Opinion issued August 29, 2013




                                   In The

                            Court of Appeals
                                  For The

                        First District of Texas
                          ————————————
                            NO. 01-12-00703-CV
                          ———————————
       SANDRA P. BERNSTEIN AND HEIDI R. POWELL, D/B/A
    HEIGHTS CONTEMPORARY FINE ARTS GALLERY, Appellants
                                     V.
     JAMES ADAMS, CLAIRE RICHARDS, MICHAEL TOLLESON,
          MI WANG, AND ADAMS-FERRO, INC., Appellees



            On Appeal from the County Civil Court at Law No. 2
                          Harris County, Texas
                       Trial Court Case No. 995535



                        MEMORANDUM OPINION

      Appellants Sandra P. Bernstein and Heidi R. Powell, d/b/a Heights

Contemporary Fine Arts Gallery, appeal from a default summary judgment entered
against them in favor of the appellee artists who entrusted Powell and Bernstein

with the sale of their artwork. Powell and Bernstein argue that the trial court erred

by denying their motion to set aside the judgment because they allegedly did not

receive notice of the date of the summary-judgment hearing. We affirm.

                                   Background

      Powell and Bernstein operate an art gallery from which they sell artwork for

artists and collect a commission on the sales. They also charge artists fees for use

of the gallery space and hosting art openings. In 2011, several artists sued Powell

and Bernstein for failing to pay them the proceeds of sales of their artwork,

alleging causes of action for violations of statutory duties owed by commission

merchants, breach of contract, conversion, theft, fraud, negligence, money had and

received, suit on debt, and violations of the Deceptive Trade Practices Act. They

sought to recover actual damages, enhanced statutory damages, mental anguish

damages, punitive damages, and attorney’s fees. Powell and Bernstein each filed

an answer and responded to the artists’ request for disclosures. The artists then

filed a motion for summary judgment, attaching affidavits that described the

artwork that was sold without compensation to the artists. The artists also attached

a list of their requested admissions to which Powell and Bernstein had not

responded.




                                         2
      The record does not reflect that Powell and Bernstein responded to the

artists’ motion for summary judgment. But after hiring an attorney, they filed a

motion for continuance to postpone the date of the summary-judgment hearing.

The hearing was reset for February 24, 2012.        On February 15, Powell and

Bernstein’s attorney moved to withdraw as their counsel. The summary-judgment

hearing date was then reset again for April 17, and notice was sent to Powell and

Bernstein’s attorney. On April 11, the trial court held a hearing on the motion to

withdraw and granted that motion.

      On April 17, 2012, the trial court held the scheduled hearing on the artists’

motion for summary judgment. The trial court granted the motion, and it signed a

final judgment awarding damages and attorney’s fees on April 23. Notice of the

judgment was sent to Powell and Bernstein on the same day. Almost a month

later, Powell and Bernstein filed a motion to set aside the summary judgment,

asserting that they had evidence raising a question of material fact for each of the

artists’ causes of action. Powell and Bernstein attached copies of their artist

agreement form, a sales and use tax permit for the gallery, and registration records

of the gallery’s assumed names.

      A hearing on the motion to set aside was held on June 27. The artists

presented two witnesses, employees of the law firm that formerly had represented

Powell and Bernstein. An attorney of the firm testified that a certified letter with

                                         3
notice of the April 17 summary-judgment hearing was sent to Powell and

Bernstein. The legal administrator for the firm testified that he discussed the April

17 hearing with Bernstein. In response to questions by the court, Powell and

Bernstein simply stated that they had not received notice of the April 17 date.

      The trial court denied Powell and Bernstein’s motion. They then filed notice

of this appeal. The appellees challenge the timeliness of their appeal, but Powell

and Bernstein complied with the filing deadlines under the Texas Rules of Civil

Procedure. The final judgment was entered on April 23, 2012. The defendants

filed a motion to set aside the judgment on May 19, extending the time to file a

notice of appeal until July 22. See TEX. R. APP. P. 26.1. They filed their notice of

appeal on July 27, 2012, within 15 days of the deadline. On September 20, 2012,

they filed a motion to extend time to file appeal, explaining that they did not

realize they needed to file a notice of appeal before their motion to set aside was

ruled upon. See TEX. R. APP. P. 26.3.

                                     Analysis

      Powell and Bernstein raise four issues on appeal. First, they complain that

they did not receive notice that a substitute judge would preside over a hearing

they attended. Second, they contend that the trial court erred by holding the April

17 summary-judgment hearing when they were not present and allegedly had not

been notified of the hearing. Third, they complain that they were not allowed to


                                          4
 present oral testimony at the June 27 hearing on the motion to set aside the

 summary judgment. Fourth, they allege that the trial court erred by “disregarding”

 their “demonstration, witnesses, and documents,” which they allege raise questions

 of material fact.

I.         Waived issues

           A trial court may not grant summary judgment by default because “summary

 judgments must stand or fall on their own merits, and the non-movant’s failure to

 answer or respond cannot supply by default the summary judgment proof

 necessary to establish the movant’s right.” McConnell v. Southside Indep. Sch.

 Dist., 858 S.W.2d 337, 343 (Tex. 1993); see also Rhone-Poulenc, Inc. v. Steel, 997

 S.W.2d 217, 222–23 (Tex. 1999). If a nonmovant fails to present any issues in its

     response or answer to the motion for summary judgment, however, the nonmovant

     is limited on appeal to arguing the legal sufficiency of the grounds presented by the

     movant. TEX. R. CIV. P. 166a(c) (“Issues not expressly presented to the trial court

 by written motion, answer or other response shall not be considered on appeal as

 grounds for reversal”); McConnell, 858 S.W.2d at 343; see also Rhone-Poulenc,

 997 S.W.2d at 223 (“The trial court may not grant summary judgment by default . .

 . when the movant’s summary judgment proof is legally insufficient.”). In this




                                              5
case, Powell and Bernstein do not attack the sufficiency of the proof supporting the

summary judgment. 1

      In addition, because they did not present them to the trial court, Powell and

Bernstein also have not preserved for appeal their complaints concerning (1) the

lack of notification that a substitute judge would preside over the January 13

hearing they attended and (2) the trial court’s alleged disregard of their

“demonstration, witnesses, and documents.” See TEX. R. APP. P. 33.1. Although at

the motion to set aside hearing Powell and Bernstein requested the opportunity to

present evidence in response to the motion for summary judgment, a response to a

motion for summary judgment must be made in writing. TEX. R. CIV. P. 166a(c);

Casso v. Brand, 776 S.W.2d 551, 553 (Tex. 1989); City of Houston v. Clear Creek

Basin Auth., 589 S.W.2d 671, 677 (Tex. 1979). Accordingly, we overrule Powell

and Bernstein’s first and fourth issues.


1
      Even though Powell and Bernstein note that a summary judgment cannot
      stand when there exists “a scintilla of evidence that there is a question of
      material fact,” they never dispute the summary-judgment evidence offered
      by the artists. Powell and Bernstein’s arguments instead focus on the
      alleged denial of the opportunity for them to present their own evidence
      raising a question of material fact. Although we construe briefs liberally,
      TEX. R. APP. P. 38.9, we will not make appellants’ arguments for them.
      Vanderaa v. LVDVD, L.C., 314 S.W.3d 116, 118 (Tex. App.—El Paso 2010,
      no pet.); Robertson v. Sw. Bell Yellow Pages, 190 S.W.3d 899, 903 (Tex.
      App.—Dallas 2006, no pet.); see also Tello v. Bank One, N.A., 218 S.W.3d
      109, 116 (Tex. App.—Houston [14th Dist.] 2007, no pet.). Thus, we do not
      read Powell and Bernstein’s brief to challenge the sufficiency of the
      evidence presented by the artists.
                                           6
II.     Motion for new trial

        Powell and Bernstein have, however, preserved their complaint that they

  were deprived of an opportunity to present a defense under Craddock v. Sunshine

  Bus Lines, 134 Tex. 388, 133 S.W.2d 124 (Tex. 1939), because they alleged that

  they did not receive notice of the date of the summary-judgment hearing. In

  Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 683–84 (Tex. 2002),

  the Supreme Court of Texas held that Craddock does not extend “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.” Rather, a nonmovant who fails to timely respond to a

  motion for summary judgment may seek a continuance or permission to file a late

  response. Id. at 686. If a nonmovant files a motion for new trial in which it

  attaches a response, argues the response is timely, and requests that the summary

  judgment be set aside, that motion for new trial is sufficient to preserve error by

  putting the trial court on notice that the nonmovant seeks a motion for leave to file

  a late summary-judgment response and a motion to withdraw deemed admissions.

  Wheeler v. Green, 157 S.W.3d 439, 421–22 (Tex. 2005) (applying Carpenter in

  the context of a pro se litigant); Nguyen v. Kuljis, No. 01-11-00608-CV, 2013 WL

  2301820, at *4 (Tex. App.—Houston [1st Dist.] May 21, 2013, pet. filed).


                                           7
      We review a trial court’s ruling on a motion to withdraw deemed admissions

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

discretion, which occurs when the trial court acts without reference to guiding rules

or principles. Carpenter, 98 S.W.3d at 687–88. A trial court may allow a late

summary-judgment response or withdrawal of deemed admissions upon a showing

of good cause and no undue prejudice. Marino v. King, 355 S.W.3d 629, 633

(Tex. 2011). “Good cause is established by showing the failure involved was an

accident or mistake, not intentional or the result of conscious indifference.”

Wheeler, 157 S.W.3d at 442. A pro se litigant who attends a summary-judgment

hearing, but displays genuine confusion over discovery deadlines, summary-

judgment procedures, and “what a summary judgment ‘hearing’ was” has shown

evidence of good cause. Marino, 355 S.W.3d at 633. Mere mistakes of when

“service” occurs or how to correct a failure to timely file a response do not

demonstrate the requisite conscious disregard or deliberate neglect that negates a

showing of good cause. See id.; Wheeler, 157 S.W.3d at 443. Similarly, a pro se

litigant’s mistaken belief that a co-defendant’s summary-judgment response is

sufficient to respond for all the defendants does not demonstrate intent or

conscious indifference. See Nguyen, 2013 WL 2301820, at *5.

      Powell and Bernstein’s only argument concerning the trial court’s failure to

grant their motion is their factual assertion that they did not receive notice of the

                                         8
April 17 summary judgment hearing.          But the trial court was presented with

evidence that the law firm sent notice of the hearing to them and that they knew

about the hearing date. At the hearing on the motion to set aside the summary

judgment, an attorney from the firm that represented Powell and Bernstein testified

that a certified letter that included the “Second Amended Notice of Summary

Judgment Hearing” was sent to both Powell and Bernstein. A copy of the “Second

Amended Notice” was included in the record that lists the hearing date as April 17.

The legal administrator for the firm testified that he discussed the April 17 hearing

date with Bernstein and what would happen if she did or did not appear at the

hearing. Although Powell and Bernstein said that they did not receive the notice, it

was in the trial court’s discretion not to believe that testimony.

      This is not a case in which there was “no evidence of flagrant bad faith or

callous disregard for the rules.” See Wheeler, 157 S.W.3d at 444 (noting that in the

absence of such evidence and evidence of undue prejudice, a trial court abuses its

discretion in denying the motion for new trial). Powell and Bernstein’s knowing

failure to appear was evidence that they were not merely mistaken about the nature

of the summary-judgment hearing, but consciously indifferent to the deadlines and

consequences it imposed. See id. (considering pro se litigant’s appearance at

summary-judgment hearing as establishing that she was merely mistaken as to

what such a hearing was); Nguyen, 2013 WL 2301820, at *5 (considering that pro

                                           9
se litigants “participated in the proceedings”). The legal administrator for the firm

they had hired testified that he informed Bernstein that she and Powell faced a

default judgment for failing to appear at the hearing. Rather than merely missing

the deadlines for a few days, Powell and Bernstein never filed a response to the

artists’ requests for admissions or filed a response to the summary-judgment

motion. See Wheeler, 157 S.W.3d at 443 (noting that pro se litigant’s responses to

admissions request was only two days late under the rules and filed six months

before hearing on summary-judgment motion). Based on this evidence, the trial

court did not abuse its discretion in denying Powell and Bernstein’s motion for

new trial.

      We overrule Powell and Bernstein’s second and third issues on appeal.

                                    Conclusion

      We affirm the judgment of the trial court.



                                              Michael Massengale
                                              Justice

Panel consists of Chief Justice Radack and Justices Sharp and Massengale.




                                         10
