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Robnett v. Kirklin Law Firm6/2/2005
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Contentions Not Timely Presented to the Trial Court
Rule 166a(c) and settled law construing rule 166a(c) impose deadlines for filing a summary judgment motion and any response to the motion. See Tex. R. Civ. P. 166a(c); see also Benchmark Bank v. Crowder, 919 S.W.2d 657, 663 (Tex. 1996) ("Summary judgment evidence may be filed late, but only with leave of court."); INA of Texas v. Bryant, 686 S.W.2d 614, 615 (Tex. 1985) (presuming that trial court did not consider late-filed summary judgment response because summary judgment did not reflect that trial court granted leave to file).
The firm filed its motion for summary judgment on October 1, 2002, and set it for a hearing on October 25, 2002. Robnett timely filed her initial response, but did not file her supplemental response to the firm's motion until February 27, 2003. Although the attorney's-fee dispute was the only matter still pending after the parties to the Thomas case had settled in late December 2002, and although funds had been deposited into the court's registry and distributed pursuant to the trial court's orders in January 2003, nothing in the record suggests that Robnett had sought leave from the trial court when she late-filed her response on February 27, 2003, the same day on which the trial court rendered final summary judgment for the firm.
Robnett's second, third, and fifth issues assert evidentiary and substantive arguments from her late-filed supplemental response. In her second issue, Robnett relies on affidavits, provided by her former clients in the Thomas case, in support of Robnett's contention that summary judgment in favor of the firm was precluded because the former clients orally ratified their initial, contingency-fee contract with Robnett. Despite the allegations in the firm's pleadings, that Robnett fraudulently induced the firm to accept both the Thomas case and the Trutec case, by not disclosing that her license was suspended when both contracts were signed, Robnett contends, in her third issue, that the firm may not challenge the validity of the original contracts. Finally, although Robnett never asserted any objection or exception to the firm's reliance on the Trutec contract in support of its intervention claim and relied on the Trutec contract in refuting the firm's intervention claim, Robnett's fifth issue challenges the trial court's encompassing issues concerning Robnett's right to attorney's fees in the Trutec case in the final summary judgment.
Because Robnett did not timely present any of these contentions to the trial court and did not seek leave to present them, we may presume that the trial court did not consider her contentions in rendering summary judgment in favor of the firm. See Tex. R. Civ. P. 166a(c); Crowder, 919 S.W.2d at 663; INA of Texas, 686 S.W.2d at 615. Because we presume that the trial court did not consider them, we may not consider them as grounds for reversing the summary judgment. See Tex. R. Civ. P. 166a(c) ("Issues not expressly presented to the trial court by written motion, answer, or other response shall not be considered on appeal as grounds for reversal.").
We overrule Robnett's second, third, and fifth issues.
Conclusion
We affirm the judgment of the trial court.
Panel consists of Justices Taft, Alcala, and Higley.
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