NGUYEN v. KULJIS

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Court of Appeals of Texas,Houston (1st Dist.).

Christopher L. NGUYEN, Tho Nguyen, and Giang Nguyen, Appellants v. Rodrigo Orlando KULJIS, Appellee.

No. 01–11–00608–CV.

Decided: May 21, 2013

Panel consists of Justices KEYES, MASSENGALE, and BROWN. Frederick Lee Fuhr, Laticia D. Fuhr, The Fuhr Law Firm, League City, TX, for Appellants. Christopher C. Garcia, Christopher S. Cahill, Mills, Shirley L.L.P., Galveston, TX, George W. Vie, III, Mills, Shriley L.L.P., Houston, TX, for Appellee.

OPINION

Rodrigo Orlando Kuljis sued his former landlords Christopher L. Nguyen, Tho Nguyen, and Giang Nguyen. Kuljis filed two motions for summary judgment, which the trial court granted. In two issues, the Nguyens argue that the trial court erred in (1) denying their motion for new trial and (2) granting Kuljis more attorney's fees than he requested in his motion for summary judgment.

We affirm in part, reverse in part, and remand.

Background

In March 2010, Kuljis filed his original petition against the Nguyens, his former landlords. He alleged that the Nguyens had failed to return his security deposit or provide an accounting of the amounts charged against the deposit as required by the Texas Property Code1 and had “failed to make repairs or address defects during the lease term, violated [Kuljis's] privacy in an outrageous manner, overcharged for utilities, failed to place the utilities in [Kuljis's] name, and repeatedly ignored [Kuljis's] requests for help in the above areas.” Kuljis alleged that, as a result of the Nguyens' breaches of the lease, he “drastically overpaid” for rentals and other charges under the lease. Kuljis sought compensatory damages for breach of the lease, treble damages for the wrongfully withheld deposit, attorney's fees, and costs.2

The Nguyens timely answered the lawsuit and also filed a counterclaim. They asserted that Kuljis's claims were bared by res judicata because a justice of the peace dismissed an earlier suit brought against them by Kuljis. The Nguyens further alleged that they attempted to provide Kuljis with “an itemized list of the items taken from the deposit” and the remainder of the security deposit, but their certified mail was returned. They then sent the check for the remainder of the security deposit to the post office box provided by Kuljis's attorney. According to the Nguyens, Kuljis brought the suit for purposes of harassment-he knew that it was frivolous and that the issues had already been resolved. They counterclaimed for “breach of contract, abuse of process, malicious prosecution,” and for “vexatious” litigation.

The Nguyens' attorney withdrew from the lawsuit nine months after it was filed. While the Nguyens were proceeding pro se, Kuljis moved for traditional summary judgment on his claims, including his claims that the Nguyens violated the Property Code and breached the lease. He also separately moved for a no-evidence summary judgment on the Nguyens' counterclaims. The two motions were set for hearing on the same date. Christopher Nguyen filed a pro se response to the no-evidence summary judgment motion, but did not respond to the traditional summary judgment motion. Tho and Giang Nguyen did not file any response to the motions for summary judgment.

Ten days before the summary judgment hearing, Kuljis moved to strike Christopher's summary judgment evidence and filed a reply to Christopher's response, arguing that the response failed to address the arguments raised in the no-evidence motion.

The trial court held a hearing on the motions for summary judgment. There is no court reporter's record of the hearing. Two days after the hearing, the trial court signed a final judgment granting Kuljis's motion to strike Christopher's summary judgment evidence and both of Kuljis's motions for summary judgment. The trial court awarded Kuljis $30,916.34, including $20,157.18 for attorney's fees, against the Nguyens, jointly and severally.

The Nguyens filed a timely motion for a new trial, asking the trial court to set aside the judgment. They argued that their failure to respond to Kuljis's traditional motion for summary judgment on his claims for affirmative relief, and Tho's and Giang's failure to respond to Kuljis's no-evidence motion on their counterclaims, was not intentional or due to conscious indifference, but due to accident or mistake. They further asserted that they had a meritorious defense and that Kuljis would not suffer any undue prejudice if the judgment was set aside. The Nguyens also argued that the trial court erred in awarding Kuljis more attorney's fees than he requested and that the amount awarded was not reasonable or necessary.

The Nguyens' motion for new trial was accompanied by the affidavits of each of the Nguyens. In his affidavit, Christopher stated that he mistakenly believed that his no-evidence summary judgment response was an adequate response to both motions for summary judgment on behalf of all of the Nguyens. Christopher further averred that Kuljis had given the wrong address for returning the deposit, making the Nguyens' attempt to return the deposit by certified mail unsuccessful. Christopher attached the return receipt showing the envelope was undeliverable. Christopher also stated that he had previously attempted to return the deposit to Kuljis's attorney, who refused to accept it. Finally, Christopher averred that he was prepared to refund the deposit immediately and would reimburse Kuljis for the reasonable expenses Kuljis had incurred in obtaining the judgment. Tho and Giang filed affidavits containing similar statements. The Nguyens also attached their attorney's affidavit on the issue of reasonable and necessary attorney's fees.

The trial court conducted an oral hearing on the motion, but there is no court reporter's record of the hearing. The trial court denied the motion for new trial, and this appeal followed.

Motion for New Trial

In their first issue, the Nguyens contend that the trial court erred in denying their motion for new trial. Specifically, the Nguyens argue that they were entitled to a new trial under Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124 (Tex.1939), because they established that their failure to respond adequately to the summary judgment motions was a mistake, that they had a meritorious defense, and that Kuljis would not be prejudiced.

A. Standard of review

We review a trial court's denial of a motion for new trial for an abuse of discretion. Dolgencorp of Tex., Inc. v. Lerma, 288 S.W .3d 922, 926 (Tex.2009) (per curiam). A trial court abuses its discretion when it acts in an arbitrary or unreasonable manner, or if it acts without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex.1985).

B. Application of Craddock and similar tests to summary judgments

In Craddock, the Texas Supreme Court held that a default judgment should be set aside when the defendant establishes that (1) the failure to answer was not intentional or the result of conscious indifference, but the result of an accident or mistake; (2) the motion for new trial sets up a meritorious defense; and (3) granting the motion will occasion no undue delay or otherwise injure the plaintiff. See 133 S.W.2d at 126. The Craddock rule “is based upon equitable principles and ‘prevents an injustice to the defendant without working an injustice on the plaintiff.’ “ Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 685 (Tex.2002) (quoting Craddock, 133 S.W.3d at 126). The Craddock standard was enacted “to alleviate unduly harsh and unjust results at a point in time when the defaulting party has no other remedy available.” Id. at 686.3

The Supreme Court subsequently refused to extend Craddock “to a motion for new trial filed after summary judgment is granted on a motion to which the nonmovant failed to timely respond when the respondent had notice of the hearing and an opportunity to employ the means our civil procedure rules make available to alter the deadlines Rule 166a imposes.” Id. at 683–84. Thus, satisfaction of the three Craddock factors does not, without more, confer a party with the right to have a summary judgment set aside when the nonmovant fails to respond. Id.; see also Scott v. Hunt, No. 01–11–00042–CV, 2012 WL 983339, at *9 (Tex.App.-Houston [1st Dist.] Mar. 22, 2012, no pet.) (mem.op.) (“Craddock does not apply to an appeal from a traditional summary judgment.”) (citing Rabe v. Guar. Nat'l Ins. Co., 787 S.W.2d 575, 579 (Tex.App.-Houston [1st Dist.] 1990, writ denied)). The purpose in adopting the Craddock standard—“to alleviate unduly harsh and unjust results at a point in time when the defaulting party has no other remedy available”—does not support applying Craddock “when our rules provide the defaulting party a remedy.” Carpenter, 98 S.W.3d at 686. Although the Carpenter Court noted that a nonmovant who fails to timely respond to a motion for summary judgment may seek a continuance or permission to file a late response, the Court left undecided “whether Craddock should apply when a nonmovant discovers its mistake after the summary-judgment hearing or rendition of judgment.” Id.

The Carpenter Court then turned its analysis to “whether the trial court abused its discretion in denying [the nonmovant's] motion for leave to file a late response to Carpenter's motion for summary judgment.” Id. It held:

[A] motion for leave to file a late summary-judgment response should be granted when a litigant establishes good cause for failing to timely respond by showing that (1) the failure to respond was not intentional or the result of conscious indifference, but the result of accident or mistake, and (2) allowing the late response will occasion no undue delay or otherwise injure the party seeking summary judgment.

Id. at 687–88.4 The two prong test is the same test used for withdrawing deemed admissions. Id. at 687. In effect, the two-prong Carpenter test is the same as the three-prong Craddock test with one exception: it is unnecessary for the party seeking leave to file a late response to demonstrate a meritorious defense.

Subsequently, the Texas Supreme Court applied the Carpenter test to reverse a traditional summary judgment when a pro se nonmovant appeared in person but mistakenly failed to file a written summary judgment response. Wheeler v. Green, 157 S.W.3d 439, 442 (Tex.2005); see also Marino v. King, 355 S.W.3d 629, 633 (Tex.2011) (per curiam) (discussing standard articulated in Wheeler ). In Wheeler, the pro se litigant filed her responses to requests for admission two days late but months before the summary judgment hearing.5 She attended the summary judgment hearing, but did not file a summary judgment response because she was mistaken about discovery deadlines and the nature of a summary judgment hearing. Wheeler, 157 S.W.3d at 442. The only evidence the movant offered in support of summary judgment was the deemed admissions. The trial court granted summary judgment against the pro se litigant, terminating her rights as joint managing conservator of her daughter and appointing the movant as the sole managing conservator. Id. The Court reaffirmed the Carpenter two-fold standard for withdrawing deemed admissions and for allowing a late summary judgment response. Id. The Supreme Court concluded that the pro se litigant had good cause for her late-filed responses, and that once the requests were no longer deemed admitted, she was not required to file a summary judgment response. Id. (citing Rhone–Poulenc, Inc. v. Steel, 997 S.W .2d 217, 222–23 (Tex.1999) (holding that “trial court may not grant summary judgment by default ․ when the movant's summary judgment proof is legally insufficient”)). Although the pro se litigant never filed a motion to withdraw her deemed admissions or a late response to the summary judgment motion, the arguments and requests in her motion for new trial were sufficient to put the trial court on notice of exactly that complaint. Id. (citing Tex.R.App. P. 33.1(a)). She also did not waive the arguments by waiting until the new trial motion to present them.

Although Carpenter refused to extend “equitable principles allowing these arguments to be raised in a motion for new trial” when “a party realizes its mistake before judgment and has other avenues of relief available,” that limitation did not apply to the pro se litigant because “nothing in this record suggest[ed] that before summary judgment was granted, [she] realized that her responses were late, that she needed to move to withdraw deemed admissions, or that she needed to file a response to the summary judgment raising either argument.” Id. The Court concluded that the trial court abused its discretion in not allowing the pro se litigant to withdraw the deemed admissions because she had satisfied both prongs of the Carpenter test by demonstrating that her failures were not intentional or the result of conscious indifference and that the other party was not unduly prejudiced. Id. at 443. The Court cautioned that its holding was limited:

We certainly agree that pro se litigants are not exempt from the rules of procedure. Having two sets of rules—a strict set for attorneys and a lenient set for pro se parties—might encourage litigants to discard their valuable right to the advice and assistance of counsel. But when a rule itself turns on an actor's state of mind (as these do here), application may require a different result when the actor is not a lawyer. Recognizing that [the pro se litigant] did not know what any lawyer would does not create a separate rule, but recognizes the differences the rule itself contains.

Id. at 444 (citation omitted).

C. Tho and Giang are entitled to a new trial on Kuljis's claims and their counterclaims

After the Nguyens jointly filed one answer and counterclaim in this suit through their attorney, their counsel withdrew and only Christopher, acting pro se, responded to Kuljis's no-evidence motion for summary judgment on the Nguyens' counterclaims. Tho and Giang never responded to either motion for summary judgment. Tho's and Giang's situation is analogous to that of the pro se litigant in Wheeler: as nonmovants, they did not file a summary judgment response and they notified the trial court of the nature of their complaints in a new trial motion. See Wheeler, 157 S.W.3d at 442; see also Tex.R.App. P. 33.1(a).

We next turn to whether Tho and Giang satisfied their burden to demonstrate (1) good cause and (2) no undue prejudice. Wheeler, 157 S.W.3d at 442; Carpenter, 98 S.W.3d at 687–88. Tho and Giang demonstrated good cause for their failure to respond in their motion for new trial.6 They were pro se litigants who participated in the proceedings under the mistaken belief that Christopher's response was all that was required to respond to the motions for summary judgment. See Wheeler, 157 S.W.3d at 442 (“On this record, the lower courts could have concluded that [the pro se litigant] was wrong on her dates and wrong on how to correct them, but not that either was the result of intent or conscious indifference.”); see also Imkie v. Methodist Hosp., 326 S.W.3d 339, 346 (Tex.App.-Houston [1st Dist.] 2010, no pet.) (“Imkie, therefore, meets the Wheeler test for establishing that her failure to respond to the motion for summary judgment and her failure to ask for an extension of time to respond to the motion for summary judgment were mistakes based on her misunderstanding of the law due to her status as a pro se litigant.”). Tho and Giang's motion for new trial stated their belief that the response filed by Christopher was a sufficient response to both summary judgment motions on behalf of all of the Nguyens. They each stated that they were not aware of their mistake until after the trial court rendered judgment against them.

Tho and Giang also established that Kuljis would not suffer any undue prejudice. Their motion for new trial and accompanying affidavits state that granting a new trial and allowing the Nguyens to respond to Kuljis's claims would not cause undue delay or injury to Kuljis. Tho and Giang asserted their readiness to proceed to trial, to defend against Kuljis's claims, and to prosecute their own counterclaims, and stated their willingness to reimburse Kuljis for all reasonable expenses incurred in obtaining the summary judgment and to refund the security deposit immediately.

We conclude that, under the facts presented here, the trial court abused its discretion in denying Tho and Giang's motion for new trial.7 See Wheeler, 157 S.W.3d at 443 (“We recognize that trial courts have broad discretion to permit or deny withdrawal of deemed admissions, but they cannot do so arbitrarily, unreasonably, or without reference to guiding rules or principles.”); see also Carpenter, 98 S.W.3d at 685 (discussing equitable principles underlying Craddock test).

We sustain Tho and Giang's first issue.

D. Christopher is entitled to a new trial only on Kuljis's claims

Christopher asserts that his failure to respond properly to Kuljis's summary judgment motions was not intentional or the result of conscious indifference; rather, it was a mistake.

Turning first to Christopher's failure to respond to Kuljis's traditional motion for summary judgment, his motion for new trial included his affidavit stating his belief that he had responded to both summary judgment motions by filing a no-evidence summary judgment response. He also stated that he was unaware of his mistake until after the trial court had rendered its judgment. This establishes good cause. The proof Christopher provided of no unfair prejudice—the same as the proof provided by Tho and Giang—satisfied his burden under Wheeler. We therefore conclude that the trial court abused its discretion in denying Christopher's motion for new trial as to Kuljis's traditional summary judgment motion. Christopher is entitled to defend against Kuljis's claims.

The trial court did not abuse its discretion, however, in refusing to grant a new trial on Christopher's counterclaims. Because Christopher did respond to Kuljis's no-evidence motion for summary judgment challenging the Nguyens' counterclaims, Carpenter and Wheeler—which concerned failures to respond rather than inadequate responses—are not controlling. Contrary to the dissent, we do not imply that Christopher's “errors were intentional or the result of conscious indifference.” Rather, we hold that the reason his response was inadequate is irrelevant because the fact that he filed a response at all takes this case outside the scope of Wheeler.

The dissent argues that Wheeler is “almost identical ․ in all material respects.” It further contends that our holding that Christopher is not entitled to a new trial “directly conflicts with Wheeler ” because the pro se litigant there “did respond” to the summary judgment motion orally by appearing at the hearing and responding to requests for admissions and, therefore, Wheeler concerns an inadequate response in addition to an untimely response. But a response to requests for admissions is not a response to a summary judgment motion.8 And an oral response is legally no response. Tex.R. Civ. P. 166a(c) (stating that any response must be in writing); Casso v. Brand, 776 S.W.2d 551, 553 (Tex.1989) (“[A]ll theories in support of a summary judgment, as well as all opposing issues, must be presented in writing to the court at the hearing.”); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 677 (Tex.1979) (noting that response must be in writing).

Yet another reason that Wheeler does not apply is because Kuljis's motion to strike was filed ten days before the hearing. Christopher therefore had an opportunity to address the deficiencies in his evidence, whether by filing an amended response seven days before the hearing or requesting leave to file an amended response less than seven days before the hearing. As in Carpenter, the rules provided Christopher with a remedy before the summary judgment hearing. Carpenter, 98 S.W.3d at 686 (stating that Craddock's purpose—“to alleviate unduly harsh and unjust results at a point in time when the defaulting party has no other remedy available”—does not apply “when our rules provide the defaulting party a remedy.”); see also Wheeler, 157 S.W.3d at 442 (observing that “nothing in this record suggests that before summary judgment was granted,” pro se litigant realized her mistake).

Thus, the dissent would extend Carpenter and Wheeler from the failure-to-respond cases to cases in which a party files an inadequate response because the evidence supporting the response is inadmissible. The dissent is correct that our holding grants a nonmovant more rights for failing to respond at all than responding inadequately. But this anomaly is a result of Rule 166a, which requires any summary judgment response to be in writing, and Wheeler, which permits an inquiry into a pro se's good faith when no response is filed but not when a response is inadequate.

The dissent's proposed rule would be difficult in practice: if a nonmovant is entitled to a do-over whenever it is mistaken about the admissibility of its responsive evidence, another layer to summary judgment proceedings with its attendant costs and delays is added. This additional step would be invoked in many cases as it is not uncommon for a trial court to sustain objections to the evidence or to grant motions to strike evidence on the grounds that a party's summary judgment response contains inadmissible or defective evidence. See, e.g., CA Partners v. Spears, 274 S.W.3d 51, 64 (Tex.App.-Houston [14th Dist.] 2008, pet. denied) (sustaining objection to, and striking, affidavit as conclusory); Cont'l Casing Corp. v. Siderca Corp., No. 01–02–00442–CV, 2003 WL 853317, at *4 (Tex.App.-Houston [1st Dist.] Mar. 6, 2003, no. pet.) (mem.op .) (sustaining objection to deposition testimony that constituted inadmissible hearsay). As a result, trial courts often grant summary judgments that may not have been granted if admissible evidence had been filed. Presumably, the responding party in many of these cases could assert, post-ruling, that they “thought they had filed an appropriate response,” that they “believed the response was sufficient,” and that their “failure to respond properly was not intentional or the result of conscious indifference .” To require trial courts to grant a new trial whenever the nonmovant mistakenly files a defective summary judgment response would be to change summary judgment practice radically.9

The trial court should have discretion to grant a request to cure deficiencies identified at or shortly before the hearing, as it does under the rules, but it should not be required to do so. Summary judgments based on deficient responses may be unjust in particular cases, but requiring trial courts to set them aside for every mistake will also result in injustices when cases are delayed and become more expensive. The rules wisely give trial courts discretion in determining whether to allow a party to amend a defective response under the facts of each particular case. Indeed, such discretion is almost unlimited because a trial court's denial of a summary judgment is not reviewable on appeal. See Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 625 (Tex.1996) (stating general rule that denial of summary judgment is not reviewable on appeal); Baylor College of Med. v. Tate, 77 S.W.3d 467, 469 (Tex.App.-Houston [1st Dist.] 2002, no pet.) (same). As part of that discretion, a trial court may consider whether to continue the hearing to enable the nonmovant to file a new response based on arguments that are not recorded because, as in this case, there is often no record of the summary judgment hearing. Conversely, those unrecorded statements may cause a trial court to believe it is “just” to rule based on the existing record despite a defect that is curable. Extending Wheeler to cases involving only inadequate summary judgment responses removes this broad discretion by creating a right to a new trial when the Wheeler standards are satisfied.

Although not explicitly stated, it appears the dissent would limit this new rule to pro se litigants. The dissent argues that “pro se defendants who, in good faith, inadequately respond to a motion for summary judgment” should be treated the same as “pro se defendants who, in good faith, fail to respond at all.” Narrowing the proposed rule would improve it. But the Supreme Court ordinarily requires pro se litigants to comply with the same rules as parties represented by counsel. See Wheeler, 157 S.W.3d at 444. If a new rule for inadequate summary judgment responses is to be crafted for pro se litigations, it should be the Supreme Court that does so, not this intermediate court.

One other argument is worth addressing: Christopher argues that his response to the no-evidence summary judgment was “essentially ․ no response,” and therefore Carpenter and Wheeler should apply. But the trial court did not strike Christopher's response in its entirety; the trial court struck only the evidence in support of the response—Christopher's affidavit and four exhibits containing ten supporting documents. Kuljis objected to the evidence on five grounds: (1) Christopher's affidavit was conclusory, (2) the documents attached to his affidavit constituted inadmissible hearsay, (3) the documents were not authenticated, (4) the documents were not reliable, and (5) the documents were not relevant.10 The trial court's order does not identify which ground it relied on in striking the evidence. Christopher does not argue that the trial court erred in striking his evidence.11 The remainder of his response consisted of a restatement of certain legal propositions pertinent to summary judgment proceedings, an assertion that certain facts exist contrary to Kuljis's motion, and a discussion of some of the exhibits attached to the response. Thus, there was a response on file even after the court's ruling.

We sustain in part and overrule in part Christopher's first issue.

Attorney's Fees

In their second issue, the Nguyens contend that the trial court erroneously awarded Kuljis $20,157 in attorney's fees because Kuljis presented evidence of only $16,907.18 in attorney's fees. Because the trial court erred in granting Kuljis affirmative relief on his claims against all three of the Nguyens, we conclude that there is no basis for the attorney's fees award without regard to the sufficiency of the evidence to support the award.

Conclusion

We reverse the judgment of the trial court against Christopher, Tho, and Giang Nguyen on Kuljis's claims for breach of the apartment lease or contract, violations of the Texas Property Code, and fees. We also reverse the judgment against Tho and Giang Nguyen on their counterclaims. The judgment against Christopher Nguyen on his counterclaims for breach of contract, abuse of process, and malicious prosecution, however, is affirmed. We remand for further proceedings consistent with this opinion. All outstanding motions are dismissed as moot.

DISSENTING OPINION

I respectfully dissent. The majority creates a legally unsupported distinction between pro se defendants who, in good faith, inadequately respond to a motion for summary judgment and pro se defendants who, in good faith, fail to respond at all. It penalizes the former by affirming the summary judgment against such a defendant and rewards the latter by overturning the summary judgment. In doing so, it contradicts the supreme court authority it relies upon. The majority opinion is thus both arbitrary and unjust, in direct contradiction to the controlling authority. Therefore, I dissent. I would reverse both the traditional and no-evidence summary judgments as to all defendants.

Appellee, Rodrigo Orlando Kuljis, sued his former landlords, appellants Christopher L. Nguyen, Tho Nguyen, and Giang Nguyen (collectively, “the Nguyens”), seeking the return of his security deposit and other damages. Kuljis filed two motions for summary judgment; the Nguyens, using Christopher, a non-lawyer, to file their response, failed to respond adequately; and the trial court entered summary judgment in favor of Kuljis. In their first issue, the Nguyens argue that the trial court erred in denying their motion for new trial because they established that their failure to respond adequately to Kuljis's summary judgment motions was a mistake, that they had a meritorious defense, and that Kuljis would not be prejudiced, and, thus, they were entitled to a new trial under Wheeler v. Green, 157 S.W.3d 439, 442 (Tex.2005) (per curiam), Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 685 (Tex.2002), and Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124 (Tex.1939). The majority agrees as to Tho and Giang Nguyen and disagrees as to Christopher Nguyen. The majority opinion, however, draws a distinction among these defendants without a difference under controlling law.

The resolution of this case follows upon Texas Supreme Court law dealing with defendants who inadequately respond to court proceedings as the result of a mistake and suffer harsh consequences. In Craddock, the first of the applicable cases decided, the Texas Supreme Court addressed the issue of whether a default judgment should be set aside when the defendant establishes that (1) the failure to answer a petition was not intentional or the result of conscious indifference, but the result of an accident or mistake, (2) the motion for new trial sets up a meritorious defense, and (3) granting the motion will occasion no undue delay or otherwise injure the plaintiff. Carpenter, 98 S.W.3d at 685 (citing Craddock, 133 S.W.2d at 126). It held that, in such a case, the default judgment should be set aside.

In Carpenter, the supreme court extended the Craddock analysis to post-answer default judgments, i.e., to summary judgments entered when a defendant has appeared in a case but fails to respond to the summary judgment motion. Id. (citing Ivy v. Carrell, 407 S.W.2d 212, 213 (Tex.1966)). In reaching the decision that the Craddock factors generally apply in the summary judgment context, the court observed that its purpose in adopting the Craddock standard was “to alleviate unduly harsh and unjust results at a point in time when the defaulting party has no other remedy available.” Id. at 686.

The court also held, however, that “Craddock does not apply to a motion for new trial filed after summary judgment is granted on a motion to which the nonmovant failed to timely respond when the respondent had notice of the hearing and an opportunity to employ the means our civil procedure rules make available to alter the deadlines Rule 166a imposes.” Id. at 683–84. Thus, the Craddock factors do not apply “when our rules provide the defaulting party a remedy.” Id. at 686.

The Carpenter court then analyzed “whether the trial court abused its discretion in denying Cimarron's motion for leave to file a late response to Carpenter's motion for summary judgment.” Id. It held:

[A] motion for leave to file a late summary-judgment response should be granted when a litigant establishes good cause for failing to timely respond by showing that (1) the failure to respond was not intentional or the result of conscious indifference, but the result of accident or mistake, and (2) allowing the late response will occasion no undue delay or otherwise injure the party seeking summary judgment.

Id. at 688. It concluded that Cimarron had not established good cause to file an untimely response to the summary judgment motion because its motion for new trial offered no explanation for its failure to respond aside from counsel's “bare assertion” that he had “miscalendared” the hearing, and the motion was not accompanied by any supporting affidavits or other evidence. Id. Because Cimarron had had an opportunity to seek a continuance or obtain permission to file a late response, remedies of which it did not avail itself and for which it made no showing of good faith or lack of prejudice to the opposing party, the court affirmed the denial of its motion for a new trial. Id. The Carpenter decision expressly left undecided the question of “whether Craddock should apply when a nonmovant discovers its mistake after the summary-judgment hearing or rendition of judgment,” i.e., when it is too late to remedy the defect. Id. at 686.

Finally, in Wheeler, the Texas Supreme Court applied the Carpenter test to reverse a summary judgment when the pro se nonmovant appeared in person at the summary judgment hearing but mistakenly failed to file a timely written response to the summary judgment motion and did not move for an extension of time. 157 S.W.3d at 442; see also Marino v. King, 355 S.W.3d 629, 633 (Tex .2011) (per curiam) (discussing standard articulated in Carpenter and Wheeler). Wheeler, acting pro se, had filed her responses to requests for admission two days late and did not file a written response to the opposing party's motion for summary judgment because she was mistaken about discovery deadlines and the nature of a summary judgment hearing. Wheeler, 157 S.W.3d at 441–42. The trial court granted summary judgment against Wheeler on the basis of the deemed admissions, and the appellate court affirmed. Id. at 442.

The supreme court reversed the appellate court. It concluded that, although Wheeler responded to the request for admissions late and never moved to withdraw the deemed admissions or to allow a late response to the summary judgment motion, the arguments and requests in her motion for new trial were sufficient to put the trial court on notice of why she did not comply with the rules. Id. at 442 (citing Tex.R.App. P. 33.1(a)). In reversing the summary judgment and remanding the case for a new trial, the court cited Carpenter and held that “[g]ood cause is established by showing the failure involved was an accident or mistake, not intentional or the result of conscious indifference.” Id. at 442 (citing Carpenter, 98 S.W.3d at 687–88). It further held that “[u]ndue prejudice depends on whether ․ filing a late response will delay trial or significantly hamper the opposing party's ability to prepare for it.” Id. at 443 (citing Carpenter, 98 S.W.3d at 687).

The court distinguished the situation in Wheeler from Carpenter on its facts, stating that “equitable principles allowing these arguments to be raised in a motion for new trial do not apply if a party realizes its mistake before judgment and has other avenues of relief available.” Id. at 442. In contrast to Carpenter, it stated, “[N]othing in this record suggests that before summary judgment was granted, [Wheeler] realized that her responses were late, that she needed to move to withdraw deemed admissions, or that she needed to file a response to the summary judgment raising either argument.” Id. The court concluded that Wheeler had demonstrated that her failures were not the result of intent or conscious indifference and that the other party was not unduly prejudiced. Id. at 442–43. Because these factors were satisfied, the court held that Wheeler was entitled to a new trial. Id. at 444.

This case is almost identical to Wheeler in all material respects.

Here, the Nguyens filed an answer and counterclaim to Kuljis's suit while they were represented by counsel. After their counsel withdrew, Christopher Nguyen, in the mistaken belief that a pro se litigant can represent other litigants, filed a response to Kuljis's no-evidence motion for summary judgment on behalf of all defendants. However, he failed to file an answer to Kuljis's traditional motion for summary judgment in the mistaken belief that the response he had filed to the no-evidence motion was an adequate response to both of Kuljis's summary judgment motions against all defendants. Neither Tho nor Giang Nguyen filed any response to Kuljis's motions in the mistaken belief, on their part, that they were adequately represented by Christopher Nguyen. In response to Kuljis's legal arguments against the sufficiency of the summary judgment evidence, the trial court struck the evidence filed with Christopher Nguyen's response to the no-evidence motion for summary judgment and entered judgment against the Nguyens jointly and severally.

The Nguyens' motion for new trial stated that they were proceeding pro se at the time the trial court considered Kuljis's motions for summary judgment. They thought they had filed an appropriate response to the summary judgment motions and were not aware of their mistake until after the trial court rendered final judgment. Thus, they asserted that their failure to respond properly was not intentional or the result of conscious indifference; rather, it was a mistake. This argument in the motion for new trial was supported by affidavits from each of the Nguyens. They each averred that they believed the response filed by Christopher Nguyen was sufficient to respond to both summary judgment motions on behalf of all of the Nguyens. They each stated that they were not aware of their mistake until May 31, 2011, after the trial court had rendered judgment against them.

The Nguyens' motion for new trial and accompanying affidavits also averred that granting the Nguyens a new trial and allowing them to respond to Kuljis's claims would not cause undue delay or injury to Kuljis. They averred that they were ready for trial, that they would reimburse Kuljis for all reasonable expenses incurred in obtaining the “default” judgment, and that they were willing to refund the security deposit immediately, subject to its being accepted by Kuljis and his attorney.

On appeal, the Nguyens argue that they have established that their collective failure to respond adequately to Kuljis's motions for summary judgment was not intentional or the result of conscious indifference, but the result of accident or mistake. See Wheeler, 157 S.W.3d at 442–44; Carpenter, 98 S.W.3d at 685; see also Imkie v. Methodist Hosp., 326 S.W.3d 339, 346 (Tex. App .-Houston [1st Dist.] 2010, no pet.) (holding that pro se litigant who appeared in court under belief that her appearance was all that was needed to respond to summary judgment established that her failure to respond or ask for extension of time were mistakes based on misunderstanding of law and satisfied Wheeler test).

The majority agrees that Tho and Giang Nguyen's situation is analogous to that in Wheeler because they did not respond to the summary judgment motion, and “they notified the trial court of the nature of their complaints in a new trial motion.” Slip Op. at 11 (citing Tex.R.App. P. 33.1(a) and Wheeler, 157 S.W.3d at 442.)) And it concludes, “They were pro se litigants who participated in the proceedings under the mistaken belief that Christopher's response was all that was required to respond to the motions for summary judgment.” Slip Op. at 12 (citing Wheeler, 157 S.W.3d at 442 and Imkie, 326 S.W.3d at 346). Thus, the majority holds that, “under the facts presented here, the trial court abused its discretion in denying Tho and Giang's motion for new trial.” Slip Op. at 13–14.

Inexplicably, however, the majority decides that, although all of the Craddock and Wheeler factors justify a new trial for Tho and Giang Nguyen for failing to respond at all to Kuljis's motions for summary judgment, and although those factors apply to Christopher Nguyen's failure to respond to Kuljis's traditional summary judgment motion and would apply to him altogether had he failed to respond to Kuljis's no-evidence motion for summary judgment as well, it is a legally unjustified extension of Wheeler to treat his failure to respond properly and adequately to Kuljis's no-evidence motion for summary judgment as a mistake rather than as intentional error or the result of conscious indifference. The majority also holds, implicitly but necessarily, that it is not an excusable unintentional act or a mistake for Christopher Nguyen—a pro se litigant—to have filed a response on behalf of other unrepresented defendants or to have filed evidence in response to Kuljis's no-evidence summary judgment motion that the trial court found legally insufficient and struck in response to Kuljis's sophisticated legal arguments. And, while the majority acknowledges that Kuljis was not prejudiced by the mistakes made by any of the Nguyens, it ignores the implications of this conclusion for its own ruling with respect to Christopher Nguyen. Therefore, it affirms the no-evidence summary judgment as to him, while granting Tho and Giang a new trial.

The majority's distinction between Christopher Nguyen and the other pro se defendants is not only internally inconsistent and unsupported, it also directly conflicts with Wheeler. In Wheeler, the pro se litigant, like Christopher Nguyen, did respond in writing to requests for admission and orally to the motion for summary judgment based on her deemed responses. However, her summary judgment response was legally inadequate because it was unwritten, and she mistakenly failed to file a motion for extension of time. See Wheeler, 157 S.W.3d at 442. And her response to the requests for admission was two days late. Id.

Wheeler did not, as the majority evidently believes, fail to participate at all in the summary judgment proceedings, like Tho and Giang Nguyen, in the mistaken belief that it was not necessary for her to do so. See id. Rather, like Christopher Nguyen, she participated in the proceedings, but inadequately. See id. Nevertheless, the supreme court found that the arguments and evidence in Wheeler's motion for new trial were sufficient to put the trial court on notice of her defense, justifying a new trial. Id. Thus, the majority's conclusion that Tho and Giang Nguyen merit a new trial under Craddock and Carpenter because they mistakenly failed to participate at all, but that Christopher Nguyen, who, like Wheeler, inadequately responded on behalf of all three Nguyens, does not merit a new trial, is contradictory to the supreme court precedent. Here, just as in Wheeler, the trial court was put on notice of the grounds of the Nguyens' defense by the legally inadequate response to Kuljis's motion for summary judgment filed in good faith by Christopher Nguyen and referenced in the motion for new trial and affidavits. But the majority, while acknowledging that the trial court was on notice of the Nguyens' arguments, implicitly finds this factor inapplicable to Christopher Nguyen while this factor supports a new trial for Tho and Giang Nguyen

Although the majority's holding is necessarily based on its implied conclusion that Christopher Nguyen's errors were intentional or the result of conscious indifference, it points to no evidence that would vitiate good cause to grant a new trial as to him. See Wheeler, 157 S.W.3d at 442; Carpenter, 98 S. W.3d at 687. Nor does it point to any evidence that Christopher Nguyen realized his mistakes before summary judgment was entered and “had other avenues of relief available” that would justify denying him relief under Carpenter. See Wheeler, 157 S.W.3d at 442. Instead, it acknowledges that, like Wheeler, Christopher Nguyen had the same meritorious defense to Kuljis's claims as the other appellants. See id. It acknowledges that Kuljis will not be prejudiced by a new trial. Slip Op. at 12–13. And it makes no attempt to point out the remedy Christopher Nguyen had available to him that the others did not have and intentionally, or with conscious indifference, failed to use.

In other words, the majority points to no evidence and no authority to justify its decision to deny Christopher Nguyen the relief it grants to Tho and Giang Nguyen under Craddock, Carpenter, and Wheeler. Nevertheless, it refuses to apply the reasoning of Carpenter and Wheeler to a situation where a party files an inadequate response because the evidence supporting the response is inadmissible. Slip Op. at 16.

In my view, the majority's holding with respect to Christopher Nguyen, like the trial court's judgment with respect to all defendants, is arbitrary and capricious and directly contradictory to both the letter and the spirit of Wheeler, in which the pro se defendant did attempt to comply with all requirements of defending against the motions for summary judgment, but made mistakes that caused her to lose on summary judgment despite her meritorious defense. Moreover, the majority's judgment with respect to Christopher Nguyen is directly contrary to the Texas Supreme Court's instruction in Carpenter that that the purpose for adopting the Craddock standard in cases like this one is “to alleviate unduly harsh and unjust results at a point in time when the defaulting party has no other remedy available.” 98 S.W.3d at 686. Indeed, the majority's singling out of Christopher Nguyen for punishment is particularly harsh in that it concludes that relief would have been justified had he simply failed to respond to the no-evidence motion for summary judgment as he failed to respond to the traditional motion. Therefore, in my view, the majority errs by affirming the trial court's no-evidence summary judgment as to Christopher Nguyen.

Conclusion

For the foregoing reasons, I cannot join the majority opinion. I would reverse the judgment of the trial court as to all appellants, and I would remand the case to the trial court for proceedings consistent with this opinion.

FOOTNOTES

1.  See Tex. Prop.Code Ann. § 92.103(a) (West 2007) (providing that landlord has obligation to refund security deposit within thirty days); id. § 92.109(b) (West 2007) (providing, among other things, that landlord who in bad faith retains deposit or fails to provide written list of damages and charges against deposit is liable for amount equal to sum of $100, three times portion of deposit wrongfully withheld, and tenant's reasonable attorney's fees).

2.  See Tex. Prop.Code Ann. § 92.109 (West 2007) (providing damages for failure to return deposit or provide accounting).

3.  In Ivy v. Carrell, 407 S.W.2d 212, 213 (Tex.1966), the Court extended Craddock to post-answer default judgments. The primary issue in this appeal, however, does not concern a post-answer default; it concerns an inadequate response to a no-evidence motion for summary judgment.

4.  The Court concluded that the nonmovant had not established good cause because the motion for new trial offered no explanation for the nonmovant's failure to respond aside from counsel's “bare assertion” that he had “miscalendared” the hearing, without any supporting affidavits or other evidence. Carpenter, 98 S.W.3d at 688.

5.  Contrary to the dissent's assertion, the responses were not “inadequate.” They were untimely.

6.  The Nguyens filed one response for all three defendants. Because the position of the three Nguyens and their arguments are not identical, we will treat them as separate motions.

7.  In Imkie, this Court stated that Wheeler extended Craddock to summary judgments “under limited circumstances where a pro se nonmovant appeared in person but mistakenly did not respond in writing to a matter-of-law summary judgment motion.” 326 S.W.3d at 345. Thus, in analyzing whether the pro se litigant was entitled to a new trial based on the equitable principles established in Carpenter and Wheeler, the Court applied the Craddock test, including its second element inquiring whether the defendant established a meritorious defense. Id. at 346–47. However, the Texas Supreme Court subsequently clarified in Marino that Wheeler did not apply the Craddock test; rather, it applied the two-pronged test from Carpenter for determining whether a trial court should allow a late-filed summary judgment response. See Marino, 355 S.W.3d at 633 (holding that trial court may allow late-filed summary judgment response when party shows good cause and no undue prejudice, citing Wheeler ). Therefore, we likewise apply the two-prong test established by Carpenter, Wheeler, and Marino.

8.  In Wheeler, the responses to requests for admission were two days late and were the only evidence to support the summary judgment. 157 S.W.3d at 442. Once the deemed admissions were set aside because the late response was not intentional and the party requesting the admissions was not prejudiced, no evidence supported the summary judgment. Id. at 443.

9.  Admittedly, the dissent would not require a new trial in every case of an inadequate response; the responding party would have to satisfy the two Carpenter factors by showing that it did not intentionally file an inadequate response—a low threshold for many defects in affidavits—and that a delay would not prejudice the moving party. By its reliance on Carpenter and Wheeler, the dissent implies that the third Craddock factor—a meritorious defense—does not need to be satisfied.

10.  The affidavit does not discuss, identify, or refer to the documents.

11.  Nor does he contend that the summary judgment motion was defective on its face so that no response was necessary.

HARVEY BROWN, Justice.

Justice KEYES, dissenting.

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