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SEVEN DAY RULE FOR MSJ RESPONSE

“Except on leave of court, the adverse party, not later than seven days prior to the day of the hearing
may file and serve opposing affidavits or other written response [to a summary judgment motion].”  
TEX. R. CIV. P. 166a(c).  Thus, a party seeking to late-file a response to a motion for summary
judgment must seek leave of court.  This leave 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.  
Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 688 (Tex. 2002).  A trial court’s ruling
on a motion for leave to file a late summary judgment response is reviewed for an abuse of
discretion.  See id. at 686.  A trial court abuses its discretion when it acts without reference to any
guiding rules or principles.  Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex.
1985).

Except with leave of the trial court, a non-movant must file any written response and opposing
affidavits no later than seven days before the day of submission. See Tex. R. Civ. P. 166a(c). If a
trial court grants leave to file a late response to a summary judgment motion, it must affirmatively
indicate in the record acceptance of the late filing. INA of Tex. v. Bryant, 686 S.W.2d 614, 615 (Tex.
1985). If nothing in the record indicates that leave was granted, we must presume that the trial court
did not consider the late-filed response and we cannot consider it. Id.
Eix, Inc. v. JP Morgan Chase Bank (Tex.App.- Houston [14th Dist.] Feb. 19, 2009)(Boyce)
(commercial
debt suit, personal guaranty, summary judgment evidence, affidavit by interested witness)
AFFIRMED: Opinion by
Justice William Boyce
Before Justices Frost, Brown and Boyce
14-08-00042-CV Eix, Inc., and Saeed Moradi v. JP Morgan Chase Bank, N.A.
Appeal from County Civil Court at Law No 3 of Harris County
Trial Court
Judge: Linda Storey  




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