Gretchen Audi v. Walgreens Co. and Karen Bates--Appeal from 60th District Court of Jefferson County

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-07-434 CV
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GRETCHEN AUDI, Appellant
V.
WALGREENS CO. AND KAREN BATES, Appellees
On Appeal from the 60th District Court
Jefferson County, Texas
Trial Cause No. B-176,144
MEMORANDUM OPINION

Gretchen Audi appeals the no-evidence summary judgment granted in favor of Walgreens Co. and Karen Bates. Audi alleged that Bates, a Walgreens-employed pharmacist, failed to assure that Audi received the proper dosage after her prescription was inaccurately transferred from another pharmacy. (1) In two issues, Audi contends the trial court erred in requiring proof of a breach of the standard of care and claims her case should proceed as a statutory or common law action for fraud.

Audi concedes she did not produce evidence relevant to a breach of the standard of care in response to the appellees' no-evidence motion for summary judgment. See Tex. R. Civ. P. 166a(i). She contends she was mentally and physically disabled following withdrawal of counsel and was unable to respond to the motion for summary judgment. Counsel withdrew two months before the appellees filed their motion for summary judgment. Audi requested a continuance in a letter to the trial court but stated only that she was too ill to appear at the scheduled hearing and had not hired new counsel. Audi subsequently filed a timely response to the motion for summary judgment. See Tex. R. Civ. P. 166a(c) ("Except on leave of court, the adverse party, not later than seven days prior to the day of hearing may file and serve opposing affidavits or other written response.").

The decision to grant a continuance of a summary judgment hearing rests upon the sound discretion of the trial court. See Tex. R. Civ. P. 166a(g) ("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."). In this case, Audi failed to support her request for additional time with the affidavit required by Rule 166a(g). Id. She also filed a timely response and in that response did not indicate that she could produce more evidence if granted additional time. We hold the trial court did not abuse its discretion by taking the motion for summary judgment under advisement when it did. See City of San Antonio v. En Seguido, Ltd., 227 S.W.3d 237, 240 (Tex. App.--San Antonio 2007, no pet.); Cunningham v. Columbia/St. David's Healthcare Sys., L.P., 185 S.W.3d 7, 15 (Tex. App.--Austin 2005, no pet.).

Audi also argues that the trial court erred in granting summary judgment because Walgreens committed Medicaid fraud. See generally Tex. Hum. Res. Code Ann. 36.002 (Vernon Supp. 2007). Audi suggests her suit is or should be a qui tam suit. In summary judgment procedure, the trial court considers only the pleadings on file at the time of the hearing. Tex. R. Civ. P. 166a(c). Although Audi's lengthy petition includes a parenthetical statement that Bates apparently charged Medicaid for 180 pills for a prescription filled in the lower, incorrect amount, and states that "this matter is presently under investigation by the fraud unit of the Texas State Medicaid program," Audi pled her causes of action in a separate subtitled portion of her petition that does not mention fraud or false claims. Audi asserted claims for negligence against Walgreens and Bates. For damages, Audi alleged she is entitled to damages for loss of income, medical costs, pain and suffering, damages consequential to her injury, and exemplary damages for gross negligence. These pleadings cannot be construed as a suit to recover a claim on behalf of the government. Furthermore, Audi's summary judgment response does not raise the existence of a claim other than for negligence as grounds for avoiding summary judgment. Issues not expressly presented to the trial court cannot be considered on appeal as grounds for reversing a summary judgment. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 675 (Tex. 1979). We hold the trial court did not err in granting summary judgment. We overrule the appellant's issues and affirm the judgment of the trial court.

AFFIRMED.

 

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STEVE McKEITHEN

Chief Justice

 

Submitted on December 21, 2007

Opinion Delivered February 7, 2008

 

Before McKeithen, C.J., Gaultney and Kreger, JJ.

1. Audi settled her claims with non-suited defendants Vincent Luparello and Corner Pharmacy.