Opinion issued May 21, 2013 .

In The 

## Court of Appeals For The 

## First District of Texas

———————————— NO. 01
- 11
- 00608
- CV

——————————— CHRISTOPHER L. NGUYE N, THO NGUYEN, AND G IANG NGUYEN , Appellant s V. RODRIGO OR L A NDO KULJIS , Appellee

On Appeal from the County Court at Law No. 3 Galveston County, Texas Trial Court Ca se No. 62,501

O P I N I O N 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 th at the trial court2 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, rev erse in part, and remand

. Background I n 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 Code 1 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 depos i t, attorney’s fees, and costs. 2

1 See T EX
. P ROP

. C ODE A NN . § 92.103 (a) (West 200 7) (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 ag ainst 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 T EX
. P ROP

. C ODE A NN . § 92.109 (West 2007) (providing damages for failure to return deposit or pro vide accounting).3 T he Nguyens timely answered the lawsuit and also filed a counterclaim. They a sserted that Kuljis’s claims were bared by r es judicata because a j ustice of the p eace 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 secu rity 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
t he Nguyens , Kuljis brought the suit for purposes of harassment

— he kn ew 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

. T he Nguyens’ attorney withdr e w 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 - ev idence summary judgment on the Nguyens’ counterclaims. The two motions were set for hearing on the same date

. Chris topher Nguyen filed a pro se response to the no

- evidence summary judgment motion, but did not respond to the traditional summary judgment mot ion

. Tho and Giang Nguyen did not file a ny response to the motion s for summary judgment.4 Ten days before the summary judgment hearing, Kuljis moved to strike Christopher’s summary judgment evidence and filed a rep ly to Chris topher ’s
response , arguing that the response failed to address the arguments raised in the

no - evidence motion

. T he 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 fina l 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.
T he 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 fo r 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 de fense and that Kuljis would not suffer any undue prejudice if the judgment w as 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

necessa ry.5 The Nguyens’ motion for new trial was accompanied by the affidavits of each of the Nguyens. In his affidavit, Chris topher stated that he mistakenly believed that his no

- evidence summary judgment response was an adequate
respon se to both motions for sum mary judgment on behalf of all of the Nguyens. Chris topher further averred that Kuljis ha d given the wrong address for returning the deposit , making the Nguyens’ attempt to return the deposit by certified mail unsuccessful

. Chris topher attached the return receipt showing the envelope was undeliverable. Chris topher also stated that he had previously attempted to return the deposit to Kuljis’s attorney, who refused to accept it. Finally, Chris topher averred that he was prepared to refund the deposit immediate ly 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 the ir attorney’s affidavit on the issue of reasonable and

neces sary 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 the y were entitled6 to a new trial under Craddock v. Sunshine Bus Lines, Inc. , 133 S.W.2d 124 (Tex. 19 3 9), becau se they established that their failure to respond adequately to the summary judgment motion s was a mistake, that they had a meritorious defense, and that Kuljis would not be prejudiced. A. Standard of r eview We review a trial court’s denial of a motion for ne w 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 rul es or principles. Downer v. Aquamarine Operators, Inc. , 701 S.W.2d 238, 241

– 42 (Tex. 1985).
B. Application of Craddock and s imilar t ests to summary j udgments 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 del ay 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)7 (quoting Craddock , 133 S.W.3d at 126)

. T he 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
T he Supreme C ourt subsequently refused to extend Craddock “ to a motion for new trial filed after summary judgment is granted on a motion to which the

nonmovan t 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 68 3

– 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

. ; s ee 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 a lleviate 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 t he

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

- answer default judgments. Th e primary issue in this appeal , however, does not concern a post

- answer default; it concerns a n inadequate response to a no - evidence motion for summary judgment.8 Carpen ter C ourt 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 C ourt then turned its analysis to “whether the trial court abused its discretion in denying [the nonmovant’s] motion for le ave 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) t he 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 t he party seeking summary judgme n t

. 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 la te 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 688.9 Subsequently, the Texas Supreme Court applied the Carpenter test to

reverse a traditional summary judgment whe n a pro se nonmovant appeared in person but mistakenly failed to file a written summary judgment respon se . 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 respo nses 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 sum mary 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 admission s and for allowing a late summary jud gment
response. Id

. The S upreme C ourt 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

- Pou lenc, Inc. v. Steel , 997 S.W.2d 217, 222

– 23 (Tex. 1999) (holding that

5 C ontrary to the dissent ’s assertion , the responses were not “inadequate.” They were untimely.10 “trial court may not grant summary judgment by default

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

. A lthough 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
T EX
. R. A PP
. P. 33.1(a)). She a lso 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 jud gment 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 mov e to withdraw deemed admissions, or that she needed to file a response to the summary judgment raising either argument.” Id. The C ourt 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 demonstrat ing that her failures were not intentional or the result of conscious indifference and that the other party was not unduly prejudiced. Id. at 443. T he 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 a11 lenient set for pro se parties

— might encourage litigants to disc ard 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 contain s . 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,
respon ded to Kuljis’s no

- evidence motion for summary judgment on the Nguyens ’ counterclaims. Tho and Giang ne ver 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 t he y notified the trial court of the n ature of their c omplaints in a new trial motion

. See Wheeler , 157 S.W.3d at 442; see also T EX
. R. A PP
. 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 68 7

– 88

. Th o and Giang demonstrated good cause for12 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 su mmary 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 belie f that the response filed by Christopher was a sufficient respon se 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.13 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 prosecut e their own counterclaim s , and stated their willingness to reimburse Kuljis for all reasonable expenses incurred in obtaining th e summary judgment and to refund the security deposit immediately.
W e conclude that , under the facts presented here, the trial court ab used 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 es tablished 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 W heeler 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

.14 Carpenter , 98 S.W.3d at 685 (discussing equitable princi ples underlying Craddock test). We sustain Tho and Giang ’s first issue.
D. Chris topher is entitled to a new trial on ly on Kuljis’s claims Chris topher assert s 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 Chris topher ’s failure to respond to Kulj is’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 motion s by filing a no

- evidence summary judgment response . H e also stated that he w as

un aware of hi s mistake until after the trial court had rendered its judgment. This establishes good cause. T he proof Chris topher provided of no unfa ir prejudice

— the same as the proof provided by Tho and Giang

— satisfied his burden under Wheeler

. We therefore conclude that t he trial court abused its discretion in denying Chris topher ’s motion for new trial as to Kul j is’s traditional summary judgment moti on. Chris topher 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 Chris topher ’s counter claims. Because Chris topher did respond to Kuljis’s no

- evidence motion for summary judgment challenging the Nguyens’15 counterclaims, Carpenter and Wheeler

— which concerned failures to respond rather than inadequate response s

— are not controlling

. Contrary to the dissent, we do not impl y that Chris topher ’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 Chris topher 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
respon ding to requests for admissions and , therefore , Wheeler concerns an inadequate response in addition to an untimely response . But a response to request s for admissions is not a response to a summary judgment motion. 8 And an oral response is legally no response. T EX
. R. C IV
. 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, m u st be presented in writing to the court at the hearing

. ”); City of Houston v. Clear Creek

8 In Wheeler , t he responses to requests for admission we re 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 in tention al and the party requesting the admissions was not prejudiced , no evidence support ed the summary judgment. Id. at 443.16 Basin Auth. , 589 S.W.2d 671, 677 (Tex. 1979) (noting that response must be in writing)

. Yet another reason that Wheeler does no t apply is because Kuljis’s moti o n to strike was filed ten days before the hearing

. Chris topher therefore had an opportunity to address the deficiencies in his evidence, whether by filing an amended response seven d ays before t he hearing or requesting leave to file an amended response less than seven days before the hearing. As in Carpenter , the rules provided Chris topher 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 ( obser ving 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 resu lt of Rule 166a, which requires

a ny summary judgment response to be in writing , and Wheeler , which permits an17 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: i f a nonmovant is entitled to a do

- over whenever it is mistaken about the admissibility of its responsive evidence, another layer to summary judgment pr oceedings with its attend ant costs and delays is added

. This additional step would be invo ked in many

cases as i t is not uncommon for a trial court to sustain objections to the evidence or
t o grant moti o ns 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. 3 d 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 [1 st Dist.] Mar. 6, 2003, no. pet.) (mem. op.) ( sustaining objection to deposition testimony that constituted inadmissible hearsay) . A s 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 intentiona l or the result of conscious indifference

. ” To require trial courts to grant a new trial whenever the nonmovant18 mistakenly file s a defective summary judgment response would be to change summary judgment practice radically

. 9
The trial court should have dis cretion 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 whe n cases are delayed and become more expensive. The rules wisely give trial court s discretion in determin ing 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

ena ble 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 merit orious defense

— does not need to be satisfied.19 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
response s 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 cr afted for pro s e litigations, it should be the Supreme
Court that does so , not this intermedia te court. One other argument is worth addressing: Chris topher argues that his
response to the no

- evidence summary judgment was “essentially . . . no response,” and therefor e Carpenter and Wheeler should apply

. But t he trial court did not strike Chris topher ’s response in its entirety; the trial court struck only the evidence in support of the response

— Chris topher ’s affidavit and four exhibits containing ten20 supporting documents

. Kuljis objected to the evidence on five grounds: (1) Chris topher ’s affidavit w as conclusory , (2) the documents attached to his affidavit constituted inadmissible hears ay , (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 evide n ce . Chris topher does not argue that the t rial 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 discussio n of some of the ex hibits 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 Chris topher ’ 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 o f only $16,907.18 in attorney’s fees. Because the trial court erred in granting Ku l jis affirmative reli ef 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.21 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 Chris topher, 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 Christop her 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.