In the

Court of Appeals

Second Appellate District of Texas

at Fort Worth

___________________________

No. 02-20-00124-CV

___________________________

On Appeal from the 89th District Court

Wichita County, Texas

Trial Court No. 187,559-C

Before Bassel, Womack, and Wallach, JJ.

Memorandum Opinion by Justice Womack

GLENDA SAYLES, INDIVIDUALLY AND AS REPRESENTATIVE OF THE 

ESTATE OF ROY BROADWELL, Appellant

V.

SENIOR CARE RESOURCES, INC. D/B/A SENIOR CARE HEALTH &

REHABILITATION-WICHITA FALLS, FOURSQUARE HEALTHCARE, LTD.;

FOURSQUARE SNF, INC.; NC RESOURCES, INC.; WICHITA NH REALTY,

LTD.; AND NTF REALTY, INC., Appellees
2

MEMORANDUM OPINION

I. INTRODUCTION

This is a health care liability case arising from Roy Broadwell’s (Broadwell) care 

by Appellee Senior Care Resources, Inc. d/b/a Senior Care Health & RehabilitationWichita Falls (Senior Care). In two issues, Appellant Glenda Sayles, Individually and 

as Representative of the Estate of Roy Broadwell (Sayles), complains of the trial 

court’s (1) denial of her motion for continuance of the summary judgment hearing 

and the trial, and (2) granting a no-evidence summary judgment in favor of Appellees 

Foursquare Healthcare, Ltd.; Foursquare SNF, Inc.; NC Resources, Inc.; Wichita NH 

Realty, Ltd.; and NTF Realty, Inc. (collectively, the Non-Operators). We will affirm.

II. BACKGROUND

A. Sayles files suit and serves discovery on Senior Care and later amends and 

adds the Non-Operators.

In December 2017, Sayles filed suit against Senior Care alleging that Broadwell 

had been transferred to Senior Care after being diagnosed with an acute kidney 

infection and prescribed ongoing antibiotic therapy. At the time of the transfer, 

Sayles contends that Broadwell “had a bump on his backside the size of a pimple.” 

According to the pleadings, after approximately six weeks, Broadwell was sent to a 

different facility “to have his blood pressure and a wound checked.” After several 

surgical debridements, Broadwell was placed on hospice care until his death on 

November 24, 2017. Sayles alleged that Senior Care “failed to properly monitor and 
3

care for Mr. Broadwell and left him immobile in his bed, which ultimately led to his 

development of a pressure ulcer on his coccyx.” 

After being served with the original petition and request for disclosures in

April 2018,

1

Senior Care filed its answer in May 2018.

2

 Also in May, Sayles served 

written discovery in the form of interrogatories, request for admissions, and request

for production on Senior Care. Senior Care responded to the request for disclosures

in the same month, provided a link to its facility chart, and stated, “Pursuant to Tex. 

Civ. Prac. & Rem. Code Ann. § 74.351(s), ‘all discovery . . . is stayed except for the

acquisition by the claimant of information, including medical or hospital records or 

other documents or tangible things, related to the patient’s health care.’” In June 

2018, Senior Care supplemented its responses to the request for disclosures and 

responded to the interrogatories, request for admissions, and request for production.

In response to an interrogatory requesting the identity of certain facility employees 

and/or staff members, Senior Care named the medical directors, administrator, 

director of nursing, assistant directors of nursing, and dietary manager and/or 

consultant dietician during the relevant time period. 

1Citation was not issued until March 8, 2018. 

2

In its first amended answer filed on October 2, 2018, Senior Care stated that it 

was “incorrectly named” as Senior Care and should be named “Nocona Hospital 

District d/b/a Senior Care Health & Rehabilitation Center-Wichita Falls.” Senior 

Care also filed special exceptions stating that it was “not properly named and thus had 

not been sued in its proper capacity.” The trial court overruled the special exception. 
4

In October 2018, Sayles filed her first amended petition, adding the five NonOperators to the lawsuit. Other than adding their names and addresses for service of 

process, the amended petition made no specific factual allegations and stated no 

separate basis for liability against any of the Non-Operators.3 NC Resources and

Wichita NH Realty were served and answered in November 2018. Although the 

record reflects no service on NTF Realty, it also answered in November 2018. 

Foursquare Healthcare and Foursquare SNF4 did not answer until August 2019.5 

3

In their brief, Appellees note that, “[f]or example, Appellant did not plead that 

the Non-Operator Defendants were vicariously liable, engaged in a joint enterprise or

a conspiracy with Senior Care, or the like.” 

4According to its answer, Foursquare SNF was “incorrectly named as 

Foursquare JNF, Inc.” in the amended pleadings. 

5While Appellees state in their joint brief that the delay in answering by

Foursquare Healthcare and Foursquare SNF was “[d]ue to an apparent oversight,” we 

note that the returns of service on both of these parties showed only that “John E. 

Miller” was served with citation. While “John E. Miller” was alleged to be the 

registered agent of both Foursquare Healthcare and Foursquare SNF, neither return 

showed service on the entities themselves. See Benefit Planners, L.L.P. v. RenCare, Ltd., 

81 S.W.3d 855, 861 (Tex. App.—San Antonio 2002, pet. denied) (holding that 

“[b]ecause the return failed to recite that citation was delivered to Benefit Planners by 

serving its registered agent, the service of process was invalid”); see also Barker CATV 

Constr., Inc. v. Ampro, Inc., 989 S.W.2d 789, 793 (Tex. App.—Houston [1st Dist.] 1999, 

no pet.) (holding that the return was fatally defective because it “does not state, as it 

must, that it was delivered to the defendant, Barker CATV Construction, Inc., 

through its registered agent James M. Barker”).
5

B. Sayles requests and is granted a scheduling order with a discovery cut-off 

and trial date.

On February 20, 2019, Sayles filed her “Plaintiffs’ Motion to Enter a 

Scheduling Order” in which she noted that counsel had failed to come to an

agreement on a discovery control plan and, therefore, requested the trial court “to 

enter into the proposed scheduling order filed herewith or in the alternative set a trial 

date of December 9, 2019.” The proposed scheduling order included a discovery 

cutoff of November 1, 2019, and a trial date of December 9, 2019. One day later and 

without making any changes, the trial court signed the order. Five days after the order 

was signed, Sayles’s deposition was taken. 

C. Sayles serves Chapter 74 expert reports.

Sayles served the first Chapter 74 expert report, which was only against Senior 

Care, on September 4, 2018, the 120th day after Senior Care’s answer was filed. See

Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a) (“In a health care liability claim, a 

claimant shall, not later than the 120th day after the date each defendant’s original 

answer is filed, serve on that party or the party’s attorney one or more expert reports, 

with a curriculum vitae of each expert listed in the report for each physician or health 

care provider against whom a liability claim is asserted.”). Senior Care did not file

objections to this report. See id. (“Each defendant physician or health care provider 

whose conduct is implicated in a report must file and serve any objection to the

sufficiency of the report not later than the later of the 21st day after the date the 
6

report is served or the 21st day after the date the defendant’s answer is filed, failing 

which all objections are waived.”). 

On March 4, 2019, Sayles served an amended Chapter 74 expert report

addressing the Non-Operators, Senior Care, and Senior Care’s staff. On March 20, 

Senior Care, NC Resources, Wichita NH Realty, and NTF Realty filed their objections 

to the amended expert report. Foursquare Healthcare and Foursquare SNF did not

object to the amended report.6 In their objections, the three objecting NonOperators complained that the report failed to show that the expert was qualified to 

opine regarding the standard of care applicable to them. On March 28, 2019, Senior 

Care and the three objecting Non-Operators also filed their “Defendants’ 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-Operators move for summary judgment, and Sayles moves for 

continuance.

On October 11, 2019, the Non-Operators moved for a no-evidence summary 

judgment. In the motion, they alleged that “[t]here is no evidence of any act of direct 

negligence” by any of them “with regard to the care and treatment provided to Roy 

6According to Appellees’ brief, due to Foursquare Healthcare’s and Foursquare 

SNF’s delay in answering the lawsuit, “[a]n expert report addressing [their] conduct 

had already been served at that point, and objections to the expert report had already 

been overruled.” 
7

Broadwell while he was a patient at [Senior Care].” In addition, the motion noted that 

Sayles

has served multiple sets of written discovery requests but, as to movants, 

has only served a Request for Disclosure. And it is too late to serve 

further written discovery. Discovery closes in just three weeks from the 

date of filing of this Motion. See Discovery Control Order, on file with the 

Court and incorporated herein the same as if fully set forth herein for all purposes.

Discovery will have already closed by the time this Motion is heard. Id. 

More than an adequate time for discovery has passed. 

The hearing on the motion was set for November 25, 2019. 

Sayles noticed the deposition of Senior Care and the Non-Operators’ expert on 

November 6, 2019, for a deposition to occur on November 26, 2019. Sayles’s counsel 

voluntarily withdrew the deposition notice on November 26, 2019. Also on 

November 6, 2019, Sayles served her first set of interrogatories and request for 

production to Foursquare JNF,7 Foursquare Healthcare, NC Resources, NTF Realty, 

and Wichita Realty. According to Senior Care and the Non-Operators’ counsel, this 

was the first discovery that was served on them since the discovery served on Senior 

Care as part of the original and first amended petition and the discovery served on 

Senior Care on May 22, 2018. 

Sayles did not file a response to the motion for summary judgment. Instead,

Sayles filed her verified motion for continuance. In the motion, Sayles asserted the

following:

7See note 4, supra.
8

[Sayles] seeks a continuance of the trial and the [Non-Operators’] no[-] 

evidence motion for summary judgment in this case for at least six 

months so that [Sayles] can actually conduct meaningful discovery. 

Here, several of the defendants have moved for a no-evidence motion 

for summary judgment, claiming incorrectly that adequate time for 

discovery has passed, when the discovery period has officially been open 

for less than six months.

. . . .

. . . [Sayles] has been unable to conduct meaningful discovery 

from the Defendants due to the automatic stays that arise each time the 

new defendants to the case have answered the suit. 

Later the same day, Sayles’s counsel filed an amended verification stating in part that 

Sayles

has not conducted discovery on four of the five defendants. 

Additionally, [Sayles] needs to procure the deposition of the facilities 

nursing home administrator and/or the director of nursing. Discovery 

in this case beyond the scope of [Broadwell’s] healthcare, has not been 

open for a period long enough for [Sayles] to engage in meaningful 

discovery. [Sayles] cannot obtain the discovery sought from any other 

source. [Sayles] has been unable to conduct discovery due to the 

limitations Chapter 74 places on parties to conduct [] discovery and a 

stay on all discovery, including depositions, except for the discovery 

related to [Broadwell’s] healthcare. 

In the motion, Sayles requested six months to conduct additional discovery, including 

“depos[ing] the nursing home administrator and [] the director of nursing,” having her

“motion to compel heard on matters already requested from” Senior Care, 

propounding discovery to the Non-Operators, and seeking “the time cards, staffing 

matrices and deposition of the [Senior Care and the Non-Operators’] Expert 

Witnesses.” 
9

The motion for continuance was heard on November 25, 2019, the date set to 

hear the motion for summary judgment. At the hearing, Sayles’s counsel argued,

If you count up the amount of time that discovery was open in this case 

from between the first expert report to the second expert report and 

even through the final answer of the last two outstanding Defendants, 

discovery was open for a combined total of 133 days. 76 days the first 

time from September to October and then 57 days from the date you 

issued your ruling, 6/11 to 8/7/2019, . . . .

The trial court denied Sayles’s motion for continuance and granted the NonOperators’ motion for summary judgment. 

E. The case against Senior Care goes to trial, and a final take-nothing 

judgment is entered.

The jury trial against Senior Care started on December 11, 2019. The next day, 

the jury returned a unanimous verdict finding no negligence by Senior Care. The trial 

court entered a final take-nothing judgment the following month, and Sayles now 

appeals from the denial of her continuance motion and the granting of summary 

judgment in favor of the Non-Operators. 

III. DISCUSSION

On appeal, Sayles first complains that the trial court abused its discretion in 

denying her motion for continuance of both the summary judgment hearing and the 

trial. Senior Care and the Non-Operators respond that the denial of Sayles’s motion

for continuance was well within the trial court’s discretion because Sayles failed to 

make the necessary showing to obtain a continuance, Sayles has not accurately

calculated the time that was available for discovery, and Sayles’s “own tactical 
10

decisions” were the primary factors dictating the time that was available to her for 

discovery. Relying on the same arguments made in her first issue, Sayles complains in 

her second issue that the trial court erred in granting a no-evidence summary 

judgment in favor of the Non-Operators.

A. We first set out the standards of review.

We review a trial court’s ruling on a motion for continuance for an abuse of 

discretion. See BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 800 (Tex. 2002). 

We do not substitute our judgment for the trial court’s. In re Nitla S.A. de C.V., 

92 S.W.3d 419, 422 (Tex. 2002) (orig. proceeding). Instead, we must determine 

whether the trial court’s discretion was so arbitrary and unreasonable that it amounts 

to a clear and prejudicial error of law. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 

150, 161 (Tex. 2004). The test is whether the trial court acted without reference to 

guiding rules or principles. Cire v. Cummings, 134 S.W.3d 835, 838–39 (Tex. 2004). A 

litigant who fails to diligently use the rules of civil procedure for discovery purposes is 

not entitled to a continuance. State v. Wood Oil Distrib., Inc., 751 S.W.2d 863, 865 (Tex. 

1988); D.R. Horton-Tex., Ltd. v. Savannah Props. Assocs., L.P., 416 S.W.3d 217, 223 (Tex. 

App.—Fort Worth 2013, no pet.).

With regard to continuances of summary judgment motions, Texas Rule of

Civil Procedure 166a(g) permits a trial court to deny a summary judgment motion or 

to grant a continuance to the party opposing summary judgment if that party files an 

affidavit setting forth the reasons the party cannot present the facts necessary to 
11

respond to the motion. Tex. R. Civ. P. 166a(g); Ford Motor Co. v. Castillo, 279 S.W.3d 

656, 662 (Tex. 2009). When a nonmovant “contends that it has not had an adequate 

opportunity for discovery before a summary judgment hearing, it must file either an 

affidavit explaining the need for further discovery or a verified motion for 

continuance.” Tenneco Inc. v. Enter. Prods. Co., 925 S.W.2d 640, 647 (Tex. 1996); see

Tex. R. Civ. P. 166a(g), 251, 252.

With regard to no-evidence motions for summary judgment, after an adequate 

time for discovery, the party without the burden of proof may, without presenting 

evidence, move for summary judgment on the ground that no evidence supports an 

essential element of the nonmovant’s claim or defense. Tex. R. Civ. P. 166a(i). The

motion must specifically state the elements for which no evidence exists. Id.; Timpte 

Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009). The trial court must grant the 

motion unless the nonmovant produces summary judgment evidence that raises a 

genuine, material fact issue. See Tex. R. Civ. P. 166a(i) and 1997 cmt.; Hamilton v. 

Wilson, 249 S.W.3d 425, 426 (Tex. 2008) (per curiam).

When reviewing a no-evidence summary judgment, we examine the entire 

record in the light most favorable to the nonmovant, indulging every reasonable

inference and resolving any doubts against the motion. Sudan v. Sudan, 199 S.W.3d 

291, 292 (Tex. 2006) (per curiam). We review a no-evidence summary judgment for 

evidence that would enable reasonable and fair-minded jurors to differ in their 

conclusions. Hamilton, 249 S.W.3d at 426 (citing City of Keller v. Wilson, 168 S.W.3d 
12

802, 822 (Tex. 2005)). We credit evidence favorable to the nonmovant if reasonable 

jurors could, and we disregard evidence contrary to the nonmovant unless reasonable 

jurors could not. Timpte Indus., 286 S.W.3d at 310 (citing Mack Trucks, Inc. v. Tamez, 

206 S.W.3d 572, 582 (Tex. 2006)). If the nonmovant brings forward more than a 

scintilla of probative evidence that raises a genuine issue of material fact, then a noevidence 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 case.

1. Sayles’s first issue complains of the trial court’s denial of her motion 

for continuance of the summary judgment hearing and the trial.

Sayles first complains that the trial court abused its discretion by considering 

the arguments of Senior Care and the Non-Operators’ counsel as evidence. In 

making this contention, Sayles relies on the following statement by the trial court at 

the summary judgment hearing: “The Court, after hearing argument of counsel and 

reviewing the proposed orders, rules as follows: The Court will grant the order 

denying [Sayles’s] Motion for Continuance to Obtain Additional Discovery on Two 

Defendants, No-Evidence Motion for Summary Judgment and will sign same.” Based 

on this statement by the trial court, Sayles argues that “the trial court’s reliance on the 

arguments of Appellees’ trial counsel as support for [the trial court’s] denial of the 

continuance, when no contravening evidence was submitted, was in error.” 
13

While argument of counsel is not evidence, Tex. Dep’t of Pub. Safety v. Mendoza, 

952 S.W.2d 560, 564 (Tex. App.—San Antonio 1997, no writ), the statement by the 

trial court does not suggest that it relied on counsel’s statements as evidence. Rather, 

it only shows that the court heard argument. See Nguyen v. Short, How, Frels & Heitz, 

P.C., 108 S.W.3d 558, 561 (Tex. App.—Dallas 2003, pet. denied) (stating, in a case 

where the judgment indicated that the trial court heard argument of counsel, that a 

hearing on a motion for summary judgment is limited to a review of the written

motion, response, and attached evidence). Nothing in the reporter’s record indicates 

that the trial court did not properly limit its review to the motions before it.

Sayles next argues that the trial court erroneously disregarded the Texas 

Medical Liability Act’s discovery prohibition when it denied the continuance. See Tex. 

Civ. Prac. & Rem. Code Ann. § 74.351(s). In making this argument, she relies on the 

provisions of the Act that limit discovery until expert reports are filed:

Until a claimant has served the expert report and curriculum vitae as 

required by Subsection (a), all discovery in a health care liability claim is 

stayed except for the acquisition by the claimant of information, 

including medical or hospital records or other documents or tangible 

things, related to the patient’s health care through:

(1) written discovery as defined in Rule 192.7, Texas Rules of Civil 

Procedure;

(2) depositions on written questions under Rule 200, Texas Rules of 

Civil Procedure; and

(3) discovery from nonparties under Rule 205, Texas Rules of Civil 

Procedure.
14

Id.

Because of this discovery prohibition, Sayles contends that “Appellees’

objections clearly frustrated the purpose of the docket control order; it reduced the 

amount of fact discovery that could be obtained prior to the expert discovery deadline 

from 144 days (February 21, 2019–July 15, 2019) to 34 days (34 days from June 11 

through July 15, 2019).” Senior Care and the Non-Operators respond that Sayles’s

analysis of the amount of time she had for discovery is erroneous. They note the 

following:

• While Sayles sued Senior Care in December 2017, citation was not issued 

until March 8, 2018, and Senior Care was not served until April 10, 2018.

• Sayles served her initial expert report on Senior Care on September 4, 2018, 

the last day she could do so; Senior Care did not object to the report; 

therefore, any discovery stay ended this day.

• Sayles propounded discovery to Senior Care in violation of the discovery 

stay, and Senior Care responded to the discovery, making objections and 

providing substantive responses, including identifying the facility 

administrator, director of nursing, assistant director of nursing, and dietary 

manager during the relevant time period.

• Even under Sayles’s timeline, no discovery stay resumed until November 19, 

2019, when NC Resources, Wichita NH Realty, and NTF Realty answered 

the lawsuit; prior to the answers being filed, no discovery occurred.

• After NC Resources, Wichita NH Realty, and NTF Realty answered, Sayles

waited the full 120 days before filing an amended expert report, which 

contained a single paragraph addressing the Non-Operators.

• NC Resources, Wichita NH Realty, and NTF Realty filed objections to the 

amended report and moved to dismiss, but the trial court denied the motion 

on June 11, 2019, and any discovery stay ended at that time.
15

• No discovery occurred for the next fifty-seven days, when Foursquare 

Healthcare and Foursquare SNF answered on August 7, 2019.

• Foursquare Healthcare’s and Foursquare SNF’s objections to the amended

report were due August 28, 2019, see Tex. Civ. Prac. & Rem. Code Ann. 

§ 74.351(a), (s), but no objections were filed.

• Because a report implicating the conduct of Foursquare Healthcare and 

Foursquare SNF was served on their counsel prior to the date they 

answered and because they did not object, no additional discovery stay came 

into effect after the stay ended on June 11, 2019.

• Therefore, in addition to the seventy-six days from September 4, 2018 to 

November 19, 2018, Sayles had time to conduct discovery from June 11,

2019 to November 1, 2019, when discovery ended pursuant to the trial 

court’s docket control order. 

We agree with Senior Care and the Non-Operators. In determining whether to 

grant a continuance, the trial court must consider the procedural history and record of 

the case, not just the sworn motions. Elberger v. Dub Miller Ford, No. 01-06-00926-CV, 

2007 WL 3293725, at *3 (Tex. App.—Houston [1st Dist.] Nov. 8, 2007, no pet.) 

(mem. op.). After doing so, we do not agree that the procedural stays required by

Texas Civil Practice & Remedies Code Ann. Section 74.351(s) prevented Sayles from 

having adequate time to conduct discovery. Rather, while there were some stays, 

there was still ample time to engage in discovery.

Sayles goes on to argue that continuances from summary judgment hearings 

“need not be founded on the same level of evidence as that required by a trial 
16

continuance.” Compare Tex. R. Civ. P. 166a(g), with Tex. R. Civ. P. 252. Rule 166a(g) 

provides,

Should it appear from the affidavits of a party opposing the motion that 

he cannot for reasons stated present by affidavit facts essential to justify 

his opposition, the court may refuse the application for judgment or may 

order a continuance to permit affidavits to be obtained or depositions to 

be taken or discovery to be had or may make such other order as is just.

Tex. R. Civ. P. 166a(g).8 Rule 252 states in part,

If the ground of such application be the want of testimony, the party 

applying therefor shall make affidavit that such testimony is material, 

showing the materiality thereof, and that he has used due diligence to 

procure such testimony, stating such diligence, and the cause of failure, if 

known; that such testimony cannot be procured from any other source;

and, if it be for the absence of a witness, he shall state the name and 

residence of the witness, and what he expects to prove by him; and also 

state that the continuance is not sought for delay only, but that justice 

may be done; provided that, on a first application for a continuance, it

shall not be necessary to show that the absent testimony cannot be 

procured from any other source.

Tex. R. Civ. P. 252. 

We have previously addressed the interplay between Rules 166a(g) and 252. In 

Tri-Steel Structures, Inc. v. Baptist Foundation of Texas, we stated,

If the “opportunity” is needed to take depositions, that is, for “want of 

testimony,” the rule is silent as to whether a continuance motion must 

meet the requirements of Rule 252. Tex. R. Civ. P. 252. No case law 

appears to have addressed this specific issue. We hold that if additional 

evidence is requested to be submitted through the initiation of discovery 

for “want of testimony,” (1) the summary judgment hearing must be 

continued to allow the new evidence to be presented to the court, and 

8Rule 166a(i) also indirectly addresses continuances by use of the words “[a]fter 

adequate time for discovery.” Tex. R. Civ. P. 166a(i).
17

(2) a motion for continuance consistent with Rule 252 is required. Id. 

Otherwise, summary judgment affidavits would be replete with hearsay, 

with little impetus to obtain proper discovery before the hearing to avoid 

hearsay rulings.

166 S.W.3d 443, 448 (Tex. App.—Fort Worth 2005, pet. denied). A motion for 

continuance of a summary judgment hearing is subject to the same rules applicable to 

a trial continuance. See D.R. Horton-Tex., Ltd., 416 S.W.3d at 222–23.

A motion for continuance asking to continue a summary judgment hearing or a 

trial to allow more time for discovery must be supported by an affidavit describing the

evidence sought, explaining its materiality, and showing that the party requesting the 

continuance has used due diligence to obtain the evidence. Tex. R. Civ. P. 251, 252; 

Gadberry Constr. Co., Inc. v. Raney, No. 02-18-00263-CV, 2019 WL 3244519, at *3 (Tex. 

App.—Fort Worth Jul. 18, 2019, no pet.) (mem. op.); see also Tenneco Inc., 925 S.W.2d

at 647 (“When a party contends that it has not had an adequate opportunity for 

discovery before a summary judgment hearing, it must file either an affidavit 

explaining the need for further discovery or a verified motion for continuance.”). The 

failure of a litigant to diligently utilize the Rules of Civil Procedure for discovery 

purposes will not authorize the granting of a continuance. Wood Oil Distrib., Inc., 

751 S.W.2d at 865.

In deciding whether the trial court permitted an adequate time for discovery 

under Rule 166a(i), we consider the following factors: (1) the nature of the case,

(2) the nature of the evidence necessary to controvert the no-evidence motion, (3) the 
18

length of time the case was active, (4) the amount of time the no-evidence motion was 

on file, (5) whether the movant had requested stricter deadlines for discovery, (6) the 

amount of discovery that already had taken place, and (7) whether the discovery 

deadlines in place were specific or vague. McInnis v. Mallia, 261 S.W.3d 197, 201 (Tex.

App.—Houston [14th Dist.] 2008, no pet.). Ordinarily, a no-evidence summary 

judgment motion is not permitted before the expiration of the discovery period set by 

the pre-trial order. Id. at 200. And a discovery period set in a docket control order is 

“a strong indicator of adequate time” for discovery. Id. at 203. The pertinent date for 

determining whether the trial court permitted adequate time is the final date on which 

the no-evidence motion is presented to the trial court for ruling. Id. at 200.

Here, by the summary judgment submission date of November 25, 2019, the 

following had occurred or was about to occur:

• the case had been pending for twenty-three months;

• the Non-Operators had been parties for thirteen months;

• the discovery deadline in the scheduling order that was proposed by Sayles

had passed twenty-four days earlier;

• the motion for summary judgment had been on file for forty-five days; 

and

• the trial date in the scheduling order that was proposed by Sayles was

fourteen days away.

Nevertheless, Sayles contends that, due to the failure of Senior Care to 

controvert the motion for continuance, which was otherwise in substantial 
19

compliance and verified, the reviewing court must accept the statements in the

motion as true. And, she contends, this is especially true in a first motion for 

continuance. However, there is nothing in the continuance rules requiring the 

granting of a first motion merely because it is in statutory form and is not

controverted by affidavit of the opposite party. Fritsch v. J.M. English Truck Line,

246 S.W.2d 856, 858 (Tex. 1952). Moreover, a trial court is not required to grant a 

motion for continuance “when the allegations in the motion examined in the light of 

the record show beyond a cavil a complete lack of diligence as measured by other 

rules regulating procedure in the trial of cases.” Id.

In addition, Sayles’s motion was not in substantial compliance with the rules. It 

did not attempt to state or show the materiality of any testimony sought, nor did it 

allege any facts to show that Sayles used due diligence to procure such testimony. See

Tex. R. Civ. P. 252; see also Primdahl v. Keller Ladders, Inc., No. 05-00-00618-CV, 2001 

WL 727325, at *2 (Tex. App.—Dallas June 29, 2001, no pet.) (not designated for 

publication) (holding that the trial court did not abuse its discretion in denying the 

motion for continuance that was not in substantial compliance with Rule 252). It is 

axiomatic that the appellant must show that she has used due diligence and must state 

with particularity such diligence used and the cause of the failure to produce a witness. 

Gregg v. Cecil, 844 S.W.2d 851, 853 (Tex. App.—Beaumont 1992, no writ).

While Sayles asserted in her amended verification to the continuance motion 

that she needed a continuance to procure the depositions of Senior Care’s nursing-
20

home administrator or director of nursing, Senior Care had provided the identities of 

these individuals in its June 21, 2018 response to discovery. Despite this earlier 

knowledge, the record reflects Sayles made no attempt to depose these individuals.

Sayles’s amended verification also included the conclusory statements that 

discovery “has not been open for a period long enough . . . to engage in meaningful 

discovery,” that Sayles “cannot obtain the discovery sought from any other source,”

and that Sayles “has been unable to conduct discovery due to the limitations 

Chapter 74 places on parties.” An affidavit seeking a continuance of a summary 

judgment hearing must show why the continuance is necessary; conclusory allegations

are not sufficient. Carter v. MacFadyen, 93 S.W.3d 307, 310 (Tex. App.—Houston 

[14th Dist.] 2002, pet. denied).

Considering the entire procedural history and record of the case, we conclude

that Sayles failed to diligently seek discovery. Prior to the summary judgment hearing,

Sayles had served the following discovery on Senior Care: (1) a request for disclosure 

(with the original and amended petition); (2) the first set of interrogatories, a request 

for admissions, and a request for production; and (3) a second request for production. 

Senior Care timely served objections and responses to each. According to Senior 

Care and the Non-Operators’ counsel, other than this discovery, Sayles never served 

any other written discovery on Senior Care or Non-Operators until November 6, 

2019. On that day, Sayles noticed the deposition of Senior Care and the NonOperators’ expert and served written discovery on the Non-Operators. Sayles later 
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withdrew the deposition notice. Sayles fails to show why she did not pursue discovery 

in the time periods when the stay was not in effect. See Clark v. Compass Bank, No. 02-

07-00050-CV, 2008 WL 2168292, at *3 (Tex. App.—Fort Worth May 22, 2008, no 

pet.) (mem. op.) (holding that the failure of a litigant to diligently use the rules of civil

procedure for discovery purposes will not authorize the granting of a continuance).

Finally, we note that both the discovery deadline and the trial date set out in the 

discovery control order were dates selected by Sayles. See Tittizer v. Union Gas Corp., 

171 S.W.3d 857, 862 (Tex. 2005) (stating that “a party cannot complain on appeal that 

the trial court took a specific action that the complaining party requested”); see also 

Fields v. Houston Indep. Sch. Dist., No. 14-19-00010-CV, 2020 WL 6073758, at *8 (Tex. 

App.—Houston [14th Dist.] Oct. 15, 2020, no pet. h.) (mem. op.) (holding that the 

appellant cannot complain on appeal when the trial court granted appellant’s request 

for the trial court to “enter a new Docket Control Order extending all deadlines by at 

least 90 days” but did not ask for extension of approaching hearings). On 

February 20, 2019, when Sayles requested a trial date and a discovery control cutoff

date, she was in the best position to know what, if any, discovery was still needed in

order to proceed to trial. Despite this knowledge, she chose the deadlines and dates 

for the trial court to enter.

Considering the entire record, including the length of time the case had been 

on file, Sayles’s agreement to the docket control order and discovery deadline, and her 

failure to diligently conduct discovery under the rules, we cannot say that the trial 
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court abused its discretion by denying the motion to continue the summary judgment 

hearing and the trial. See Haven Chapel United Methodist Church v. Leebron, 496 S.W.3d 

893, 902 (Tex. App.—Houston [14th Dist.] 2016, no pet.). Accordingly, we overrule 

Sayles’s first issue.

2. Sayles’s second issue complains of the trial court’s granting of the noevidence motion for summary judgment.

In Sayles’s second issue complaining of the trial court’s error in granting the 

Non-Operators’ no-evidence motion for summary judgment, Sayles makes no 

substantive arguments, again argues that the trial court erred in denying her motion 

for continuance of the summary judgment hearing, and “incorporates all arguments 

made in support of diligence and materiality” in the earlier section of her brief. 

Because we have already addressed all of these arguments, we overrule Sayles’s second 

issue.

IV. CONCLUSION

Having overruled both of Sayles’s issues, we affirm the trial court’s judgment.

/s/ Dana Womack

Dana Womack

Justice

Delivered: January 7, 2021