Christopher L. Nguyen, Tho Nguyen and Giang Nguyen v. Rodrigo Orlando Kuljis

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

OPINION

Rodrigo Orlando Kuljis sued his former landlords Christopher L. Nguyen,

Tho Nguyen, and Giang Nguyen. Kuljis filed two motions for summary judgment,

which the trial court granted. In two issues, the Nguyens argue that the trial court

erred in (1) denying their motion for new trial and (2) granting Kuljis more

attorney’s fees than he requested in his motion for summary judgment.

We affirm in part, reverse in part, and remand.

Background

In March 2010, Kuljis filed his original petition against the Nguyens, his

former landlords. He alleged that the Nguyens had failed to return his security

deposit or provide an accounting of the amounts charged against the deposit as

required by the Texas Property Code1 and had “failed to make repairs or address

defects during the lease term, violated [Kuljis’s] privacy in an outrageous manner,

overcharged for utilities, failed to place the utilities in [Kuljis’s] name, and

repeatedly ignored [Kuljis’s] requests for help in the above areas.” Kuljis alleged

that, as a result of the Nguyens’ breaches of the lease, he “drastically overpaid” for

rentals and other charges under the lease. Kuljis sought compensatory damages for

breach of the lease, treble damages for the wrongfully withheld deposit, attorney’s

fees, and costs. 2

1

See TEX. PROP. CODE ANN. § 92.103(a) (West 2007) (providing that landlord has

obligation to refund security deposit within thirty days); id. § 92.109(b) (West

2007) (providing, among other things, that landlord who in bad faith retains

deposit or fails to provide written list of damages and charges against deposit is

liable for amount equal to sum of $100, three times portion of deposit wrongfully

withheld, and tenant’s reasonable attorney’s fees).

2

See TEX. PROP. CODE ANN. § 92.109 (West 2007) (providing damages for failure

to return deposit or provide accounting).

2

The Nguyens timely answered the lawsuit and also filed a counterclaim.

They asserted that Kuljis’s claims were bared by res judicata because a justice of

the peace dismissed an earlier suit brought against them by Kuljis. The Nguyens

further alleged that they attempted to provide Kuljis with “an itemized list of the

items taken from the deposit” and the remainder of the security deposit, but their

certified mail was returned. They then sent the check for the remainder of the

security deposit to the post office box provided by Kuljis’s attorney. According to

the Nguyens, Kuljis brought the suit for purposes of harassment—he knew that it

was frivolous and that the issues had already been resolved. They counterclaimed

for “breach of contract, abuse of process, malicious prosecution,” and for

“vexatious” litigation.

The Nguyens’ attorney withdrew from the lawsuit nine months after it was

filed. While the Nguyens were proceeding pro se, Kuljis moved for traditional

summary judgment on his claims, including his claims that the Nguyens violated

the Property Code and breached the lease. He also separately moved for a

no-evidence summary judgment on the Nguyens’ counterclaims. The two motions

were set for hearing on the same date. Christopher Nguyen filed a pro se response

to the no-evidence summary judgment motion, but did not respond to the

traditional summary judgment motion. Tho and Giang Nguyen did not file any

response to the motions for summary judgment.

3

Ten days before the summary judgment hearing, Kuljis moved to strike

Christopher’s summary judgment evidence and filed a reply to Christopher’s

response, arguing that the response failed to address the arguments raised in the

no-evidence motion.

The trial court held a hearing on the motions for summary judgment. There

is no court reporter’s record of the hearing. Two days after the hearing, the trial

court signed a final judgment granting Kuljis’s motion to strike Christopher’s

summary judgment evidence and both of Kuljis’s motions for summary judgment.

The trial court awarded Kuljis $30,916.34, including $20,157.18 for attorney’s

fees, against the Nguyens, jointly and severally.

The Nguyens filed a timely motion for a new trial, asking the trial court to

set aside the judgment. They argued that their failure to respond to Kuljis’s

traditional motion for summary judgment on his claims for affirmative relief, and

Tho’s and Giang’s failure to respond to Kuljis’s no-evidence motion on their

counterclaims, was not intentional or due to conscious indifference, but due to

accident or mistake. They further asserted that they had a meritorious defense and

that Kuljis would not suffer any undue prejudice if the judgment was set aside. The

Nguyens also argued that the trial court erred in awarding Kuljis more attorney’s

fees than he requested and that the amount awarded was not reasonable or

necessary.

4

The Nguyens’ motion for new trial was accompanied by the affidavits of

each of the Nguyens. In his affidavit, Christopher stated that he mistakenly

believed that his no-evidence summary judgment response was an adequate

response to both motions for summary judgment on behalf of all of the Nguyens.

Christopher further averred that Kuljis had given the wrong address for returning

the deposit, making the Nguyens’ attempt to return the deposit by certified mail

unsuccessful. Christopher attached the return receipt showing the envelope was

undeliverable. Christopher also stated that he had previously attempted to return

the deposit to Kuljis’s attorney, who refused to accept it. Finally, Christopher

averred that he was prepared to refund the deposit immediately and would

reimburse Kuljis for the reasonable expenses Kuljis had incurred in obtaining the

judgment. Tho and Giang filed affidavits containing similar statements. The

Nguyens also attached their attorney’s affidavit on the issue of reasonable and

necessary attorney’s fees.

The trial court conducted an oral hearing on the motion, but there is no court

reporter’s record of the hearing. The trial court denied the motion for new trial, and

this appeal followed.

Motion for New Trial

In their first issue, the Nguyens contend that the trial court erred in denying

their motion for new trial. Specifically, the Nguyens argue that they were entitled

5

to a new trial under Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124 (Tex.

1939), because they established that their failure to respond adequately to the

summary judgment motions was a mistake, that they had a meritorious defense,

and that Kuljis would not be prejudiced.

A. Standard of review

We review a trial court’s denial 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)

(per curiam). A trial court abuses its discretion when it acts in an arbitrary or

unreasonable manner, or if it acts without reference to any guiding rules or

principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex.

1985).

B. Application of Craddock and similar tests to summary judgments

In Craddock, the Texas Supreme Court held that 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. See 133

S.W.2d at 126. The Craddock rule “is based upon equitable principles and ‘prevents

an injustice to the defendant without working an injustice on the plaintiff.’”

Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 685 (Tex. 2002)

6

(quoting Craddock, 133 S.W.3d at 126). The Craddock standard was enacted “to

alleviate unduly harsh and unjust results at a point in time when the defaulting

party has no other remedy available.” Id. at 686. 3

The Supreme Court subsequently refused to extend Craddock “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, satisfaction of the

three Craddock factors does not, without more, confer a party with the right to

have a summary judgment set aside when the nonmovant fails to respond. Id.; see

also Scott v. Hunt, No. 01-11-00042-CV, 2012 WL 983339, at *9 (Tex. App.—

Houston [1st Dist.] Mar. 22, 2012, no pet.) (mem. op.) (“Craddock does not apply

to an appeal from a traditional summary judgment.”) (citing Rabe v. Guar. Nat’l

Ins. Co., 787 S.W.2d 575, 579 (Tex. App.—Houston [1st Dist.] 1990, writ

denied)). The purpose in adopting the Craddock standard—“to alleviate unduly

harsh and unjust results at a point in time when the defaulting party has no other

remedy available”—does not support applying Craddock “when our rules provide

the defaulting party a remedy.” Carpenter, 98 S.W.3d at 686. Although the

3

In Ivy v. Carrell, 407 S.W.2d 212, 213 (Tex.1966), the Court extended Craddock

to post-answer default judgments. The primary issue in this appeal, however, does

not concern a post-answer default; it concerns an inadequate response to a

no-evidence motion for summary judgment.

7

Carpenter Court noted that a nonmovant who fails to timely respond to a motion

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

response, the Court left undecided “whether Craddock should apply when a

nonmovant discovers its mistake after the summary-judgment hearing or rendition

of judgment.” Id.

The Carpenter Court then turned its analysis to “whether the trial court

abused its discretion in denying [the nonmovant’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 687–88.4 The two prong test is the same test used for withdrawing deemed

admissions. Id. at 687. In effect, the two-prong Carpenter test is the same as the

three-prong Craddock test with one exception: it is unnecessary for the party

seeking leave to file a late response to demonstrate a meritorious defense.

4

The Court concluded that the nonmovant had not established good cause because

the motion for new trial offered no explanation for the nonmovant’s failure to

respond aside from counsel’s “bare assertion” that he had “miscalendared” the

hearing, without any supporting affidavits or other evidence. Carpenter, 98

S.W.3d at 688.

8

Subsequently, the Texas Supreme Court applied the Carpenter test to

reverse a traditional summary judgment when a pro se nonmovant appeared in

person but mistakenly failed to file a written summary judgment response. Wheeler

v. Green, 157 S.W.3d 439, 442 (Tex. 2005); see also Marino v. King, 355 S.W.3d

629, 633 (Tex. 2011) (per curiam) (discussing standard articulated in Wheeler). In

Wheeler, the pro se litigant filed her responses to requests for admission two days

late but months before the summary judgment hearing. 5 She attended the summary

judgment hearing, but did not file a summary judgment response because she was

mistaken about discovery deadlines and the nature of a summary judgment

hearing. Wheeler, 157 S.W.3d at 442. The only evidence the movant offered in

support of summary judgment was the deemed admissions. The trial court granted

summary judgment against the pro se litigant, terminating her rights as joint

managing conservator of her daughter and appointing the movant as the sole

managing conservator. Id. The Court reaffirmed the Carpenter two-fold standard

for withdrawing deemed admissions and for allowing a late summary judgment

response. Id. The Supreme Court concluded that the pro se litigant had good cause

for her late-filed responses, and that once the requests were no longer deemed

admitted, she was not required to file a summary judgment response. Id. (citing

Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 222–23 (Tex. 1999) (holding that

5

Contrary to the dissent’s assertion, the responses were not “inadequate.” They

were untimely.

9

“trial court may not grant summary judgment by default . . . when the movant’s

summary judgment proof is legally insufficient”)). Although the pro se litigant

never filed a motion to withdraw her deemed admissions or a late response to the

summary judgment motion, the arguments and requests in her motion for new trial

were sufficient to put the trial court on notice of exactly that complaint. Id. (citing

TEX. R. APP. P. 33.1(a)). She also did not waive the arguments by waiting until the

new trial motion to present them.

Although Carpenter refused to extend “equitable principles allowing these

arguments to be raised in a motion for new trial” when “a party realizes its mistake

before judgment and has other avenues of relief available,” that limitation did not

apply to the pro se litigant because “nothing in this record suggest[ed] that before

summary judgment was granted, [she] 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 the trial court abused its discretion in not allowing the pro se

litigant to withdraw the deemed admissions because she had satisfied both prongs

of the Carpenter test by demonstrating that her failures were not intentional or the

result of conscious indifference and that the other party was not unduly prejudiced.

Id. at 443. The Court cautioned that its holding was limited:

We certainly agree that pro se litigants are not exempt from the rules

of procedure. Having two sets of rules—a strict set for attorneys and a

10

lenient set for pro se parties—might encourage litigants to discard

their valuable right to the advice and assistance of counsel. But when

a rule itself turns on an actor’s state of mind (as these do here),

application may require a different result when the actor is not a

lawyer. Recognizing that [the pro se litigant] did not know what any

lawyer would does not create a separate rule, but recognizes the

differences the rule itself contains.

Id. at 444 (citation omitted).

C. Tho and Giang are entitled to a new trial on Kuljis’s claims and their

counterclaims

After the Nguyens jointly filed one answer and counterclaim in this suit

through their attorney, their counsel withdrew and only Christopher, acting pro se,

responded to Kuljis’s no-evidence motion for summary judgment on the Nguyens’

counterclaims. Tho and Giang never responded to either motion for summary

judgment. Tho’s and Giang’s situation is analogous to that of the pro se litigant in

Wheeler: as nonmovants, they did not file a summary judgment response and they

notified the trial court of the nature of their complaints in a new trial motion. See

Wheeler, 157 S.W.3d at 442; see also TEX. R. APP. P. 33.1(a).

We next turn to whether Tho and Giang satisfied their burden to demonstrate

(1) good cause and (2) no undue prejudice. Wheeler, 157 S.W.3d at 442;

Carpenter, 98 S.W.3d at 687–88. Tho and Giang demonstrated good cause for

11

their failure to respond in their motion for new trial. 6 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. See Wheeler, 157 S.W.3d at 442 (“On this record, the lower courts could

have concluded that [the pro se litigant] was wrong on her dates and wrong on how

to correct them, but not that either was the result of intent or conscious

indifference.”); see also Imkie v. Methodist Hosp., 326 S.W.3d 339, 346 (Tex.

App.—Houston [1st Dist.] 2010, no pet.) (“Imkie, therefore, meets the Wheeler test

for establishing that her failure to respond to the motion for summary judgment

and her failure to ask for an extension of time to respond to the motion for

summary judgment were mistakes based on her misunderstanding of the law due to

her status as a pro se litigant.”). Tho and Giang’s motion for new trial stated their

belief that the response filed by Christopher was a sufficient response to both

summary judgment motions on behalf of all of the Nguyens. They each stated that

they were not aware of their mistake until after the trial court rendered judgment

against them.

Tho and Giang also established that Kuljis would not suffer any undue

prejudice. Their motion for new trial and accompanying affidavits state that

6

The Nguyens filed one response for all three defendants. Because the position of

the three Nguyens and their arguments are not identical, we will treat them as

separate motions.

12

granting a new trial and allowing the Nguyens to respond to Kuljis’s claims would

not cause undue delay or injury to Kuljis. Tho and Giang asserted their readiness to

proceed to trial, to defend against Kuljis’s claims, and to prosecute their own

counterclaims, and stated their willingness to reimburse Kuljis for all reasonable

expenses incurred in obtaining the summary judgment and to refund the security

deposit immediately.

We conclude that, under the facts presented here, the trial court abused its

discretion in denying Tho and Giang’s motion for new trial. 7 See Wheeler, 157

S.W.3d at 443 (“We recognize that trial courts have broad discretion to permit or

deny withdrawal of deemed admissions, but they cannot do so arbitrarily,

unreasonably, or without reference to guiding rules or principles.”); see also

7

In Imkie, this Court stated that Wheeler extended Craddock to summary judgments

“under limited circumstances where a pro se nonmovant appeared in person but

mistakenly did not respond in writing to a matter-of-law summary judgment

motion.” 326 S.W.3d at 345. Thus, in analyzing whether the pro se litigant was

entitled to a new trial based on the equitable principles established in Carpenter

and Wheeler, the Court applied the Craddock test, including its second element

inquiring whether the defendant established a meritorious defense. Id. at 346–47.

However, the Texas Supreme Court subsequently clarified in Marino that Wheeler

did not apply the Craddock test; rather, it applied the two-pronged test from

Carpenter for determining whether a trial court should allow a late-filed summary

judgment response. See Marino, 355 S.W.3d at 633 (holding that trial court may

allow late-filed summary judgment response when party shows good cause and no

undue prejudice, citing Wheeler). Therefore, we likewise apply the two-prong test

established by Carpenter, Wheeler, and Marino.

13

Carpenter, 98 S.W.3d at 685 (discussing equitable principles underlying Craddock

test).

We sustain Tho and Giang’s first issue.

D. Christopher is entitled to a new trial only on Kuljis’s claims

Christopher asserts that his failure to respond properly to Kuljis’s summary

judgment motions was not intentional or the result of conscious indifference;

rather, it was a mistake.

Turning first to Christopher’s failure to respond to Kuljis’s traditional

motion for summary judgment, his motion for new trial included his affidavit

stating his belief that he had responded to both summary judgment motions by

filing a no-evidence summary judgment response. He also stated that he was

unaware of his mistake until after the trial court had rendered its judgment. This

establishes good cause. The proof Christopher provided of no unfair prejudice—

the same as the proof provided by Tho and Giang—satisfied his burden under

Wheeler. We therefore conclude that the trial court abused its discretion in denying

Christopher’s motion for new trial as to Kuljis’s traditional summary judgment

motion. Christopher is entitled to defend against Kuljis’s claims.

The trial court did not abuse its discretion, however, in refusing to grant a

new trial on Christopher’s counterclaims. Because Christopher did respond to

Kuljis’s no-evidence motion for summary judgment challenging the Nguyens’

14

counterclaims, Carpenter and Wheeler—which concerned failures to respond

rather than inadequate responses—are not controlling. Contrary to the dissent, we

do not imply that Christopher’s “errors were intentional or the result of conscious

indifference.” Rather, we hold that the reason his response was inadequate is

irrelevant because the fact that he filed a response at all takes this case outside the

scope of Wheeler.

The dissent argues that Wheeler is “almost identical . . . in all material

respects.” It further contends that our holding that Christopher is not entitled to a

new trial “directly conflicts with Wheeler” because the pro se litigant there “did

respond” to the summary judgment motion orally by appearing at the hearing and

responding to requests for admissions and, therefore, Wheeler concerns an

inadequate response in addition to an untimely response. But a response to requests

for admissions is not a response to a summary judgment motion.8 And an oral

response is legally no response. TEX. R. CIV. P. 166a(c) (stating that any response

must be in writing); Casso v. Brand, 776 S.W.2d 551, 553 (Tex. 1989) (“[A]ll

theories in support of a summary judgment, as well as all opposing issues, must be

presented in writing to the court at the hearing.”); City of Houston v. Clear Creek

8

In Wheeler, the responses to requests for admission were two days late and were

the only evidence to support the summary judgment. 157 S.W.3d at 442. Once the

deemed admissions were set aside because the late response was not intentional

and the party requesting the admissions was not prejudiced, no evidence supported

the summary judgment. Id. at 443.

15

Basin Auth., 589 S.W.2d 671, 677 (Tex. 1979) (noting that response must be in

writing).

Yet another reason that Wheeler does not apply is because Kuljis’s motion to

strike was filed ten days before the hearing. Christopher therefore had an

opportunity to address the deficiencies in his evidence, whether by filing an

amended response seven days before the hearing or requesting leave to file an

amended response less than seven days before the hearing. As in Carpenter, the

rules provided Christopher with a remedy before the summary judgment hearing.

Carpenter, 98 S.W.3d at 686 (stating that Craddock’s purpose—“to alleviate

unduly harsh and unjust results at a point in time when the defaulting party has no

other remedy available”—does not apply “when our rules provide the defaulting

party a remedy.”); see also Wheeler, 157 S.W.3d at 442 (observing that “nothing in

this record suggests that before summary judgment was granted,” pro se litigant

realized her mistake).

Thus, the dissent would extend Carpenter and Wheeler from the failure-to-

respond cases to cases in which a party files an inadequate response because the

evidence supporting the response is inadmissible. The dissent is correct that our

holding grants a nonmovant more rights for failing to respond at all than

responding inadequately. But this anomaly is a result of Rule 166a, which requires

any summary judgment response to be in writing, and Wheeler, which permits an

16

inquiry into a pro se’s good faith when no response is filed but not when a

response is inadequate.

The dissent’s proposed rule would be difficult in practice: if a nonmovant is

entitled to a do-over whenever it is mistaken about the admissibility of its

responsive evidence, another layer to summary judgment proceedings with its

attendant costs and delays is added. This additional step would be invoked in many

cases as it is not uncommon for a trial court to sustain objections to the evidence or

to grant motions to strike evidence on the grounds that a party’s summary

judgment response contains inadmissible or defective evidence. See, e.g., CA

Partners v. Spears, 274 S.W.3d 51, 64 (Tex. App.—Houston [14th Dist.] 2008,

pet. denied) (sustaining objection to, and striking, affidavit as conclusory); Cont’l

Casing Corp. v. Siderca Corp., No. 01-02-00442-CV, 2003 WL 853317, at *4

(Tex. App.—Houston [1st Dist.] Mar. 6, 2003, no. pet.) (mem. op.) (sustaining

objection to deposition testimony that constituted inadmissible hearsay). As a

result, trial courts often grant summary judgments that may not have been granted

if admissible evidence had been filed. Presumably, the responding party in many of

these cases could assert, post-ruling, that they “thought they had filed an

appropriate response,” that they “believed the response was sufficient,” and that

their “failure to respond properly was not intentional or the result of conscious

indifference.” To require trial courts to grant a new trial whenever the nonmovant

17

mistakenly files a defective summary judgment response would be to change

summary judgment practice radically. 9

The trial court should have discretion to grant a request to cure deficiencies

identified at or shortly before the hearing, as it does under the rules, but it should

not be required to do so. Summary judgments based on deficient responses may be

unjust in particular cases, but requiring trial courts to set them aside for every

mistake will also result in injustices when cases are delayed and become more

expensive. The rules wisely give trial courts discretion in determining whether to

allow a party to amend a defective response under the facts of each particular case.

Indeed, such discretion is almost unlimited because a trial court’s denial of a

summary judgment is not reviewable on appeal. See Cincinnati Life Ins. Co. v.

Cates, 927 S.W.2d 623, 625 (Tex. 1996) (stating general rule that denial of

summary judgment is not reviewable on appeal); Baylor College of Med. v. Tate,

77 S.W.3d 467, 469 (Tex. App.—Houston [1st Dist.] 2002, no pet.) (same). As

part of that discretion, a trial court may consider whether to continue the hearing to

enable the nonmovant to file a new response based on arguments that are not

9

Admittedly, the dissent would not require a new trial in every case of an

inadequate response; the responding party would have to satisfy the two Carpenter

factors by showing that it did not intentionally file an inadequate response—a low

threshold for many defects in affidavits—and that a delay would not prejudice the

moving party. By its reliance on Carpenter and Wheeler, the dissent implies that

the third Craddock factor—a meritorious defense—does not need to be satisfied.

18

recorded because, as in this case, there is often no record of the summary judgment

hearing. Conversely, those unrecorded statements may cause a trial court to believe

it is “just” to rule based on the existing record despite a defect that is curable.

Extending Wheeler to cases involving only inadequate summary judgment

responses removes this broad discretion by creating a right to a new trial when the

Wheeler standards are satisfied.

Although not explicitly stated, it appears the dissent would limit this new

rule to pro se litigants. The dissent argues that “pro se defendants who, in good

faith, inadequately respond to a motion for summary judgment” should be treated

the same as “pro se defendants who, in good faith, fail to respond at all.”

Narrowing the proposed rule would improve it. But the Supreme Court ordinarily

requires pro se litigants to comply with the same rules as parties represented by

counsel. See Wheeler, 157 S.W.3d at 444. If a new rule for inadequate summary

judgment responses is to be crafted for pro se litigations, it should be the Supreme

Court that does so, not this intermediate court.

One other argument is worth addressing: Christopher argues that his

response to the no-evidence summary judgment was “essentially . . . no response,”

and therefore Carpenter and Wheeler should apply. But the trial court did not

strike Christopher’s response in its entirety; the trial court struck only the evidence

in support of the response—Christopher’s affidavit and four exhibits containing ten

19

supporting documents. Kuljis objected to the evidence on five grounds: (1)

Christopher’s affidavit was conclusory, (2) the documents attached to his affidavit

constituted inadmissible hearsay, (3) the documents were not authenticated, (4) the

documents were not reliable, and (5) the documents were not relevant.10 The trial

court’s order does not identify which ground it relied on in striking the evidence.

Christopher does not argue that the trial court erred in striking his evidence. 11 The

remainder of his response consisted of a restatement of certain legal propositions

pertinent to summary judgment proceedings, an assertion that certain facts exist

contrary to Kuljis’s motion, and a discussion of some of the exhibits attached to the

response. Thus, there was a response on file even after the court’s ruling.

We sustain in part and overrule in part Christopher’s first issue.

Attorney’s Fees

In their second issue, the Nguyens contend that the trial court erroneously

awarded Kuljis $20,157 in attorney’s fees because Kuljis presented evidence of

only $16,907.18 in attorney’s fees. Because the trial court erred in granting Kuljis

affirmative relief on his claims against all three of the Nguyens, we conclude that

10

The affidavit does not discuss, identify, or refer to the documents.

11

Nor does he contend that the summary judgment motion was defective on its face

so that no response was necessary.

20

there is no basis for the attorney’s fees award without regard to the sufficiency of

the evidence to support the award.

Conclusion

We reverse the judgment of the trial court against Christopher, Tho, and

Giang Nguyen on Kuljis’s claims for breach of the apartment lease or contract,

violations of the Texas Property Code, and fees. We also reverse the judgment

against Tho and Giang Nguyen on their counterclaims. The judgment against

Christopher Nguyen on his counterclaims for breach of contract, abuse of process,

and malicious prosecution, however, is affirmed. We remand for further

proceedings consistent with this opinion. All outstanding motions are dismissed as

moot.

Harvey Brown

Justice

Panel consists of Justices Keyes, Massengale, and Brown.

Justice Keyes, dissenting.

21