                                     In The

                               Court of Appeals
                   Ninth District of Texas at Beaumont
                          ____________________
                              NO. 09-15-00237-CV
                          ____________________

                 JACQUELINE RENEE VARADY, Appellant

                                       V.

  CHRISTINA LEE GYORFI AND JAMES STEVEN GYORFI, Appellees
__________________________________________________________________

                   On Appeal from the 284th District Court
                        Montgomery County, Texas
                      Trial Cause No. 14-02-01328 CV
________________________________________________________________________

                         MEMORANDUM OPINION

      Jacqueline Renee Varady (Varady) sued her sister, Christina Lee Gyorfi

(Christina), and Christina’s husband, James Steven Gyorfi (James) (hereinafter

collectively Defendants), alleging that the Defendants adopted Varady’s biological

child and improperly used money Varady set aside for the Defendants to use for

the care and support of Varady’s biological child. The Defendants filed a no-

evidence motion for summary judgment and Varady failed to file a timely

response. The trial court granted summary judgment in favor of the Defendants.

                                        1
Varady appeals the trial court’s order denying Varady’s Motion for New Trial and

denying her leave to file a late response to the motion for summary judgment. We

affirm.

                              BACKGROUND FACTS

      On February 5, 2014, Varady filed Plaintiff’s Original Petition alleging that

the Defendants adopted Varady’s biological daughter in 2012. According to

Varady’s Original Petition, Varady claims that she was “led to believe that her

money was needed in order to support, maintain, and care for” the child and that

Varady “entrusted” her money to the Defendants for that “limited purpose.”

Varady alleged that the Defendants withdrew $117,000 from a bank account that

was jointly owned by Varady and Christina, and that the Defendants did not use

the money to support, maintain, and care for Varady’s biological child. Varady’s

Original Petition included claims for breach of fiduciary duty, common law fraud,

money had and received, negligent misrepresentation, and breach of contract.

      The Defendants filed an answer, jury demand, requests for disclosure, and a

counterclaim. Varady filed an answer to the counterclaim. The Defendants then

filed an amended answer and special exceptions to Varady’s petition, and they also

filed an amended counterclaim. On February 25, 2015, the defendants filed a no-

evidence motion for summary judgment. That same day, the Defendants filed a

                                        2
notice of submission notifying the parties that the matter was set for submission

hearing on March 18, 2015.

      On March 5, 2015, the trial court signed an order granting some of the

Defendants’ special exceptions and requiring Varady to replead to cure the defects.

Varady filed her First Amended Petition on March 17, 2015, and then she filed her

Second Amended Petition on March 18, 2015. She asserted the same causes of

action in both amended petitions as in her Original Petition.

      Varady did not file a response to the no-evidence motion for summary

judgment, and on March 24, 2015, the trial court signed an order granting the no-

evidence motion for summary judgment. On March 26, 2015, the Defendants filed

a notice of non-suit of their counterclaim.

      On April 16, 2015, Varady filed a Motion for New Trial and for Leave to

File Summary Judgment Response Out of Time (hereinafter Motion for New

Trial).1 In the Motion for New Trial, Varady stated that “[a]pplying the Craddock

[v. Sunshine Bus Lines, 133 S.W.2d 124 (Tex. 1939),] standards to this case,

Plaintiff can show that she meets those standards, and this Court should grant a

      1
        The next day Varady also filed an Amended Motion for New Trial,
wherein she asserted the identical arguments and included the same attachments as
in her original Motion for New Trial. Accordingly, unless specifically stated, we
reference the arguments and evidence from the Motion for New Trial and the
Amended Motion for New Trial collectively as “Motion for New Trial.”
                                          3
new trial, if a new trial is necessary[.]” In regards to the first Craddock factor,

Varady’s counsel stated in the motion that he also represented Varady’s parents in

a suit in Family Court involving Christina and James Gyorfi. According to

Varady’s counsel, his failure to file a response to the motion for summary

judgment was not intentional or the result of conscious indifference because “it is

easy to see how the attorney juggling both sets of plates at the same time can make

an honest mistake as to the deadlines he actually knows about.” In an affidavit that

is attached as an exhibit to the Motion for New trial, Varady’s counsel swears to

the following:

             “I am an attorney representing Plaintiff Jacqueline Renee
      Varady in this lawsuit, which arose from Defendants’ adoption of
      Plaintiff’s biological child. I also represent Plaintiff’s parents in a
      related family law case, currently ongoing in the 410th District Court,
      against these same Defendants. On February 25, 2015, I apparently
      received notice that Defendants had e-filed a motion for summary
      judgment in this case. I recall being aware of a rejected filing of this
      MSJ at some point.

             “After the notice that this e-filing had been rejected, it appears
      that I received an e-mail from [] opposing counsel in this case[] that
      attached a motion for summary judgment, exhibits, and a notice of
      submission for March 18, 2015. I did not think that a response was
      necessary and I did not calendar a date to file a timely response to the
      summary judgment motion. I did not realize at that time, or at any
      time prior to the court’s order granting summary judgment, that the
      summary judgment motion had been successfully filed in this case and
      that I needed to file a response.


                                         4
             “Another attorney [] is assisting me with this case. He we [sic]
      not notified by myself, the court, or even opposing counsel (who had
      rightly seen fit to “cc” him on other matters, but, for whatever reason,
      had failed to “cc” him on this one) of the motion for summary
      judgment. As a result, any lack of response to such a motion on [his]
      part was, like my response (or lack thereof,) not due to conscious
      indifference but instead due to accident or mistake.

             “Subsequent to the filing of the summary judgment motion,
      several e-mails were exchanged between myself and opposing counsel
      in this case as well as the attorney representing Defendants in the
      family law case. In the course of these e-mails, all attorneys were
      attempting to schedule the Defendants’ depositions for dates in
      March, including the date that the summary judgment motion was set
      for submission. Defendants’ attorneys, like [the assisting attorney] and
      I, had to clarify which deposition dates pertained to which of
      Defendants’ cases—two different cases in two different courts in
      which I am actively representing two different sets of clients. The
      similar facts and parties and circumstances in these cases also
      contributed to my mistake.

            . . . .”

      In her Motion for New Trial, Varady alleged that she produced “some

evidence” to support her claims against the Defendants and that she satisfied

Craddock. More specifically, Varady argued in her Motion for New Trial that the

bank records she produced during discovery and attached to her Motion for New

Trial depict a wire transfer from her to the Defendants and expenditures by the

Defendants that were not reasonably related to the child’s care. According to

Varady, “[a]t the very least, these deposits and expenditures meet the minimum

burden of evidentiary proof necessary to grant a new trial.” Varady argued that
                                         5
because the Defendants cannot explain how the withdrawals and payments from

the joint account benefit the child, the bank records constitute “some evidence to

support Plaintiff’s claims[.]” However, Varady failed to explain how the account

information established the necessary elements of any of her claims. Varady

alleged in her Motion for New Trial that the granting of a new trial will not cause

undue delay or injury to the Defendants. And, Varady alleged that she was ready to

go to trial and was willing to reimburse Defendants for their attorney’s fees

incurred “in presenting their motion[.]”

      On May 1, 2015, the Defendants filed their Response to Plaintiff’s Motion

for New Trial with exhibits attached thereto. In Defendants’ Response to the

Motion for New Trial, the Defendants argued that Varady was properly “e-served”

with the no-evidence summary judgment and notice of hearing. According to the

Defendants, because Varady did not file a response within seven days before the

submission date of the summary judgment motion, the Defendants were entitled to

summary judgment as a matter of law under Rule 166a(i) of the Texas Rules of

Civil Procedure. See Tex. R. Civ. P. 166a(i). The Defendants attached several

exhibits to their Response to the Motion for New Trial including Exhibit A which

contained the following: an email from defense counsel to Varady’s attorney who

the Defendants allege is “the only counsel of record for Plaintiff[,]” and who is the

                                           6
same counsel who filed the Motion for New Trial on behalf of Varady; and a copy

of an email dated February 25, 2015, time stamped at 2:32 p.m., which reads as

follows: “I have attached our Motion for Summary Judgment, Exhibits A-E, Notice

of Submission and Order which were filed with the court today.” The email

referenced several attachments, including “Gyorfi MSJ.doc[,]” “Gyorfi notice of

submission.rtf[,]” and “Gyorfi Order Granting MSJ.rtf[.]” The attachments

included an email response the same day at 2:48 p.m. from plaintiff’s counsel

stating, “Got it.” Exhibit B attached to Defendants’ Response to the Motion for

New Trial included an e-filing receipt dated February 25, 2015, and time stamped

2:19 p.m. advising the parties that (1) exhibits to the summary judgment motion

had been rejected and that the summary judgment exhibits needed to be refiled

together with the motion, (2) that the notice of submission and the proposed order

on the summary judgment motion had been accepted, and (3) that service had been

made on plaintiff’s counsel at 2:20 p.m. that same day. Exhibit C appears to be a

copy of an email from defense counsel to Varady’s counsel dated February 25,

2015, at 7:01 p.m., and therein it explained that the motion for summary judgment

was re-filed as a single document, per the clerk’s request, and stating that the re-

filed motion and exhibits were attached to the email. Exhibit D is another e-filing

receipt that shows that the motion for summary judgment and exhibits were re-

                                         7
filed on February 25, 2015, at 6:56 p.m. (and accepted for filing on February 26,

2015, at 9:11 a.m.), and that Varady’s counsel was e-served with the re-filed

motion for summary judgment and exhibits. Exhibits E, F, and G include the

accepted Notice of Submission, setting the submission of the no-evidence motion

for summary judgment for March 18, 2015, the accepted proposed order granting

the motion, and the first page of the accepted no-evidence motion for summary

judgment. Exhibits H through O include copies of documents in support of the

Defendants’ argument that Varady repeatedly failed to timely respond to discovery

deadlines and orders. Exhibit P is a register of filings in the case from the clerk’s

website, and Exhibit Q is an affidavit from defense counsel stating that the exhibits

are true and correct copies.

      Defendants argued that Varady’s counsel’s “failure to understand” that a

response was necessary to defeat a no-evidence summary judgment motion did not

constitute an accident or mistake, that Varady’s counsel’s assertion that his failure

to respond was the result of an accident or mistake was conclusory and cannot

support a motion for new trial, and that Varady’s counsel’s pattern of ignoring

deadlines constituted conscious indifference. Defendants also argued that Varady

“failed to set up a meritorious defense via adequate summary judgment proof[,]”

and they objected to her late-filed response, objected to exhibits attached to her

                                         8
Motion for New Trial, and asserted that she failed to present evidence on any of

her claims. Specifically, Defendants objected to copies of bank statements Varady

had filed with her Motion for New Trial, and Defendants asserted the statements

were “not sworn to, proved up, authenticated, properly predicated or otherwise

admissible.”

      On May 11, 2015, the trial court signed an order denying Varady’s Motion

for New Trial and denying Varady leave to file a summary judgment response late.

Varady appealed.

                                 ISSUE ON APPEAL

      In her sole issue on appeal, Varady argues that the trial court abused its

discretion in denying her Motion for New Trial and Request for Leave to File a

Summary Judgment Response Late, and that she has met all three elements of the

Craddock test.

                              STANDARD OF REVIEW

      We review a trial court’s disposition 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). A

trial court has broad discretion in ruling on a motion for new trial. In re Columbia

Med. Ctr. of Las Colinas, 290 S.W.3d 204, 210 (Tex. 2009); Cliff v. Huggins, 724

S.W.2d 778, 778-79 (Tex. 1987). A trial court abuses its discretion if it acts in an

                                         9
unreasonable or arbitrary manner or without reference to any guiding rules and

legal principles. K-Mart Corp. v. Honeycutt, 24 S.W.3d 357, 360 (Tex. 2000).

Because the record contains no findings of fact or conclusions of law, we must

affirm the trial court’s judgment if it can be upheld on any legal theory that finds

support in the evidence. Strackbein v. Prewitt, 671 S.W.2d 37, 38 (Tex. 1984).

      Under Craddock, 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. 133 S.W.2d at 126. When a

defaulting party moving for a new trial meets all three elements of the Craddock

test, then a trial court abuses its discretion if it fails to grant a new trial.

Dolgencorp, 288 S.W.3d at 926. The Texas Supreme Court has held Craddock

applies to no answer and post-answer default judgments. Ivy v. Carrell, 407

S.W.2d 212, 213 (Tex. 1966).

      In Carpenter v. Cimarron Hydrocarbons Corp., the Texas Supreme Court

considered whether Craddock applied where a party failed to timely respond to a

motion for summary judgment. 98 S.W.3d 682 (Tex. 2002). In Carpenter, after

Cimarron filed suit against Carpenter, Cimarron’s attorney of record withdrew.

                                        10
Ten days later Carpenter filed a motion for summary judgment, and a hearing was

set on the motion for summary judgment. Id. at 684. Thereafter, Cimarron hired a

new attorney who contacted Carpenter’s counsel and obtained an agreement to

reset the hearing on the motion for summary judgment. Id. The new attorney then

assigned the motion for summary judgment to an associate to prepare a response.

Id. On April 28th, the new attorney received notice that the hearing on the motion

for summary judgment had been reset, making Cimarron’s response to the motion

for summary judgment due on May 28th. Id. The new attorney testified at the

hearing on the motion for new trial that he put the notice of hearing in his outbox

but failed to have his assistant calendar the date for the associate. Id. The attorney

mistakenly assumed that his associate was aware of the new hearing date and

would prepare a response. Id. Two days before the hearing on the motion for

summary judgment the attorney was reminded about the hearing and he asked his

associate for a copy of the response. Id. At that time, he learned that a response to

the motion for summary judgment had never been filed. Id. The day of the hearing

on the motion for summary judgment, Cimarron filed a motion for leave to file a

late response and alternatively asked the trial court for a continuance of the hearing

on the motion for summary judgment. Id. at 685. In the motion for leave, Cimarron




                                         11
gave “no reason for Cimarron’s failure to file a timely response.” Id. at 688 (J.

Hecht, concurring).

      At the hearing on the motion for summary judgment the Cimarron attorney

told the court he “had mis-calendared” the setting. Id. The trial court denied the

motion for continuance and the motion for leave to file a late response to the

summary judgment, and granted the summary judgment. Id. at 683. Cimarron filed

a motion for new trial, which was set for an evidentiary hearing, after which the

trial court also denied the motion for new trial. Id. at 683, 685. On appeal, the court

of appeals reversed the trial court, concluding that Craddock applied and that the

plaintiff had met the Craddock standard. Id. at 683. The Supreme Court expressly

disapproved of the intermediate level appellate decisions that applied Craddock

when the nonmovant is aware of its mistake at or before the hearing on the motion

for summary judgment and has an opportunity to apply for relief under the rules.

Id. at 686.

      According to the Supreme Court, we review a trial court’s ruling on a

motion for leave to file a late summary judgment response for an abuse of

discretion. Id. The Supreme Court held that a motion for leave to file a late

summary-judgment response should be granted when the party who files the

motion for leave establishes “good cause” by showing that the failure to timely

                                          12
respond (1) was not intentional or the result of conscious indifference, but the

result of accident or mistake, and (2) allowing a late response will not cause any

undue delay or otherwise injure the other party. Id. at 688. Applying the articulated

standard, the Supreme Court concluded that the trial court did not abuse its

discretion in denying the motion for leave to file a late response. Id. The Texas

Supreme Court expressly did not decide whether Craddock should apply in cases

where the defendant fails to respond to a motion for summary judgment and does

not discover his mistake until after the summary judgment hearing or after

rendition of judgment. Id. at 686.

      In Wheeler v. Green, 157 S.W.3d 439 (Tex. 2005), the Texas Supreme Court

again discussed whether Craddock applied in the context of a summary judgment.

Wheeler involved a dispute regarding the modification of a custody order. Id. at

441. Green, the father of the child, filed a petition to modify the parent-child

relationship. Id. Green served Wheeler, the mother of the child, with sixty-four

requests for admissions. Id. Wheeler, acting pro se, sent her responses to the

requests twenty-seven days after she received the requests, but thirty-five days

after the “mailbox rule” deemed the requests served. Id. Green’s attorney then filed

a motion for summary judgment based upon the deemed admissions. Id. Wheeler

filed no response to the motion for summary judgment but she attended the

                                         13
hearing. Id. The trial court granted the motion for summary judgment, and

thereafter Wheeler hired an attorney who then filed a motion for new trial, wherein

Wheeler argued that the summary judgment should be set aside. Id. at 441-42. The

trial court denied the motion for new trial. Id. at 442. On appeal, the court of

appeals affirmed. Id. The Supreme Court reversed and remanded the matter to the

trial court. Id. at 444. According to the Supreme Court, nothing in the record

suggested that Wheeler, a pro se party, realized her responses to the requests for

admissions were late, or that she needed to move to withdraw the deemed

admissions, or that she needed to file a response to the motion for summary

judgment. Id. at 442, 444.

      Utilizing the Carpenter standard, the Court examined the record to

determine if Wheeler established “good cause” and no undue prejudice. Id. The

Court stated: “[o]n this record, the lower courts could have concluded that [the pro

se plaintiff] was wrong on her dates and wrong on how to correct them, but not that

either was the result of intent or conscious indifference.” Id. But, the Court noted

that the same might not have been the case if the same mistakes had been made by

a lawyer. Id. at 442 n.1. The Court discussed the fact that the responses to the

requests for admissions were received by Green’s attorney and that the nature of




                                        14
the requests were not evidentiary but were more akin to a demand upon Wheeler to

admit she had no cause of action or ground for defense. Id. at 443.

      The Court concluded that the trial court should have granted the motion for

new trial and allowed the deemed admissions to be withdrawn. Id. at 444.

      Since Carpenter, several intermediate appellate courts have discussed

whether Craddock, a modified Craddock standard, or Carpenter applies when

reviewing a request for a new trial after entry of a default summary judgment. See,

e.g., Weech v. Baptist Health Sys., 392 S.W.3d 821, 825-26 (Tex. App.—San

Antonio 2012, no pet.); Imkie v. Methodist Hosp., 326 S.W.3d 339, 345-47 (Tex.

App—Houston [1st Dist.] 2010, no pet.); Urbanczyk v. Urbanczyk, 278 S.W.3d

829, 835-36 (Tex. App.—Amarillo 2009, no pet.); Limestone Constr. v. Summit

Commercial Indus. Props., 143 S.W.3d 538, 542-44 (Tex. App.—Austin 2004, no

pet.); West v. Maint. Tool & Supply Co., 89 S.W.3d 96, 100-02 (Tex. App.—

Corpus Christi 2002, no pet.). The modified Craddock standard provides that a

default summary judgment should be set aside if (1) the failure to answer was not

intentional or the result of conscious indifference but instead was the result of an

accident or mistake, and the nonmovant’s motion for new trial (2) alleges facts and

contains evidence sufficient to raise a material question of fact (as opposed to

setting up a meritorious defense, as Craddock requires) and (3) demonstrates that

                                         15
granting the motion will cause no undue delay or other injury to the movant. See

Weech, 392 S.W.3d at 825-26.

      Under Craddock or a modified Craddock standard, the first prong of each

standard is the same: the defaulting party must establish that its failure to respond

was not intentional or the result of conscious indifference but instead was the result

of a mistake or accident. Fernandez v. Peters, No. 03-09-00687-CV, 2010 Tex.

App. LEXIS 8473, at **22-27 (Tex. App.—Austin Oct. 19, 2010, no pet.) (mem.

op.) (the trial court could reasonably have concluded that the failure to respond

was the result of conscious indifference and the court of appeals need not

determine which standard should apply); see also Craddock, 133 S.W.2d at 126;

Limestone Constr., 143 S.W.3d at 542. Similarly, under Carpenter, the appellate

court examines the trial court’s refusal to grant a motion for leave to file a late

response to a motion for summary judgment to determine whether the trial court

abused its discretion in denying the motion for leave to file a late response,

examining whether the party who filed the motion for leave established “good

cause” by showing that the failure to timely respond was not intentional or the

result of conscious indifference, but the result of accident or mistake. Carpenter,

98 S.W.3d at 688.




                                         16
      Accordingly, Varady’s burden under the first element of Craddock, a

modified Craddock, and Carpenter would require Varady to negate intentional or

consciously indifferent conduct. The first element is satisfied if the factual

allegations asserted, if true, negate intentional or consciously indifferent conduct,

and the opposing party does not controvert the factual allegations. In re R.R., 209

S.W.3d 112, 115 (Tex. 2006). We look to all the evidence in the record to

determine whether the defendant’s factual assertions are controverted. Id.

                                     ANALYSIS

      “Intentional or conscious indifference for purposes of Craddock means ‘that

the defendant knew it was sued but did not care.’” Hampton-Vaughan Funeral

Home v. Briscoe, 327 S.W.3d 743, 747-48 (Tex. App.—Fort Worth 2010, no pet.)

(quoting Fidelity & Guar. Ins. Co. v. Drewery Constr. Co., 186 S.W.3d 571, 576

(Tex. 2006)). A defendant’s mere negligence does not show conscious

indifference. Id. at 748; see Levine v. Shackelford, Melton & McKinley, L.L.P., 248

S.W.3d 166, 169 (Tex. 2008) (“[T]he complete definition of conscious indifference

amounts to more than mere negligence[.]”). A defendant must offer some excuse

for the failure to appear at trial, which need not necessarily be a good excuse. See

Briscoe, 327 S.W.3d at 748; Sharpe v. Kilcoyne, 962 S.W.2d 697, 701 (Tex.

App.—Fort Worth 1998, no pet.) (“Even a slight excuse may justify a new trial.”).

                                         17
In other words, a “failure to appear is not intentional or due to conscious

indifference . . . merely because it is deliberate; it must also be without adequate

justification. Proof of such justification—accident, mistake or other reasonable

explanation—negates the intent or conscious indifference for which reinstatement

can be denied.” Smith v. Babcock & Wilcox Constr. Co., 913 S.W.2d 467, 468

(Tex. 1995) (holding that failure to appear at trial was not consciously indifferent

when party’s attorney requested continuance and mistakenly understood

continuance would be granted).

      The party seeking a new trial has the burden to prove the lack of intent or

lack of conscious indifference. Liberty Mut. Fire Ins. Co. v. Ybarra, 751 S.W.2d

615, 618 (Tex. App.—El Paso 1988, no writ). “Where the factual allegations in a

movant’s affidavits are not controverted, it is sufficient that the motion and

affidavit set forth facts which, if true, would negate intentional or consciously

indifferent conduct.” Jackson v. Mares, 802 S.W.2d 48, 50 (Tex. App.—Corpus

Christi 1990, writ denied). If the nonmovant provides controverting evidence

showing conscious indifference by the movant, then the issue becomes a fact

question for the trial court to determine. Id.

      Varady asserted that her failure to respond to the summary judgment motion

was not intentional or the result of conscious indifference, but was the result of an

                                           18
accident or mistake. The Defendants argued in their Response to the Motion for

New Trial and on appeal that Varady failed to establish that her failure to respond

was the result of an accident or mistake. Varady was not a pro se party as in

Wheeler, and the record now before us clearly establishes that Varady’s attorney

received multiple notices of the filing of the no-evidence motion for summary

judgment and of the setting of the hearing on the submission docket.

      In her appellate brief, Varady argues that her trial attorney’s failure to file a

timely response to the Defendants’ motion for summary judgment was not the

result of him failing to understand summary judgment procedure or a result of

indifference, but instead the result of his “mistaken belie[f]” that the e-file system

had rejected the filing of the Defendants’ motion for summary judgment and that a

corrected version had not been filed. According to Varady’s brief, her trial counsel

“admittedly should have paid closer attention to the notifications that he received,

[but] he did not simply decide to ignore the motion.”

      The Defendants argue that the record supports the conclusion that Varady’s

counsel engaged in conduct that demonstrated a pattern of ignoring deadlines that

would constitute conscious indifference. They assert that Varady’s counsel’s

affidavit contained inconsistencies. In his affidavit, counsel stated he “did not think

that a response was necessary.” In his affidavit, Varady’s counsel failed to

                                          19
acknowledge his receipt of multiple notices for the no-evidence motion for

summary judgment that he received from the Texas electronic filing system. The

controverting affidavit defendants filed with their Response to the Motion for New

Trial and exhibits attached thereto established that Varady’s attorney received

multiple notices of the no-evidence motion for summary judgment and of the

acceptance of the filing by the clerk’s office. The controverting affidavit also set

forth evidence regarding various deadlines for requests for discovery that Varady’s

counsel repeatedly missed throughout the litigation. Attached to the Defendants’

Response to Motion for New Trial were exhibits supporting the Defendants’ claim

that Varady’s counsel repeatedly failed to timely respond to discovery requests

despite multiple requests and reminders. Looking at the record as a whole, we

determine that the trial court could have reasonably concluded that Varady’s

excuse for failing to respond to the no-evidence motion for summary judgment has

been controverted by the Defendants.

      The trial court could reasonably have concluded that Varady’s counsel’s

failure to respond to the e-file notices alone amounted to more than mere

negligence. Furthermore, the trial court could have reasonably determined that this

failure, along with the Defendants’ uncontroverted allegations of Varady’s

counsel’s pattern of ignoring deadlines in the case (as presented by the Defendants

                                        20
in their response to Varady’s Motion for New Trial), amounted to conscious

indifference. See Kern v. Spencer, No. 2-06-199-CV, 2008 Tex. App. LEXIS 5582,

**15-16 (Tex. App.—Fort Worth July 24, 2008, no pet.) (no abuse of discretion

for trial court to deny motion for new trial when evidence included: six certified

mailings notifying attorney of submission date; uncontroverted statements

regarding attorney’s recurring pattern of failure to prosecute case, show up for

depositions, and respond to discovery; and testimony that attorney often used

excuse of not having been notified); see also Levine, 248 S.W.3d at 169 (in a

default judgment setting, a pattern of ignoring deadlines and warnings from

opposing party amounts to conscious indifference).

      Additionally, were we to apply the remaining prongs of the modified

Craddock test as Varady requests, we note that Varady also failed to establish a

genuine issue of material fact on the issues the Defendants raised in their no-

evidence motion for summary judgment. See Weech, 392 S.W.3d at 825. In the no-

evidence motion for summary judgment, the Defendants argued that Varady’s

claims are based on her allegations that the Defendants wrongfully took $117,000

from a bank account that was jointly owned by Varady and Christina, but Varady

failed to produce evidence to support the basis of her claims as asserted in her

petition, and more specifically Varady produced no evidence to support her

                                       21
contentions that the Defendants owed or breached a fiduciary duty, made

misrepresentations, breached a contract, held money belonging to Varady, or made

negligent misrepresentations.2

      In her Motion for New Trial, Varady claimed she provided the Defendants

with bank records on March 17, 2015, that the records represent “some evidence”

that the Defendants misused the money that Varady provided for the benefit of the

child, and that this evidence at the very least met the minimum burden of

evidentiary proof necessary to grant a new trial. A copy of Varady’s counsel’s

March 17, 2015 email to opposing counsel with copies of what appears to be pages

from a bank statement were filed as Exhibits J and K to Varady’s Motion for New

Trial. On appeal, Varady asserts these records are “some evidence that the

[Defendants] had used the money for purposes other than those agreed to, and/or,

had failed to explain how the expenditures were in furtherance of their agreement.”

Documents submitted as summary judgment proof must be sworn to or certified.

Llopa, Inc. v. Nagel, 956 S.W.2d 82, 87 (Tex. App.—San Antonio 1997, writ

denied). Unauthenticated or unsworn documents do not constitute summary

judgment evidence. Kleven v. Tex. Dep’t of Crim. Justice Institutional Div., 69
      2
       Varady did not object to the form or substance of the Defendants’ Motion
for Summary Judgment in her Motion for New Trial and she does not raise a
complaint regarding the form or substance of the Motion for Summary Judgment
on appeal.
                                        22
S.W.3d 341, 345 (Tex. App.—Texarkana 2002, no pet.); Llopa, Inc., 956 S.W.2d

at 87. Nothing in the record before us indicates that the copies of the bank records

were authenticated or sworn to. The trial court could have reasonably concluded

that Varady failed to establish how the bank records created a fact issue on any of

her alleged claims.

      Because the trial court could have reasonably concluded that Varady did not

meet her burden of proof to show that her failure to respond, together with the

pattern of ignoring deadlines, was not the result of conscious indifference and

could have concluded that Varady did not present evidence sufficient to raise a

genuine issue of material fact on the issues raised in the Defendants’ no-evidence

summary judgment motion, the trial court did not abuse its discretion in denying

Varady’s Motion for New Trial and Request for Leave to File a Summary

Judgment Response Late. We overrule Varady’s issue on appeal. We affirm the

trial court’s judgment.

      AFFIRMED.

                                                   _________________________
                                                      LEANNE JOHNSON
                                                            Justice

Submitted on November 30, 2015
Opinion Delivered April 14, 2016

Before McKeithen, C.J., Horton and Johnson, JJ.
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