Keith Lee

About three years ago, a case caught my eye that still sits in the the back of my mind when looking at our firm calendar or speaking with opposing counsel on a matter. It highlights something that should be self-evident to most attorneys. Yet, as this case illustrates, even routine matters can cause extreme problems.

Booher v. Sheeram LLC was a fairly standard slip-and-fall case. A hotel had been receiving a number of complaints about its slippery bathtubs. The hotel subsequently placed non-skid material in the tubs. Regardless, Mary Booher slipped and fell after the non-skid material had been placed. She and her husband sought to recover damages from the hotel and retained an attorney. Things proceeded along as they do in these matters — discovery plus more discovery — and eventually the hotel filed a motion for summary judgment. After an extension was granted, the deadline for a response from the Boohers’ attorney was set for November 7, 2008.

But Booher’s expert was missing a key document, and was going to be out of the country during the deadline for the motion. And her attorney was about to undergo major surgery. He needed more time in order to properly prepare his brief in opposition. Opposing counsel didn’t mind an extension; these things happen. No one wants to be a jerk regarding scheduling matters. 

But Booher’s attorney didn’t follow the rules, so it didn’t matter. And he lost his clients their case, not on the substance, but on a technicality:

On October 23, 2008, the Boohers’ expert contacted their attorney, explaining that he needed extra time to complete his report because he was having difficulty obtaining a necessary document and was scheduled to be out of the country from October 28 through November 7. Additionally, the Boohers’ attorney was preparing for major surgery on October 24, which would cause counsel to be in the hospital for two days and away from work for an additional two weeks. On October 27, counsel’s legal assistant contacted the office of Hampton Inn’s attorney, leaving a voicemail explaining the situation and requesting an additional three weeks to file the responsive documents to the summary judgment motion. The legal assistant of Hampton Inn’s attorney contacted the Booher counsel’s legal assistant the same day, stating that a three-week extension from November 7 was acceptable. The Boohers did not file a formal request for an extension of time with the trial court, relying on Hampton Inn’s representation that an additional three weeks was acceptable.

The Boohers’ attorney contacted opposing counsel, asking for an extension in what was obviously a difficult situation. As any professional, understanding attorney would do, the hotel’s counsel was collegial and agreed to the extension. But that didn’t relieve the Boohers’ attorney from following the Rules of Civil Procedure. He needed to file a timely request and notice with the court. He didn’t. Instead he filed his response on November 26 and a supplement on December 18.

On December 24, 2008, Hampton Inn filed a motion to strike the Boohers’ material designation of facts, expert affidavit, and supplemental pleading. Hampton Inn stated that it “readily admits that if Plaintiff had sought an extension of time . . . Defendant would not have objected to such motion . . . .” Appellants’ App. p. 97. The trial court granted the motion to strike without a hearing on February 10, 2009, finding that “[u]nder T.R. 56, a trial court has no discretion to consider a response to a summary judgment motion filed outside the thirty (30) days provided under the rule or any timely extension of the imposed deadline.” Id. at 106.

The trial court entered judgment for the hotel. Boohers’ attorney appealed. Couldn’t the Court assess the situation and use some discretion in this difficult situation? Opposing counsel wouldn’t have even objected. Can the Court show some understanding and bend the rules just this one time?

No.

The Boohers, however, failed to file a request with the trial court for [the] extension before their deadline passed. Pursuant to the bright line rule set forth above, therefore, the trial court was without discretion to accept the late-filed documents. This would have been the case even if Hampton Inn had not objected.

Although we encourage collegiality among members of the legal profession and endeavor to promote cooperation and conflict resolution outside the walls of the courthouse, in certain circumstances parties must still seek formal relief directly from the trial court. Our Supreme Court has held that this is an example of such a circumstance. Consequently, while we do not find fault with the Boohers’ attorney’s decision to rely on the word of opposing counsel, unfortunately that reliance was not enough—he should still have filed a motion for extension of time with the trial court.

We acknowledge, as did the trial court, that the Boohers’ attorney was working under extraordinarily difficult circumstances—an expert who was out of the country and unable to complete his report in a timely fashion together with a major surgery endured by counsel certainly constituted cause to extend the deadline by three more weeks. Our proverbial hands are tied, however, inasmuch as our Supreme Court has made it clear that the trial court simply had no discretion to accept the untimely filed documents, regardless of the circumstances. Therefore, we are compelled to affirm the trial court’s decision to strike those documents.

Their hands were tied. Nothing could be done. Let the above situation serve as fair warning. Be professional, be courteous, and show understanding and respect to those on the opposite side of the aisle from you.

But always, always, follow the rules.


Keith Lee practices law at Hamer Law Group, LLC in Birmingham, Alabama. He writes about professional development, the law, the universe, and everything at Associate’s Mind. He is also the author of The Marble and The Sculptor: From Law School To Law Practice (affiliate link), published by the ABA. You can reach him at [email protected] or on Twitter at @associatesmind.


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