Verhalen v. Akhtar

• Docket Number: 23-0885
• Decision Date: 04 October 2024
• Parties: Georgia Verhalen and Cindy Verhalen, Petitioners, v. Adriana Akhtar and Evan Johnston, Respondents
• Court: Texas Supreme Court

1

Georgia Verhalen and Cindy Verhalen, Petitioners, v. Adriana Akhtar and Evan Johnston, Respondents

No. 23-0885

Supreme Court of Texas

October 4, 2024

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 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.- DallasSept. 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 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.SeeCarpenter 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 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...