May v. Nacogdoches Memorial Hospital

• Decision Date: 19 September 2001
• Docket Number: No. 12-01-00012-CV,12-01-00012-CV
• Citation: 61 S.W.3d 623
• Parties: (Tex.App.-Tyler 2001) REBECCA MAY, APPELLANT v. NACOGDOCHES MEMORIAL HOSPITAL, APPELLEE
• Court: Texas Court of Appeals

Page 623

61 S.W.3d 623 (Tex.App.-Tyler 2001)

REBECCA MAY, APPELLANT v. NACOGDOCHES MEMORIAL HOSPITAL, APPELLEE

No. 12-01-00012-CV

Court of Appeals of Texas, Tyler

September 19, 2001.

APPEAL FROM THE 145TH JUDICIAL DISTRICT COURT OF NACOGDOCHES COUNTY, TEXAS

[Copyrighted Material Omitted] Panel consisted of Davis, C.J., Worthen, J., and Griffith, J.

SAM GRIFFITH, Justice

Rebecca May ("May") appeals the trial court's order granting final summary judgment in favor of Appellee, Nacogdoches Memorial Hospital (the "Hospital"). May raises five issues on appeal. We affirm.

Background

May filed suit against the Hospital alleging that she was sexually assaulted by an individual from the Hospital's Environmental Services Department. May underwent a mastectomy of her right breast. May alleged that the sexual assaults occurred both prior to the operation and during her post-operative recovery. During both such alleged instances, May was partially anaesthetized.

In her original petition, May pled that the Hospital was negligent in its failure to provide a safe environment for patients under sedation, in failing to adequately supervise its staff, in failing to screen the backgrounds of its staff who would be in contact with May, in failing to institute adequate reporting policies and/or procedures concerning sexual abuse of patients, and in failing to adequately train employees in the reporting of sexual assaults. The Hospital answered asserting a general denial and raised the affirmative defense of sovereign immunity. In the alternative, the Hospital alleged that the maximum damages recoverable by May was $100,000.00.¹

Subsequently, the Hospital filed its motion for summary judgment arguing that May's suit was barred by sovereign immunity or, alternatively, that May had failed to state a cause of action under the Texas Tort Claims Act.² A hearing on the Hospital's motion for summary judgment was set for October 26, 2000. On August 17, 2000, May filed her response to the Hospital's motion for summary judgment and argued that her claim was covered by the Texas Tort Claims Act and that the Hospital's motion for summary judgment was an improper vehicle for its allegations that May had failed to state a cause of action. Additionally, May moved for a continuance on the ground that she required additional time to conduct discovery. May's motion for continuance was not supported by affidavit as required by Texas Rule of Civil Procedure 251.

On October 13, 2000, May filed her third amended original petition and a supplemental response to the Hospital's motion for summary judgment. In her third amended petition, May raised additional claims involving civil rights violations and spoilation of evidence, and made additional factual allegations that Keggler, the person who allegedly committed the assault, had done so by making use of the Hospital's equipment and facilities.

On October 24, 2000, the Hospital, without leave, filed its first amended motion for summary judgment, in which, in addition to reurging the arguments raised in its original motion, the Hospital argued that the additional allegations raised by May's third amended petition failed to state a cause of action under the Texas Tort Claims Act. The record indicates that the Hospital's amended motion for summary judgment was served on May's attorney by fax on October 24, 2000.

May filed no written objection to the Hospital's amended motion for summary judgment based on inadequate notice. Rather, May participated in the hearing on the Hospital's motion for summary judgment. Following the hearing, the trial court granted the Hospital's amended motion for summary judgment and entered an order granting final summary judgment, from which this appeal is taken.

Inadequate Notice of Summary Judgment Hearing

In her first two issues, May contends that the trial court erroneously granted the Hospital's amended motion for summary judgment, which was not served on May twenty-one days prior to the hearing thereon. In a summary judgment context, "issues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal." Tex. R. Civ. P. 166a(c) (emphasis added). In her brief, May addresses this problem in two ways. First, May claims that she "objected to the lack of twenty-one days notice on the Hospital's amended motion for summary judgment and moved for continuance in both her response and at the hearing." We have reviewed May's response and supplement thereto, both of which were filed before the Hospital filed its amended motion for summary judgment, and we are unable to locate any objection to inadequate notice.³

Alternatively, May cites Tivoli Corp. v. Jewelers Mut. Ins. Co., 932 S.W.2d 704, 709 (Tex. App.-San Antonio 1996, writ denied) and contends that her objection to inadequate notice in her motion for new trial was sufficient to preserve error on the subject. However, in Tivoli, although the non-movant received 21 days notice of the hearing on the movant's motion for summary judgment, the trial judge mistakenly signed the summary judgment four days early, thereby offering the non-movant no opportunity to object. Id. at 710. As set forth below, circumstances demonstrating that a non-movant had no opportunity to present written objections to the trial court prior to a summary judgment hearing makes Tivoli distinguishable from the case at hand.

Lack of sufficient notice in a summary judgment proceeding is a non-jurisdictional defect. See White v. Wah, 789 S.W.2d 312, 319 (Tex. App.-Houston [1st Dist.] 1990, no writ). If a party receives notice that is untimely, but sufficient to enable the party to attend the summary judgment hearing, the party must file a motion for continuance and/or raise the complaint of late notice in writing, supported by affidavit evidence, and raise the issue before the trial court during the summary judgment hearing. See Rios v. Texas Bank, 948 S.W.2d 30, 33 (Tex. App.-Houston [14th Dist.] 1997, no writ). To hold otherwise would allow a party who participated in the hearing to lie behind the log until after the summary judgment is granted and then raise the complaint of late notice for the first time in a post-trial motion. Id. It is only when a party is not given notice of the summary judgment hearing, or a party is deprived of its right to seek leave to file additional affidavits or other written response, that it may preserve error in a post-trial motion. See, e.g., Nickerson v. E.I.L. Instruments, Inc., 817 S.W.2d 834, 836 (Tex. App.-Houston [1st Dist.] 1991, no writ). We are not faced with such a situation here.

In the case at hand, the record reflects that May failed to object in writing to inadequate notice of hearing prior to the hearing on the Hospital's motion for summary judgment. The record further reflects that the Hospital's amended motion for summary judgment was served on May's attorney by fax two days prior to the hearing thereon. We hold that there was adequate time for May to file a written objection prior to the hearing on the motion for summary judgment. Thus, since May failed to comply with Rule 166a(c)'s mandate that all issues be presented in writing, she has waived her right to raise such an issue on appeal. See Tex. R. App. P. 33(a)(1)(B); see also Rios, 948 S.W.2d at 33. May's first and second issues are overruled.

Were May's Civil Rights Claims, Which Were Disposed of by the Trial Court's Order Granting Final Summary Judgment, Addressed in the Hospital's First Amended Motion for Summary Judgment?

May next contends that the trial court erred in granting summary judgment on claims not raised by the Hospital's first amended motion for summary judgment.⁴ The claims to which May refers were added in May's third amended original petition and related to violations by the Hospital and others of May's Constitutional rights of equal protection under the law.⁵ However, despite May's contention, the Hospital argues that it did address May's new claims in its first amended motion for summary judgment. In its first amended motion for summary judgment, the Hospital argued:

[The Hospital] is a governmental unit and a political subdivision of the State of Texas. The 60th Legislature of the State of Texas, in regular session, created [the Hospital] under the authority of article IX, section 9 of the Constitution of this State. The title of the act is "Nacogdoches County Hospital District " and it was approved on June 12, 1967. As an arm and agent of the State of Texas, [the Hospital] is immune from the claims of Plaintiff. [The Hospital] invokes its right of sovereign immunity.

For the reasons set forth below, we hold that the Hospital's invocation of its right to sovereign immunity was sufficient to address May's claims under 42 U.S.C. §§ 1983 and 1985. May's fourth issue is overruled.

The Hospital's Entitlement to Summary Judgment

May next contends that the trial court erred in granting the Hospital's amended motion for summary judgment because the Hospital failed to meet its burden of proving it was entitled to summary judgment as a matter of law. In its first amended motion for summary judgment, the Hospital argued as follows: (1) As an arm and agent of the State of Texas, the Hospital is immune from the claims of Plaintiff and invokes its right of sovereign immunity; and (2) Plaintiff's allegations in tort are not included under the limited waiver of immunity provided in Chapter 101 of the Texas Civil Practice and Remedies Code.⁶

a. Standard of Review

In reviewing a 166a(c) motion for summary judgment, this Court must apply the standards established in Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985), which are:

1. The movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law;

2. In deciding whether there is a...