Motion for Extension of Time to Respond in Texas

What Is a Motion for Extension of Time to Respond?

Background

A motion for an extension of time to file a responsive pleading may be made under Tex. R. Civ. P. Rules 5 and 11.

Rule 5 provides in relevant part:

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:

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
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.

(Tex. R. Civ. P. 5)

Further, “[t]he court may not enlarge the period for taking any action under the rules relating to new trials except as stated in these rules.” (Id.)

How to Structure the Motion

Under Rule 11, a party may, by agreement with the opposing party, file a motion to extend time to file a responsive pleading. (See, e.g, Exito Electronics Co., Ltd. v. Trejo (2004) 142 S.W.3d 302, 306 [holding that “a Rule 11 Agreement that extends a defendant's time to file an initial responsive pleading and is filed in the trial court before the defendant files a special appearance, even if the agreement is not expressly made subject to the special appearance does not violate Rule 120a's "due-order-of-pleading" requirement and thus does not constitute a general appearance.”])

“Rule 11 states in pertinent part that an agreement between the parties ‘will [not] be enforced unless it be in writing, signed and filed with the papers as part of the record.’ [However], while filing a Rule 11 Agreement with the trial court is a requirement for enforcement, it is not in and of itself a request for enforcement or any other affirmative action by the trial court.” (Exito Electronics Co., supra, 142 S.W.3d at 306.)

Discovery and Summary Judgment Responses

Rule 166b(4), Tex.R.Civ.P., states that “[a]fter the date on which answers are to be served, objections are waived unless an extension of time has been obtained by agreement or order of the court or good cause is shown for the failure to object within such period.” (Id.)

This rule is mandatory unless one of three exceptions is met:

counsel have agreed to an extension, but see;
the trial court by order has granted an extension of time; or
good cause for the late filing is shown.

(Remington Arms Co. v. Canales (1992) 837 S.W.2d 624, 625 citing Tex. R. Civ. P. 11; London Market Cos. v. Schattman (1991) 811 S.W.2d 550 [noting that oral agreement does not extend time for filing objections.])

“As our procedural rules permit extensions of time in the trial court only upon a demonstration of good cause, Tex.R.Civ.P. 5, the latter two conditions overlap substantially.” (Remington Arms Co., id.)

Extensions and Health Care Liability Claims

Texas Civil Practice and Remedies Code section 74.351 requires that a trial court dismiss a health care liability claim unless the claimant serves an expert report within 120 days after filing suit. (Tex. Civ. Prac. Rem. Code § 74.351(b).) This dismissal requirement is subject to the trial court's discretion to grant one thirty-day extension for the claimant to cure a timely served but deficient report. (Samlowsk v. Wooten (2011) 332 S.W.3d 404, 406-07 citing Id. § 74.351(c).)

The Court’s Decision

With respect to determinations of “good cause” for late filings, the high court of Texas has repeatedly held that “inadvertence of counsel does not constitute good cause.” Sharp v. Broadway Nat'l Bank (1990) 784 S.W.2d 669, 672; E.F. Hutton Co. v. Youngblood (1987) 741 S.W.2d 363, 364.)

Describing the reasons for this exclusion as “intuitive,” [the Court] recently explained that:

If inadvertence of counsel, by itself, were good cause, the exception would swallow up the rule, for there would be few cases in which counsel would admit to making a deliberate decision not to comply with discovery rules. (Remington Arms Co. v. Canales (1992) 837 S.W.2d 624, 625 citing Alvarado v. Farah Mfg. Co. (1992) 830 S.W.2d 911, 915.)

Concerning health liability claims, it has been held that “like most cases involving trial court discretion, a single rule will not fit every situation, but generally a trial court should grant an extension when the deficient report can be cured within the thirty-day period the statute permits.” (Samlowsk v. Wooten (2011) 332 S.W.3d 404, 407.)

Documents for Motion for Extension of Time to Respond in Texas

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O 'FORECLOSURE et al vs. TOM H CABE et al document preview

CORRESPONDENCE - LETTER TO FILE - FROM WELLS FARGO/INCLUDED RETURNED NOTIC…

4 pages

Man-‘9 WELLS Wells Fargo Legal Department a (n tn us POSTAGEMPWNEY …