Georgia Verhalen and Cindy Verhalen v. Adriana Akhtar and Evan Johnston

Supreme Court of Texas
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No. 23-0885
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Georgia Verhalen and Cindy Verhalen,
Petitioners,

v.

Adriana Akhtar and Evan Johnston,
Respondents

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On Petition for Review from the
Court of Appeals for the Fifth District of Texas
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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 13, 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

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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

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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

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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

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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.

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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.

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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

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