Opinion issued May 21, 2013
In The
Court of Appeals
For The
First District of Texas
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NO. 01-11-00608-CV
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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
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,
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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.
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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
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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
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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.
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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
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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
8
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
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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
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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
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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.
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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.
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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.
Evelyn V. Keyes
Justice
Panel consists of Justices Keyes, Massengale, and Brown.
Keyes, J., dissenting.
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