Affirmed in Part, Reversed and Remanded in Part, and Majority and 

Concurring Opinions filed September 29, 2020.

In The

Fourteenth Court of Appeals

NO. 14-18-00928-CV

BRETT STETTNER, Appellant

V.

LEWIS & MAESE AUCTION, LLC, Appellee

On Appeal from the 127th District Court

Harris County, Texas

Trial Court Cause No. 2017-15927

M A J O R I T Y O P I N I O N

In three issues, appellant/defendant Brett Stettner challenges the trial court’s 

(1) denial of his motion for new trial based on alleged lack of notice of two 

summary-judgment motions filed by appellee/plaintiff Lewis & Maese Auction,

LLC; and (2) rendition of summary judgment in favor of Lewis & Maese. We 

affirm in part and reverse and remand in part.
2

I. FACTUAL AND PROCEDURAL BACKGROUND

Stettner attended an auction at which he placed winning bids on thirty items, 

including an advertised Picasso painting. After Stettner failed to pay for the items, 

Lewis & Maese sued him, asserting breach-of-contract, fraud, and promissoryestoppel claims. Stettner answered the suit, asserting several affirmative defenses 

as well as counterclaims for breach of contract and fraud. Stettner alleged that he 

did not pay for any of the items because Lewis & Maese misrepresented the value 

and authenticity of the Picasso painting. In two motions, Lewis & Maese sought a

traditional summary judgment on its breach-of-contract claims and a traditional 

and no-evidence summary judgment on Stettner’s affirmative defenses and 

counterclaims.

After the trial court granted both summary-judgment motions, Lewis & 

Maese nonsuited its fraud and promissory-estoppel claims. Stettner then filed a 

“Motion for Rehearing or, in the Alternative, Motion for New Trial” (the “Motion 

for New Trial”) with a supporting affidavit from Stettner’s attorney. Stettner’s 

attorney acknowledged that (1) he received a June 29, 2018 email that forwarded

to him Lewis & Maese’s summary-judgment motions and notice of the submission 

of these motions (the “June 29 Email”), and (2) he did not realize that an email had 

been sent to his email address in connection with this case or open the June 29

Email until after the trial court granted Lewis & Maese’s summary-judgment 

motions.

Nearly two weeks after Stettner filed the Motion for New Trial, the trial 

court rendered final judgment in Lewis & Maese’s favor. One week after 

rendering final judgment, the trial court denied the Motion for New Trial. 
3

II. ISSUES AND ANALYSIS

Stettner contends in three issues that the trial court abused its discretion in 

failing to grant a new trial because (1) Stettner did not receive notice of the

summary-judgment motions and their submission, (2) his failure to appear was not 

intentional or due to conscious indifference, and (3) Lewis & Maese failed to 

demonstrate its entitlement to summary judgment. 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).

A. Did the trial court err in denying Stettner a new trial based on his 

alleged failure to receive notice of the summary-judgment motions or 

their submission?

Under his first issue, Stettner asserts that the trial court erred in failing to 

grant him a new trial because Stettner did not receive notice of Lewis & Maese’s 

summary-judgment motions or their submission. Stettner alleged in the Motion for 

New Trial that his counsel did not receive notice of the motions for summary 

judgment until after the trial court had granted the motions. Though Stettner

alleged in the Motion for New Trial that Lewis & Maese did not give him notice of 

the filing of its summary-judgment motions or the notices of submission for the 

motions, the law presumes that a trial court will grant summary judgment only 

after proper notice to the parties. See Modelist v. Deutsche Bank Nat. Trust Co.,

No. 14-10-00249-CV, 2011 WL 3717010, at *2 (Tex. App.—Houston [14th Dist.]

Aug. 25, 2011, no pet.) (mem. op.). To rebut this presumption, Stettner had the 

burden to affirmatively show a lack of notice by submitting evidence to the trial 

court rebutting this presumption. See id. 

A document filed electronically under Texas Rule of Civil Procedure 21

“must be served electronically through the electronic filing manager if the email 

address of the party or attorney to be served is on file with the electronic filing 
4

manager.” Tex. R. Civ. P. 21a(a)(1). “Electronic service is complete on 

transmission of the document to the serving party’s electronic filing service 

provider. The electronic filing manager will send confirmation of service to the 

serving party.” Tex. R. Civ. P. 21a(b)(3). A certificate of service or an affidavit 

showing service of a notice constitutes prima facie evidence of the fact of service. 

Tex. R. Civ. P. 21a(e). Prima facie evidence of the fact of service does not 

preclude any party from offering proof that the document was not received. See id.

In each certificate of service in the summary-judgment motions and the 

notices of submission, counsel for Lewis & Maese certified that on June 29, 2018, 

a true and correct copy of the instrument was forwarded to all counsel of record in 

accordance with Texas Rules of Civil Procedure 21 and 21a and that the instrument 

was forwarded to Stettner’s counsel “Via Facsimile . . . and/or Email: [stating the 

email address of Stettner’s attorney].”

1 On appeal, Stettner asserts that the 

certificates of service do not properly show the method of service because in each, 

counsel for Lewis & Maese states that Stettner’s attorney was served by facsimile 

or by email; yet, Stettner’s attorney was served only electronically through the 

electronic filing manager. Lewis & Maese asserts that Stettner’s attorney was 

served through the electronic filing manager at the email address stated in the 

certificates and that the references to service by email cover service through the 

electronic filing manager. Presuming, without deciding, that the references to 

service by email do not cover service through the electronic filing manager, and 

that the certificates incorrectly describe the method of service, Rule 21a does not 

require that the certificate of service specify the method of service, and a certificate

of service raises a presumption of service and receipt, even if the certificate

contains an incorrect statement as to the method of service. See Univ. of Tex. 

1

(boldface type in original omitted).
5

Medical Branch at Galveston v. Durisseau, No. 14-18-00314-CV, 2019 WL 

5612933, at *3–4 (Tex. App.—Houston [14th Dist.] Oct. 31, 2019, no pet.) (mem. 

op.); Approximately $14,980.00 v. State, 261 S.W.3d 182, 187 (Tex. App.—

Houston [14th Dist.] 2008, no pet.). Thus, the certificates of service in the

summary-judgment motions and the notices of submission for the motions raised a 

presumption that Lewis & Maese served each document and that Stettner’s 

attorney received each document. See Tex. R. Civ. P. 21a(e); Mathis v. Lockwood, 

166 S.W.3d 743, 745 (Tex. 2005); Approximately $14,980.00, 261 S.W.3d at 186–

87. 

To rebut the presumption of receipt, Stettner had the burden to present 

evidence showing that Stettner’s attorney did not receive the summary-judgment

motions and the notices of submission. See Modelist, 2011 WL 3717010, at *2; 

Approximately $14,980.00, 261 S.W.3d at 186. In the absence of any proof to the 

contrary, the presumption has the force of a rule of law. See Modelist, 2011 WL 

3717010, at *2; Approximately $14,980.00, 261 S.W.3d at 186. 

In his affidavit filed in support of the Motion for New Trial, Stettner’s

attorney conceded that he received the June 29 Email that forwarded to him Lewis 

& Maese’s summary-judgment motions and notice of the submission of these

motions, but he asserted that he did not see or open the email until after the trial 

court granted the summary-judgment motions. Stettner’s attorney testified that he 

first opened the June 29 Email on July 30, 2018. Stettner’s attorney’s month-long 

delay in opening the June 29 Email does not show that Stettner’s attorney did not 

receive the June 29 Email on June 29, 2018. Stettner’s attorney cannot shift the 

blame for his delay in opening the June 29 Email to Lewis & Maese, and his 

failure to open the June 29 Email promptly does not show that he did not receive 

notice of Lewis & Maese’s summary-judgment motions or notice of the 
6

submission of these motions. See Lampkin v. Brock, No. 03-16-00058-CV, 2016 

WL 3917180, at *2 (Tex. App.—Austin July 15, 2016, pet. denied) (mem. op.). 

The law imputes to Stettner all notice his attorney received during the existence of 

their attorney/client relationship. See Professional Security Patrol v. Perez, No. 

01-12-00506-CV, 2013 WL 4478020, at *3–4 (Tex. App.—Houston [1st Dist.]

Aug. 20, 2013, no pet.) (mem. op.); Buck v. Estate of Buck, 291 S.W.3d 46, 60 

(Tex. App.—Corpus Christi 2009, no pet.); Keough v. Cyrus USA, Inc., 204 

S.W.3d 1, 5. n.2 (Tex. App.—Houston [14th Dist.] 2006, pet. denied).

On appeal, Stettner concedes that the certificates of service in the four 

documents created a rebuttable presumption of service, but Stettner maintains that 

he rebutted this presumption by submitting an affidavit from his attorney showing 

that his attorney did not receive notice of any of these documents until after the 

trial court granted the summary-judgment motions. Stettner does not argue that the 

June 29 Email did not give notice of Lewis & Maese’s summary-judgment motions 

and notice that the motions would be submitted to the trial court for a ruling on 

July 23, 2018. Nor does Stettner assert that his attorney did not receive the June 29 

Email on June 29, 2018. Instead, Stettner argues that Stettner’s attorney did not 

have actual notice of the summary-judgment motions and their submission until 

after the trial court granted the motions. But Stettner’s attorney’s month-long 

delay in opening the June 29 Email does not mean that he did not receive the June 

29 Email giving notice of the motions and their submission. See Lampkin, 2016 

WL 3917180, at *2; Perez, 2013 WL 4478020, at *3–4; Buck, 291 S.W.3d at 60. 

In response to the Motion for New Trial, Lewis & Maese presented 

documents showing that the motions and notices of submission were served on 

Stettner’s counsel through the electronic filing manager on June 29, 2018. On 

appeal, Stettner challenges the lack of authentication of these documents. 
7

Nonetheless, even if we ignore the documents Lewis & Maese submitted in 

response to the Motion for New Trial, the record shows Stettner submitted no

evidence to the trial court rebutting the presumption of proper service, receipt, and

notice. See Modelist, 2011 WL 3717010, at *2; Approximately $14,980.00, 261 

S.W.3d at 186. In the absence of any evidence rebutting these presumptions, the 

trial court did not err in denying the part of the Motion for New Trial in which 

Stettner sought a new trial on the ground that he did not receive notice of Lewis &

Maese’s summary-judgment motions or their submission. See Modelist, 2011 WL 

3717010, at *2; Approximately $14,980.00, 261 S.W.3d at 186. Thus, we overrule 

Stettner’s first issue.

B. Did the trial court err in failing to grant a new trial on the ground that 

Stettner’s failure to respond to the summary-judgment motions was not 

intentional or due to conscious indifference?

In his second issue, Stettner asserts that the trial court erred in failing to 

grant Stettner a new trial on the ground that Stettner’s failure to respond to the 

summary-judgment motions was not intentional or due to conscious indifference. 

Stettner asserts that his failure to respond to the summary-judgment motions was 

due to accident or mistake. 

A motion for new trial preserves for appellate review only those complaints 

raised in the motion. Approximately $5,602.00 v. State, No. 14-08-00359-CV, 2009 

WL 1886127, at *1 (Tex. App.—Houston [14th Dist.] July 2, 2009, no pet.) (mem. 

op.). A complaint on appeal is not preserved by a motion for new trial that raised a 

different issue before the trial court. Approximately $5,602.00, 2009 WL 1886127, 

at *1. Stettner had to preserve his second issue by raising it in the trial court 

through a timely request, objection, or motion stating the grounds for the ruling he 

sought from the trial court with sufficient specificity to make the trial court aware 

of his complaint, unless the specific grounds were apparent from the context. See
8

Tex. R. App. P. 33.1(a); Approximately $5,602.00, 2009 WL 1886127, at *1. 

Stettner did not assert in the trial court that his failure to respond to the summaryjudgment motions was not intentional or due to conscious indifference or that the 

trial court should grant him a new trial on this basis. Because Stettner did not raise

the second issue in the trial court, and this specific ground was not apparent from 

context, Stettner failed to preserve error in the trial court, and thus waived his 

second issue. See Approximately $5,602.00, 2009 WL 1886127, at *1; Gammill v. 

Fettner, 297 S.W.3d 792, 801–02 (Tex. App.—Houston [14th Dist.] 2009, no pet.). 

Stettner cites cases in which courts apply the three factors from Craddock v. 

Sunshine Bus Lines, Inc. See 133 S.W.2d 124, 126 (Tex. 1939). Without 

addressing whether these factors would apply in this case, we note that Stettner did 

not raise each of the three factors in the trial court, and he has not argued each of 

these factors on appeal. So, the applicability of the Craddock test is not before this 

court. See Ellis v. Ellis, No. 13-07-0034-CV, 2008 WL 328025, at *1 (Tex. 

App.—Corpus Christi Feb. 7, 2008, pet. denied) (mem. op.); Stewart v. C.L. 

Trammell Props., Inc., No. 05-04-01027-CV, 2005 WL 2234637, at *1–2 (Tex. 

App.—Dallas Sept. 15, 2005, no pet.) (mem. op.).

Our concurring colleague asserts that we should address whether the 

Craddock test or the good-cause legal standard from Carpenter v. Cimarron 

Hydrocarbons Corporation applies to this case. See 98 S.W.3d 682, 688 (Tex.

2002). Stettner did not preserve error in the trial court as to either potential basis 

for relief. Stettner does not cite this court’s opinion in Ramey v. Bank of Am., N.A.

or assert that it applies to today’s case. See No. 14-11-01109-CV, 2013 WL 84922

(Tex. App.—Houston [14th Dist.] Jan. 8, 2013, no pet.) (mem. op.). Nor does

Stettner assert that he showed entitlement to relief under the Carpenter good-cause 

standard. We were able to overrule Stettner’s first issue without addressing 
9

whether either legal standard applied. See Modelist, 2011 WL 3717010, at *2

(determining that the trial court did not abuse its discretion by rejecting the 

appellant’s lack-of-notice arguments because appellant did not rebut the 

presumption of notice, without addressing whether the appellant had shown good 

cause or satisfied the Craddock test). Any statement by this court as to the 

applicability of the Craddock test or the good-cause legal standard from Carpenter

would be an obiter dictum that would not aid the bench or the bar. See Metro.

Stevedore Co. v. Rambo, 515 U.S. 291, 299–300, 115 S.Ct. 2144, 2149, 132

L.Ed.2d 226 (1995).

We overrule the second issue.

C. Has Stettner shown that the trial court erred in granting Lewis & 

Maese’s motion for a no-evidence summary judgment?

Under his third issue, Stettner asserts that Lewis & Maese failed to 

demonstrate its entitlement to a no-evidence summary judgment. In response to 

Lewis & Maese’s petition, Stettner asserted affirmative defenses of estoppel, fraud, 

lack of consideration, and failure of consideration as well as counterclaims for 

breach of contract and fraud. In its no-evidence motion, Lewis & Maese asserted

that Stettner had no evidence as to (1) five essential elements of his affirmative 

defense of estoppel, (2) six essential elements of his affirmative defense of fraud, 

(3) one essential element of his affirmative defenses of lack of consideration and 

failure of consideration, (4) three of the four essential elements of his breach-ofcontract counterclaim, and (5) six essential elements of his fraud counterclaim.

Liberally construing his appellate brief, we conclude that Stettner asserts that 

the evidence raises fact issues as to his affirmative defense of fraud and his 

counterclaim for fraud. But all of the evidence Stettner cites is evidence attached 

to Lewis & Maese’s summary-judgment motion. In reviewing the propriety of 
10

summary judgment on no-evidence grounds, we ignore evidence attached to a 

combined summary-judgment motion and offered in support of traditionalsummary-judgment grounds, unless the non-movant directed the trial court to that 

evidence in the response to the movant’s no-evidence motion. See Perkins v. 

Walker, No. 14-17-00579-CV, 2018 WL 3543525, at *4 (Tex. App.—Houston 

[14th Dist.] July 24, 2018, no pet.) (mem. op.). Likewise, Stettner may not obtain 

a reversal of a no-evidence summary-judgment motion based on evidence attached 

to items filed in the trial court other than a summary-judgment response, unless he 

identified the evidence purportedly raising a genuine fact issue in a summaryjudgment response. See Lee v. Palacios, No. 14–06–00428–CV, 2007 WL

2990277, at *2 (Tex. App.—Houston [14th Dist.] Oct. 11, 2007, pet.

denied) (mem. op.). Thus, the evidence upon which Stettner relies cannot be used 

to get a reversal of the trial court’s no-evidence summary judgment as to the fraud 

affirmative defense or the fraud counterclaim. See Perkins, 2018 WL 3543525, at 

*4; Lee, 2007 WL 2990277, at *2.

In its no-evidence motion, Lewis & Maese asserted no-evidence grounds 

against at least one essential element of each of Stettner’s affirmative offenses and 

counterclaims. Stettner did not file a summary-judgment response. Thus, Stettner 

has not shown that the trial court erred in granting the no-evidence summaryjudgment motion as to Stettner’s affirmative defenses and counterclaims, and we 

need not address whether the trial court erred in granting a traditional summary 

judgment as to Stettner’s affirmative offenses and counterclaims. See Modelist, 

2011 WL 3717010, at *2; Lee, 2007 WL 2990277, at *1–3.

D. Has Stettner shown that the trial court erred in granting Lewis & 

Maese’s motion for summary judgment on its breach-of-contract 

claims?

Under his third issue, Stettner also challenges the trial court’s granting of 
11

Lewis & Maese’s motion for a traditional summary judgment as to its thirty 

breach-of-contract claims (the “Traditional Motion”). Stettner asserts that a fact 

issue exists because David Lewis testified in his summary-judgment affidavit that 

the Lewis & Maese auction at issue in this case took place on September 1, 2016,

but other summary-judgment evidence shows that the auction occurred on 

September 21, 2016. The documentary evidence Lewis & Maese submitted shows 

that the auction occurred on September 21, 2016. Lewis & Maese alleged in its 

live pleading and in its Traditional Motion that the auction took place on that date. 

Even presuming that the error in David Lewis’s affidavit raised a fact issue, it 

would not be a genuine issue of material fact precluding summary judgment. See 

Vela v. Vela, No. 14-12-00822-CV, 2013 WL 6700270, at *4 (Tex. App.—

Houston [14th Dist.] Sept. 24, 2013, no pet.) (mem. op.); Hernandez v.

Lukefahr, 879 S.W.2d 137, 143 (Tex. App.—Houston [14th Dist.] 1994, no writ).

Though Stettner did not file a response to the Traditional Motion, he still 

may challenge on appeal whether the summary-judgment evidence conclusively

proved Lewis & Maese’s entitlement to summary judgment on its breach-ofcontract claims. See M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d

22, 23 (Tex. 2000); Butt v. Ali, No. 14-15-01096-CV, 2017 WL 1015583, at *3

(Tex. App.—Houston [14th Dist.] Mar. 14, 2017, no pet.) (mem. op.). In a 

traditional motion for summary judgment, if the movant’s motion and summaryjudgment evidence facially establish its right to judgment as a matter of law, the 

burden shifts to the nonmovant to raise a genuine, material fact issue sufficient to 

defeat summary judgment. M.D. Anderson Hosp. & Tumor Inst., 28 S.W.3d at 23.

In our de novo review of a trial court’s summary judgment, we consider all the 

evidence in the light most favorable to the nonmovant, crediting evidence 

favorable to the nonmovant if reasonable jurors could and disregarding contrary 
12

evidence unless reasonable jurors could not. Mack Trucks, Inc. v. Tamez, 206 

S.W.3d 572, 582 (Tex. 2006). The evidence raises a genuine issue of fact if 

reasonable and fair-minded jurors could differ in their conclusions in light of all of 

the summary-judgment evidence. Goodyear Tire & Rubber Co. v. Mayes, 236 

S.W.3d 754, 755 (Tex. 2007). 

Section 2.703 of the Texas Business and Commerce Code, entitled “Seller’s 

Remedies in General,” provides as follows:

Where the buyer wrongfully rejects or revokes acceptance of goods or 

fails to make a payment due on or before delivery or repudiates with 

respect to a part or the whole, then with respect to any goods directly 

affected and, if the breach is of the whole contract (Section 2.612), 

then also with respect to the whole undelivered balance, the aggrieved 

seller may

(1) withhold delivery of such goods.

(2) stop delivery by any bailee as hereafter provided (Section

2.705);

(3) proceed under the next section respecting goods still 

unidentified to the contract;

(4) resell and recover damages as hereafter provided (Section

2.706);

(5) recover damages for non-acceptance (Section 2.708) or in a 

proper case the price (Section 2.709);

(6) cancel.

Tex. Bus. & Comm. Code Ann § 2.703. In the Traditional Motion, Lewis & 

Maese sought damages under section 2.706 of the Texas Business and Commerce

Code. This provision, entitled “Seller’s Resale Including Contract for Resale,”

provides as follows:

(a) Under the conditions stated in Section 2.703 on seller’s remedies, 

the seller may resell the goods concerned or the undelivered balance 

thereof. Where the resale is made in good faith and in a commercially 

reasonable manner the seller may recover the difference between the 
13

resale price and the contract price together with any incidental 

damages allowed under the provisions of this chapter (Section 2.710), 

but less expenses saved in consequence of the buyer’s breach.

. . .

(c) Where the resale is at private sale the seller must give the buyer 

reasonable notification of his intention to resell.

(d) Where the resale is at public sale

. . .

(2) . . . except in the case of goods which are perishable or threaten to 

decline in value speedily the seller must give the buyer reasonable

notice of the time and place of the resale.

Tex. Bus. & Comm. Code Ann § 2.706. Under section 2.706, if an aggrieved 

seller resells the goods concerned in good faith and in a commercially reasonable 

manner, the seller may recover breach-of-contract damages measured by the 

difference between the resale price and the contract price, together with any 

incidental damages allowed under section 2.710, but less expenses saved in 

consequence of the buyer’s breach. See Tex. Bus. & Com. Code § 2.706; Cook 

Composites, Inc. v. Westlake Styrene Corp., 15 S.W.3d 124, 137 (Tex. App.—

Houston [14th Dist.] 2000, no pet.). The seller must give the buyer reasonable 

notice of the seller’s intention to resell the goods. See Tex. Bus. & Com. Code §

2.706; Cook Composites, Inc., 15 S.W.3d at 137. Stettner contends that Lewis & 

Maese did not prove that (1) any of the goods were resold in good faith and in a 

commercially reasonable manner, or (2) Lewis & Maese notified Stettner of its 

intent to sell any of the goods either at a private sale or at a public sale. This court 

has held that each of these requirements is an essential element of a seller’s prima 

facie breach-of-contract case. See Tex. Bus. & Com. Code § 2.706; Cook 

Composites, Inc., 15 S.W.3d at 137–38. So, for Lewis & Maese to be entitled to 

summary judgment as to each of the thirty breach-of-contract claims, the 

summary-judgment evidence must prove as a matter of law that (1) each of the 
14

thirty items was resold in good faith and in a commercially reasonable manner, and

(2) Lewis & Maese notified Stettner of its intent to sell each item sold either at a 

private sale or at a public sale. See id. at 137–38.

Lewis & Maese presented evidence that Stettner had asked Lewis & Maese 

to release the items to the underbidders. Presuming without deciding that this 

request is equivalent to notice of the seller’s intention to resell the goods under 

section 2.706, Lewis & Maese also had to prove conclusively that it resold each 

item in a commercially reasonable manner. See Tex. Bus. & Com. Code § 2.706; 

Cook Composites, Inc., 15 S.W.3d at 137–38. Lewis & Maese did not present any 

evidence showing that it resold one or more of the items in a commercially 

reasonable manner. 

On appeal, Lewis & Maese contends that it also was entitled to recover 

damages under sections 2.708 and 2.709 of the Texas Business and Commerce

Code. See Tex. Bus. & Comm. Code Ann. §§ 2.708, 2.709. Lewis & Maese, 

however, expressly moved for summary judgment based on damages under section 

2.706; Lewis & Maese did not assert any summary-judgment ground seeking 

damages under either section 2.708 or section 2.709. Thus, we may not affirm the 

summary judgment based on damages under section 2.708 or section 2.709. See 

Rush v. Barrios, 56 S.W.3d 88, 97 (Tex. App.—Houston [14th Dist.] 2001, pet. 

denied) (stating that “[o]ur review is limited to the issues presented to the trial 

court in the motion for summary judgment, as the judgment may be affirmed only 

on grounds presented in the motion.”). 

Moreover, under section 2.708, the measure of damages is “the difference 

between the market price at the time and place for tender and the unpaid contract 

price together with any incidental damages, but less expenses saved in 

consequence of the buyer’s breach.” Tex. Bus. & Com. Code § 2.708(a). Lewis & 
15

Maese did not prove conclusively the market price at the time and place for tender.

Under section 2.709, the seller may recover the price of goods identified to the 

contract “if the seller is unable after reasonable effort to resell them at a reasonable 

price or the circumstances reasonably indicate that such effort will be unavailing.”

Id. § 2.709(a)(2). Lewis & Maese did not prove as a matter of law (1) a reasonable 

effort to resell the goods at a reasonable price, or (2) that the circumstances 

reasonably indicated such an effort would be unavailing. See id.

Under the applicable standard of review, the summary-judgment evidence 

did not prove as a matter of law the damages Lewis & Maese sought in the 

Traditional Motion as to any of its breach-of-contract claims. See Tex. Bus. & 

Com. Code § 2.706; Cook Composites, Inc., 15 S.W.3d at 137–38. Thus, we 

sustain the third issue to this extent, and we conclude that the trial court erred in 

granting summary judgment in favor of Lewis & Maese on its breach-of-contract 

claims. We overrule the remainder of the third issue.

III. CONCLUSION

Stettner submitted no evidence to the trial court rebutting the presumptions

of proper service, receipt, and notice. In the absence of any evidence rebutting 

these presumptions, the trial court did not err in denying the part of the Motion for 

New Trial in which Stettner sought a new trial on the stated grounds that he did not 

receive notice of Lewis & Maese’s summary-judgment motions or their 

submission. 

Stettner failed to preserve error in the trial court as to his second issue, in 

which he asserts that the trial court erred in failing to grant Stettner a new trial on 

the ground that Stettner’s failure to respond to the summary-judgment motions was

not intentional or due to conscious indifference. Stettner has not shown that the 

trial court erred in granting the no-evidence summary-judgment motion as to 
16

Stettner’s affirmative offenses and counterclaims. Even so, the summary-judgment 

evidence did not prove as a matter of law the damages Lewis & Maese sought to 

recover in the Traditional Motion as to any of Lewis & Maese’s breach-of-contract 

claims. 

We reverse the trial court’s judgment as to Lewis & Maese’s breach-ofcontract claims and remand for proceedings consistent with this opinion. We 

affirm the trial court’s judgment in all other respects.

/s/ Kem Thompson Frost

Chief Justice

Panel consists of Chief Justice Frost and Justices Christopher and Bourliot

(Bourliot, J., concurring).