Gwendolyn Bailey, Mary Lopez, Josephine S. Stephenson, Belinda Gonzales, Georgia Sutherland, Susan Denson, Susan Miller, Leticia Rivas, Linda Rose, Margaret Decker and Helen Young v. Dean Nick Walsh and University Physican's Group--Appeal from 225th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-03-00459-CV

Gwendolyn BAILEY, Mary Lopez, Josephine S. Stephenson, Belinda Gonzales,

Georgina Sutherland, Susan Denson, Susan Miller, Leticia Rivas, Linda Rose, and Margaret Decker,

Appellants

v.

Dean Nick WALSH, Individually and as Representative of University Physician's Group,

Appellees

From the 225th Judicial District Court, Bexar County, Texas
Trial Court No. 2000-CI-15446
Honorable Pat Boone, Judge Presiding

Opinion by: Alma L. L pez, Chief Justice

Sitting: Alma L. L pez, Chief Justice

Catherine Stone, Justice

Paul W. Green, Justice

Delivered and Filed: December 10, 2003

AFFIRMED

Gwendolyn Bailey, Mary Lopez, Josephine S. Stephenson, Belinda Gonzales, Georgina Sutherland, Susan Denson, Susan Miller, Leticia Rivas, Linda Rose, and Margaret Decker (collectively "Appellants") appeal the trial court's order granting the motion for summary judgment filed by Dean Nick Walsh ("Walsh") and University Physician's Group ("UPG") and dismissing the Appellants' case in its entirety. Appellants contend that the trial court abused its discretion in denying them leave to file a late response to the motion for summary judgment and in denying their motion to reconsider the summary judgment order. (1) We overrule these contentions and affirm the trial court's judgment. (2)

Leave to File Late Response

Walsh and UPG filed their motion for summary judgment on April 22, 2003. The motion was set for hearing on May 16, 2003. The appellants did not file their response to the motion until the day of the hearing. The response was not timely filed because the rules require the response to be filed not later than seven days prior to the day of the hearing. Tex. R. Civ. P. 166a. Because no reporter's record was made of the summary judgment hearing, and the order does not recite that the trial court considered the Appellants' response, we must presume the trial court denied Appellants' request to file a late response. K-Six Television, Inc. v. Santiago, 75 S.W.3d 91, 96 (Tex. App.--San Antonio 2002, no pet.).

We review a trial court's ruling on a motion for leave to file a late summary judgment response under an abuse of discretion standard. 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 motion for leave to file a late summary-judgment response should be granted when a litigant establishes good cause for failing to timely respond by showing that: (1) the failure to respond was not intentional or the result of conscious indifference, but the result of accident or mistake; and (2) allowing the late response will occasion no undue delay or otherwise injure the party seeking summary judgment. (3) Id. at 688.

In this case, Appellants' response was not accompanied by a motion for leave to file the late response; therefore our record does not expressly reflect that any explanation was offered by the Appellants for the failure to timely respond. See id. at 688 (noting motion offered no explanation and was not accompanied by supporting affidavits or other evidence); see also Golden Harvest Co., Inc. v. City of Dallas, 942 S.W.2d 682, 692 (Tex. App.--Tyler 1997, writ denied) (holding trial court did not abuse its discretion when nonmovant failed to file motion requesting additional time to respond). In the trial court's order, however, the trial judge inserted the following, "Plaintiff will be allowed to bring to this court (57th District), Judge Boone, case authority that the Federal court pleadings survive remand." This appears to be a reference to Appellants' contention that the response to the motion for summary judgment filed in the federal court prior to the remand of the case should be considered a timely response in this case. Accepting that this argument was presented to the trial court, the record demonstrates that the Appellants' failure to respond was not the result of an accident or mistake but a deliberate choice to rely on the response filed in federal court. Therefore, the trial court did not abuse its discretion in refusing to consider the late-filed response because the trial court made its ruling subject to Appellants' subsequent presentation of authority to support its contention, indicating a willingness to reconsider its ruling if the Appellants could provide authority to support their reliance on the response filed in federal court. (4)

Motion to Reconsider

We review a trial court's ruling on a motion to reconsider its order granting summary judgment under an abuse of discretion standard. Methodist Hospitals of Dallas v. Corporate Communicators, Inc., 806 S.W.2d 879, 883 (Tex. App.--Dallas 1991, writ denied); Robinson v. City of San Antonio, 727 S.W.2d 40, 43 (Tex. App.--San Antonio 1987, writ ref'd n.r.e.). In this case, Appellants filed a handwritten motion for reconsideration, requesting reconsideration "based upon the attached cases, Rules, and Statutes." Attached to the motion was a list of partial citations to cases and rules. Appellants also filed a typewritten motion for reconsideration and a document entitled "Cases and Rules in Support of Reconsideration;" however, neither of these documents referenced any authority that would permit Appellants to rely on the response they filed in federal court prior to the remand of the cause. In its summary judgment order, the trial court indicated a willingness to consider Appellants' late-filed response if Appellants provided the trial court with authority to support their reliance on the response filed in federal court. Because the Appellants failed to provide the trial court with citation to and analysis of any such authority, the trial court did not abuse its discretion in denying Appellants' motion to reconsider.

Conclusion

The trial court's order is affirmed.

Alma L. L pez, Chief Justice

1. Appellants also state that issues of material fact exist in this case; however, Appellants' brief fails to set forth those issues or analyze the evidence in the record relating to those issues. Appellants were previously given the opportunity to amend their brief to correct the defects contained therein. Accordingly, we conclude that appellants have waived any issue regarding the trial court's ruling on the substance of the summary judgment motion. See Tex. R. App. P. 38.9(a); Clemens v. Allen, 47 S.W.3d 26, 28 (Tex. App.--Amarillo 2000, no pet.). Appellants further make a passing reference to the trial court's failure to file findings of fact and conclusions of law; however, the Texas Supreme Court has held that findings of fact and conclusions of law have no place in a summary judgment proceeding. Linwood v. NCNB Tex., 885 S.W.2d 102, 103 (Tex. 1994).

2. In reviewing the issues presented in Appellants' brief, we only consider the evidence and documents contained in the clerk's record that has been filed as the appellate record in this appeal. See Sabine Offshore Serv., Inc. v. City of Port Arthur, 595 S.W.2d 840 (Tex. 1979); Merchandise Center, Inc. v. WNS, Inc., 85 S.W.3d 389, 394 (Tex. App.--Texarkana 2002, no pet.).

3. The Appellants reference Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124 (1939), as providing the applicable standard governing the trial court's refusal to consider the late filed response; however, the Texas Supreme Court expressly rejected Craddock as not being the applicable standard in cases where a nonmovant is aware of its mistake at or before the summary judgment hearing and has an opportunity to apply for relief under the rules. Carpenter, 98 S.W.3d at 686.

4. With regard to Appellants' contention that the response filed in the federal court was the same as the response filed in the trial court so that no prejudice could be shown, we note that our record does not contain a copy of the response filed in the federal court to enable a comparison to be made and that Appellants admitted the responses differ because the response filed in the trial court had three affidavits attached to it summarizing deposition testimony that were not attached to the response filed in the federal court.