Verhalen v. Akhtar

• Docket Number: 05-22-01364-CV
• Decision Date: 14 September 2023
• Parties: GEORGIA VERHALEN AND CINDY VERHALEN, Appellants v. ADRIANA AKHTAR AND EVAN JOHNSTON, Appellees
• Court: Texas Court of Appeals

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GEORGIA VERHALEN AND CINDY VERHALEN, Appellants v. ADRIANA AKHTAR AND EVAN JOHNSTON, Appellees

No. 05-22-01364-CV

Court of Appeals of Texas, Fifth District, Dallas

September 14, 2023

On Appeal from the 14th Judicial District Court Dallas County Texas Trial Court CauseNo. DC-21-00476

Before Justices Carlyle, Smith, and Kennedy

MEMORANDUM OPINION

NANCY KENNEDY JUSTICE

Georgia Verhalen and her motherCindy Verhalen appeal the trial court's summary judgment awarding take-nothing judgments in favor of appelleesAdriana Akhtar and Evan Johnston on the Verhalens' claims against them.In their sole issue on appeal, the Verhalens argue the trial court abused its discretion by denying them leave to file a late summary-judgment response.We affirm.Because all dispositive issues are settled in law, we issue this memorandum opinion.SeeTex. R. App. P. 47.2(a), 47.4.

Background

In January 2021, the Verhalens filed suit against Akhtar asserting claims of negligence and gross negligence for alleged actions and omissions that took place during a trip to a resort in Cabo San Lucas, Mexico, to celebrate Akhtar's daughter's birthday.^[1] Those joining Akhtar and her daughter on the trip included Akhtar's adult sisterAngelina Lawton, Georgia Verhalen, Evan Johnston, and G.L the then 15-year-old daughter of Lawton.According to the petition, during that trip, Georgia Verhalen was riding on a golf cart driven by then 17-year-old Johnston or G.L. Georgia fell off of the golf cart and onto her head.Georgia was treated by paramedics on duty at the resort and later at an emergency room "where she suffered from concussion like symptoms, specifically confusion, nausea, loss of appetite and headaches."Akthar demanded Georgia fly home "because she believed Georgia was ruining her daughter's birthday experience."

The Verhalens' suit alleged Akhtar failed to adequately supervise the children in her care, provided alcohol to minors who were not her children, allowed minor children to drive golf carts in violation of the resort's rules, allowed unsupervised children to use the golf carts under the influence of alcohol, instructed Georgia to travel "hours after suffering a traumatic brain injury," and other actions and omissions that the Verhalens allege proximately caused or made worse Georgia's alleged injuries and damages.They later added Johnston as a defendant for her alleged negligence related to her driving the golf cart Georgia was riding in, including that she did so while under the influence of alcohol.The Verhalens also added Lawton, individually and as next friend of her daughter G.L., as defendants, but later nonsuited the claims against them with prejudice.

On September 8, 2022, Johnston filed a no-evidence motion for summary judgment, seeking a take-nothing judgment on all of the Verhalens' claims against her.Johnston filed a notice initially setting the hearing on her motion for October 5.On September 16, Akhtar filed a combined traditional and no-evidence motion for summary judgment, also seeking a take-nothing judgment on all the Verhalens' claims against her.Akhtar filed a notice that her motion was set for hearing on October 13.On September 28, both Johnston and Akhtar filed amended notices that their respective motions were going to be heard on October 12.

On October 7, the Verhalens filed a motion for leave to file late responses to the summary-judgment motions, acknowledging the due date of the responses of October 5 and explaining the delay in filing the responses as due to a "calendaring issue when the hearings were rescheduled in the case management software used by Plaintiffs' counsel."^[2] At the October 12 hearing on the summary-judgment motions, the trial court heard the motion for leave to file late responses and denied that motion before hearing the parties' arguments on the summary-judgment motions.That same day, the trial court signed an order granting Johnston's motion for summary judgment.On October 13, the trial court signed an order granting Akhtar's motion.Both orders awarded take-nothing judgments against the Verhalens.

The Verhalens filed a motion for new trial, in which they argued the trial court abused its discretion by denying their motion for leave to file late responses.^[3] Both Johnston and Akhtar filed motions in opposition to the motion for new trial, arguing the Verhalens' explanation for their delay was insufficient and that the delay would cause them undue delay and injury.The motion for new trial was denied by operation of law.This appeal followed.

Discussion

In their sole issue on appeal, the Verhalens argue the trial court abused its discretion by denying them leave to file late summary-judgment responses.

We review the trial court's ruling on a motion for leave to file a late response to motion for summary judgment under an abuse of discretion standard.Brown v. Melissa 121/5 Partners, Ltd., No. 05-13-01189-CV, 2014 WL 3811120, at *1(Tex. App.-Dallas Aug. 4, 2014, no pet.)(mem. op.)(citingCarpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 686-87(Tex.2002)).

The trial court abuses its discretion when it acts without reference to any guiding rules or principles.Id.

In a summary-judgment proceeding, the nonmoving party may file and serve opposing affidavits or other written responses no later than seven days prior to the scheduled date of the hearing.Tex.R.Civ.P. 166a(c).The nonmoving party must obtain leave to file evidence after the deadline.Id.A motion for leave to file a late summary-judgment response should be granted when the nonmovant establishes good cause by showing that the failure to timely respond (1) was not intentional or the result of conscious indifference but the result of accident or mistake and (2) allowing the late response will not cause any undue delay or otherwise injure the party seeking summary judgment.Brown, 2014 WL 3811120, at *1(citingCarpenter, 98 S.W.3d at 686).

The Verhalens argue they established the first element of good cause by explaining-with a supporting affidavit from their counsel-that the delay in responding was not out of conscious indifference, but rather the result of a mistake in calendaring.In her supporting affidavit, the counsel stated "Due to an inadvertent calendaring error, the deadline for Plaintiffs to respond to the Motions for Summary Judgment filed by DefendantsAdriana Akhtar and Evan Johnston did not appear on the firm's company calendar. . . .As soon as this oversight became known, I immediately prepared the responses as well as a Motion for leave of the Court to file late responses . . . ."At the hearing, counsel stated that when the summary-judgment hearings were rescheduled from October 5 and 13 to October 12, "unfortunately our calendaring system did not pick that up, and it was a mere mistake on [our] part."

In Carpenter v. Cimarron Hydrocarbons Corp., the supreme court addressed whether a party had established good cause for failing to timely respond to a summary-judgment motion when the counsel only argued at the hearing on the motion that he had not timely responded "because of a calendaring error."See98 S.W.3d at 688.The Verhalens argue that this case is distinguishable from Carpentar, noting that in that casecounsel"offered no explanation of the error from which the trial court might determine that an accident or mistake had occurred."Seeid.They also argue that the supreme court later held in the context of whether a trial court erred by denying a motion to set aside a default judgment that "conscious indifference amounts to more than mere negligence."SeeLevine v. Shackelford, Melton & McKinley, L.L.P., 248 S.W.3d 166, 169(Tex.2008).The Verhalens also rely on decisions from this Court in which we held that "even a slight excuse will suffice" to satisfy "good cause" in the context of reviewing trial court's rulings on setting aside deemed admissions.SeeSpiecker v. Petroff, 971 S.W.2d 536, 538(Tex. App.-Dallas 1997, no pet.);Emps. Ins. of Wausau v. Halton, 792 S.W.2d 462, 466(Tex. App.-Dallas1990, writ denied);see alsoTorres v. Lee, No. 05-18-00631-CV, 2020 WL 38832, at *3(Tex. App.-Dallas Jan. 3, 2020, no pet.)(mem. op.).And, as previously held by the supreme court, the standards for withdrawing deemed admissions and for allowing a late summary-judgment response are the same.SeeWheeler v. Green, 157 S.W.3d 439, 442(Tex.2005)(per curiam)(citingCarpenter, 98 S.W.3d at 687-88).

We agree that the "slight excuse" standard applies but the excuse offered here is only that the deadline to file responses did not appear in counsel's calendar.Therefore, trial court could not conclude from that explanation that failure to prepare responses was an accident or mistake.See, e.g., Se. Tex. Env'l, L.L.C. v. Wells Fargo Bank, N.A., No. 01-10-00076-CV, 2011 WL 3556966, at *3(Tex. App.-Houston[1st Dist.]Aug. 11, 2011, no pet.)(mem. op.)("Southeast Texas Environmental's explanation for its failure to attach evidence to its original response is that a calendaring error occurred and that the mistake was not the result of conscious indifference, but it did not offer specific facts in support of...