“Tragic magic” or relief from your grief?

The Texas Supreme Court shows leniency in good cause standard for missed deadlines.

“[W]e kind of do have a reputation around here for being sticklers for the rules,” a Dallas County district judge quipped when denying a motion for leave to file a late summary judgment response. See Verhalen v. Akhtar, — S.W.3d —, No. 23-0885, 2024 WL 4394980, at *1 (Tex. Oct. 4, 2024). The judge chalked it up to the “‘tragic magic” of summary judgment practice in Texas.” Id. The Supreme Court of Texas, however, made it clear that Texas courts should not always be a “stickler” in this sense. See id. at. 2-3. Rather, the Court emphasized to Texas attorneys and judges that the “good cause” standard set out in Carpenter is a relaxed, but fair bar. See id.

In Verhalen, a negligence dispute concerning injuries a child sustained while in the Defendants’ care, the Plaintiffs—the Verhalens—missed the filing deadline for their summary judgment response. Prior to missing the deadline, the Defendants each filed separate summary judgment motions, setting response deadlines for September 28 and October 6, 2022. On September 28th—the Verhalens’ first filing deadline—the Defendants filed amended notices setting a consolidated hearing on October 12th. The Plaintiffs’ new response deadline for each motion was now October 5th.

In any event, the Verhalens’ counsel did not file a response until 11:48 p.m. on October 6th—one day past the deadline. Realizing her mistake, Plaintiffs’ counsel moved for leave to file the late response. In the motion, Plaintiffs’ counsel stated that the late filing was a mistake caused by her firm’s case management software when it did not update with the new filing deadline. And second, “granting leave would not delay the proceedings or cause prejudice because the evidence offered with the responses had previously been produced in discovery . . . and courtesy copies of the responses were provided to the defendants on October 6.” Id. at *1. In an attached affidavit, Plaintiffs’ counsel explained the reason for the late response, and that she “‘immediately prepared the responses’ when the ‘oversight became known.’” Id. The district court ultimately granted both motions for summary judgment. Id. In affirming the decision, the court of appeals held that “the Verhalens did not provide even a slight excuse for the delay in filing the responses.” Id. at *2.

The Supreme Court of Texas disagreed. Id. at *3. The Court first doubled-down on its “good cause” standard applied in Carpenter. A “nonmovant establish[es] good cause by showing that the failure to timely respond (1) 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.” Carpenter v. Cimarron Hydrocarbons Corp, 98 S.W.3d 682, 684 (Tex. 2002). Then, in applying the standard to this case, the Court found that “the Verhalens’ counsel established both requirements of good cause here.” Verhalen, 2024 WL 4394980, at *2. First, the Verhalens’ counsel showed that she “promptly investigated and explained” the events causing the failure to meet the deadline and quickly filed the late response—evidencing an initiative to correct her mistake. Id. And second, she demonstrated why the opposing parties would not be prejudiced. Id. The Court agreed. Id.

Texas practitioners often handle tens-to-hundreds of cases at one time. Most of us rely on some sort of case management or calendaring software to stay on top of deadlines. And it only makes sense that, if the technology fails, any one of us could be on the wrong end of a late filing. Thankfully, Verhalen provides a guideline for all Texas attorneys in the event we miss a deadline. Id. at *2-3.

1. File your response as timely as possible after realizing your mistake.
2. Provide copies of the response to opposing party(s).
3. File a motion for leave along with an affidavit asserting why your failure is a mistake and how the opposing party will not be prejudiced or unduly delayed.
4. And finally, take full responsibility.

If an attorney shows good cause, “the trial court must allow the filing.” Id. at *3. Not should—must. The Supreme Court of Texas has made clear that the “good cause” standard is not an unreachable bar. Instead, as long as the mishap is truly a mistake or accident, trial courts have no choice but to allow the filing absent substantial prejudice. The Verhalen decision not only provides a guideline to practitioners across the state, it also serves the longstanding policy that “an adjudication on the merits is preferred in Texas.” Sutherland v. Spencer, 376 S.W.3d 752, 756 (Tex. 2012) (citing Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 86 (Tex.1992)).