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

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 that the trial court 
2

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).
3

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.
4

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.
5

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 
6

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)
7

(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.
8

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.
9

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.
10

“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 
11

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 
12

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.
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 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.
14

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’ 
15

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.
16

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-torespond 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 
17

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
18

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.
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

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 
20

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.
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 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.