535 S.W.3d 251
Tex. App.2017Background
- Duchene signed a promissory note (Dec. 12, 2013) with Mohammed Amini‑Ghomi promising to pay Hernandez $68,300.26 plus interest in monthly $2,500 payments; note stated it was the final integrated agreement.
- Hernandez sued for nonpayment (Feb. 18, 2014); default judgment was entered as to Amini‑Ghomi; Duchene timely answered but did not file a verified denial of execution of the note.
- Hernandez moved for summary judgment (Sept. 19, 2014), supported by the note and an affidavit calculating a balance due after sale of collateral.
- Duchene’s original counsel withdrew; hearing was continued twice; new counsel filed a response one day before the final hearing with affidavits from Duchene and Amini‑Ghomi.
- Hernandez moved to strike the late response under Tex. R. Civ. P. 166a(c); Duchene moved for leave to file late; the trial court denied leave, struck the response, and granted Hernandez summary judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court abused discretion by denying leave to file a late summary‑judgment response | Duchene argued his counsel’s calendaring mistake and delay waiting for Amini‑Ghomi’s affidavit established good cause | Hernandez argued the response was untimely under Rule 166a(c) and counsel offered only unsworn assertions without affidavits or explanation | Court held no abuse of discretion: unsworn attorney statements insufficient; no adequate explanation for delay; leave properly denied |
| Whether summary judgment was improper because material fact issues remained | Duchene argued his late affidavits raised issues (mitigation, payment, accord & satisfaction) that precluded summary judgment | Hernandez argued the note, Duchene’s signature, holder status, and balance due were established; defendant waived affirmative defenses by not pleading them or verified denials | Court held summary judgment proper: validity of note established (no verified denial); affirmative defenses waived; stricken late evidence not considered |
Key Cases Cited
- Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682 (Tex. 2002) (trial court may deny leave to file late response when attorney’s unsworn calendaring mistake lacks supporting evidence)
- State Office of Risk Mgmt. v. Alonso, 290 S.W.3d 254 (Tex. App.—El Paso 2009) (Rule 5 good‑cause analysis applies to late summary‑judgment responses)
- Amedisys, Inc. v. Kingwood Home Health Care, LLC, 437 S.W.3d 507 (Tex. 2014) (summary‑judgment burden shifting; movant must establish no genuine issue of material fact)
- Roth v. JPMorgan Chase Bank, N.A., 439 S.W.3d 508 (Tex. App.—El Paso 2014) (note holder must show the note, signature, holder status, and amount due; defendant must file verified denial to contest execution)
- Bluebonnet Fin. Assets v. Miller, 324 S.W.3d 603 (Tex. App.—El Paso 2010) (failure to file required verified denial results in conclusive admission of instrument’s validity)
- Goswami v. Metropolitan Sav. & Loan Ass’n, 751 S.W.2d 487 (Tex. 1988) (if trial court denies leave to file late response, it is presumed not to have considered the late filing)