                              Fourth Court of Appeals
                                     San Antonio, Texas

                                MEMORANDUM OPINION
                                        No. 04-12-00120-CV

                                     Rebecca DESROCHERS,
                                            Appellant

                                                 v.

                    John W. THOMAS, M.D., and South Texas Radiology Group,
                                        Appellees

                     From the 225th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2008-CI-21278
                             Honorable Martha Tanner, Judge Presiding

Opinion by:       Sandee Bryan Marion, Justice

Sitting:          Karen Angelini, Justice
                  Sandee Bryan Marion, Justice
                  Patricia O. Alvarez, Justice

Delivered and Filed: March 27, 2013

AFFIRMED

           This is an appeal from a take-nothing summary judgment rendered in favor of appellees.

On appeal appellant, Rebecca Desrochers, asserts (1) the trial court abused its discretion when it

denied her motion for enlargement of time to conduct discovery, and (2) the trial court erred

when it granted appellees’ no-evidence summary judgment motion.
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                                                BACKGROUND

         Desrochers sued Dr. John W. Thomas and South Texas Radiology Group on December

29, 2008, alleging medical negligence for departures from accepted standards of medical care. 1

On November 17, 2010, the trial court set the case for trial on November 14, 2011, with a

discovery deadline of October 14, 2011. 2

         Appellees filed their no-evidence summary judgment motion on August 15, 2011. On

August 31, 2011, Desrochers’s trial counsel was allowed to withdraw and a stay on proceedings

was imposed. On September 23, 2011, after expiration of the stay, a hearing was set for

appellees’ no-evidence summary judgment motion for October 17, 2011. Appellees filed a

motion to strike plaintiff’s expert witness on September 26, 2011, and Desrochers filed her

response to the motion to strike, which also included a request for enlargement of time of the

discovery deadlines. 3 A hearing was held on October 5, 2011. In an order entered October 7,

2011, the appellees’ motion to strike plaintiff’s expert witness was granted in part.

         Desrochers responded to appellees’ no-evidence motion for summary judgment on

October 14, 2011, and appellees filed objections to Desrochers’s summary judgment evidence.

At the summary judgment hearing on October 17, 2011, the trial court sustained appellees’

1
  Desrochers asserted claims against South Texas Radiology Group for being vicariously liable for Dr. Thomas’s
alleged medical negligence.
2
  There were numerous discover disputes, with Desrochers and her counsel being sanctioned multiple times for
failure to comply with discovery orders.
3
  On September 30, 2011, in addition to the request for enlargement of time of the discovery deadline in
Desrochers’s response to the motion to strike, she also filed a separate motion entitled “Plaintiff’s Motion for
Enlargement of Time of the Discovery Deadlines and Motion to Change Trial Dates and Objection to Trial Date as
Set.” The record does not contain a ruling on this motion and appellees argue on appeal that her complaint about the
denial of her motion for enlargement of time is not preserved for our review. However, the order granting in part
appellees’ motion to strike expert witness specifically states the trial court reviewed Desrochers’s response and
denies all other relief requested by the parties. We conclude this ruling is a denial of Desrochers’s request for
enlargement of time contained within her response to appellees’ motion to strike expert witness. Therefore,
Desrochers’s complaint is preserved. See TEX. R. APP. P. 33.1 (requiring record to demonstrate complaint was made
to trial court by timely motion, stating grounds of complaint with sufficient specificity, and trial court ruled on the
motion, either expressly or implicitly as prerequisite to presenting complaint for appellate review).

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                                                                                    04-12-00120-CV


objections to the summary judgment evidence presented by Desrochers and granted their

summary judgment motion. This appeal followed.

                                 ENLARGEMENT OF TIME

        In her first issue, Desrochers asserts the trial court abused its discretion when it denied

her motion for enlargement of time to conduct discovery.

        Trial was set to commence November 14, 2011, with a discovery deadline of October 14,

2011. Desrochers’s first counsel was allowed to withdraw from the case on August 31, 2011.

Desrochers’s second counsel filed an appearance on September 26, 2011. Desrochers argues an

enlargement of discovery deadlines was required because her second counsel had only eighteen

days before the discovery deadline when he made his appearance.

        We review a trial court’s decision to deny a motion to modify a discovery-control plan

for an abuse of discretion. See BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 800

(Tex. 2002) (applying abuse of discretion standard to denial of motion for continuance

requesting extension to complete discovery); Brown v. Brown, 145 S.W.3d 745, 749–50 (Tex.

App.—Dallas 2004, pet. denied) (applying abuse of discretion standard to denial of motion for

enlargement of time and modification of discovery procedures).          A trial court “abuses its

discretion when it reaches a decision so arbitrary and unreasonable as to amount to a clear and

prejudicial error of law.” BMC, 83 S.W.3d at 800. We consider the following nonexclusive

factors when deciding whether a trial court abused its discretion in denying a request for

additional time to conduct discovery: (1) the length of time the case has been on file, (2) the

materiality and purpose of the discovery sought, and (3) whether the party seeking the

continuance has exercised due diligence to obtain the discovery sought. Joe v. Two Thirty Nine

Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004). We apply the factors from Joe to the instant

case:
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    (1) Nearly three years had passed between the date Desrochers filed suit and her request for

        enlargement of the discovery period.

    (2) In her motion, Desrochers asserted the discovery period should be extended in order to

        take the deposition of the defendant and defendant’s experts.

    (3) Her motion states: “[Her] counsel indicated to [defense counsel] that ‘we need to depose’

        his client and his expert but was denied both unless and until we paid for his legal fees for

        the deposition of our expert.”

See id. While the second factor, materiality, weighs in her favor, the first and third weigh

strongly against her. The case had been on file for almost three years and Desrochers’s motion

does not explain how due diligence was used to obtain the discovery sought. In an order dated

October 7, 2011, the trial court ordered Desrochers to present her expert for deposition in Bexar

County at a specified time and to pay all fees associated with the deposition. Desrochers did not

comply with the order and then, in her motion, characterized the appellees’ attempt to enforce

the order as their “refusal” to provide her with the discovery she sought an enlargement of time

to conduct. Also factoring into due diligence, the deposition she sought extra time to conduct

was not of some person whose identity was not known until recently—appellees were a party to

the lawsuit since Desrochers filed it nearly three years prior. 4

         After an analysis of the Joe factors, coupled with the fact that Desrochers was sanctioned

multiple times for failure to comply with discovery orders, we conclude the trial court did not

abuse its discretion when it denied her motion for enlargement of time to conduct discovery.


4
 Desrochers repeatedly makes the assertion that her attorney was left with only eighteen days to conduct discovery.
However, we note that the third Joe factor places the burden on the party rather than the attorney to show whether
due diligence was exercised to obtain the discovery sought. See Joe, 145 S.W.3d at 161 (“. . . whether the party
seeking the continuance has exercised due diligence to obtain the discovery sought.”) (emphasis added); see also
State v. Wood Oil Distributing, Inc., 751 S.W.2d 863, 865 (Tex. 1988) (“[T]he failure of a litigant to diligently
utilize the rules of civil procedure for discovery purposes will not authorize the granting of a continuance.” (citing
Fritsch v. J.M. English Truck Line, Inc., 151 Tex. 168, 246 S.W.2d 856, 858–59 (1952))).

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                                         SUMMARY JUDGMENT

         In her second issue on appeal, Desrochers asserts the trial court erred when it granted

appellees’ no-evidence summary judgment motion and entered judgment against her. Appellees

respond the trial court properly granted their no-evidence summary judgment motion because

Desrochers presented no evidence to raise a genuine issue of material fact regarding the elements

of her health care liability claim.

         Appellees filed their no-evidence summary judgment motion on August 15, 2011, and a

hearing was set for October 17, 2011. Desrochers filed her response October 14, 2011. Attached

to Desrochers’s response was her 120-day expert report 5, an internet article on Thoracic Outlet

Syndrome from the National Library of Medicine, and an excerpt from Desrochers’s medical

records.    Appellees objected to Desrochers’s evidence asserting the attached evidence was

inadmissible because (1) the evidence was not admissible under Texas Rule of Civil Procedure

166(a); (2) Dr. Howe’s expert report was not admissible because he had been stricken from

testifying in the case by operation of the trial court’s October 7, 2011 order; 6 and (3) the

response was untimely because it was filed less than seven days before the hearing.

         We review de novo the trial court’s decision to grant summary judgment. Valence

Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). A party may move for summary

5
  This was the report served on appellees in compliance with section 74.351 of the Texas Civil Practice and
Remedies Code, which requires a health care liability claimant to provide the defendant with an expert report within
120 days after filing the petition. TEX. CIV. PRAC. & REM. CODE § 74.351(a) (West 2008).
6
  After appellees attempted to depose Desrochers’s expert witness, Dr. Steven C. Howe, without success, they filed
a motion to strike Dr. Howe and requested sanctions on May 23, 2011. The trial court granted the motion to strike
in part and ordered the deposition take place in Bexar County on an agreed upon date. Desrochers’s new counsel
appeared on September 26, 2011, but he did not present Dr. Howe for deposition in Bexar County on September 28,
despite an order from the trial court. Thereafter, appellees filed another motion to strike Dr. Howe. The trial court
heard appellees’ motion and granted it in part, again ordering the deposition of Dr. Howe be taken in accordance
with the previous order no later than the discovery deadline (October 14), failing which Dr. Howe would be stricken
from testifying in the case. Dr. Howe was never presented for deposition, thus, appellees argued in their objections
to Desrochers’s summary judgment evidence that Dr. Howe’s report was inadmissible because he had been stricken
from the case when he was never deposed in accordance with the trial court’s order.


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                                                                                     04-12-00120-CV


judgment on the ground that there is no evidence of one or more essential elements of a claim on

which an adverse party has the burden of proof. TEX. R. CIV. P. 166a(i). The court must grant

the motion unless the non-movant produces summary judgment evidence raising a genuine issue

of material fact on the elements the movant has raised. Id. Except with leave of court, a party

may not file a response to a motion for summary judgment with supporting evidence later than

seven days prior to the day of the hearing. Carpenter v. Cimarron Hydrocarbons Corp., 98

S.W.3d 682, 686 (Tex. 2002); TEX. R. CIV. P. 166a(c). If a non-movant files a late response to a

motion for summary judgment, it must get the trial court’s permission in writing or the response

will not be before the court. INA of Tex. v. Bryant, 686 S.W.2d 614, 615 (Tex. 1985). “It is

well-established . . . that unless there is a basis in the record to conclude that untimely material

was filed with leave of court, we presume that the trial court did not consider it.” Envtl.

Procedures, Inc. v. Guidry, 282 S.W.3d 602, 612 (Tex. App.—Houston [14th Dist.] 2009, pet.

denied).

       Here, the hearing on appellees’ motion for summary judgment was set for October 17,

2011. Therefore, unless she received leave of court, Desrochers was required to file her response

not later than seven days prior to the hearing. The record demonstrates Desrochers filed her

response to appellees’ no-evidence motion for summary judgment on October 14—only three

days before the hearing. The record reveals no motion requesting leave to file a late response

and no order granting leave of court to file a late response; therefore, Desrochers’s summary

judgment evidence was not presented to the trial court. See Benchmark Bank v. Crowder, 919

S.W.2d 657, 663 (Tex. 1996) (concluding summary judgment evidence was not properly before

the trial court when it was filed two days before the hearing and the record contained no order

granting leave to file the late evidence). Accordingly, the trial court did not err in granting

appellees’ motion for no-evidence summary judgment because the trial court “must grant the
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                                                                                   04-12-00120-CV


motion unless the respondent produces summary judgment evidence raising a genuine issue of

material fact.” See TEX. R. CIV. P. 166a(i).

                                          CONCLUSION

       We conclude the trial court did not abuse its discretion in denying Desrochers’s motion

for enlargement of time to conduct discovery. We also conclude the trial court did not err by

granting appellees’ no-evidence summary judgment motion when leave of court was not granted

to file the late response and, therefore, Desrochers produced no evidence to raise a genuine issue

of material fact sufficient to defeat appellees’ entitlement to a no-evidence summary judgment.

The trial court’s judgment is affirmed.


                                                 Sandee Bryan Marion, Justice




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