      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-09-00687-CV



                     Marissa Fernandez and Peter Fernandez, Appellants

                                                  v.

                                    Sharon Peters, Appellee


      FROM THE DISTRICT COURT OF HAYS COUNTY, 22ND JUDICIAL DISTRICT
          NO. 09-0029-A, HONORABLE GARY L. STEEL, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Appellants Marissa Fernandez and Peter Fernandez appeal a post-answer default

summary judgment entered against them in favor of appellee Sharon Peters. In two issues, the

Fernandezes contend that the trial court erred in upholding the summary judgment and abused its

discretion in denying their motion for new trial. Because we conclude that there was no error in the

trial court’s judgment, we affirm the judgment.


                     FACTUAL AND PROCEDURAL BACKGROUND

               In 2003, Marissa Fernandez signed a real estate lien note for the purchase of a parcel

of real property located in Hays County, Texas, from Mayo-Halbert, Ltd. Contemporaneously, she

received a warranty deed and executed a deed of trust securing her indebtedness under the note.

Subsequently, Peter Fernandez, her brother, placed items of his personal property on the real

property. In 2008, Sharon Peters purchased the real property that had belonged to Marissa Fernandez
at a foreclosure sale conducted by substitute trustee Rex G. Baker, III. After taking possession of

the real property, Peters disposed of the personal property that was located on it.

               In 2009, the Fernandezes filed suit against Sharon Peters, Mayo-Halbert, and

Rex Baker complaining of the foreclosure sale and the disposal of the personal property.

Specifically, they asserted a claim for wrongful foreclosure against Mayo-Halbert and sought a

declaratory judgment that the note was not in default at the time of the foreclosure sale and that the

foreclosure sale was null and void. They also asserted a claim against Sharon Peters for conversion

of the personal property. In June 2009, the Fernandezes’ attorney filed a motion to withdraw,

which the trial court granted. The order granting the withdrawal recited last known addresses for

Marissa Fernandez and Peter Fernandez as stated in withdrawing counsel’s motion.


Motion for Summary Judgment

               In August 2009, Sharon Peters filed a Rule 166a(c) motion for summary judgment,

asserting that she was a bona fide purchaser of the real property at a properly conducted foreclosure

sale and that the personal property had been abandoned on the real property. Peters set the motion

for hearing in early September and served the motion and notice of hearing on the Fernandezes at

their respective addresses as stated in the court’s order granting withdrawal of their attorney. In

support of the motion, Sharon Peters attached her own affidavit and the affidavit of Rex Baker.

Peters’s affidavit included the following testimony:


                I purchased the property at issue at a foreclosure sale. The personal property
       that was there was of nominal value. There was no claim, notice of claim or any
       other indication that anybody had done anything other than abandoned it. I disposed
       of it for little to no compensation, because it was of nominal value.

                                                  2
               In his affidavit, Rex Baker averred that in his capacity as substitute trustee, he had

conducted the foreclosure sale in accordance with Texas law and that the sale was proper, valid, and

enforceable. The Fernandezes did not file a response, summary judgment evidence, or objections

to Peters’s summary judgment evidence and failed to appear at the summary judgment hearing. The

trial court granted judgment in favor of Sharon Peters and severed the Fernandezes’ claim against

her from the remainder of their claims.


Motion for New Trial

                 After the court granted Sharon Peters’s motion for summary judgment, the

Fernandezes obtained new counsel and filed a timely motion for new trial. In their motion, the

Fernandezes contended that they had not received notice of the motion for summary judgment and

that their failure to respond was unintentional and due to accident or mistake and not to conscious

indifference. They further alleged that they had a meritorious defense based on Mayo-Halbert’s

improper handling of the foreclosure. They also contended that genuine issues of material fact

existed to preclude summary judgment and raised objections, for the first time, to Sharon Peters’s

summary judgment evidence.

               Attached to the motion for new trial were the affidavits of Marissa Fernandez and

Peter Fernandez. In their affidavits, neither Marissa Fernandez nor Peter Fernandez disputed that

Sharon Peters sent the motion for summary judgment by certified mail to their last known addresses

as listed in the court’s order allowing their attorney’s withdrawal. They both, however, testified that

they did not receive the mailings from Sharon Peters and thus received no notice of the motion for

summary judgment.

                                                  3
               In her affidavit, Marissa Fernandez also stated that she owned the real property in

question, had received no notice that the note was in default and had been accelerated, was given no

opportunity to cure the default, and had no notice of the foreclosure. Peter Fernandez further averred

in his affidavit that in conversations with the son of the owner of Mayo-Halbert, he had been led to

believe that, pending the construction of improvements on the real property, no payments on the note

were due. He testified that he had numerous items of personal property located on the real property

and listed the items and his opinion of their fair market value in an exhibit to his affidavit. He

further stated that in November 2008, after approximately 75% of the items had been removed, he

told Sharon Peters that he owned the personal property in issue and that she had no right to take it.

Peter Fernandez also testified that in March 2009, he had moved from the address stated as his last

known address in the court’s order allowing his attorney to withdraw and had filed a forwarding

address with the United States Postal Service.


Hearing on Motion for New Trial

               At the hearing on the motion for new trial, the trial court considered the Fernandezes’

affidavits, Sharon Peters’s controverting evidence, and the testimony of Peter Fernandez. The trial

court first addressed the Fernandezes’ affidavit testimony that they did not receive notice of the

summary judgment motion. Sharon Peters offered as controverting evidence the returned certified

mailings to the Fernandezes, which had been sent to the last known addresses recited in the court’s

order allowing withdrawal of the Fernandezes’ counsel. Peters’s evidence showed that the envelope

addressed to Marissa Fernandez was stamped with the dates of three attempted deliveries and marked




                                                  4
“Unclaimed” and that the envelope addressed to Peter Fernandez was stamped “Not Deliverable As

Addressed/Unable To Forward.” Both mailings showed Sharon Peters’s attorney’s office as the

return address.

                  Marissa Fernandez offered no additional evidence or testimony. Peter Fernandez

offered testimony on his change of address and receipt of mail. He testified that he had begun

moving from the address recited in the order in February 2009 and had completed the move by

March 2009. He stated that he left a forwarding address at the post office at the end of March 2009

and that he had received forwarded mail since then. He further testified that he received his former

attorney’s motion to withdraw, which was filed in June 2009, and the court’s order granting the

motion at his old address. He also testified that he had not “interact[ed] with the Court or the Court

Clerk” since his former attorney withdrew.

                  The trial court then addressed the issue of the competency of the summary judgment

evidence. The Fernandezes argued that even if they had appeared at the summary judgment

hearing and not filed any controverting affidavits, the summary judgment affidavits presented by

Sharon Peters were insufficient as a matter of law because they were conclusory. None of the parties

presented additional evidence on this issue.


The Trial Court’s Ruling

                  On the question of notice, the trial court, noting that Marissa Fernandez had failed

to claim the mailing after receiving three notices and that, as a pro se litigant, she was “obligated

. . . to pick up her mail,” found that “notice was sent [to Marissa Fernandez] as per all of the rules

and the laws.” Concerning notice to Peter Fernandez, the trial court found that Peter Fernandez

                                                   5
failed to notify the court and opposing counsel of his change of address and that his testimony was

“inconsistent” but did not expressly rule on the sufficiency of notice to Peter Fernandez. Regarding

the competency of the summary judgment evidence, the trial court acknowledged that “some of [the

testimony in the affidavits was] inappropriate, conclusory, maybe even some hearsay in there” but

found that, in the absence of controverting affidavits, the evidence was sufficient to support the

motion for summary judgment. The trial court denied the motion for new trial as to both parties.

This appeal followed.


                                             ANALYSIS


Summary Judgment


                Standard of Review

                We review the trial court’s decision to grant summary judgment de novo. Valence

Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). When reviewing a summary judgment,

we take as true all evidence favorable to the nonmovant, and we indulge every reasonable

inference and resolve any doubts in the nonmovant's favor. Id.; Nixon v. Mr. Prop. Mgmt. Co.,

690 S.W.2d 546, 548-49 (Tex. 1985). A Rule 166a(c) motion for summary judgment is properly

granted when the movant establishes that there are no genuine issues of material fact and that it is

entitled to judgment as a matter of law. See Tex. R. Civ. P. 166a(c).

                A defendant seeking summary judgment under Rule 166a(c), as here, must negate at

least one essential element of each of the plaintiff's theories or prove each element of its affirmative

defense, thereby showing that no genuine issues of material fact remain and that it, as the movant,

                                                   6
is entitled to judgment as a matter of law. Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex.

1999); Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995) (per curiam). The defendant must support

its motion with proper summary judgment evidence. See Tex. R. Civ. P. 166a(c). Only if the

defendant meets its burden, does the burden shift to the plaintiff, as the nonmovant, to establish that

a genuine issue of material fact remains.


               Summary Judgment Evidence

               In their first issue, the Fernandezes assert that Sharon Peters’s summary judgment

evidence was insufficient to support summary judgment against them on their conversion claim.

Specifically, the Fernandezes contend that Peters’s affidavits contained testimony that was

“conclusory,” included “unsubstantiated opinion,” and was not based on personal knowledge, and

that the attached documents were hearsay. As an initial matter, Sharon Peters responds that the

Fernandezes waived their objections to her affidavits by failing to raise them at the summary

judgment hearing.

               As to the complaint regarding hearsay, we agree. An objection that an affidavit

contains hearsay is an objection to the form of the affidavit. Green v. Industrial Specialty

Contractors, 1 S.W.3d 126, 130 (Tex. App.—Houston [1st Dist.] 1999, no pet.); see also Sprayberry

v. Siesta MHC Income Partners, L.P., No. 03-08-00649-CV, 2010 Tex. App. LEXIS 2517, at *9-10

(Tex. App.—Austin Apr. 8, 2010, no pet.) (mem. op.). “Defects in the form of affidavits or

attachments will not be grounds for reversal unless specifically pointed out by objection by an

opposing party with opportunity, but refusal, to amend.” Tex. R. Civ. P. 166a(f); see also Green,

1 S.W.3d at 130 (citing McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 343 n.7 (Tex.

                                                  7
1993)). We conclude that by failing to raise it at the summary judgment hearing, the Fernandezes

waived their hearsay objection to the affidavits.

               Regarding the Fernandezes’ complaints that the affiants lacked personal knowledge

and that the affidavit testimony was conclusory and contained unsubstantiated opinion, however, we

reach a different conclusion. Unlike objections to defects in form, objections to defects of substance

may be raised for the first time on appeal. See Trostle v. Combs, 104 S.W.3d 206, 214 (Tex.

App.—Austin 2003, no pet.). Although the issue of whether an objection to an affiant’s lack of

personal knowledge is a waivable defect in form or a defect of substance remains unsettled, in recent

years, this Court, “‘like many of our sister courts, ha[s] concluded that an affidavit’s failure to

demonstrate a basis for personal knowledge renders it incompetent summary judgment evidence.’”

Campbell v. Campbell, No. 03-07-00672-CV, 2010 Tex. App. LEXIS 4598, at *14 n.6 (Tex.

App.—Austin June 18, 2010, no pet.) (mem. op.) (quoting Sprayberry, 2010 Tex. App. LEXIS 2517,

at *10); see also Trostle, 104 S.W.3d at 214); Dailey v. Albertson’s, Inc., 83 S.W.3d 222, 226 (Tex.

App.—El Paso 2002, no pet.) (reviewing conflicting decisions in courts of appeals and conflict in

supreme court decisions and concluding objection to lack of personal knowledge reflected in

testimony, as opposed to lack of recitation of personal knowledge, is defect of substance that may

be raised for first time on appeal). Thus, we conclude that the Fernandezes did not waive their

objection that the affiants lacked personal knowledge by failing to assert it in response to Sharon

Peters’s motion for summary judgment.

               Similarly, the Fernandezes’ complaints that the affidavit testimony was conclusory

and included unsubstantiated opinion are claims that the evidence was incompetent



                                                    8
because it contained conclusions not supported by facts.           To support summary judgment,

an affidavit must contain specific factual bases, admissible in evidence, upon which its

conclusions are based. Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984); see also

Tex. R. Civ. P. 166a(f) (affidavits “shall set forth such facts as would be admissible in evidence”).

Because the Fernandezes’ assertion that Sharon Peters’s affidavits lacked specific factual bases goes

to the competence of the summary judgment proof, the Fernandezes did not waive their complaint

by their failure to raise it at the summary judgment hearing. See Dailey, 83 S.W.3d at 226;

Sprayberry, 2010 Tex. App. LEXIS 2517, at *11-12.

               Having concluded that the Fernandezes did not waive their objections to the substance

of the affidavits, we turn to the summary judgment evidence. The rules governing summary

judgments require that “[s]upporting and opposing affidavits shall be made on personal knowledge,

shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the

affiant is competent to testify to the matters stated therein.” Tex. R. Civ. P. 166a(f). Uncontroverted

affidavits are competent evidence to support a summary judgment if the testimony is “clear, positive,

direct, otherwise credible, free from contradictions and inconsistencies, and could have been readily

controverted.” Trico Techs. Corp. v. Montiel, 949 S.W.2d 308, 310 (Tex. 1997) (per curiam)

(citation omitted). The issue, then, is whether Sharon Peters’s uncontroverted affidavits contained

competent summary judgment evidence sufficient to negate at least one essential element of the

Fernandezes’ claim of conversion.

               The supreme court has defined conversion as “‘the wrongful exercise of dominion

and control over another’s property in denial of or inconsistent with his rights.’” Johnson



                                                  9
v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 211 n.44 (Tex. 2002) (quoting Green Int’l, Inc. v. Solis,

951 S.W.2d 384, 391 (Tex. 1997)). “To establish a claim for conversion of personal property, a

plaintiff must have prove that: (1) the plaintiff owned or had legal possession of the property or

entitlement to possession; (2) the defendant unlawfully and without authorization assumed and

exercised dominion and control over the property to the exclusion of, or inconsistent with, the

plaintiff’s rights as an owner; (3) the plaintiff demanded return of the property; and (4) the defendant

refused to return the property.” Smith v. Maximum Racing, Inc., 136 S.W.3d 337, 341 (Tex.

App.—Austin 2004, no pet.) (citations omitted).

                The trial court correctly granted summary judgment in favor of Sharon Peters because

her competent summary judgment evidence conclusively negated at least one essential element of

the Fernandezes’ conversion claim. Sharon Peters testified in her affidavit that she purchased the

real property at a foreclosure sale, that there was personal property located on it, that there was no

claim or notice of claim to the personal property, and that she disposed of it. While, as the trial court

noted, portions of the affidavit testimony Peters presented may have been conclusory and not based

on personal knowledge, this portion consists of admissible facts and contains no conclusions or

unsubstantiated opinions. Moreover, this testimony is clear, direct, free from contradictions, and

readily controvertible.     Further, these factual recitations demonstrate the basis on which

Sharon Peters had personal knowledge of and was competent to testify to the fact that the

Fernandezes did not demand that she return the personal property, thus negating an essential element

of the Fernandezes’ conversion claim. Because Sharon Peters’s summary judgment evidence was

competent, the Fernandezes offered no controverting evidence, and Peters negated as a matter of law



                                                   10
one essential element of the Fernandezes’ claim for conversion, we conclude that there was no

genuine issue of material fact and the trial court did not err in granting summary judgment. See

Rhone-Poulenc, 997 S.W.2d at 223. We overrule the Fernandezes’ first issue.


Motion for New Trial


                Standard of Review

                The disposition of a motion for new trial is within the trial court’s sound discretion;

we will not disturb the court’s ruling absent an abuse of that discretion. Director, State Employees

Workers’ Comp. Div. v. Evans, 889 S.W.2d 266, 268 (Tex. 1994). A trial court abuses its discretion

if it acts in an unreasonable or arbitrary manner or without reference to any guiding rules and

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

                Generally, before a default judgment can be set aside and a new trial granted, the

defaulting party must satisfy all elements of the Craddock test. Craddock v. Sunshine Bus Lines,

Inc., 133 S.W.2d 124, 126 (Tex. 1939). The Craddock test is well-established: A default judgment

should be set aside and a new trial ordered in any case in which (1) the defaulting party’s failure to

answer or to appear was not intentional, or the result of conscious indifference, but was due to a

mistake or an accident; (2) the defaulting party has a meritorious defense or claim; and (3) the

motion is filed at a time when the granting of a new trial will not occasion delay or work other injury

to the prevailing party. Id. A trial court abuses its discretion by failing to grant a new trial when all

elements of the Craddock test are met. Evans, 889 S.W.2d at 268.




                                                   11
                The defaulting party’s burden as to the first Craddock element is satisfied when its

factual assertions, if true, negate intent and conscious indifference on its part and the factual

assertions are not controverted. In re R.R., 209 S.W.3d 112, 115 (Tex. 2006) (per curiam). In

determining whether the defaulting party’s factual assertions are controverted, the court looks to all

the evidence in the record. Id. If the nonmovant presents controverting evidence at the new trial

hearing, the issue becomes a question of fact for the trial court to resolve. See Estate of Pollack

v. McMurrey, 858 S.W.2d 388, 391 (Tex. 1993). In determining whether the defaulting party’s

failure to respond was intentional or due to conscious indifference, the court looks to the knowledge

and acts of the defaulting party. In re R.R., 209 S.W.3d at 115 (citing Evans, 889 S.W.2d at 269).

                The proper standard for determining whether the defaulting party has met the first

element of the Craddock test is not a negligence standard. Levine v. Shackelford, Melton

& McKinley, L.L.P., 248 S.W.3d 166, 168 (Tex. 2008) (per curiam). Rather, the standard is “one

of intentional or conscious indifference—that the [defaulting party] knew [it should respond] but did

not care.” Fidelity & Guar. Ins. Co. v. Drewery Constr. Co., 186 S.W.3d 571, 575-76 (Tex. 2006)

(per curiam).


                Conscious Indifference vs. Accident or Mistake

                In their second issue, the Fernandezes assert that the trial court abused its discretion

in denying their motion for new trial because their failure to respond to Sharon Peters’s motion for

summary judgment was not due to intentional conduct or conscious indifference but was the result

of a mistake. Specifically, they contend that their failure to respond was the result of “not having




                                                  12
counsel at the time of the motion for summary judgment[1] and not receiving the mailed notices on

the motion for summary judgment through negligent failure to pick up certified mail or make sure

a proper forwarding address was on file with the United States Postal Service.”

               The Fernandezes, thus, assume that Craddock applies to our review of the trial court’s

denial of their motion for summary judgment. It is unclear, however, whether the equitable standard

of Craddock applies in the context of a default summary judgment. Limestone Constr., Inc.

v. Summit Commercial Indus. Props., Inc., 143 S.W.3d 538, 542 (Tex. App.—Austin 2004, no pet.)

(noting this Court has never applied Craddock standard in default summary judgment context). The

supreme court has ruled that Craddock does not govern default summary judgment cases on certain

facts. In Carpenter v. Cimarron Hydrocarbons Corporation, the supreme court held 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.” 98 S.W.3d 682, 683-84 (Tex. 2002) (emphasis added). Thus, at least when

the nonmovant had notice prior to the hearing, Craddock does not apply to a motion for new trial

following a default summary judgment. Id.




       1
            The record reflects that almost two months passed between the withdrawal of the
Fernandezes’ attorney and the filing of Sharon Peters’s motion for summary judgment. Pro se
litigants are held to the same standards as licensed attorneys and must comply with the applicable
laws and rules of procedure. Wheeler v. Green, 157 S.W.3d 439, 444 (Tex. 2005) (per curiam). To
treat pro se litigants differently would accord an unfair advantage over litigants represented by
counsel. See Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978).

                                                13
               Whether Craddock applies on the facts of this case is less clear. Here, the

Fernandezes contend that they had no notice of the summary judgment motion before the trial court

rendered judgment. The supreme court in Carpenter expressly reserved the question of whether

Craddock applies “when a nonmovant discovers its mistake after the summary-judgment hearing or

rendition of judgment.”2 Id. at 686. Several of our sister courts have concluded, post-Carpenter,

that Craddock applies when a default summary judgment nonmovant does not receive notice until

after the summary judgment hearing. See Harden v. East Tex. Med. Ctr. Health Care Assocs.,

No. 14-08-00627-CV, 2009 Tex. App. LEXIS 3409, at *4 (Tex. App.—Houston [14th Dist.]

May 19, 2009, no pet.) (mem. op.) (“Craddock applies when a summary-judgment non-movant does

not receive notice of the submission of the summary-judgment motion until after the submission

date.”); Cantu v. Valley Baptist Med. Ctr., No. 13-02-00321-CV, 2003 Tex. App. LEXIS 7379,

at *3 n.2 (Tex. App.—Corpus Christi Aug. 28, 2003, no pet.) (mem. op.) (distinguishing Carpenter

and applying Craddock where defaulting party contended she did not receive notice and learned of

the hearing only after judgment was entered); Olien v. University of Tex. of the Permian Basin,

No. 08-02-00300-CV, 2003 Tex. App. LEXIS 1549, at *4 (Tex.App.—El Paso Feb. 20, 2003,

no pet.) (mem. op.) (applying Craddock because fact pattern of Carpenter “not the case” where




       2
          In subsequent cases, the supreme court has held in other contexts that Carpenter does not
apply when the nonmovant was unaware of its need to file a response or take other action but has
not resolved the question of its application in the context of a default summary judgment.
See Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922, 927 (Tex. 2009) (per curiam) (holding
Carpenter does not apply to post-answer default judgment against defendant who was not aware of
trial date); Wheeler, 157 S.W.3d at 442 (declining to apply Carpenter to summary judgment
nonmovant, acting pro se, who filed responses to requests for admission two days late and did not
realize need to move to withdraw deemed admissions but attended summary judgment hearing).

                                                14
defaulting party did not become aware of hearing until after summary judgment granted).

Cf. Stanley v. CitiFinancial Mort. Co., 121 S.W.3d 811, 815-16 (Tex. App.—Beaumont 2003, pet.

denied) (observing that decision in Carpenter “called into question” whether Craddock applies when

defaulting summary judgment nonmovant did not discover its mistake until after the hearing but

deciding case on other grounds).

               This Court and at least one other court have, instead, relied on language in Carpenter

in determining whether the defaulting summary judgment nonmovant met its burden in its motion

for new trial without deciding whether Craddock or Carpenter governs. See Limestone Constr.,

143 S.W.3d at 544; Kern v. Spencer, No. 02-06-00199-CV, 2008 Tex. App. LEXIS 5582, at *12-13

(Tex. App.—Fort Worth July 24, 2008, no pet.) (mem. op.). In Carpenter, the supreme court

articulated a new “good cause” test for determining whether a trial court should grant a nonmovant’s

motion for leave to file a late response when the nonmovant discovers its mistake in time:


       [A] motion for leave to file a late summary-judgment response should be granted
       when the nonmovant establishes good cause by showing that the failure to timely
       respond (1) was not intentional or the result of conscious indifference, but the result
       of an accident or mistake, and (2) that allowing the late response will occasion no
       undue delay or otherwise injure the party seeking summary judgment.


98 S.W.3d at 684. Although the supreme court articulated this test as the standard for a trial court’s

decision whether to grant a motion for leave to file a late summary judgment response, it applied the

standard in its review of the nonmovant’s motion for new trial. Id. at 686-88; see also Limestone




                                                 15
Constr., 143 S.W.3d at 543 n.7 (noting Carpenter supreme court’s application of new standard to

motion for new trial before it).3

                  Moreover, the first prong of the Carpenter “good cause” test is essentially the same

as the first element of the Craddock standard. See 98 S.W.3d at 684; Craddock, 133 S.W.2d at 126;

see also Limestone Constr., 143 S.W.3d at 543; Kern v. Spencer, 2008 Tex. App. LEXIS 5582, at

*12. Regardless of which test applies, then, the first inquiry is the same. Thus, without deciding

whether Craddock or Carpenter governs, we will review the record to determine whether the

Fernandezes’ failure to respond to Sharon Peters’s motion for summary judgment was not intentional

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

                  The evidence in the record shows that Sharon Peters mailed notices to the

Fernandezes at their last known addresses as stated in the court’s order allowing the withdrawal of

their attorney, with Peters’s attorney’s firm name and office address given as the return address. The

record further shows that the mailing to Marissa Fernandez was returned unclaimed after three

attempted deliveries and the mailing to Peter Fernandez was returned marked as undeliverable, with

no forwarding address. As proof that their failure to respond was mere negligence and not the result

of conscious indifference, the Fernandezes relied on their affidavits and Peter Fernandez’s testimony

at the hearing.


       3
         Further, in two post-Carpenter decisions involving the denial of motions for summary
judgment, the supreme court has declined to apply Carpenter for other stated reasons, not for the
reason that it does not apply in the context of motion for new trial. See Dolgencorp of Tex.,
288 S.W.3d at 927 (reason for declining to follow Carpenter was that nonmovant did not realize
mistake before judgment); Wheeler, 157 S.W.3d at 442 (stated reason for holding Carpenter
inapplicable was that nonmovant, acting pro se, did not realize need to seek to withdraw deemed
admissions prior to summary judgment hearing).

                                                   16
                In their affidavits, the Fernandezes both averred that they did not receive Peters’s

motion for summary judgment. Marissa Fernandez, however, did not offer further evidence or

testimony and thus did not dispute that the notice was mailed to the proper address or offer any

explanation for why she failed to pick up her certified mail despite three notices. Peter Fernandez

stated in his affidavit that he had left a forwarding address with the postal service but, at the hearing,

he offered conflicting testimony regarding leaving a forwarding address and receiving mail. He

testified that he had completed his move by March 2009 and filed a forwarding address with the

postal service at the end of March 2009. Yet he further testified that he received his attorney’s

motion to withdraw, which was filed in June 2009, at the old address. Moreover, he testified that

he did not communicate his change of address to the court.

                On this record, we cannot say that the trial court abused its discretion in denying the

Fernandezes’ motion for new trial. As factfinder, the trial court is charged with the duty of

ascertaining the facts surrounding the default circumstances, and it is within the trial court’s province

to judge the credibility of the witnesses and to determine the weight to be given their testimony.

Jackson v. Mares, 802 S.W.2d 48, 51 (Tex. App.—Corpus Christi 1990, writ denied). As the sole

judge of the credibility of the witnesses, see Montgomery Indep. Sch. Dist. v. Davis, 34 S.W.3d 559,

567 (Tex. 2000), and on this record, the trial court was free to believe that Marissa Fernandez

consciously disregarded the three notices of attempted delivery of a certified letter from opposing

counsel and chose not to pick up the mailing. Further, the court could have discredited the testimony

of Peter Fernandez that he filed a forwarding address and could have found that he consciously chose

not to notify the court or opposing counsel of his change of address or that he actually received



                                                   17
notice of the motion for summary judgment and failed to act on it. See id.; see also Tex. Civ. Prac.

& Rem. Code Ann. § 30.015(d) (West 2008) (requiring party or party’s attorney to provide written

notice of change of address to clerk of court during course of civil action).

               In sum, we conclude that there is evidence in the record of the knowledge and acts

of the Fernandezes upon which the trial court could have reasonably decided that the Fernandezes’

failure to respond to Sharon Peters’s motion for summary judgment was not due to accident or

mistake but was the result of conscious indifference. See Levine, 248 S.W.3d at 169. Because we

conclude that the trial court was within its discretion in denying the Fernandezes’ motion for new

trial under the first element of both Craddock and Carpenter, we will not disturb the trial court’s

ruling. See Evans, 889 S.W.2d at 268 . We need not consider whether the Fernandezes met the

other elements of either Craddock or Carpenter because they failed to demonstrate that their failure

to appear was not the result of conscious indifference. See Tex. R. App. P. 47.1. Accordingly, we

overrule the Fernandezes’ second issue.


                                          CONCLUSION

               Having overruled the Fernandezes’ issues, we affirm the trial court’s judgment.



                                              __________________________________________
                                              Jan P. Patterson, Justice

Before Justices Patterson, Puryear, and Henson

Affirmed

Filed: October 19, 2010



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