Dawn M. Brown v. Melissa 121/5 Partners, LTD.

AFFIRM; and Opinion Filed August 4, 2014.

Court of Appeals
S In The

Fifth District of Texas at Dallas
No. 05-13-01189-CV

DAWN M. BROWN, Appellant
V.
MELISSA 121/5 PARTNERS, LTD., Appellee

On Appeal from the 366th Judicial District Court
Collin County, Texas
Trial Court Cause No. 366-03721-2012

MEMORANDUM OPINION
Before Justices Moseley, O’Neill, and FitzGerald
Opinion by Justice O’Neill
Appellant Dawn M. Brown appeals the trial court’s summary judgment in favor of

appellee Melissa 121/5 Partners, Ltd. Appellant argues the trial court abused its discretion by

denying her request for leave to file a late response to the summary judgment and by not granting

her motion for new trial. We affirm.

Background

Appellee and appellant entered into a lease agreement regarding property located in

Melissa, Texas. Appellee filed suit against appellant and Joseph S. Hobbs 1 after they failed to

pay rent for seven months. Appellee sought damages in the amount of $17,500.00 for rent and

$315.00 in late fees for each month. Appellant filed a general denial.

1
A default judgment was entered against Hobbs. He is not a party to this appeal.
 Appellee later filed a motion for summary judgment, with supporting affidavits, based on

the alleged undisputed facts establishing a breach of the lease agreement. A hearing was set on

the motion for May 29, 2013. Appellant filed a motion for leave to file a late response to the

motion for summary judgment arguing that her attorney was unaware of the hearing date. Her

attorney alleged he received the forty-one-page motion for summary judgment and the forty-six-

page default judgment motion against Hobbs at the same time via facsimile. A one page fax

cover sheet indicating the hearing date was in between the two documents, and he “did not see

this page and assumed he would later receive notice of a hearing date.” Appellee filed a

response in opposition to the motion. The trial court denied appellant’s request for leave to file a

last response and granted appellee’s motion for summary judgment on May 29, 2013. The court

awarded $36,445.00 in damages and attorney’s fees. Appellant timely filed a motion for new

trial, which was overruled by operation of law. This appeal followed.

Denial of Motion for Leave to File a Late Summary Judgment Response

In her first issue, appellant argues the trial court abused its discretion by not granting her

leave to file a late response to appellee’s motion for summary judgment. Appellee responds

appellant (1) failed to show the required good cause for failing to timely file a response; (2)

failed to file a sworn motion or affidavits in support of her response; and (3) failed to answer

requests for disclosures.

We review the trial court’s ruling under an abuse of discretion standard. Carpenter v.

Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 686–87 (Tex. 2002). The trial court abuses its

discretion when it acts without reference to any guiding rules or principles. Id. at 687.

In a summary judgment proceeding, the nonmoving party may file and serve opposing

affidavits or other written responses no later than seven days prior to the scheduled date of the

hearing. TEX. R. CIV. P. 166a(c). The nonmoving party must obtain leave to file evidence after

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the deadline. Id. A motion for leave to file a late summary judgment response should be granted

when the nonmovent establishes good cause by showing that the failure to timely respond (1)

was not intentional or the result of conscious indifference but the result of accident or mistake

and (2) allowing the late response will not cause any undue delay or otherwise injure the party

seeking summary judgment. Carpenter, 98 S.W.3d at 686.

We first acknowledge that appellant’s motion for leave to file a late summary judgment

response is neither verified nor has any supporting evidence attached. While appellee argues this

alone is a ground to affirm, we follow the supreme court’s lead in Carpenter and consider the

merits of the motion to determine if appellant established good cause for failing to timely file a

summary judgment response. See id. (noting party failed to attach any evidence or supporting

affidavits to motion and “[e]ven assuming that the trial court could consider counsel’s unsworn

argument” at the hearing, counsel’s bare assertion the he miscalculated hearing date did not

establish good cause).

Here, appellant’s motion for leave to file a late response alleged her attorney did not see

the hearing notice because it was mixed in the middle of two large documents. The attorney

further alleged he only learned of the hearing date when he checked the docket of his open cases

one day before the scheduled hearing. Counsel failed to state in his motion that his actions were

not intentional or the result of conscious indifference but the result of accident or mistake.

However, even assuming his unverified arguments established the first Carpenter element,

appellant failed to show the late response would not cause any undue delay or otherwise injure

appellee. In fact, the motion does not even mention the possibility of delay if the court granted

the motion for leave. See, e.g., Swett v. At Sign, Inc., No. 2-08-315-CV, 2009 WL 1425161, at

*2 (Tex. App.—Fort Worth May 21, 2009, no pet.) (mem. op.) (holding trial court did not err by

denying motion for leave to file a late summary judgment response when neither the unsworn

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motion nor the attached affidavits discussed the possibility of delay if the trial court granted the

motion). Appellee, however, specifically argued in its response that it would be prejudiced by a

delay because it would delay entry of judgment and cause increased legal fees. Thus, we

conclude appellant wholly failed to establish the second Carpenter element–that allowing the

late response would not unduly delay or otherwise injure appellee. As such, appellant failed to

establish good cause for not timely filing her motion for summary judgment response. We

therefore hold the trial court did not abuse its discretion by denying appellant’s motion for leave

to file a late summary judgment response. Appellant’s first issue is overruled.

Denial of Motion for New Trial

Appellant also contends the trial court abused its discretion by denying her motion for

new trial. We review the trial court’s failure to grant a new trial for an abuse of discretion. Cliff

v. Huggins, 724 S.W.2d 778, 779 (Tex. 1987).

Although appellant argues she established the Craddock elements and is entitled to a new

trial, the supreme court in Carpenter determined “Craddock does not apply to a motion for new

trial filed after judgment has been granted on a summary-judgment motion to which the

nonmovant failed to timely respond when the movant had an opportunity to seek a continuance

or obtain permission to file a late response.” Carpenter, 98 S.W.3d at 686. While we

acknowledge appellant requested permission to file a late response, her attempt was insufficient,

as determined above. Moreover, appellant made the same arguments in her motion for new trial,

without supporting affidavits, that she made in her motion for leave to file a late summary

judgment response. Having found no abuse of discretion in the trial court’s denial of her motion

for leave to file a late summary judgment response, we likewise cannot conclude the trial court

abused its discretion by not granting her motion for new trial. Contra Nguyen v. Kuljis, 414

S.W.3d 236, 242 (Tex. App.—Houston [1st Dist.] 2013, pet. denied) (holding appellants entitled

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to a new trial after summary judgment granted against them when motion for new trial

established good cause and no undue prejudice by attaching affidavits stating readiness to

proceed to trial, to defend claims, to prosecute counterclaims, and a willingness to reimburse

reasonable expenses). We overrule appellant’s second issue.

Conclusion

The judgment of the trial court is affirmed.

/Michael J. O'Neill/
MICHAEL J. O’NEILL
JUSTICE

131189F.P05

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 S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

DAWN M. BROWN, Appellant On Appeal from the 366th Judicial District
Court, Collin County, Texas
No. 05-13-01189-CV V. Trial Court Cause No. 366-03721-2012.
Opinion delivered by Justice O’Neill.
MELISSA 121/5 PARTNERS, LTD., Justices Moseley and FitzGerald
Appellee participating.

In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.

It is ORDERED that appellee MELISSA 121/5 PARTNERS, LTD. recover its costs of
this appeal from appellant DAWN M. BROWN.

Judgment entered this 4th day of August, 2014.

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