Opinion issued June 23, 2011
Court of Appeals
First District of Texas
TYRA P. WILLIAMS, Appellant
FORT BEND INDEPENDENT SCHOOL DISTRICT, Appellee
On Appeal from the 268th District Court
Fort Bend County, Texas
Trial Court Case No. 08DCV164954
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.
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
TEX. LAB. CODE ANN. §§ 21.001–.556 (West 2006 & Supp. 2010).
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
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.
See TEX. R. CIV. P. 166a(c).
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.
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,
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.
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.‖
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
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
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)
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.
We reverse the judgment of the trial court and remand this cause for further
Panel consists of Chief Justice Radack and Justices Sharp and Brown.