Haynes v. City of Beaumont

• Citation: 35 S.W.3d 166
• Decision Date: 08 December 2000
• Docket Number: No. 06-00-00023-CV,06-00-00023-CV
• Parties: (Tex.App.-Texarkana 2000) JANICE HAYNES, Appellant v. CITY OF BEAUMONT, PAULA LABRIE, Individually and in her official capacity as Controller for the City of Beaumont, and BEVERLY HODGES, Individually and in her official capacity as Finance Director for the City of Beaumont, Appellees
• Court: Court of Appeals of Texas

Page 166

35 S.W.3d 166 (Tex.App.-Texarkana 2000)

JANICE HAYNES, Appellant v. CITY OF BEAUMONT, PAULA LABRIE, Individually and in her official capacity as Controller for the City of Beaumont, and BEVERLY HODGES, Individually and in her official capacity as Finance Director for the City of Beaumont, Appellees

No. 06-00-00023-CV

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

Submitted July 13, 2000

Decided December 8, 2000

Motion for Rehearing Overruled December 8, 2000

On Appeal from the 172nd Judicial District Court Jefferson County, Texas Trial Court No. E-156,062

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Before Cornelius, C.J., Grant and Ross, JJ.

OPINION

Cornelius, Chief Justice

Janice Haynes appeals from an adverse summary judgment in her wrongful termination suit against the City of Beaumont, Paula Labrie, and Beverly Hodges. The suit arose from Haynes' termination from employment as a grant accountant for the City.

Haynes alleged in her petition that she was denied certain rights in violation of 29 U.S.C.A. § 2601 (West 1999), 42 U.S.C.A. § 1983 (West Supp. 2000), and the United States and Texas Constitutions. She alleged that Labrie, who is the City's Controller and Haynes' former supervisor, pressured her into forgoing her rights under the Family and Medical Leave Act, 29 U.S.C.A. § 2601, harassed her when she asserted those rights, and ultimately terminated her for speaking out about those rights. She also alleged that Hodges, who is the City's Finance Director and Labrie's supervisor, was responsible for Labrie's actions and made the final decision to terminate her employment. All the defendants denied Haynes' allegations and asserted defenses of immunity. They also moved for summary judgment, which the trial court granted on all claims and as to all defendants.

Haynes challenges the trial court's summary judgment because she contends a genuine issue of fact exists in her causes of action under the FMLA, the First and Fourteenth Amendments to the United States Constitution, Article I, Sections 8 and 19 of the Texas Constitution, and her tort claim of negligent supervision against Hodges. Haynes also contends that Labrie and Hodges were not entitled to the affirmative defense of qualified immunity, and that the trial court erred in refusing to consider her late-filed response to the motions for summary judgment. We affirm the judgment of the trial court as to Haynes' causes of action under Section 1983 against Labrie and Hodges in their individual capacities, and affirm the judgment in favor of all defendants as to Haynes' free speech and due process claims under Section 1983. We also affirm the judgment as to the money damages portion of Haynes' Texas Constitutional claims. We sever and reverse the judgment as to Haynes' remaining claims and remand those claims to the trial court for trial.

Out-of-Time Response

Haynes contends that the trial court abused its discretion by denying her motion for leave to file an out-of-time response to the motions for summary judgment. Labrie and Hodges filed their motions for summary judgment on August 20; the City filed its motion for summary judgment on August 23. The court set a hearing on the motions for September 17, but continued it until October 6 at Haynes' request.

Under Tex. R. Civ. P. 166a(c),¹ Haynes had until September 29 to file her response, but that time could be extended under Tex. R. Civ. P. 5 to the date received if she mailed her response on or before September 29. See Sosa v. Cent. Power & Light, 909 S.W.2d 893, 895 (Tex. 1995); Clendennen v. Williams, 896 S.W.2d 257, 259 (Tex. App. Texarkana 1995, no writ). Haynes' response was mailed on September 30 along with a motion for leave to file it out of time, but it was not received and filed until October 5, one day before the scheduled hearing.

In her motion, Haynes stated that on September 29 the law firm representing her discharged the attorney most familiar with her case, that another attorney at the firm discovered late the same day that the response had not been completed, and that despite his best efforts the attorney could not complete the response in time to get it in the mail on September 29. Haynes' attorney contacted opposing counsel, who agreed not to oppose an extension if the response was faxed to their office by 10:00 a.m. on September 30. It was not. In its order granting summary judgment, the trial court explicitly stated that it did not consider Haynes' response to the motions for summary judgment.

Whether to grant the nonmovant additional time to file a response to a motion for summary judgment is within the trial court's discretion. Tex. R. Civ. P. 166a(c). We therefore review the trial court's decision under an abuse of discretion standard. See Jatoi v. Decker, Jones, McMackin, Hall & Bates, 955 S.W.2d 430, 433 (Tex. App.—Fort Worth 1997, pet. denied); Atkins v. Tinning, 865 S.W.2d 533, 535 (Tex. App.—Corpus Christi 1993, writ denied); Folkes v. Del Rio Bank & Trust Co., 747 S.W.2d 443, 444 (Tex. App.—San Antonio 1988, no writ).

In Atkins, the court held that the trial court did not abuse its discretion in refusing to file a late response. Atkins v. Tinning, 865 S.W.2d at 535. In that case, the plaintiff received the defendant's motion on March 15 and a hearing was scheduled for April 3. The hearing was continued to April 10 at the plaintiff's request, but the plaintiff did not file his response until April 9. The court held that eighteen days was sufficient time for the plaintiff to file a response.

In Jatoi, the appellant's attorney was not retained until January 29, thirty-five days before a scheduled hearing on March 4. Jatoi v. Decker, Jones, McMackin, Hall & Bates, 955 S.W.2d at 433. His client neglected to inform him about the hearing. The appellant was placed in intensive care two weeks later, making communication between the attorney and the appellant impossible. Four days before the hearing, the attorney learned of the hearing and immediately filed a motion for an extension and, later, a motion for leave to file an out-of-time response. Nevertheless, the court held that the trial court did not abuse its discretion in refusing to grant a new trial.

In Folkes, the court found no abuse of discretion in refusing an out-of-state appellant's motion to file an untimely response, where the appellant received a month's continuance for the summary judgment hearing and where he had over three months to file a response. Folkes v. Del Rio Bank & Trust Co., 747 S.W.2d at 444.

Haynes had ample time to file a response. She had thirty-seven days, while in the cases just cited, Atkins had eighteen days, Jatoi had twenty-eight days, and Folkes had over three months. Haynes received a continuance from the first hearing, as did Atkins and Folkes. In Jatoi, the court found no abuse of discretion on facts more compelling than those here.

Haynes analogizes this situation to a motion for leave to file an untimely response to requested admissions.² She cites Credit Car Ctr., Inc. v. Chambers, 969 S.W.2d 459, 461 (Tex. App.—El Paso 1998, no pet.), where the defendants failed to file requested admissions because their outside counsel failed to timely forward the request to them. The attorney attributed the failure in part to a change in secretaries in his office and in part to his own negligence. The court of appeals found that the trial court abused its discretion by not allowing the untimely filing because, under former Tex. R. Civ. P. 169, a party could successfully file untimely admissions by showing good cause. "Good cause," the court held, meant a showing that the party's failure to file was not intentional or in conscious disregard of its obligation to answer the request. Even a slight excuse for failure to answer will suffice.

Rule 166a(c) is different from former Rule 169 in that former Rule 169 required a showing of good cause. Neither current Rule 166a(c) nor its predecessor contains such a requirement. Nevertheless, there is authority that a showing of good cause is required under Rule 166a(c). See Diaz v. Rankin, 777 S.W.2d 496, 500 (Tex. App.—Corpus Christi 1989, no writ); Rhodes v. City of Austin, 584 S.W.2d 917, 922 (Tex. Civ. App.—Tyler 1979, writ ref'd n.r.e.).

Even measured by the standard she suggests, however, Haynes has not demonstrated good cause or that the trial court abused its discretion in failing to allow the late filing. The trial court had already continued the case at the request of her attorney. Haynes had eighteen days to file a response before the first scheduled hearing, and an additional nineteen days before the second hearing. Her attorneys could have avoided the late filing by ensuring that discharging the attorney most familiar with Haynes' case would not operate to her disadvantage.

Haynes also analogizes this situation to the imposition of death penalty sanctions. When a court issues sanctions, a direct relationship must exist between the offensive conduct and the sanction imposed, and the sanction must not be excessive. TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex. 1991). In TransAmerican, the Texas Supreme Court was construing the meaning of Tex. R. Civ. P. 215's requirement that a sanction be "just."

Rule 166a(c) does not envision a trial court's refusal to accept an untimely response as a death penalty sanction. In fact, the filing of a response is not even required under Rule 166a(c). The rule states that the adverse party may file a response. It cannot be a death penalty sanction to refuse to allow a party to do late what it is not required to do at all.

This is not to say that the failure to file a response is without consequence. If the nonmovant fails to respond to the summary judgment motion with evidence raising a fact issue that would preclude summary...