion for continuance asking to con tin ue a summary judgme nt h earing or a
tri al t o allow more time for discov ery must be suppor ted by an affida vit describ ing the
evidence sought, explaining its ma teriality, and showing th at the p arty requestin g t he
contin uance has used due diligence t o o btai n t he ev idence. Tex. R. C iv . P. 251, 252 ; Ga dberry Const

r . Co., In c. v . Raney , No. 02

- 18

- 00 263

- CV, 2019 WL 3244519 , at *3 (Te x. App.

— F o rt Worth Jul. 18, 2019, n o pet.) (mem. op.) ; see also Tenneco Inc. , 925 S. W.2d

at 64 7 ( “ When a party contends tha t i t ha s n ot ha d an ade quate oppo rtunity for
discove ry before a summary judgment hearing, it must file eithe r an affidavit explaining the need for further dis covery or a verified moti on for continuance. ” )

. The
fail ur e of a lit igant to diligently utilize t he R ule s o f C iv

il P roce dur e f

or d iscovery
purposes w ill not auth orize the granti ng of a contin uance . Wood Oil Distri b. , Inc. , 751 S.W. 2d at 8 65

. In decid ing whether th e trial court permitted an adequate time for di sc ove ry unde r Rule 166a(

i), we con sider t he foll owi ng fa ctors : ( 1) the nat ure of the ca se, (2 ) the nature of the evidence nec essary to controvert the no

- evidence moti on, (3) the18

lengt h of time the ca se was ac tive, (4) the amount of tim e the no

- evid ence mo t io n was on f ile, (5) whether the movant h ad requ est ed st ri c ter d ea dlin es f or d iscovery, (6) t he
amount of di scovery that alre ady had taken place, and (7) whether the discovery
deadlin es in place we re specific or vague. McInnis v. Mallia , 261 S.W.3d 197, 201 ( Tex. App

. — Houston [14 th Dis t .] 2008, no pet. )

. Or di na rily, a no

- evid ence summary judgment motion is not permitted before the expiration of the dis covery perio d set by the p re

- t rial or der. Id. at 200. And a discovery period set in a docket c ontrol order is

“ a stron g indica tor of adequate ti me ” for di s c ov e ry. Id. at 203. The pertinent date for
det ermi ning whether the trial court permitted adequate time is th e final da te on w hich
the n o
- evidence motion is prese nted to the tri a l cour t for ruli ng. Id

. at 200. Here, by the su mmary judgment sub mi ssion da te of Nov ember 25, 20 19 , the following had occurr ed or was about to occur :

• the case had been pending for twenty

- three mon ths ;

• the Non

- Op erators had been parties for thir teen month s ;

• th e discover y dea dline in the sc heduling ord er tha t was propos e d by S a yl es ha d passed twenty

- four days earlier ;

• the moti on for summary judgment had been on file for forty

- five days ; and

• the trial date in th e sc heduling order that was proposed by Sayles was fourteen days away

. Nevertheless, Sayle s contends that , d ue to t h e fa ilu re of Seni or C a r e to controvert the motion f or co nt inuance , which was other w i s e in subs tantia l19

compliance a nd ver

if i ed, the review ing cou rt m ust accept the statemen ts in the
motio n as true. And, she con tends, this is es pec ial ly true in a fi rst mot i on f or continuance. Ho wever, th er e is nothing in the cont inuan c e rules requir ing the
gra nting of a first mo tion merely because it is in statutory form and is not

controve rte d by a ffidavit of the opposite party. Fritsch v. J. M

. E ngl ish Truck Line , 246 S. W .2 d 856 , 858 (Tex. 1952 )

. Mor eov e r, a trial court is not re quire d to g rant a motion for c ontinuan ce “ when the al legatio n s in the moti on examined in the light of

t he recor d sh ow b eyond a ca vil a complete lack of diligence as measu red by other
rules r egula t

in g pro cedure in the tr ial of cas e s. ” Id.
In addition , Sayles ’ s mo ti on was not in sub stan tial compliance with th e rules . It did not attempt to state or show the material ity of any testimony sought, no r did it allege any facts to sh ow that Sayles us ed du e d il ige nce to pr o c u re s uch testi m o ny. See
Tex. R. Civ. P. 252 ; se e als o Primdahl v. Kelle r Ladders, Inc. , No. 05

- 00

- 006 18

- CV, 2001
WL 727325 , at *2 (Tex. App.

— Dal las June 29, 2001, no pet.) (not designated for publication) (holdi ng that the trial court d i d no t a buse its discret ion in deny ing th e motion for co ntinuance t hat was not in substantial compliance with Rule 252 ). It is
axiomatic that the appella nt mus t show that s he has used due diligenc e and must s tate with particularit y s uch diligence u sed and th e cau se of the failur e to produc e a wi tness
. Gregg v. Cecil

, 8 4 4 S.W.2d 851, 853 (Tex. App.

— Beaumont 199 2, no writ ).
W hile Say les ass erted in her amended verification to the continuance motion
that s he needed a continuance to pr ocure the depos ition s o f Se nio r Care ’ s nursing

-20

home admin istrator or director of nursing , Senior Care had provided t he identities of
these ind ividuals in its Jun e 2 1, 20 18 response to discovery

. Despite this earlier knowledge , the record ref

lects Sayle s made no attempt to depo s e th ese individ uals.
Sa yles ’ s amended verification also included the conclusory statements that
d iscovery “ has not been open fo r a period long eno ugh

. . . t o engage in m e anin gful
di scovery, ” that Sayles “ cannot obtain the discove ry sought from any other s ou rc e, ”
and th at Say

les “ has been unable to c onduct discovery due to the limitations Chapter 74 place s on parties. ” An affidavit seeking a conti nuance of a summar y judgment hearing m ust show why the continu anc e is necessary; conc lusory allegations

are no t s uf

fic ient. Ca rter v. MacFadyen , 93 S.W .3d 307, 310 (Tex. App.

— Houston [14 th Dist.] 2002, pet. d enied).
C onsidering the entire procedural histo ry and r ecord of the case, we co nclude
that Sayles fai le d to d iligently seek discover y. P rior to the s ummary j ud gm ent hearing, Sayles had serv ed t he following discovery on Senior Care: (1) a r equ est for d isc los ure (with the original and am ended petition) ; ( 2 ) the first set of interrogatories, a request
for admissi o n s, and a request for pr oduction ; and ( 3 ) a secon d r eq ues t f or p ro duction

. Senior C are timely se rved objections and responses to each

. According t o Senior
Care and the Non

- O perator s ’ co unsel, o th er th an this discovery, Sayles nev er ser ved any other w r

itten discovery on Senior C are or Non

- Operato rs unti l N ov emb er 6,
2019

. On that d ay, Sayl es noticed th e de position of Senior Care and the Non

O perators ’ expert and serv ed written d iscovery on t he Non

- Operators. Sayles late r21

withdrew the deposition notice

. Sayles fails to show why she did not pursu e disco v er y in the time periods when th e stay was not in effect. See Clark v. Comp ass B ank , No

. 0 2

- 07

- 0 00 50

- CV, 2008 WL 2168292 , at *3 ( Tex. App

. — Fort Worth May 22, 2008 , no pet.) (mem. op

. ) (

holding that t h e fail ure of a litigant to di l igently use the ru l es of c iv il
pr ocedure for disc overy pu rp oses will not aut horize the granting of a continuance )

. Finally, w e note that both the dis cover y deadli ne a nd the trial date s et out in the discovery c ontrol order we re dat es sele cted by Sayles. See Tittizer v. Un ion Gas Co rp

. , 171 S.W.3d 857, 862 (Tex

. 2005) ( stating that “ a p arty cannot compla in on appeal tha t the tri al court took a specific acti on that the complaining party requ ested ” ) ; see also
Fiel ds v. Houston I

ndep. Sch. Dist. , No. 14

- 19

- 00 010

- CV, 2020 WL 60 73758 , a t *8 (T ex. App.

— Houston [ 14 t h D is t. ] Oct. 15, 2020, no pet. h.) (mem

. op.) ( holding tha t the appella nt cannot complain o n appeal when the trial court granted appel lant ’ s request for the trial cour t to “ ente r a new Docket Control O rder extending all deadli n es b y a t least 90 days ” but did n ot ask for extension of approaching hearin gs). On
Feb ruary 20, 201 9, when Sayles requested a tr ial date and a disco very control c utoff
date , she was in the best positi on to know what, if any , disc overy was still ne eded in

or de r t o proceed to tri al. Despite th is knowledge , she chose the deadline s and dates
for th e trial court to enter. Considering the e nti re record, including the length of time the case had been

on fil e, Sayle s ’ s agreement to the docket control ord er and d is co ver y dea dline, and her
failure to diligent ly conduct di scovery und er th e rules, we can no t say that th e trial22

court abused its disc ret

ion by denying the motion to co ntinue the summary jud gment heari ng and the trial. See Haven Chapel United Meth odist C h ur ch v. Leebron , 496 S. W.3d 893, 902 ( Tex. App.

— Ho uston [14 th Dist.] 201 6, no pet.). Accord ingly, we ove rrule Sayle s ’ s first issue.
2. Say les ’ s second issue complains of the trial court ’ s granting of the no

e vidence motion for s ummary judgment.
I n Say l es ’ s se cond issue compl aini ng of the t rial court ’ s error in granting the
N on

- Operator s ’ no

- evidence moti on fo r summary j udgment , Sayles makes no substantive arguments , again argues that the trial court err ed in deny ing her motion
for continuance of the su m ma ry ju dgment hearing , and “ i nco rpora tes all arguments
made in supp ort of d iligence and mat eriality ” in the earlier sec tion of her b rief

. Because we have already addressed a ll of these arguments , we overrule Sayles ’ s second
issue

. IV. C ONCLUSION
Ha ving ov er rul ed both o f Sayl e s ’ s issues, we affirm the tria l cour t ’ s j udgment.

/s/ Dana Womack
Da na Womack Jus ti ce Del ivered: January 7, 2021