Opinion issued May 21, 2013.
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-11-00608-CV
———————————
CHRISTOPHER L. NGUYEN, THO NGUYEN, AND GIANG NGUYEN,
Appellants
V.
RODRIGO ORLANDO KULJIS, Appellee
On Appeal from the County Court at Law No. 3
Galveston County, Texas
Trial Court Case No. 62,501
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
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).
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.
3
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.
4
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
5
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)
6
(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
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.
7
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.
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.
8
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
5
Contrary to the dissent’s assertion, the responses were not “inadequate.” They
were untimely.
9
“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
10
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
11
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
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.
12
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
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.
13
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’
14
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
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.
15
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
16
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
17
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
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.
18
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
19
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
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.
20
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.
Harvey Brown
Justice
Panel consists of Justices Keyes, Massengale, and Brown.
Justice Keyes, dissenting.
21