                                      COURT OF APPEALS
                                   EIGHTH DISTRICT OF TEXAS
                                        EL PASO, TEXAS

                                                   §
 STATE OFFICE OF RISK                                             No. 08-07-00091-CV
 MANAGEMENT,                                       §
                                                                       Appeal from
                          Appellant,               §
                                                                    210th District Court
 v.                                                §
                                                                of El Paso County, Texas
 GEORGINA ALONSO,                                  §
                                                                    (TC # 2005-5919)
                          Appellee.                §


                                            OPINION

          This is a worker’s compensation case on appeal from the Texas Department of Insurance-

Division of Workers’s Compensation. The State Office of Risk Management (SORM) appeals a no-

evidence summary judgment in favor of Georgina Alonso. Alonso prevailed at the contested case

hearing and the Appeals Panel affirmed the decision. SORM filed suit in district court on the sole

issue of whether Alonso sustained a compensable repetitive trauma injury. The trial court granted

Alonso’s no-evidence motion for summary judgment and denied SORM’s motion for continuance

and alternative motion for leave to file an untimely response. Finding no abuse of discretion, we

affirm.

                                       FACTUAL SUMMARY

          Alonso is an injured worker who prevailed on her work injury claim before the contested case

hearing officer and the Appeals Panel. SORM filed its original petition in district court on August

22, 2005. Pursuant to the discovery control plan and scheduling order, the discovery deadline was

November 21, 2006. Trial was set for March 23, 2007.
        On or about October 26, 2006, the case was transferred within the Office of the Attorney

General from Kerry O’Brien to Norberto Flores. Alonso filed her no-evidence motion for summary

judgment on October 26 and the hearing was scheduled for November 29. SORM’s response was

due on November 22, the day before Thanksgiving. On November 1, Flores forwarded Alonso’s

medical records and other materials to Dr. Martin Steiner, a neurologist in Houston. On November

21, SORM designated Dr. Steiner as an expert witness and learned the same day that the doctor was

out of town and would not return until November 27. Flores then inquired whether Alonso’s

counsel, Robert Riojas, would agree to a continuance. Riojas responded by faxing the following

letter to Flores:

        Dear Mr. Flores:

        I understand you wish to continue the summary judgment hearing currently set on
        November 29. I have no problem rescheduling the hearing if you need additional
        time to prepare your response or because you have a scheduling conflict. However,
        I will not agree to any such continuance in order for discovery to be supplemented
        or filed. Let me know.

        Upon receipt of the fax, Flores notified Dr. Steiner that his report could be completed after

the Thanksgiving holidays. The doctor completed his report on November 27, and sent it to Flores

on November 28. Learning that the hearing had still not been postponed, Flores contacted Riojas

on November 27 and requested confirmation of an agreement for continuance. On November 28,

Flores sent Riojas a Rule 11 agreement. That same day, Riojas faxed a second letter:
         Dear Mr. Flores:

         Regarding your request for a continuance of tomorrow’s summary judgment hearing,
         as stated in my last letter, I can only agree to continue the summary judgment hearing
         if there was a scheduling problem but I cannot agree to reschedule the hearing simply
         to allow you more time to gather evidence to be used against my client. I would not
         be fulfilling my ethical obligations to my client to allow such supplementation.

         On November 29--the date of the hearing--SORM filed a response to the summary judgment

motion with Dr. Steiner’s affidavit attached. It also filed a motion for continuance with an

alternative motion for leave to file its response untimely. The trial court denied the motion for

continuance and the motion for leave to file a late response; it granted Alonso’s no-evidence motion

for summary judgment. We have not been favored with a record from the November 29 hearing.

SORM mentions in its brief that the reporter’s record was either lost or destroyed, but it alleges no

error in this regard.

                               DENIAL OF MOTION FOR LEAVE

         In Issue One, SORM complains of the trial court’s denial of its motion for leave to file an

untimely summary judgment response. We review the trial court’s ruling under an abuse of

discretion standard. Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 686-87 (Tex.

2002). The trial court abuses its discretion when it acts without reference to any guiding rules or

principles. Id., at 687; citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.

1985).

         In Carpenter, the Texas Supreme Court considered what constitutes “good cause” under

Rule 5 of the Texas Rules of Civil Procedure:

         When by these rules or by a notice given thereunder or by order of court an act is
         required or allowed to be done at or within a specified time, the court for cause
         shown may, at any time in its discretion (a) with or without motion or notice, order
         the period enlarged if application therefor is made before the expiration of the period
         originally prescribed or as extended by a previous order; or (b) upon motion permit
       the act to be done after the expiration of the specified period where good cause is
       shown for the failure to act. The court may not enlarge the period for taking any
       action under the rules relating to new trials except as stated in these rules. [Emphasis
       added].

There, Carpenter filed a motion for summary judgment and Cimarron failed to timely file a response.

Id. at 684. On the morning of the hearing, Cimarron filed a motion for continuance and a motion

for leave to file an untimely response. Id. at 685. At the hearing, Cimarron’s counsel argued that

Carpenter would not be prejudiced by a late filing, but “offered no explanation of the error from

which the trial court might determine that an accident or mistake had occurred.” Id. at 688. The trial

court denied both motions and granted Carpenter’s motion for summary judgment. Id. at 685.

Cimarron appealed and the court of appeals reversed. Id. The Supreme Court of Texas then

reversed the court of appeals’ judgment, holding that under Rule 5: “[A] motion for leave to file a

late summary-judgment response should be granted when the nonmovant [for summary judgment]

establishes good cause by showing that the failure to timely respond (1) was not intentional or the

result of conscious indifference, but the result of accident or mistake, and (2) that allowing the late

response will occasion no undue delay or otherwise injure the party seeking summary judgment.”

Id. at 688. The court concluded that the trial court properly denied Cimarron’s motion for leave

because Cimarron offered no explanation for its failure to timely file a response. Id.

       The Texas Supreme Court also applied the standards of Rule 5 in In re M.N., 262 S.W.3d

799, 804 (Tex. 2008). In this parental termination proceeding, the appellant alleged that counsel

mis-calendered the time for post-trial filings. Id. At the hearing on the motion to extend time,

counsel explained that the late filing was necessary because she mistakenly calculated the last date

for filing the statement of appellate points from the date she received the order rather than from the

date the order was signed. Id. The appellee did not contest either the allegations in the motion or
appellant’s explanation at the hearing. Id. The Supreme Court concluded that the appellant pled

facts supporting the late filing and that the appellee did not claim that the late filing was prejudicial.

Id. Therefore, the trial court had not abused its discretion in granting the motion. Id.

        SORM argues that its reliance on the letters sent by Riojas constitute the requisite “good

cause.” These allegations have been hotly contested. We conclude that the record does not support

SORM’s position, nor has SORM demonstrated that its justification for a late response was the result

of an “accident or mistake.” See Carpenter, 98 S.W.3d at 688. SORM alleged in its motion for

continuance that:

        Counsel for [SORM] sent Dr. Steiner medical records and other documents to review
        on November 1, 2006 and expected to receive an affidavit from him before
        [SORM’s] response to the motion for summary judgment is due. However,
        [SORM’s] counsel has just learned that Dr. Steiner has gone out of town and will not
        return to the office until November 27, 2006.

SORM has not challenged the denial of the motion for continuance on appeal.

        Turning then to SORM’s alternative motion for leave to file an untimely response, SORM

claimed that Riojas reneged on an agreement to continue the hearing and that in reliance upon the

November 21 letter, “Flores did not file his response on of [sic] before November 22, 2006.” This

argument is somewhat disingenuous. Flores did not file his response before November 22 because

he learned that Dr. Steiner left town without completing his affidavit. The following time line is

helpful in our analysis:

!       08/22/05            SORM files this suit in district court.

!       10/26/06            Flores is designated lead counsel for SORM.1

!       10/26/06            Alonso files her motion for no-evidence summary judgment.

!       11/01/06            Flores forwards Alonso’s medical records to Dr. Steiner.

        1
            The certificate of service on the designation is dated 10/26/06, but it is file stamped 10/30/06.
!        11/21/06          Discovery deadline pursuant to the docket control order. SORM designates
                           Dr. Steiner as an expert witness.

!        11/21/06          Flores contacts Riojas about a continuance because he has learned that
                           Dr. Steiner is out of town and will not return until 11/27/06. Riojas responds
                           by facsimile.

!        11/22/06          Deadline for filing a response to the motion for summary judgment.

!        11/27/06          Dr. Steiner completes his affidavit.              Flores requests confirmation of
                           agreement with Riojas.

!        11/28/06          Dr. Steiner forwards his affidavit to Flores. Flores sends a Rule 11 agreement
                           to Riojas. Riojas responds by facsimile.

!        11/29/06          SORM files its motion for continuance and alternative motion for leave to
                           file an untimely response to the motion for summary judgment.

SORM did not forward any of Alonso’s medical records to Dr. Steiner until after the motion for

summary judgment was filed, yet by that time, the case had been pending in the trial court for

fourteen months. Dr. Steiner was not designated as a witness until November 21, the day before the

summary judgment response was due to be filed. When asked during oral argument about the time

lapse between October 26 and November 21, Flores replied that SORM was in negotiations to hire

Dr. Steiner.2 That would explain the period between October 26 and November 1, when the medical

records were forwarded to him.3 The record is silent as to any communication between Flores and

Steiner from November 1 through November 21. For these twenty days, Flores knew that a motion

for summary judgment was pending and that SORM’s response was due on November 22. While

other jurists might have found good cause to exist, we are hard pressed to conclude that the court

below abused its discretion. We overrule Issue One. Because SORM has failed to hurdle the first


         2
           Counsel also noted that the Veterans’ Day holiday occurred in this time frame as well. Veterans’ Day is
normally a state holiday, but November 11, 2006 fell on a Saturday.

         3
           SORM argues in its brief that it sent the medical records to Dr. Steiner two business days after it received
the motion for summary judgment.
prong of Carpenter, we need not address the second prong of undue delay or prejudice.

                          PROPRIETY OF SUMMARY JUDGMENT

       In Issue Two, SORM contends that it raised a genuine issue of material fact precluding

summary judgment. Because the trial court denied SORM’s motion for leave to file its response

untimely, we presume the court did not consider either the late-filed response or Dr. Steiner’s

affidavit in rendering summary judgment. See Goswami v. Metropolitan Sav. & Loan Ass’n, 751

S.W.2d 487, 490 (Tex. 1988); INA of Texas v. Bryant, 686 S.W.2d 614 (Tex. 1985).

       A no-evidence summary judgment is essentially a pretrial directed verdict and we apply the

same legal sufficiency standard of review. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750

(Tex. 2003); Sanchez v. State Office of Risk Management, 234 S.W.3d 96, 99 (Tex.App.--El Paso

2007, no pet.). The movant must specifically state the elements as to which there is no evidence.

Aguilar v. Morales, 162 S.W.3d 825, 834 (Tex.App.--El Paso 2005, pet. denied); see TEX .R.CIV .P.

166a(i). The burden then shifts to the non-movant to produce summary judgment evidence raising

a genuine issue of material fact regarding each element challenged in the motion. Aguilar, 162

S.W.3d at 834. We view the evidence in the light most favorable to the non-movant and disregard

all contrary evidence and inferences. King Ranch, Inc., 118 S.W.3d at 751. A genuine issue of

material fact is raised if the non-movant produces more than a scintilla of evidence regarding the

challenged element. Id. at 751. Less than a scintilla of evidence exists if the evidence is so weak

as to create no more than a mere surmise or suspicion. But when the evidence rises to a level that

enables reasonable minds to differ in their conclusions, then more than a scintilla of evidence exists.

Id.

       Alonso alleged in her motion for summary judgment that because the Division of Workers’

Compensation determined she had sustained a compensable repetitive work injury, SORM was
required to produce some evidence that the administrative determination was incorrect. Given our

holding that SORM failed to demonstrate good cause for the untimely filing of its response, there

was no evidence presented to the trial court from which it could determine the existence of a genuine

issue of material fact.

        Nevertheless, SORM directs us to Wheeler v. Green, 157 S.W.3d 439 (Tex. 2005) in support

of its argument that a trial court may consider evidence presented via motion for new trial. In

Wheeler, the trial court granted summary judgment removing Wheeler as a joint managing

conservator of her daughter based upon 64 deemed requests for admissions. Appearing pro se,

Wheeler forwarded her responses to Green’s attorney two days late, but six months before the

summary judgment hearing. She did not file a response to the motion for summary judgment, but

she did appear at the hearing. After the unfavorable ruling, Wheeler hired counsel who filed a

motion for new trial, attached her responses to the request for admissions, and asked that the

summary judgment be set aside. The trial court denied the motion and the intermediate appellate

court affirmed. The Supreme Court reversed for three reasons. First, Wheeler was not required to

file a response to the summary judgment motion and the trial court could not grant the motion simply

because she failed to do so. Second, although Wheeler did not file a motion to withdraw the deemed

admissions or seek leave to file an untimely response to the motion for summary judgment, the

arguments in her motion for new trial were sufficient to put the trial court on notice of her complaint.

Third, Wheeler did not waive these arguments by presenting them for the first time in her motion

for new trial since the record did not establish that she knew that her responses were late, that she

needed to withdraw the deemed admissions, or that she needed to file a response to the motion for

summary judgment.

        We conclude that Wheeler is inapplicable. First, the Supreme Court commented by footnote
that if these same “elementary mistakes” had been made by a lawyer, the trial court could have

concluded that failure to follow the rules was the result of intent or conscious indifference. Second,

Green’s motion for summary judgment was based upon deemed admissions and did not require a

response. No-evidence motions for summary judgment must be granted if no response is filed. See

TEX .R.CIV .P. 166a(i). Third, SORM never asked the trial court during the hearing on the motion

for new trial to review Dr. Steiner’s affidavit, nor did it request relief pursuant to Rule 166a(g).4

Finally, although SORM’s failure to file the summary judgment response ended its lawsuit, we

disagree that it has suffered merits-preclusive sanctions without a showing of bad faith or callous

disregard for the rules. The summary judgment here was not a discovery sanction. The trial court

granted a no-evidence summary judgment because SORM failed to timely respond. We overrule

Issue Two and affirm the judgment of the trial court.



March 5, 2009
                                                                ANN CRAWFORD McCLURE, Justice

Before Chew, C.J., McClure, J., and Barajas, C.J. (Ret.)
Barajas, C.J. (Ret.), sitting by assignment




        4
            During oral argument, Flores argued that the trial court should have denied summary judgment relief or
granted a continuance to allow Dr. Steiner’s affidavit to be filed pursuant to Rule 166a(g). That rule provides:

        (g) W hen Affidavits Are Unavailable. Should it appear from the affidavits of a party opposing the motion
        that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may
        refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions
        to be taken or discovery to be had or may make such other order as is just.
