
    Steve NEELY, Appellant, v. COLEMAN ENTERPRISES, LTD., et al., Appellees.
    No. 10-00-350-CV.
    Court of Appeals of Texas, Waco.
    Nov. 7, 2001.
    Rehearing Overruled Dec. 5, 2001.
    
      W.V. Dunnam, Jr., Dunnam & Dunnam, L.L.P., Waco, for appellant.
    Christopher L. Rhodes, Werstein & Associates, Austin, for appellee.
    Before Chief Justice DAVIS, VANCE and GRAY, Justices.
   OPINION

TOM GRAY, Justice.

Steve Neely filed suit for malicious prosecution against Coleman Management Co. d/b/a Coleman Autoplex, its general partner Coleman Enterprises, Ltd., its president F. Herman Coleman, and the Autoplex’s manager Bill Coleman. (All defendants are jointly referred to as “the Colemans.”). The Colemans filed a motion for summary judgment, which was granted by the trial court. Neely appeals, contending that: (1) the trial court erred in failing to consider his response to the motion for summary judgment; (2) the trial court abused its discretion in failing to consider his response to the motion for summary judgment; and (3) the trial court erred in granting the motion for summary judgment. We will affirm the summary judgment.

FACTS

Neely was originally an employee of the Bolton McClaren automobile dealership. As a salesperson, he received keys to the lock boxes on the dealership’s vehicles and to the gate to the dealership’s lot. In a written acknowledgment of the receipt of these keys, Neely agreed to return the keys or to reimburse the dealership in the amount of $100 when he terminated his employment.

Coleman Autoplex purchased the dealership in January of 1998. When Neely informed the manager that he did not wish to take advantage of the paid vacation plan, he was paid two weeks’ wages with the understanding that he “would not quit anytime soon.” Shortly thereafter, he resigned, and the dealership withheld from Neely’s final check one-half of the amount of the vacation monies previously paid. During the month that followed, Coleman employees made repeated attempts to recover the keys by calling Neely and even going to his home.

About a month after Neely’s resignation, he informed the dealership that he had filed a Texas Workforce Commission wage claim based upon the withholding of his vacation monies. Around this same time, there was a theft at the dealership. Following the recommendations of the Coleman Autoplex’s floor plan financier, its insurer, and the Gatesville Police Department, Bill Coleman filed a complaint with the police department, alleging that Neely “kept two keys belonging to Coleman Autoplex ... [t]hat he was asked to return the keys several times and then stated that he would not return the keys until other matters were resolved.” According to Coleman, these “other matters” referred to Neely’s then unresolved wage claim.

Neely’s wife returned the keys to the dealership. The next day, Neely turned himself in at the police station, where he was arrested on theft charges and then released on bail. The State subsequently dismissed the case against Neely because he had made restitution to the dealership.

Neely filed suit, alleging that the Cole-mans acted with malice to institute a criminal prosecution against Neely without cause. Almost a year after the suit was filed, the Colemans filed a motion for summary judgment. Immediately prior to the summary judgment hearing on April 18, 2000, the court heard uncontroverted testimony that Neely’s response to the motion had not been filed before the April 11th deadline. The court considered Neely’s oral motion for leave to file the response, but never rendered an order allowing leave to file the untimely response. Instead, the court granted the motion for summary judgment and dismissed Neely’s cause of action.

THE RESPONSE

Two rules guide our review of Neely’s two issues regarding his summary judgment response. First, rule 166a(c) provides that “except on leave of court, the adverse party, not later than seven days prior to the day of hearing may file and serve opposing affidavits or other written response.” Tex.R. Crv. P. 166a(c). Second, rule 5 provides:

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 (a) 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 (b) upon motion permit the act to be done after the expiration of the specified period where good cause is shown for failure to act.

Tex.R. Civ. P. 5 (emphasis added). Mere allegation of good cause is insufficient to permit a late filing; the party requesting the extension of time is required to offer evidence to prove good cause. Bond v. Lewis, 496 S.W.2d 181, 184 (Tex.App.—Waco 1973, no writ) (concerning a late-filed controverting affidavit to a plea of privilege).

Neely does not claim that the response was filed timely within the requirements of Rule 166a(c). Instead he contends that the trial court should have granted leave to file the response because there is no evidence that the defendants would have suffered any surprise or prejudice. To support this proposition, he cites Vermillion v. Haynes, 147 Tex. 359, 215 S.W.2d 605 (1948) and Rose v. Kober Financial Corp., 874 S.W.2d 358 (Tex.App.—Houston [14th Dist.] 1994, no writ). Both of these eases address amended pleadings as governed under Tex.R. Civ. P. 63. The Supreme Court of Texas has distinguished amended pleadings from responses to summary judgment motions. Goswami v. Metropolitan S. & L. Ass’n, 751 S.W.2d 487, 491 n. 1 (Tex.1988). Therefore, we do not consider pleading cases as persuasive in our analysis of granting leave to file a summary judgment response.

Before the hearing on the motion for summary judgment, the court held an evi-dentiary hearing to determine whether to grant leave to file the late response. Counsel’s secretary testified that the deadline for the response was not placed on counsel’s calendar and that the summary judgment motion was found under some papers on counsel’s desk just prior to the deadline. The court heard testimony that in spite of counsel’s efforts to complete the response timely, several problems were encountered, including the unavailability of Neely to sign his affidavit and the use of the wrong address for opposing counsel on the Federal Express box. At the conclusion of the hearing, the court announced that if it did not grant leave for the filing of the response by a written order, the response would not be considered in the court’s ruling regarding summary judgment. Because there is no order granting such leave in the record before us, we can safely assume that the court denied leave to file the late response and did not consider it. See Benchmark Bank v. Crowder, 919 S.W.2d 657, 663 (Tex.1996).

We must now determine whether the court abused its discretion in failing to grant Neely leave to file the response. A trial court abuses its discretion when it acts without reference to any guiding rules or principles or when its action is arbitrary or unreasonable. See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex.1985). We will not reverse a discretionary ruling of the trial court unless the record clearly shows that the trial court disregarded the rights of a party. Yowell v. Piper Aircraft Corp., 703 S.W.2d 630, 634-35 (Tex.1986).

We find that the court was guided by Rule 166a(c) and Rule 5. It is undisputed that Neely did not file his response within the time period allowed by Rule 166a(c). Furthermore, the court afforded Neely an opportunity to establish “good cause” for leave to file the response late as required by Rule 5. The evidence presented at the hearing tended to show why the response was not filed timely, but not how these reasons for the untimely filing constituted good cause. The Texas Supreme Court has repeatedly held that inadvertence of counsel does not constitute good cause. Alvarado v. Farah Mfg. Co., 830 S.W.2d 911, 915 (Tex.1992); Sharp v. Broadway Nat'l Bank, 784 S.W.2d 669, 672 (Tex.1990); E.F. Hutton & Co. v. Youngblood, 741 S.W.2d 363, 364 (Tex.1987). Further, the argument that the Colemans did not establish surprise by the response is not evidence of good cause. Morrow v. H.E.B., Inc., 714 S.W.2d 297, 298 (Tex.1986). The court refused to find that the evidence established good cause for leave to file the response. We do not find that the court’s denial of leave to file the response was an abuse of discretion. Therefore, we overrule Neely’s first two issues.

SUMMARY JUDGMENT

Neely also asserts that Coleman’s own summary judgment evidence precludes a summary judgment. The required elements of malicious criminal prosecution are:

(1) The commencement of a criminal prosecution against the plaintiff;

(2) Causation (initiation or procurement) of the action by the defendant;

(3) Termination of the prosecution in the plaintiffs favor;

(4) The plaintiffs innocence;

(5) The absence of probable cause for the proceedings;

(6) Malice in filing the charge; and

(7) Damage to the plaintiff.

Richey v. Brookshire Grocery Co., 952 S.W.2d 515, 517 (Tex.1997); Nixon v. Mr. Property Management Co., 690 S.W.2d 546 (Tex.1985).

By its summary judgment motion, defendants sought to negate elements 3-7. If a defendant can disprove any one of the essential elements of the plaintiffs cause of action, then the court should render summary judgment for the defendant. Digby v. Texas Bank, 943 S.W.2d 914, 919 (Tex.App.—El Paso 1997, writ denied).

We will focus on “the absence of probable cause for the proceedings.” The Colemans’ summary judgment evidence included the complaint filed against Neely and the affidavit of Bill Coleman. The complaint charged that Neely had kept two keys belonging to Coleman Autoplex and that by refusing to return them until “other matters were resolved,” Neely had exercised control over Coleman Autoplex’s property with the intent to deprive the dealership of the keys.

Bill Coleman’s affidavit reflects that probable cause for filing the complaint was based upon: (1) Neely’s written acknowledgment that the keys were to remain the property of the dealership; (2) Neely’s acknowledgment that he was bound to relinquish constructive possession, custody or control of the keys after he left the dealership’s employ; (3) Neely’s failure to relinquish the keys after repeated requests for him to do so; and (4) the recommendations of the dealership’s floor plan financier, the dealership’s insurer, and the Gatesville police department that measures be taken to obtain the keys, including the filing of a criminal complaint. The Colemans established that “a reasonable person would believe that a crime had been committed given the facts as the complainant honestly and reasonably believed them to be before the criminal proceeding were instituted.” Richey, 952 S.W.2d at 517.

Neely’s late response was not before the court. See INA of Tex. v. Bryant, 686 S.W.2d 614, 615 (Tex.1985). Therefore, Neely presented no summary judgment evidence to show that the motives, grounds, beliefs, and other evidence upon which the Colemans acted did not constitute probable cause. Richey, 952 S.W.2d at 518. The court had no controverting evidence before it concerning probable cause to initiate the underlying criminal proceeding. Nixon requires that every reasonable inference be indulged in favor of the non-movant and any doubts resolved in its favor. Nixon, 690 S.W.2d at 548-49. Even construing the summary judgment evidence in a light favorable to Neely, we find that the Colemans conclusively negated this element of Neely’s claim.

Neely’s only claim was malicious prosecution. Because one element of Neely’s malicious prosecution claim was affirmatively negated, the Colemans were entitled to summary judgment. Neely’s third issue is therefore overruled.

CONCLUSION

Having overruled all of Neely’s issues, we affirm the summary judgment. 
      
      . We do not believe that the response, even if it had been considered, raised sufficient evidence of absence of probable cause for the proceedings.
     