Arthur Williams v. Fort Bend Independent School District

Opinion issued

June 23, 2011

In

The

Court of

Appeals

For

The

First District

of Texas

————————————

NO. 01-10-00611-CV

———————————

Tyra P. Williams , Appellant

V.

Fort Bend

Independent School District ,

Appellee

On Appeal from the 268th

District Court

Fort Bend County, Texas

Trial Court Case No. 08DCV164954

MEMORANDUM

OPINION

Tyra

P. Williams appeals the trial court’s rendition of summary judgment in favor of

Fort Bend Independent School District.

Williams filed suit alleging racial discrimination in violation of the

Texas Commission on Human Rights Act. [1] The District filed a combined traditional and

no-evidence motion for summary judgment.

Williams did not file a response.

After denying Williams’s motion for leave to file a late response and to

continue the summary judgment hearing for one week, the trial court granted the

District’s motion. On appeal, Williams

asserts that the trial court abused its discretion by denying her motion for

leave to file a late response and to continue the hearing by seven days and that

summary judgment was improper because the summary judgment evidence raises fact

issues on her claims. We conclude that

the trial court abused its discretion in denying Williams’s motion for leave to

file a late response. We therefore reverse

and remand this cause.

Procedural Background

Williams

filed this suit alleging the District had engaged in racially discriminatory

employment practices and retaliated against her for reporting alleged racial

discrimination. The District answered,

generally denying Williams’s claims and pleading affirmative defenses.

In

May 2010, the District filed a motion for summary judgment. The motion contained both traditional grounds

and no-evidence grounds attacking Williams’s discrimination and retaliation

claims. The hearing on the motion was

set for Friday, June 18, 2010.

Accordingly, Williams’s response was due by June 11. [2] On June 16, Williams’s counsel realized the

summary judgment motion was set for a hearing on June 18. The next day, she filed a motion for leave to

file a late summary judgment response and for continuance, requesting that the

hearing be continued until the following Friday, June 25, and allowing her to

file a summary judgment response on Monday, June 21.

On

June 18, the trial court heard the motion for leave to file a late response and

continuance. After questioning

Williams’s counsel concerning the circumstances of the missed June 11 deadline

and hearing argument from both sides, the trial court denied the motion. The trial court proceeded to hear the motion

for summary judgment and rendered judgment in favor of the District.

Late-filed Response to

Motion for Summary Judgment

In her first

issue, Williams contends that the trial court erred by denying her motion for

leave to file a late response to the District’s motion for summary

judgment. We review for an abuse of

discretion a trial court’s ruling on a motion for leave to file a late response

to a motion for summary judgment. Carpenter v. Cimarron Hydrocarbons Corp. ,

98 S.W.3d 682, 686 (Tex. 2002). A trial

court abuses its discretion when it acts without reference to any guiding rules

or principles. Id. at 687 .

A late

summary judgment response should be allowed upon a showing of good cause and no

undue prejudice to the opposing party. Id. at 688 . This is the same standard used for allowing

a party to withdraw deemed admissions. Wheeler v. Green , 157 S.W.3d 439, 442

(Tex. 2005). “Good cause” means the failure

to timely file a summary judgment response was due to an accident or mistake

and was not intentional or the result of conscious indifference. Id. Conscious indifference is more than

negligence; it involves behavior such as a “pattern of ignoring deadlines and

warnings from the opposing party.” Levine v. Shackleford, Melton & McKinley,

L.L.P. , 248 S.W.3d 166 , 168–69 (Tex. 2008).

Under the good cause standard applicable to these types of cases, “[e]ven

a slight excuse will suffice, especially when delay or prejudice to the

opposing party will not result.” Boulet v. State , 189 S.W.3d 833, 836

(Tex. App.—Houston [1st Dist.] 2006, no pet.)

(quoting Spiecker v. Petroff ,

971 S.W.2d 536, 538 (Tex. App.—Dallas 1997, no pet.)).

Williams’s

counsel explained that she miscalendared the date that the response was

due. The District counters that a “bare

assertion” that an attorney miscalendared the response date is insufficient to

show good cause. See Carpenter , 98 S.W.3d at 686 .

Carpenter , however, is distinguishable. First, the counsel in that case did not file

an affidavit supporting the explanation of good cause. Id. Thus, the only support for the motion for

leave was the unsupported, or bare, assertion in the motion. Id. Williams’s counsel did file an affidavit with

the motion for leave. In addition, the

trial court closely questioned Williams’s counsel at the hearing on the motion

to file a late response. Williams’s

counsel explained that when she received the motion on June 2, she

miscalendared the response date and immediately drafted and sent a letter to her

client, Williams, which contained the erroneous response date. [3] We conclude Williams has shown good cause for

filing a late response. See Boulet , 189 S.W.3d at 838 (holding

attorney’s mistake in calendaring response date for requests for admission by

using date requests were delivered to her desk and not date they were delivered

to office constituted good cause); Galindo

v. Imperial Group, L.P. , No. 2-04-040-CV, 2005 WL 1244691 , at *3 (Tex.

App.—Fort Worth May 26, 2005, no pet.) (finding trial court abused its

discretion in refusing to allow late-filed summary judgment response when

attorney stated that he received notice but mistakenly did not calendar it).

Undue

prejudice depends on whether allowing “a late response will delay trial or

significantly hamper the opposing party’s ability to prepare for it.” Wheeler ,

157 S.W.3d at 443 . In this case, the

hearing was held on Friday, June 18.

Williams asked for the deadline to file a response to be moved to

Monday, June 21 and the hearing to be postponed for one week until June 25. Williams’s counsel explained that no trial

setting existed and, therefore, a one week delay would not prejudice the

District. The District did not argue or

produce evidence before the trial court and does not argue on appeal that it

would suffer undue prejudice from a one week delay—either by a delay in the

trial or being hampered in its ability to prepare for trial. We conclude that, based on the record in this

case, the District would not be harmed by a one week delay in hearing its

motion for summary judgment. See Galindo , 2005 WL 1244691 , at *3 (no

undue prejudice shown when party sought only two days to file late response and

no trial date had been set).

Accordingly,

we hold that the trial court abused its discretion in denying Williams’s motion

to file a late summary judgment response. See

id. ; see also Boulet , 189 S.W.3d at

838 (holding trial court abused discretion in denying withdrawal of deemed

admissions because appellant had established accident or mistake in failing to

respond and no undue prejudice was shown); City

of Houston v. Riner , 896 S.W.2d 317, 320 (Tex. App.—Houston [1st

Dist.] 1995, writ denied) (same).

We sustain

Williams’s first issue. Because we

sustain this issue, we do not address her second issue, which presents an alternative reason to reverse

the trial court. See Tex. R. App.

P. 47.1.

Conclusion

We reverse

the judgment of the trial court and remand this cause for further proceedings.

Harvey

Brown

Justice

Panel consists of Chief

Justice Radack and Justices Sharp and Brown.

[1] Tex. Lab. Code Ann. §§ 21.001–.556 (West 2006 &

Supp. 2010).

[2] See

Tex.

R. Civ. P. 166a(c).

[3] In the letter, Williams’s counsel also

stated that Williams, the client, had to pay an outstanding balance due for

attorney’s fees before counsel would file a response. The District argues that this establishes

counsel’s intent to not file a response.

However, at the hearing Williams’s counsel showed the District and the

trial court correspondence to Williams just days later indicating she would

file a response whether payment was received or not. Counsel also explained that she would not intentionally

fail to file something on behalf of a client over a late payment. Other than the single sentence in the June 2

letter itself, this explanation is not controverted.