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


                        MEMORANDUM OPINION
     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, 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.

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


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      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
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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.

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