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Georgia Verhalen and Cindy Verhalen v. Adriana Akhtar and Evan Johnston ( 2024 )


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  •           Supreme Court of Texas
    ══════════
    No. 23-0885
    ══════════
    Georgia Verhalen and Cindy Verhalen,
    Petitioners,
    v.
    Adriana Akhtar and Evan Johnston,
    Respondents
    ═══════════════════════════════════════
    On Petition for Review from the
    Court of Appeals for the Fifth District of Texas
    ═══════════════════════════════════════
    PER CURIAM
    This petition for review presents a different shade of a question
    we have previously considered: when does a trial court have discretion
    to deny a motion to file a late summary judgment response? The trial
    court in this case denied a motion to file a response tendered one day
    late despite an attorney’s affidavit stating that the late filing was the
    result of a simple calendaring error. We hold that doing so was an abuse
    of discretion.
    I
    Georgia Verhalen and her mother, Cindy, sued Adriana Akhtar
    and Evan Johnston for various forms of negligence based on a head
    injury Georgia suffered while she was with Johnston and in the care of
    Akhtar. Johnston filed a no-evidence motion for summary judgment and
    set a hearing for October 5, 2022, making the deadline to file a response
    September 28. Akhtar also filed a combined traditional and no-evidence
    motion for summary judgment and set a hearing for October 12, making
    the deadline to file a response October 6. Then, on September 28 (the
    day the first response was originally due), Johnston and Akhtar filed
    amended notices resetting both motions to be heard in a single hearing
    on October 12, resulting in a new combined response deadline of
    October 5.
    The Verhalens did not file their combined responses to each
    defendant’s motion until 11:48 p.m. on October 6. With the responses,
    they filed a motion to exceed the trial court’s page limit, along with a
    verified motion for leave to file the responses late. In the motion for
    leave, the Verhalens asserted 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.”           The
    Verhalens also asserted that granting leave would not delay the
    proceedings or cause prejudice because the evidence offered with the
    responses had previously been produced in discovery, and because
    courtesy copies of the responses were provided to the defendants on
    October 6. The motion for leave was accompanied by an affidavit from
    counsel at one of the two firms representing the Verhalens, who testified
    2
    that “[d]ue to an inadvertent calendaring error, the deadline . . . did not
    appear on the firm’s company calendar. This was a mere mistake and
    not the result of conscious indifference.” Counsel also swore in the
    affidavit that she “immediately prepared the responses” when the
    “oversight became known.”
    The trial court’s clerk rejected the filings the next morning
    because they exceeded the court’s page limit. The Verhalens filed a new
    motion for leave to file late that did not have the summary judgment
    responses attached and thus comported with the page limit.
    The trial court heard argument on the motion for leave at the
    summary judgment hearing on October 12. The court denied the motion
    for leave, noting that “we kind of do have a reputation around here for
    being sticklers for the rules,” and that this result was the “tragic magic”
    of summary judgment practice in Texas. The court went on to grant
    both motions for summary judgment, awarding take-nothing judgments
    to both defendants. The Verhalens filed a motion for new trial, which
    was denied by operation of law.
    The Verhalens appealed, arguing that the trial court abused its
    discretion by refusing to allow them to file late responses to the motions
    for summary judgment. The court of appeals affirmed, holding that the
    Verhalens did not provide even a slight excuse for the delay in filing the
    responses. See ___ S.W.3d ___, 
    2023 WL 5969084
    , at *3-4 (Tex. App.—
    Dallas Sept. 14, 2023). The court emphasized that counsel provided no
    evidence that the hearing was not in the firm’s calendar, which would
    have made her aware when the responses were actually due. The court
    also pointed out that the Verhalens did not move for a continuance until
    3
    the hearing, though they would have known one was required as soon
    as they recognized the missed deadline. Finally, the court held that the
    Verhalens failed to show that allowing them to file the responses late
    would not cause prejudice or delay.
    II
    We review a trial court’s denial of a motion to file a late summary
    judgment response for abuse of discretion. See Carpenter v. Cimarron
    Hydrocarbons Corp., 
    98 S.W.3d 682
    , 684 (Tex. 2002). “A trial court
    abuses its discretion by acting arbitrarily and unreasonably or
    misapplying the law to the established facts of the case.” Huynh v.
    Blanchard, 
    694 S.W.3d 648
    , 674 (Tex. 2024).
    We previously considered this issue in Carpenter v. Cimarron
    Hydrocarbons Corporation. There, a plaintiff failed to respond timely to
    a motion for summary judgment, and the trial court denied the
    plaintiff’s motion for leave to file a late response. 98 S.W.3d at 684-85.
    This Court ultimately affirmed the denial, clarifying that the “good
    cause” standard applied. Id. at 684. We held that a 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.” Id.
    Applying that standard, we held the trial court did not abuse its
    discretion in finding the first element unmet because the motion for
    leave to file a late response “offered no explanation for [the] failure to
    timely respond, nor was it accompanied by any supporting affidavits or
    4
    other evidence.” Id. at 688. Then, at the hearing on the motion for
    summary judgment, counsel offered only the “bare assertion that he had
    miscalendared the . . . hearing.” Id. “It was only after the hearing that
    [counsel] investigated and learned the sequence of events that caused
    the filing deadline to pass,” id., and he did not reveal the results of that
    investigation until the hearing on the motion for new trial. Id. at 684.
    In contrast, the Verhalens’ counsel established both requirements
    of good cause here. First, she demonstrated that she did not act with
    intention or conscious indifference in missing the filing deadline.
    Rather, she promptly investigated, took responsibility for the mistake,
    and took the initiative to correct it, tendering both the summary
    judgment response and a motion for leave with an affidavit explaining
    the delay within twenty-four hours of the deadline. The motion and her
    affidavit explained that the deadline to respond to the motion for
    summary judgment did not appear on the firm’s calendar due to an
    inadvertent error arising when the rescheduled hearing date was
    recorded in counsel’s case management software, and that she acted to
    prepare and submit responses as soon as the error was discovered.
    Thus, unlike in Carpenter, counsel promptly investigated and explained
    the sequence of events that caused the deadline to be missed. Her
    factual assertions, which were not controverted, reveal a lack of
    intentional or consciously indifferent conduct. See Milestone Operating,
    Inc. v. ExxonMobil Corp., 
    388 S.W.3d 307
    , 310 (Tex. 2013).
    Second, it was apparent at the hearing that Akhtar and Johnston
    would face only minimal (if any) prejudice should the court consider the
    Verhalens’ responses. When the motion to file the responses late was
    5
    filed, Akhtar and Johnston had at least five days 1—only two days fewer
    than if the filing had been timely—to consider the responses, prepare
    for the hearing, and file replies.        Furthermore, neither Akhtar nor
    Johnston filed a response in opposition to Verhalen’s motion for leave to
    file the responses late, and neither asserted prejudice at the summary
    judgment hearing.
    The key facts here thus contrast sharply with those in Carpenter,
    where the attorney did not file a motion to submit a late response until
    the day of the hearing, neither provided an affidavit nor explained at
    the hearing his failure to timely respond, and gave the defendants no
    chance to see the response before the hearing. See 98 S.W.3d at 684-85.
    Moreover, the court of appeals placed too much weight on the failure of
    the Verhalens’ counsel to seek a continuance until the hearing.
    Requesting a continuance is not an element of the good-cause standard
    we articulated in Carpenter.        Id. at 688.     And a continuance is
    unnecessary when, as here, a response is filed only one day late and the
    moving parties are unlikely to face any real prejudice as a result.
    1 Although the Verhalens assert that they provided the responses to the
    defendants when they originally submitted the motion to file the responses
    late, Akhtar and Johnston respond that the responses were not attached to the
    motion that was ultimately accepted for filing, so the trial court could have
    determined that the hearing was the first opportunity for Akhtar and Johnston
    to see the responses. But neither Akhtar nor Johnston protested when the
    Verhalens asserted at the hearing that they provided defendants with copies
    of the responses on October 6. Even now, neither Akhtar nor Johnston actually
    denies that they were provided the responses when the Verhalens originally
    submitted the motion for leave.
    6
    III
    Akhtar 2 also argues that even if one of the law firms representing
    the Verhalens demonstrated good cause, the other firm did not. Akhtar
    emphasizes that both firms received notice of all the hearings and
    deadlines but the Verhalens never even argued that the other firm had
    good cause to file the responses late. Akhtar points to analogous cases
    in other jurisdictions holding that one lawyer’s excusable neglect is not
    enough when another lawyer representing the same party could have
    made the response. See Brouillard v. Allen, 
    619 A.2d 988
    , 990 (Me.
    1993); Flett v. W. A. Alexander & Co., 
    302 F.2d 321
    , 323 (7th Cir. 1962).
    We have never squarely addressed this question, and we need not
    provide a comprehensive answer today. But we recently rejected the
    notion that an attorney’s mere appearance on the signature line of a
    pleading demonstrates that attorney’s active involvement in the case.
    See generally In re AutoZoners, LLC, 
    694 S.W.3d 219
     (Tex. 2024). Here,
    the motion for leave and counsel’s affidavit showed that her firm was
    responsible for preparing the Verhalens’ response and explained its
    failure to do so timely, and indeed the firm took responsibility by
    tendering the response promptly when the error became known. These
    uncontroverted facts confirm that the Verhalens demonstrated good
    cause to file an untimely response.
    IV
    When a litigant demonstrates good cause to file a late response to
    a motion for summary judgment, the trial court must allow the filing.
    2 Johnston did not raise this argument in her briefing.
    7
    We hold that when, as here, a litigant shares the response with the
    opposing party one day after the response deadline, files an affidavit
    explaining that the late filing was the result of a mere mistake, and no
    prejudice will result to the opposing party, the denial of that motion is
    an abuse of discretion. Accordingly, without hearing oral argument, we
    grant the petition for review, reverse the court of appeals’ judgment, and
    remand the case to the trial court for further proceedings. See TEX. R.
    APP. P. 59.1.
    OPINION DELIVERED: October 4, 2024
    8
    

Document Info

Docket Number: 23-0885

Filed Date: 10/4/2024

Precedential Status: Precedential

Modified Date: 10/6/2024