Affirmed and Majority and Concurring Opinion s filed September 29 , 2020.

In The 

## Fourteenth Court of Appeals

NO. 14

- 18

- 00784

- CV

GLENN HERBERT JOHNSON , Appellant

V. HARRIS COUNTY, HARRIS COUNTY DEPARTMENT OF EDUCATION , THE PORT OF HOUSTON AUTHORITY OF HARRIS COUNTY , T HE HARRIS COUNTY FLOOD CONTROL DISTRICT, THE HARRIS COUNTY HOSPITAL DISTRICT, THE CITY OF HOUSTON, THE HOUSTON INDEPENDENT SCHOOL DISTRICT, AND THE HOUSTON

COMMUNITY COLLEGE SYSTEM , Appellee s

On Appeal from the 190th District Court

Harris County, Texas T rial Court Cause No. 2017

- 71003

CON CURRING OPINION

Because t he majority ignores binding precedent from this court , I must

concur

. Appellant Glenn Herbert Johnson con tends that he did not receive notice of the summary judgment m otion unti l after the trial court rendered judgment. The
record shows that Johnson was served with notice of the motion and did not present evidence to rebut the presumption of receipt and notice. He moved for2

re hearing of the motion for summary judgment after the t r ial court rendered judgment.

This court ’ s precedent in Ramey v. Bank of Am eri c a , N.A. , No. 14

- 11

- 01109

- CV, 2013 WL 84922 (Tex. App.

— Houston [14th Dist.] Jan. 8, 2013, no pet.) ( mem. op.) , is directly on point. In that case, t he plaintiffs moved for reheari ng

a fter the trial court granted the defendant ’ s motion for summary judgment. Id . at *1. In their motion for rehearing , the pl aintiffs alleged that their attorney did not
learn about th e summary judgment motion until after judgment had been rendered.
Id . a t * 2

. Johnson also alleged in his motion for rehearing that he did not receive
notice of the summary judgment motion until after the trial cour t rendered judgment

.
T he Ramey court concluded that becaus e the plaintiffs failed to present evidence the y did n ot r eceive notice of the summary judgment hearing until after the hearing occurred and judgment was rendered , the plaintiffs failed to rebut th e presumption of notice and were required to demonstrate goo d cause to file a late summary judgment response unde r s u preme court preceden t

. Id . at *3 (citing Carpenter v. Cimarron Hydrocarbons Corp. , 98 S.W.3d 682, 688 (Tex. 2002) ).
T he supreme court artic ulated the standard for a nonmovant to be allowed to file a late summary judgment response i n Carpenter : the non m ova n t must establ ish good

cause by showing that (1) the failure to timely respond was not intentional or the result of conscious indifference, but t he result of accident or mistake ; and (2) allowing a late respo nse will occasion no undue delay or otherwise injure t he party seeking summary judgment. 98 S.W.3d at 688 ; see also Ramey , 2013 WL 84922, at * 3

.
T h e majority posits that John son has not challenged the trial court ’ s ruling on the summary jud gment motion. That is dising enuous : t he remedy if Johnson

wer e to pre vail on appeal would be to set aside the summary judgment and give3

Johnson a n opportunity to respond

. In fact, Johnson expressly complains that he
did not file a re sponse because he lacked notice of the m otion.
The majority cites Modelis t v . Deutsc he Bank N at ional Trust Co. , No . 1 4

- 10

- 00249

- CV, 2011 W L 3 71 7010, at *2 (Tex. App.

— Houston [14th Dist.] Aug. 25, 2011, no p et. ) (mem. op.) , f or the proposition t hat the court is not required to
address “ whe ther the appellant had shown good cause or whether the appe llant had satisfied the legal standard applicable to a request to file a late summary

- judgment

response

. ” However, the majo rity con cedes that Modelist and R a me y are not in
conflict. In Modelist , the court gave no in dication that the appellant compl ained
ab out his inability to file a response to the motion for summary judgment . Here,
Johnson expressly contends that “ he did not file a response ” because he lacked
notice of the motion for summary judgment. In Ram ey , the plain tiffs similarly argued lack of notic e as “ the sole excuse for their unti mely summary judgment

response. ” 2013 WL 84922 , at * 3

. The majority conveniently brushes aside the Ramey precedent as “ ob iter dic tum ” but offers no me aningful analysis for why the holding in Ramey is not binding under th ese facts. Ramey is controlling

. Johnso n was requir ed to show good cause under Carpen ter t o be entitled to
reversal and to be entitled to respond to the motion

. See id

. Johnson has not met this burden , so the prope r remedy is to affirm the trial co urt ’ s judgment

. See id

. But
b ecause the majority fail s t o analy ze good cause under Carpenter in accordance
with this court ’ s binding precedent in Ramey , I must concur.

/s/ F rances Bourliot Justice

Panel cons ists of C hief Ju stice Fr ost and Justices C hris topher a nd Bourli ot

. (Bou r liot, J. , concurring).