Affirmed and Memorandum Opinion filed January 8, 2013.

In The

Fourteenth Court of Appeals 

NO. 14-11-01109-CV

JAMES RAMEY AND ELLA RAMEY, Appellants

V.

BANK OF AMERICA, N.A. AND BAC HOME LOANS SERVICING, L.P. 

F/K/A COUNTRYWIDE HOME LOANS SERVICING, L.P., Appellees

On Appeal from the 157th District Court

Harris County, Texas

Trial Court Cause No. 2011-09036

M E M O R A N D U M O P I N I O N

Appellants James and Ella Ramey, appearing pro se, appeal the trial court’s 

order granting summary judgment against them. We affirm.

BACKGROUND

This appeal arises out of the foreclosure and sale of real property located at 

15206 Dawnbrook Drive in Houston. The property was sold on September 6, 
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2005, but the Rameys have refused to vacate the premises and have repeatedly 

brought suit to challenge the validity of the sale. After several years of litigation 

not directly relevant to the questions posed in this appeal, the Rameys filed 

Plaintiff’s Original Petition for Wrongful Foreclosure on February 11, 2011. The 

petition named three defendants: Bank of America, N.A., BAC Home Loans 

Servicing, L.P., f/k/a/ Countrywide Loans Servicing, L.P. (BAC), and Barrett 

Daffin Frappier Turner & Engel, L.L.P., individually and as trustee for BAC Home 

Loans Servicing (Barrett Daffin). Bank of America and BAC filed an answer 

asserting a general denial and affirmative defenses.

On August 11, 2011, the appellees moved for summary judgment and 

sanctions, arguing that the Rameys “repeatedly utilized the legal system to delay 

and harass” them.1 The Rameys did not respond or appear at the hearing, and the 

trial court granted the appellees’ motion for summary judgment on September 22. 

On October 19, the Rameys moved for rehearing. They alleged that their 

then-attorney had not received notice of the appellees’ motion until after the 

summary judgment hearing had taken place, and they requested a 90-day extension 

“to locate new counsel, and seek a new trial on the merits of this case.” The 

appellees responded with email correspondence from the Rameys’ attorney 

himself, acknowledging receipt, and a certified mail return receipt showing 

delivery of the motion for summary judgment to the Rameys’ attorney. The trial 

court overruled the Rameys’ motion. This appeal followed.

 

1 Bankruptcy Judge Wesley W. Steen briefly summarizes and condemns the Rameys’ 

tactics in his “Memorandum Opinion Regarding Order Enjoining James Ramey from Further 

Abuse of the Bankruptcy Courts and Process.” See In re Ramey, Nos. 03-39386, 03-60254, 03-

60351, 05-95620, 2009 WL 2046850 (Bankr. S.D. Tex. July 2, 2009).
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ANALYSIS

I. Jurisdiction

Before addressing the merits, we must first determine whether this appeal is 

within our jurisdiction. See M.O. Dental Lab v. Rape, 139 S.W.3d 671, 673 (Tex. 

2004) (per curiam); Tex. La Fiesta Auto Sales, LLC v. Belk, 349 S.W.3d 872, 878 

(Tex. App.—Houston [14th Dist.] 2011, no pet.). Unless a statute specifically 

authorizes an interlocutory appeal, appellate courts have jurisdiction over final 

judgments only. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001); La 

Fiesta Auto Sales, 349 S.W.3d at 878. A judgment is final if it actually disposes of 

every pending claim and party. Lehmann, 39 S.W.3d at 205; Seber v. Union Pac. 

R.R., 350 S.W.3d 640, 644 (Tex. App.—Houston [14th Dist.] 2011, no pet.).

In granting the appellees’ motion for summary judgment, the trial court

ordered “that any and all claims asserted by Plaintiffs against Defendants Bank of 

America, N.A. and BAC Home Loans Servicing, L.P. f/k/a Countrywide Home 

Loans Servicing, L.P. are hereby dismissed in their entirety with prejudice to 

Plaintiffs’ right to refile same.” The trial court’s order did not address any of the 

Rameys’ claims against Barrett Daffin. It was therefore an unappealable 

interlocutory order. See Lehmann, 39 S.W.3d at 205; Seber, 350 S.W.3d at 644. 

However, while this appeal was pending, the trial court dismissed the 

Rameys’ claims against Barrett Daffin for want of prosecution and expressly made 

its interlocutory order final. The Texas Rules of Appellate Procedure provide that, 

when a trial court modifies a judgment after the judgment has been appealed, 

appellate courts must treat the appeal as arising from the modified judgment. Tex. 

R. App. P. 27.3. Accordingly, we treat this appeal as arising from the final 

judgment below, and we proceed to determine its merits.
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II. Notice

In their motion for rehearing, the Rameys alleged that their attorney had not 

learned of the motion for summary judgment until after judgment had been 

rendered. 

It is unclear which standard of review we would apply in that case. See 

Limestone Constr., Inc. v. Summit Commercial Indus. Props., Inc., 143 S.W.3d 

538, 542-43 (Tex. App.—Austin 2004, no pet.). The supreme court has expressly 

reserved the question of whether similar facts should be reviewed under the 

equitable Craddock standard or the Carpenter “good cause” standard. Id.; see 

Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 688 (Tex. 2002); 

Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124, 126 (1939).

We need not decide that issue today. The record conclusively establishes 

that the Rameys had notice of the summary judgment hearing nearly one month

before it occurred. That was ample time to seek a continuance or obtain 

permission to file a late response; when procedural remedies are available, 

Craddock does not apply. 2 Carpenter, 98 S.W.3d at 686 (disapproving of the

application of Craddock to a case in which the nonmovant’s attorney admitted 

receiving notice prior to a summary judgment hearing but did not file a timely 

response) (citing Medina v. W. Waste Indus., 959 S.W.2d 328, 330-31 (Tex. 

App.—Houston [14th Dist.] 1997, pet. denied)).

In their unsworn motion for rehearing, the Rameys alleged that neither they 

nor their attorney received notice of the summary judgment hearing until after it 

had occurred. They offered no evidence in support of their motion, and the motion 

 

2 The purpose of the Craddock standard is to alleviate unduly harsh and unjust results at a point 

when the defaulting party has no other remedy available. Carpenter, 98 S.W.3d at 685. 
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itself is not evidence. See James v. Comm’n for Lawyer Discipline, 310 S.W.3d 

586, 590-91 (Tex. App.—Dallas 2010, no pet.). For the first time in this court, the 

Rameys attempt to rely on a voicemail from their attorney purportedly saying he 

had not received notice of the summary judgment hearing. The voicemail was not 

presented to the trial court, and as evidence outside of the record, we do not 

consider it. See Sabine Offshore Serv., Inc. v. City of Port Arthur, 595 S.W.2d 

840, 841 (Tex. 1979); In re Estate of Hutchins, No. 05-12-01098, ___ S.W.3d ___, 

2012 WL 5492749, at *6 (Tex. App.—Dallas Nov. 13, 2012, no pet. h.). Nothing 

in the record supports the Rameys’ claim that they did not receive notice.

Instead, the record clearly shows that the Rameys did receive notice —

nearly one month before the September 22 hearing. Bank of America and BAC 

provided the trial court with email correspondence between their attorney and the 

Rameys’ attorney regarding the motion for summary judgment and sanctions. On 

August 26, the Rameys’ attorney promised “to read the motion and call [the 

appellees’ attorney].” Further, Bank of America and BAC provided a certified 

mail return receipt for the motion that was addressed to the Rameys’ attorney and

indicated delivery on August 29. In the absence of any contradicting evidence, the 

email correspondence and the certified mail return receipt conclusively establish

that the Rameys’ attorney received notice nearly one month before the summary 

judgment hearing. Notice to the Rameys’ attorney is imputed to the Rameys as a 

matter of law. See, e.g., Am. Flood Research, Inc. v. Jones, 192 S.W.3d 581, 584 

(Tex. 2006); In re Gravitt, 371 S.W.3d 465, 472 (Tex. App.—Houston [14th Dist.] 

2012, pet. denied). Accordingly, the Rameys had notice of the hearing and must 

demonstrate good cause under Carpenter.
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III. Good Cause

Under Carpenter, a nonmovant should be allowed to file a late summary 

judgment response when it 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 accident or mistake, and (2) that allowing the late response will 

occasion no undue delay or otherwise injure the party seeking summary judgment. 

Carpenter, 98 S.W.3d at 688. We review a trial court’s ruling on a party’s request 

to file a late summary judgment response for an abuse of discretion. Id.; LeBlanc 

v. Lange, 365 S.W.3d 70, 82 (Tex. App.—Houston [1st Dist.] 2011, no pet.). A 

trial court abuses its discretion when it acts without reference to any guiding rules 

or principles. Carpenter, 90 S.W.3d at 687; Breof BNK Tex., L.P. v D.H. Hill 

Advisors, Inc., 370 S.W.3d 58, 67 (Tex. App.—Houston [14th Dist.] 2011, no 

pet.).

The Rameys argue a lack of notice as the sole excuse for their untimely 

summary judgment response, but the record does not support their position. We 

hold that the Rameys have failed to establish good cause and that the trial court did 

not abuse its discretion in denying their motion for rehearing. See Carpenter, 98 

S.W.3d at 684. 

CONCLUSION

We affirm the trial court’s judgment.

/s/ William J. Boyce

Justice

Panel consists of Justices Boyce and McCally and Senior Justice Mirabal.3

 

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Senior Justice Margaret Garner Mirabal sitting by assignment.