The Texas Supreme Court has held that a trial court abused its discretion when it denied a motion to file a response to a summary judgment tendered one day late where the attorney submitted an affidavit stating that a calendaring error caused the late filing.
Georgia Verhalen and Cindy Verhalen v. Adriana Akhtar and Evan Johnston (No. 23-0885; October 4, 2024) arose from a personal injury lawsuit brought by the Verhalens against Akhtar and Johnston. Johnston filed a no-evidence summary judgment motion and set a hearing for October 5, 2022, making the Verhalens’ response due on September 28. When that date rolled around, Akhtar filed a combined traditional and no-evidence summary judgment motion and set the hearing for October 13, establishing October 6 a due date for the Verhalens’ response. Then Johnston and Akhbar filed amendment notices setting their motions to be heard in a single hearing on October 12. Consequently, the new deadline for filing a response became October 5. In the event, the Verhalens did not file a response until late on the evening of October 6. They also filed a verified motion for leave to file the response late, asserting that the “failure to timely respond was caused by a calendaring issue when the hearings were rescheduled in the case management software used by Plaintiffs’ counsel.” They argued further that the late filing would not delay the hearing or cause prejudice because the evidence in the responses had already been produced in discovery. The clerk rejected the filings, and at the hearing on October 12, the trial court denied the Verhalens’ motion for leave, stating (rather oddly) that “this result was ‘tragic magic’ of summary judgment practice in Texas. The trial court then granted the defendants’ motions for summary judgment and rendered take-nothing judgments. The Verhalens’ motion for new trial was denied by operation of law, and the Dallas Court of Appeals affirmed on appeal. The Verhalens sought SCOTX review.
In a per curiam opinion without oral argument, SCOTX reversed and remanded to the trial court. Citing its decision in Carpenter v. Cimarron Hydrocarbons Corporation, 98 S.W.3d 682 (Tex. 2002), the Court applied a “good cause” test to determine whether the motion for leave should be granted. Pursuant to this test, “the motion for leave ‘should be granted when the nonmovant demonstrates good cause’ by showing that (1) ‘the failure to timely respond . . . was not intentional or the result of conscious indifference, but the result of an accident or mistake, and (2) that allowing the late response will occasion no undue delay or otherwise injure the party seeking summary judgment.” The Court ruled that the Verhalens clearly demonstrated that their counsel did not act with conscious indifference, promptly investigated and owned up to the error, and took initiative to rectify it. It further held that there was little indication that defendants would be prejudiced should the trial court consider the Verhalens’ responses and that neither defendant filed a response in opposition to them. Finally, neither defendant asserted prejudice at the summary judgment hearing itself.
The court of appeals erred particularly by “plac[ing] too much weight on the failure of the Verhalens’ counsel to seek a continuance until the hearing,” the court stated. “Requesting a continuance is not an element of the good-cause standard we articulated in Carpenter.” Besides, a continuance would have been unnecessary in any case since the responses were only one day late. Under these facts, consequently, the trial court abused its discretion.
