*2 AMIDEI, Before FOWLER and CANNON,1JJ.
MAJORITY OPINION AMIDEI, Justice.
Roger appeals Huffine from Hospital Authority for Tomball error, (Hospital). In ten granting contends the trial erred summary judgment. We affirm. I. AND FACTUAL PROCEDURAL BACKGROUND. Appellant emergency was admitted 24, 1994, in a Hospital March room of the dehydration. subsequently He was state of B. diagnosed hepatitis He was hospital until March treated go discharged and then stable condition 4, 1994, home. On November received written notice from damages for claiming to mistreatment emotional distress due Hospital. writ- The letter was given hospital, and it was ten notice from not received within six months Appellant discharge hospital. from the 8, 1995, January for sued the causing him “severe mistreatment” severe sitting by assign- 1. Senior Justice Bill Cannon ment. there is no to file late and request for leave suffering. his sec-
mental and emotional appellant leave of granting a cause of petition, he added written order ond amended However, on Emergency Medical late. the Federal court to file his action under (EMTA- Act filed a no- and Active Labor September Treatment 1395dd, LA), “patient § request U.S.C.A. its tice of withdrawal *3 1996, dumping.” 30, and asked hearing September on “pur- the motion only court rule on summary Hospital filed its motiоn for The 1996,” 30, September on suant to submission 4, 1996, September asking for judgment on also hearing. This notice was without oral give the judgment because 27, September 1996. appellant on served on timely claim within six Hospital notice his 1996, 9, Hospital filed a the On October required by months of his treatment as sec- 17, 1996. of oral on October 101.101,Texas Practice and Reme- Civil this notice of of service on Act). The certificate (Texas The dies Code Tort Claims appellant’s counsel service on hearing recites hospital authority of Hospital municipal is a Pro- by Rules of Civil required as the Texas 4437e, pursuant article the State to former the Appellant failed to at (now cedure. Annotated Civil Statutes sec- Vernon’s 17, 1996, hearing, the trial oral and 262.001, October Health seq., tions et of the Texas sum- granted Hospital’s the Code), Safety governmental unit and and is a grounds. mary specifying without Tort Claims Act. under the Texas separate also entered a order The trial court Hospital appellant’s The also contended Hospital’s objections to sustaining all of the EMTALA claim failed as a matter of law summary judgment proof and his appellant’s (1) only “attempted alleged he an because: Hospital’s for sum- response to the motion (2) by Hospital, the he was not transfer” and mary judgment. emergency when he medical condition by Hospital. discharged EMTALA rehearing Appellant a motion for on filed persons discharged applies to who are 23, 1996, non-receipt of the claiming October they stabilized. or transferred before are setting oral for Hospital’s notice Appellant responded Hospital’s mo- 17, In his motion for rehear- October 1996. summary judgment, tion for and contended Hospital ing, appellant’s counsel stated gave timely hospital actual notice to a he mail, by certified re- timely sent the notice employee. spoke Sonya He contended he receipt requested, but she did not re- turn day discharged, Bender the after he was and post until after the ceive it from the office orally complained by of mistreatment other 22, In motion hearing, on October 1996. hospital employees. EMTALA As to his rehearing, appellant’s alleged: for claim, Hospital appellant contended the postal undersigned “The was told attempting obtain that, likely, most the letter had beеn clerk pleadings faffing for a cause of his state The trial court denied returned to sender.” allowing opportunity action him the without rehearing on Novem- appellant’s motion for pleadings. to amend his 18, entered a final ber 1996. The trial court 27, 1996, granting appellant’s motion for nonsuit September re- order On co-defendant, response against for Dr. Elizabeth Wan- plied appellant’s to its motion ner, 4,1996, making partial appellant’s on December summary judgment, objecting to 17, entered October being untimely as filed without 3, 1996, court, January objecting final and severable. On leave of the and partial motion for summary judgment proof being in- filed his as (1) trial, alleged grounds: as nonre- original date new competent. The submission (2) hearing; denial September ceipt of the notice was set summary appellant’s right to amend his filed and and notice of submission was the trial court sustained September Appellant’s after served on (3) objections; September five response was filed summary judgment proof incompetent; original date. days before the submission (4) The a material fact issue existed. appellant’s not show written The record does n.r.e.). trial court writ Dist.] overruled motion th ref d Because the 14,1997. February objection new trial on withdrew its
untimely response, it was not
the trial
before
II.
OF
STANDARD
REVIEW.
appellant’s point
court.
overrule
We
error
contending
seven
the trial court erred in
prevail
judgment,
order to
finding
response untimely
his
disprove
the movant must
least one of
filed.
plaintiffs
essential elements of each of the
summary judgment.
A.
“default”
Perez,
Siegler,
causes of action. Lear
Inc. v.
two, three, five, nine,
of error
This
burden
ten, appellant contends that
the trial court
requires
genuine
the movant to show that no
by sustaining
Hospital’s оbjections
erred
issue of material fact exists and that
summary judgment proof,
to his
he
*4
movant is entitled to
as a matter of
opportunity
been denied an
to amend his
has
Property Management
law. Nixon v. Mr.
summary judgment proof by the trial court’s
(Tex.1985).
Co.,
546,
690 S.W.2d
548-49
granting summary judgment in his absence.
determining whether a material fact issue
Appellant’s
counsel raised these
in her
preclude summary judgment,
exists to
evi-
trial,
motion for new
and
she
contended
favoring
dence
the nonmovant is taken as
17,
of
not receive the notice
the October
true,
all
in-
and
reasonable inferences are
1995,
hearing
hearing
until after
Id.;
dulged in favor of the nonmovant.
see
failing
get
she was not at fault in
Dallas,
Boys
also Doe
Clubs Greater
of
v.
Appellant’s
notice.
counsel admits the notice
Inc.,
(Tex.1995).
Any
907 S.W.2d
477
hearing
timely
filed and served
in
doubt is resolved
favor of the nonmovant.
21a,
pursuant
to rule
Texas Rules of Civil
Nixon,
548-49;
Doe,
at
690 S.W.2d
see also
Procedure,
signed
“green
and she
card”
[W]here (1) actual notice. judgment was tion for conscious indif- intentional or result of 21a, of Civ rule Texas Rules Under ference, an accident or but result of Procedure, prop is healing il if notice of the mistake, granted, new trial be a should mailed, prepaid, postage erly addressed (2) the motion provided that non-movant’s arises that the notice presumption a alleges new trial facts and contains for by the properly received addressee. Cliff ques- proof sufficient to raise a material Huggins, (3) fact, demonstrates party or of service of the The certificate delay will granting thereof occasion presumption. for attorney is the basis injury plaintiff. to the otherwise work Pasadena, City Cronen v. 1992, no (Tex.App [1 st Dist.] Id. at 331. . —Houston writ). rebutted presumption be this Medina was no-answer case and nonreceipt. Cliff, an offer of case, post-answer is a in that case If at 780. the factual assertions filed his affidavit relief from default movant’s but summary judgment, contends he received by the non- judgment are not controverted in the no notice of the that resulted trial, mov- the motion new movant to *5 against him. rale
judgment The Craddock ant his burden if affidavit sets satisfies his post-answer judg- appliеs to default also true, that, if intentional or negate forth facts Carrell, Ivy v. 213 ments. 407 S.W.2d consciously by the mov- indifferent conduct (Tex.1966). requirement The second of Med- Director, Emp. trial. ant for new State requires the trial to ina motion for new Evans, Comp. v. Wkrs’ proof sufficient a material contain to raise question of fact. Id. at This criterion 331. McMillan, Washington v. In replaces requirement the Craddock that the (Tex.App. no Antonio up a party seeking new trial must set a — San writ), appellant’s attorney acknowledged defense, applies meritorious which in the de- summary judgment was that the mоtion for context, judgment fault but not in the sum- compliance in with 21a. Id. at served rule mary judgment n. context. Id. at 331 3. not, however, It reach either 394. did ever appellant’s attorney a. secretary; Was failure to at in- Washington’s his stead, directly tend the the result to intentional or it was misrouted and sent Appellant’s attorney of conscious indifference? Washington’s the file room. Id. duly respond counsel was served with the notice of therefore failed to the motion hearing by summary judgment the Oct. notice at the failed by mail, of submission sent return trial granted certified Id. The McMil- requested, receipt signеd summary judgment a certificate of a lan’s motion and held, signed by appeals service counsel at in favor. I'd The his court of facts, testing appellant’s that the notice Washington’s was sent to these that failure under by required counsel as Texas Rules of not of to answer was intentional or the result indifference, Appellant’s signed Procedure. to an Civil conscious but was due card,” receipt but “green of or mistake. Id. at Because date accident proof not green rebutting appel- card was entered on the card. is no concrete there Appellant’s nonreceipt, counsel filed with the affidavit we an affidavit lant’s counsel’s of trial fact of attesting motion for new to the hold that there is of conscious evidence answer, non-receipt of the notice after the hear or intentional until indifference failure to 17,1996, ing attesting nonreceipt of the was October and further and the actual notice Director, by any to no notice of the date to accident or due mistake. See Hospital Comp., opposed Emp. means. The the motion State at 269. Wkrs’ notified, arguing duly appellant Accordingly, new trial counsel was we find has met the Craddocktest, presumed Hospi to be of the requirement served. The first as summary judgments. tal not furnish to refute Medinafor evidence modified date, discharge. b. Does motion for Prior to that Mr. allege new Schaper Hospital trial facts and contain testified the had received question sufficient to raise a material no notice of this claim. He further testified trial, notice, In appellant Hospital fact? his motion for new did not have actual alleged granting appellant the trial court erred in before November that Hospital’s objections allowing injured. without him We find the opportunity provided by appellant to amend his evidence his motion proof. argument The motion consisted of for new trial failed to raise a fact that issue deposition excerpt appellant any injury at had actual appellant’s response Hospi tached to appellant any alleged claimed or notice of tal’s culpability part producing created a on its or contribut- fact issue as to ing any injury appellant. actual notice to the under the Tort Act. Claims evi six, point of errоr contended dence attached to the motion for new trial granting summary the trial court erred in appellant. deposi was an affidavit of his on his EMTALA affidavit, excerpt states appellant’s pleadings claim because failed to Bender, Sonya employee he talked to point, appel- state a cause of action. In this Hospital, day after Hospital’s summary lant also contends discharge. Appellant told Ms. Bender of judgment proof incompetent. Appellant in attending several instances of carelessness supported “pa- argued neither his federal needs, personal his such as failure to bathe dumping” tient in his motion new claim linens, appellant, change failure to his failure Appellant trial with has failed to evidence. nutritionist, provide and other matters. respect raise a material fact issue with to his deposition Nowhere his or in his affidavit Director, Emp. EMALTA claim. See State anyway injured does he state that he inwas *6 Comp., 889 at 270. Wkrs’ S.W.2d by alleged this mistreatment. appellant c. Has demonstrated 101.101(e) Section of the Tort Claims granting will of his motion for new trial provides require Act that the formal notice delay inju- not cause or otherwise work an 101.101(a) apply ments of section “do not if ry Hospital? Appellant’s to the motion for governmental the unit has actual that notice allege granting new trial does not that a new occurred, death that has the claimant has injure Hospital, trial the nor is their will injury, received some or that the claimant’s appellant stating an affidavit attached that property damaged.” has been Crv. Tex. ready, willing go be and able to to trial would 101.101(c)(Vernon § Prac. & Ann. Rem.Code immediately. The third element of Craddock 1997). undisputed appellant It is that failed (and Medina) is that the motion for new formal, provide Hospital with the written granting trial be filed at á time when the notice of his claims within six months from delay or otherwise thereof will occasion discharge. governmen his Actual notice to a Director, injury plaintiff. work an to the (1) death, requires knowledge unit a tal of Comp., at 270. Emp. State Wkrs’ (2) govern injury, property damage; or the [appellant in this case] “Once defendant alleged producing unit’s or mental fault con alleged trial will not granting has that a new death, tributing injury, property to the or case], injure plaintiff Hospital in this the [the (3) parties damage; identity of the going proof of the burden of forward with Booth, Cathey v. involved. injury plaintiff Hospital].” shifts to the [the (Tex.1995). equitable principle Id. An is involved and the proof, Hospital by facts on a case As court should deal with the Schaper, equity. of Robert case basis in order to do Id. “The submitted affidavit unduly delay or president/CEO Hospital, goal who to be achieved is to not stated Hospital appel- injure plaintiff Hospital first received notice of [defendant Id.Ap- by granting the motion.” case] lant’s claim in the form of a written letter this satisfy the third appellant’s, pellant attempted has not from November appel- rules. months from the date of element of the over six Craddock/Medina affida- Procedure. The Appellant’s New Tri Texas Rules of Civil Motion for 2. ever properly appel clearly that notice Because vit stated al overruled. the letter from appellant trial failed to establish from lant’s motion new received against attorney making of a claim appellant’s a material fact issue with sufficient action, No- hospital. of and because The letter was received his causes granting 4, 1994, of a to demonstrate that the six months from failed over vember delay new trial will occasion no Prior to discharge motion for March injury Hospital, we date, work an Schaper otherwise testified the that Mr. not abuse its discre
find the trial court did He notice of this claim. had received no for new overruling appellant’s motion have Hospital did not further testified the points error of notice, trial. We overrule November any actual before five, six, nine, two, three, ten. eight, injured. similar affida- that of to establish lack vit was held sufficient summary judg- Hospital’s B. Was Cathey unit in v. governmеntal support evidence sufficient ment Booth, any absent actual summary judgment? Appellant’s part pro- alleged culpability on its notice of Hospital’s four contend the error one and injury contributing to the ducing or in- legally evidence was have that plaintiff. MWe found summary judgment. suppoi’t sufficient deposition excerpt filed with his and affidavit deposition Specifically, he contends his ex- new trial were no evidence motion for cerpt a fact as to actual notice creates issue injury. any actual notice to the claim, hospital of and Mr. to the his Scha- string eonclusory “a per’s affidavit was Summary judgment be In his written to the statements.” testi of uncontroverted granted on basis summary judgment, ap- if of an interested witness monial evidence pellant any objection not assert direct, clear, positive “is that evidence summary judgment proof. In his free from contradic otherwise credible and appellant argued response, inconsistencies, and could have tions and testimony, deposition actual notice his had P. readily Tex.R. Crv. been controverted.” special exceptions proper was the and that Brand, 166a(c); see Casso his EM- attacking means of the substance of language have “could Appellant “patient dumping” TALA claim. simply readily “does not been controverted” *7 complaint by pres- failure to has waived his summary judgment mean that the movant’s objections to ent his the evidence easily have been and convenient could response. in to the trial court his written Rather, testimony that ly it means rebutted. City Houston v. Basin Au- Clear Creek of a nature which can be effective at issue is of (Tex.1979). 671, thority, 589 S.W.2d 675 Casso, ly by opposing evidence.” countered Despite object to to the the failure 558; Hamamcy v. 776 at see also S.W.2d court, appel Hospital’s evidence in the trial 32, Heights Hosp., 34 Wyckojf 786 S.W.2d argue legal lant is entitled to suffi still denied). 1990, (Tex.App. writ Worth — Fort presented by ciency grounds of the the Hos if Summary judgment inappropriate is Dist., pital. v. McConnell Southside School likely credibility deponent of the affiant or is (Tex.1993). Therefore, 343 dispositive factor in resolution of to be a legal sufficiency of the we will review the Casso, 558; 776 at the case. S.W.2d Winkler Hospital’s proof to establish its entitlement Park, 816 S.W.2d v. Kirkwood Atrium Office summary judgment. to Id. (Tex.App Dist.] th [14 . —Houston denied). “[S]ummary judgment writ 1. The affidavit of Robert Scha- proper if nonmovant must come may be per. Hospital attached the affidavit of The in' independent evidence order forth with Schaper prove nonreceipt of Robert Hamamcy, 786 prevail but fails to do so.” appellant’s claim six written notice of within 34; Casso, at 558 Schaper at see discharge. Mr. is S.W.2d months from his must, in “if Hospital (asserting that the non-movant of the President/CEO 166a(c), likelihood, independent with rule all come an interested witness under circumstances, prevail, summary judgment requires evidence to then these the lаw neither in proper special exceptions well be the absence of such ap- nor a remand so that controverting proof’). pellant may replead. that Mr. We find See v. Gonzales Postal clear, Schaper’s Union, AFL-CIO, positive affidavit was Workers direct, (Tex.App. otherwise credible and free from con- 799 Antonio writ de- — San nied). inconsistencies, tradictions and and could summary judg- We find the readily any have been controverted. Absent legally sup- ment evidence was sufficient to controverting proof port of actual notice of summary judgment. Apрellant’s its alleged culpability part producing on its of error one and four are overruled contributing any injury appellant, trial and the of the court is af- Hospital’s summary judgment evidence was firmed.
legally
prove
sufficient to
comply
provisions
Justice,
failed to
with the notice
of
concurring.
FOWLER
101.101(a)
(e),
section
Texas Tort Claims
I concur in
the ma-
the result reached
Act,
and the
was entitled to sum-
jority
separately
disagree
but write
with
mary judgment as a matter
law on
their
application
of the
test to
Craddock
injury.
affirmative
of no
defense
summary judg-
lant’s failure to
at the
ment
See Craddock
Sunshine
“pa
2. The EMTALA claim of
Lines,
Bus
134 Tex.
803 Director, 575, (Tex.App. against [1 Em- 787 S.W.2d 579 dered it. See State — Houston denied); 1990, Enernational Compensation Dist.] v. Ev- st writ ployees Workers’ Div. Inc., (Tex.1994) ans, 266, Eng’rs., 705 (stating Corp. Exploitation v. 889 269 S.W.2d 749, (Tex.App. st [1 a was entitled a new S.W.2d 751 agency that state to — Houston n.r.e.). 1986, setting, In this appear at writ ref d Dist.] trial failure to trial was because its preju- been mistake); party have Onyeanu Apart responding v. the a Rivertree ments, by not to the movant’s dis- (Tex.App.— responding diced writ) motion, although, as the First Court (stating positive no [1st Dist.] Houston opinions, in its Appeals pointed has out the party that a was entitled to new trial when summary not be lawyer proved to motion should that he went courtroom on (1) and, respondent just failed to day granted and trial when because time of courtroom (2) empty judge reply. granted It be because the was and he saw note that should seminar, respondent to at a that was motion was valid and the failed concluded trial rescheduled). trial, presented. By failing appear to controvert evidence at event, again, defaulting party was prejudiced it once a able defendant was because lost present its raise a fact issue if present testimony its chance evidence and to defense or to cases, supporting In these it met position. its once Craddock. again, parties Craddock allowed those meet- cases facts in common: These all have two
ing present their prongs its three to defense. (1) party” appeal', failed to “defaulting recently, applied writing person,
More has been either in in date the Craddock or prosecute. for a party required appear disposi- to of cases for failure to to dismissals motion; (2) 165a; party’s See Tex.R. Smith v. & tive and failure Babcock P. Civ. (Tex. Co., itself, appear compromised Wilcox Constr. and defend 1995) and, (stating prejudiced party’s legal position, that standard for deter- cases, mining if prose- a ease dismissed for want some the trial court to enter a enabled contrast, against cution bе reinstated is the it. should Craddock standard). By failing respond trial on a motion has (1) it is court’s notice of its intent neither of characteristics: not a dismiss these prosecute, dispositive judge failure to position hearing, the defendant’s i.e. the cannot rule prejudiced arguments, when the case was dismissed on the motion based on the oral from the court’s docket. As the other she must make the decision based situations, party a who met the at- Craddock motion evidence standard, (2) them,1 ruling was allowed to have case tached to since the their Finally, ap- reinstated. some courts of must be the documents based on before peals court, applied all of party’s them —have Crad- failure to the oral —not would, party respond hearing.2 Certainly, party dock when a has failed to should, writing upset judgment. a motion for be if it not receive did Indus., hearing, See Medina v. Western Waste 959 the oral and should let the court (Tex.App. S.W.2d that it 329-31 know not receive notice of the [14 — Houston denied); request Dist.] th writ Washington party v. could even McMillan, (Tex. trial 395-97 court hold another allow 1995, writ); App. case; argue many judges Antonio it to Gonzales its would — San Servs., Nonetheless, Surplus grant such a request. Ins. the fact denied); (Tex.App. summary judgment pro- writ remains that in a — Beaumont Co., Guaranty ceeding, *9 filing but see Rabe v. National of the documents Ins. is fact, counties, subject very guidelines many judges 1. are not The courts arc strict 2. In hold- ing hearings judg- oral on motions for they may as what in a consider They ruling See, ment. are without the benefit of oral summary judgment. e.g., motion for McCon Furthermore, argument. party appeals awhen Dist., Indep. nell v. Southside School summary judgment, appellate court looks 1993); (Tex. City 339-44 v. Clear Houston only at the the trial documents before Auth., (Tex. CreekBasin 678-79 them; argument arguments made in is 1979). never transcribed or considered. event; dispositive is not the dis-
positive event. short, though appellant even did not
appear hearing, appellant’s at the oral rights fully protected by response
were it filed.
Consequently, since the court was bound to it,
look at the documents before I would
hold that the Craddock test should not be
applied party response when a files a to a summary judgment, but fails to for the oral on the motion.3 my opinion, majority should not have
applied test Craddock and instead should directly
have looked to the motion for sum-
mary judgment to determine if should stand or be
set aside.
In the Matter of W.A.B.
No. 14-97-00871-CV. Texas, Appeals
Court of (14th Dist.).
Houston
Oct. 1998. decision, contrary agree reasoning which I am aware that this is in that conclusion opinion Appeals. process rights due issued the Fifth Court of held that the nonmovant's Venture, *10 notice of See Mosser v. Plano Three were violated when he did not receive writ). (Tex.App. 11-12 I dis- —Dallas