                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana

         ______________________________

               No. 06-08-00034-CV
         ______________________________


         MICHAEL J. FRERICKS, Appellant

                          V.

           DAVID CRAIG PAUP, Appellee



    On Appeal from the 241st Judicial District Court
                 Smith County, Texas
             Trial Court No. 05-1353-C




     Before Morriss, C.J., Carter and Moseley, JJ.
    Memorandum Opinion by Chief Justice Morriss
                                   MEMORANDUM OPINION

       Pleasant Homes of Tyler, Inc., apparently became an unpleasant operation for three principals

of the business.

       The unpleasantness became public with the original lawsuit filed in Smith County1 by Billy

Alt, d/b/a Pleasant Homes of Tyler, Inc., against David Craig Paup for breach of contract. Alt

alleged that Paup had purchased a half interest in the corporation, drawn a paycheck, managed a

company facility, and breached his fiduciary duty.

       Paup responded by counterclaiming against Alt and bringing Michael J. Frericks into the

action as a defendant. Paup alleged that he had paid $50,000.00 each to Frericks, Alt, and Pleasant

Homes' operating fund account to purchase a half interest in the corporation. He alleged that he

discovered "cooked" books thereafter and that both Alt and Frericks acted in ways that prevented

him from actually operating the business, while taking all of his investment.

       Paup thereafter filed a traditional and no-evidence motion for summary judgment. The

record reflects that neither Alt nor Frericks responded to this motion, at least before the summary-

judgment hearing. That put both of them up against the rules. "Except on leave of court, the adverse

party, not later than seven days prior to the day of [the summary-judgment] hearing may file and

serve opposing affidavits or other written response." TEX . R. CIV . P. 166a(c).

       1
         This case was transferred to this Court from the Tyler Court of Appeals as part of the Texas
Supreme Court's docket equalization program. We are not aware of any conflict between the
precedent of the Tyler court and the precedent of this Court on any issue relevant in this appeal. See
TEX . R. APP . P. 41.3.

                                                  2
       The ensuing sequence of events is important to our disposition of this appeal.

       On December 14, 2007, the trial court granted Paup a summary judgment against both Alt

and Frericks. That judgment, however, neither purports to be final, nor is it final, as it contains no

award of any sort, stating only that Paup prevailed.2

       On January 16, 2008, Frericks filed a motion for new trial and for leave to late-file a response

to Paup's motion for summary judgment. The trial court did not rule on the motion.

       On February 1, 2008, the trial court signed what purported to be a final judgment, providing

relief and damage awards.3

       On February 28, 2008, Frericks filed an amended motion for new trial and for leave to late-

file a response to the motion for summary judgment. The trial court did not enter a ruling on the

amended motion.

       Finally, on April 30, 2008, a document titled "Final Judgment (Reformed)" was signed by

the trial court. In that judgment, the court edited the previous judgment to clearly specify the amount

of the judgment that prejudgment interest was levied on, to lower the stated interest rate from 7.5



       2
         A judgment is to end a controversy with the highest degree of exact justice humanly
possible; its terms, therefore, must be certain and definite. Disco Mach. of Liberal Co. v. Payton,
900 S.W.2d 71, 73 (Tex. App.—Amarillo 1995, writ denied). In most situations, a decree from
which the particular recovery cannot be ascertained is too vague to constitute a final judgment. In
re Grossnickle, 115 S.W.3d 238, 249 (Tex. App.—Texarkana 2003, no pet.); H.E. Butt Grocery Co.
v. Bay, Inc., 808 S.W.2d 678, 680 (Tex. App.—Corpus Christi 1991, writ denied).
       3
        Frericks filed a motion for new trial January 16, 2008. It appears from internal dating that
it was mailed January 15, 2008.

                                                  3
percent to 7.25 percent, and to change the rate of postjudgment interest in the same fashion. Because

these changes were made within the plenary power of the court, see TEX . R. CIV . P. 329b, the April

30 judgment is the true final judgment in this case.

       Only Frericks has appealed. He contends the trial court erred by failing to grant his motion

for new trial and by not allowing him to file a late response to Paup's motion for summary judgment.

His motion for leave to late-file his response was based on the fact that he had previously been acting

pro se, thus not realizing a response was necessary, and that he further believed the summary

judgment hearing he had not attended was only a meeting among the parties and not a hearing at

which the case might be decided.

       Frericks also asserts on appeal that the trial court's judgment did not dispose of all causes of

action and that the evidence was legally and factually insufficient.

       Paup chose not to file a responsive brief in this appeal.

       Because we conclude that Frericks should have been given leave to late-file his response to

Paup's motion for summary judgment, we reverse the judgment and remand this case to the trial

court to allow and consider such filing and for further proceedings as is deemed appropriate.

       We review a trial court's ruling on a motion for leave to file a late summary-judgment

response for an abuse of discretion. Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682,

686 (Tex. 2002); Atkins v. Tinning, 865 S.W.2d 533, 535 (Tex. App.—Corpus Christi 1993, writ

denied) (applying abuse of discretion standard). A trial court abuses its discretion when it acts



                                                  4
without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701

S.W.2d 238, 241–42 (Tex. 1985).

           In Carpenter, the Texas Supreme Court examined this issue at length, concluding that the

purpose of the summary-judgment process was not watered down by giving nonmovants additional

time under certain circumstances.

           [T]he consequences to a party that inadvertently fails to timely respond to a
           summary-judgment motion are often similar to those faced by a party that would
           otherwise be bound by erroneous or deemed admissions. Each faces the very real
           prospect of summary disposition without regard to the underlying merits. The
           standard that applies to the withdrawal of admissions fairly balances the parties'
           interests and furthers the policies our rules are intended to serve. See TEX . R.
           CIV . P. 1.

Carpenter, 98 S.W.3d at 687–88. Based on that reasoning, 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;

Dallas County v. Rischon Dev. Corp., 242 S.W.3d 90 (Tex. App.—Dallas 2007, pets. denied [2

pets.]).

           In Carpenter, the Texas Supreme Court found no abuse of discretion in denying leave to file

a late response, because the motion to file late did not explain the reason for the failure to timely




                                                    5
respond, nor was it accompanied by any supporting affidavits or other evidence. It asserted only that

the other party would suffer no prejudice if late filing were allowed. Id. at 688. Our case differs.

       In this case, Frericks submitted an affidavit in support of his motion for new trial stating that

his failures to respond or appear at the hearing were not intentional, but occurred because of his

misunderstanding of the nature of a summary judgment proceeding and because of a telephone

conversation he had with Paup's counsel about the hearing. Frericks stated that he thought his

answer was enough to at least set him up to be able to come before the court to state his case, and

that he did not know that he needed to file a response and did not know what the effect of failing to

file one might be. He stated that, when he received the notice of the hearing, he thought it was some

kind of meeting about the case and that,

       upon my receipt of the notice, I realized I could not appear due to business
       commitments. Consequently, I contacted counsel for David Craig Paup by telephone
       and informed him of such. I understood from that phone call that the "meeting" was
       to be cancelled or postponed, due to my inability to attend.

       "Good cause," as an element for allowing a late summary-judgment response, is established

by showing the failure involved (i.e., the failure to timely respond to requests for admissions or to

respond to a summary-judgment motion) was an accident or mistake, not intentional or the result of

conscious indifference. TEX . R. CIV . P. 166a(c); Wheeler v. Green, 157 S.W.3d 439 (Tex. 2005).

       In this case, the affidavit demonstrates Frericks' state of mind. It shows that his failure to

respond to the motion was not intentional or the result of conscious indifference, and also reflects




                                                  6
that his failure was the result of ignorance rather than an intentional disregard of the situation facing

him.

        Frericks could have avoided these problems by seeking legal assistance in the face of the

lawsuit. Doubtless, it would have been much better to file such request and argue it no later than at

the hearing itself. We also recognize that separate rules should not be used for attorneys and for

those who act pro se. See Wheeler, 157 S.W.3d at 443.

        Nevertheless, as applied in Wheeler, we conclude that Frericks met the standards required

to obtain permission to late-file a reply to a motion for summary judgment. Although Frericks did

not state in his affidavit that allowing the late response will occasion no undue delay or otherwise

injure the party seeking summary judgment, his hybrid motion does so state, pointing out that

granting the motion would not result in undue delay or prejudice as Frericks "now has counsel, will

proceed to conclude this case with all deliberate speed, and no injury will be occasioned upon Paup."

        Further, Frericks' motion for new trial, with attached affidavit explaining his failure to appear

at the summary judgment hearing or to file a response, was filed before a final and appealable

judgment was signed in this case.

        Because Frericks has placed himself squarely within the reasoning in Wheeler, we conclude

he became entitled to late-file a response to the motion for summary judgment. Because of our

resolution of this issue, we need not address the remaining matters raised by Frericks.




                                                   7
       We reverse the judgment and remand this case to the trial court to allow Frericks to file his

response to Paup's motion for summary judgment, to consider such filing, and to conduct such

further proceedings as are appropriate.




                                                     Josh R. Morriss, III
                                                     Chief Justice

Date Submitted:       September 4, 2008
Date Decided:         October 29, 2008




                                                8
