MESERET AYELE MAE SOLUTIONS LLC v. JANI KING OF HOUSTON INC

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

MESERET AYELE D/B/A MAE SOLUTIONS, LLC, Appellant v. JANI-KING OF HOUSTON, INC., Appellee

NO. 01-16-00007-CV

Decided: February 28, 2017

Panel consists of Justices Keyes, Bland, and Lloyd.

DISSENTING OPINION

Our review of this decision is based on an evaluation of whether or not the trial court abused its discretion in denying the motion for new trial. The standard enunciated by Carpenter is very similar to that set out by Craddock. Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682 (Tex. 2002); Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124 (1939). Carpenter holds that, in cases where the appellant had notice of the hearing, as appellant did of the first hearing for which he obtained a motion for continuance, the 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.

Carpenter, 98 S.W.3d at 688. But appellant claims he did not have notice of the second hearing. However, the Carpenter standard is essentially the Craddock standard minus the meritorious defense requirement. In other words, the first prong in both standards is the same. Id. at 689 (Hecht, C.J., concurring). If the trial court did not abuse its discretion in denying the motion for new trial under the standards of either Craddock or Carpenter, the court's decision must be upheld.

The record shows that the trial court signed an order granting appellant's continuance request and included the new submission date on the order. The record contains no evidence showing whether the clerk's office mailed the order or provided notice of the submission date to the parties or what efforts appellant made to ascertain the result of his motion for continuance.

Appellant argues he was deprived of due process because he did not receive notice of the continuance or the second submission date until after the judgment was granted. A conclusory statement that the documents were never received must still be supported by an explanation from the person who should have seen them. See Fidelity and Guar. Ins. Co. v. Drewery Const. Co., 186 S.W.3d 571, 575–76 (Tex. 2006) (per curiam); Interconex, Inc. v. Ugarov, 224 S.W.3d 523, 538–39 (Tex. App.—Houston [1st Dist.] 2007, no pet.). In addition, the trial court could have considered the knowledge and acts of the defaulting party as contained in the court record. Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 82 (Tex. 1992). Appellant's conclusory statement that he did not receive notice is insufficient under Craddock.

According to the record, appellant's response to the summary-judgment motion was due seven days prior to the original submission date of September 7. See TEX. R. CIV. P. 166a(c). Appellant requested a continuance on August 21, which was eventually granted on September 10, after his response was due. Appellant took no further action on the motion until November 2, when he received the post card informing him that the trial court granted the summary-judgment motion. Appellant counsel's affidavit does not explain why, after submitting the motion for continuance, he did not monitor the status of his motion which, if granted, would have moved the September 7th hearing date. While the excuse “need not be a good one,” there was no evidence brought forth to find an abuse of discretion in the court's implied finding that the non-answer was not the result of accident or mistake or was the result of conscious indifference. Fidelity, 186 S.W.3d at 76.

For this reason, I am compelled to respectfully dissent to the other holding of the majority in this case.

Russell Lloyd Justice