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


                            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.

                                         6
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

                                          9
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




                                         11
      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.




                                          12
      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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