Affirmed in Part, R e versed and Remanded in Part, and M ajority and

Concurring Opinion s filed September 29 , 2020.

In The 

## Fourteenth Court of Appeals

NO. 14

- 18

- 00 928

- CV

BRETT STETTNER , Appellant

V. L EWIS & MAE SE AUCTION, LLC , Appellee
On Appe al from t he 1 27 th Distr ict Court

Harris County, Texas T rial Cou rt Cause No. 2017

- 1 5927

M A J O R I T Y O P I N I O N
In three issues , appellant/defenda nt Bre tt Stet tner challenges the trial court ’ s (1) denial of his motion for new trial based on allege d lack o f notice of two summary - jud gment motions filed by appellee/plaintiff Lewis & M aese Auction, LL C ; and (2) rendition of summary jud gment in favor of Lewis & Ma ese
. We affirm in part and rever se and remand in part

.2 I. F A CTUAL AND P ROCEDURAL B ACKGROUND Ste ttner a ttended an a uction at which he placed winning bids on thirty items, in cludin g a n advertised Picasso painting. A f ter Stettner failed to pay for the items, Lewis & M aese su ed h im , asserting breach

- of

- contract, fraud, a nd promissory

esto ppel claims

. S tettne r a n swer ed the suit , asse rting several affirmative defenses

as well as counterclaims for breach of contract and fraud

. Stettner allege d that he d id not pay for any of the items because Lewis & M aese misrepr esented the value and authenticity of the Picas s o p aintin g
. In two motions, Lewis & M aese sough t a traditional summary judgment on its breach

- of

- contract claim s a nd a traditiona l and no - evidence s ummary judgment on Stettner ’ s affirmative defenses and counterclaims

. A f ter the trial court granted both sum ma ry - jud gment m otions , Lewi s & M aese nonsuited its fraud and promissory

- estoppel claims

. Stett n er then filed a

“ Motion for R ehearing or, in the Alternative, M otion f or N ew T rial ” (the “ Motion for New Trial ” ) with a s upporting affidavi t from Stettne r ’ s atto rn ey
. St ettner ’ s att orn ey ack nowledged that (1) he received a June 2 9 , 2018 email that forward ed to him Lewis & M aese ’ s summ ary - judgment motions and notice of the submission of the se mot ions (the “ June 2 9 Email ” ) , and (2) he did not realize that a n emai l h ad been sent to his email address in connect ion wi th thi s case o r open th e June 2 9 E mail until after the trial court grant ed Lewis & M aese ’ s summary - judgment motions

. N early two weeks after Stettner filed the M otion fo r N ew T rial , t he trial court rendered final ju d gment in L ewis & Maese ’ s favor

. O n e we e k after

r endering final jud gment, the trial court denied the M otion for N ew T rial.3 II. I SS UES AND A NALYSIS Stettne r contends in three i ssues that the trial court abused its discretion in failing to grant a new tri al b ecaus e ( 1) Stettner did n ot rec eive notice of the

summa ry - judgment mot ion s and their submission, (2) his failure to appear was no t inte ntional or due to c on scious indifference, and (3) Lewis & Maese fail ed to demonstrat e its entit lement to summary judgment

. We review a tria l cour t ’ s de nial of a m otion 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 c ourt err in denying Stettner a new trial based on h is alle ged failure t o receiv e notic e of the sum mary - j udgment mot ions o r their submission? U n der his first iss ue , Stettner ass er t s that the trial court er red in failing to grant him a new trial b ecause S tett ner did not re ceive notice of Lewis & Maese ’s summary - judgment moti o ns or thei r submission. Stet tner a lleged in the M oti on for N ew T rial that his counsel did not receive notice of the mo tion s for su mmary judgment until after the trial court had granted the motions

. Thoug h Stettner alleg ed in the Motion for Ne w Trial that Le wis & Ma ese d i d not give hi m noti ce of t he f iling o f its summary -

judgme nt mo tion s or the notices o f submission for the motions , t he law presumes t hat a trial cou rt will grant sum m ary judgment only after proper notice to the parties

. See Modelis t v . Deutsch e Bank N at. Trust Co. , No

. 14

- 10

- 00249

- CV, 2 011 W L 3 71 7010, at *2 (Tex. App.

— Houston [14th Dist.] Aug. 25, 2011, no p et. ) (mem . o p.). To rebu t th is presum ption, Stettner had t he bur de n to a ffirmatively show a lack of notice by subm itting eviden ce to the t rial

cou rt rebutting this p resump tion

. See id

. A document filed electronic ally under T e xas Rule of Civ il Procedure 21 “must be serve d electronically through the electronic filing manager if the email address of the party or attorney to be se rved is on f ile wit h the electronic f

il in g4

ma nager.” Tex . R. Civ . P. 21a (a)(1)

. “Electronic service is c omplete on trans mission of th e docume nt to the ser ving party ’ s electronic filing service provider. The elec tronic filing manager wi ll send confirmation of service t o the

se rving party.” Tex. R. Civ . P. 21a (b) (3)

. A certificate of serv ice or an af fidavit sho wing service of a n o tice constitut e s prima facie evidence of the fact of serv ice

. Tex. R. Civ. P. 21a ( e )

. Prima faci e evidence of the fact of service does not p r eclude any party from offe ring p roof that t he doc um ent was not rece ived. See id

. In eac h certif

ica te of servi ce in the summary - ju dgment motion s and the notice s of submiss io n , counsel for Lewis & Maese certified that on June 29, 2018, a true and correct c opy of t he instrumen t was f or ward ed to all c ounsel of record in accordance with Texas Rule s o f Civi l Procedure 21 and 21a and that th e instru men t was forwarded to Stettn er ’ s counsel “ Via Facsimile . . . and/or Email: [ stati ng the email address of Stettner ’ s attor n ey ]. ” 1 On a ppeal, S tettne r asserts that the

cer tif i c ates of service do not properly show the method of service because in each,

coun sel for Lewis & Maese state s that Stettner ’ s attorney was served by facsimile

or by email ; yet , Stettner ’ s attorney was served only electronic al ly t hr ough the electr o nic fi ling manager. L ewis & Maese as ser ts th at Stettner ’ s atto rney was served through the electr o nic filing manager at the email address stated in the certificates and th at the refer ences to se rv ice b y ema il co ver service through th e elec tr o nic filing manager

. Presuming, without deci ding , that the references to service by email do not cover s ervice through the electr o nic filing manager , and that the certific a tes incorrectly describe the method of se r vice, Rule 21a does not require t hat th e certificate of serv i ce specify the m ethod of s ervice, and a certificate of service raises a p resumption o f service an d re ce ipt , eve n if the cert ificate contains an incorrect statement as to the method of service

. S e e Univ . of Tex

.

1 ( bold face type in orig inal o mitted).5

Medical Branch at Galve ston v. Durisseau , No. 14

- 18

- 00314

- CV, 2019 W L 5612933, at *3

– 4 (Tex. App.

— Houston [14th Dist.] Oct. 31, 20 19, no pet. ) (mem. op.); Approximat ely $14,980.00 v. State , 261 S.W.3d 182, 187 (Tex. App.

— Hous ton [14th Dist. ] 200 8 , no pet .)

. Thus, t he certi f ica te s of servi ce in the

sum mary - ju dgment motion s and the notice s of submiss io n f or the motions raise d a presump tion that Lewis & Maese served each document and that S tettner ’ s atto rney received ea ch document. See Tex. R. Civ. P. 21a(e ) ; Mathis v. Lock woo d , 166 S.W.3d 743, 745 (Tex. 2005) ; App ro xim ately $14,980.00 , 261 S.W .3d at 186

– 87

. T o rebut the presumption of receip t, Stettner had the burd en to present evidence s ho wing that St ettner ’ s attorney did not receive the su mmary - judg ment motion s and the not ice s o f submission

. See Modelist , 2011 W L 3 717010, at *2 ; Approximately $14,980.00 , 261 S.W.3d at 186

. In th e absence of a ny proof to the

c ontr ary, the presumpti on has the force of a rule of law. See Modelist , 2011 W L 37 17010 , at *2 ; Approximately $14,98 0.00 , 261 S.W.3d at 186

. In his affidavit filed in s upport of the Motion for New T r i al , Stettner ’ s attorney concede d that he received t he June 2 9 E mail that forward ed to him Lewis & M aese ’ s summary -

judgment motions and n ot ice of the s ubmission of the se
m ot ions , bu t he assert ed t hat h e did not see or open th e email until after the trial court granted the summary - judgment motions

. Stettner ’ s at to rney testified that he f irst op ened the June 29 E mail on Jul y 30, 2018. Stettner ’ s atto rney ’ s month

- long delay i n opening the June 29 Email doe s no t show that S t ettner ’ s atto rney did n ot receive the June 29 Email on Ju ne 29, 2018. Stettner ’ s att orney cannot shift the blame for his delay in opening the Ju n e 29 Email to Lewis & M aese , and hi s failure to open th e June 29 Email promp tly does not show that h e did not receive

no t ice of Lewis & M aese ’ s summary - judgment motions or no tic e of the6

submission of these motions

. See La mpkin v. Brock , No. 03

- 16

- 00058

- C V, 2016 WL 3917180, at *2 (Tex. A p p.

— Austin Ju l y 15, 2016, pet. denied) (me m. op. )

. The law imputes to Stettner all n ot i ce his attorney received during the existence of their attorney/c lient relationship

. See Profess ional Secu rity Patr ol v. Pere z , No. 01

- 12

- 00506

- CV, 2013 WL 44 78020, at * 3

– 4 (Tex. App.

— Houston [1st Di st.] A ug. 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, I n c. , 204 S.W.3d 1, 5. n
. 2 (Tex. App.

— Houston [14th Dist.] 2006, pet. denied)

. On appeal, Stettner concedes th at the certificates of service in the four documents created a re buttab le presumption of service, but Stettner ma intains t hat he re butted this presum ption by submitt ing an affidavit from his attorney showing that hi s attorne y d id not receive notice of an y of the se documents until after the tri al court granted the summary - judgment motions

. Stettner does not argue that the J u ne 29 Email d i d not give notice of Lewis & Maes e ’ s summary - judgment moti o ns and notice that th e motions wo uld be submi tted to the trial court for a ruling on July 23, 2018. N o r does Stett ner assert that his att or ney did not receive the June 29 Email on June 29, 2018. Instead, Stettner argu es that Ste ttner ’ s attorney did not have act ual n otice of the summa ry - judgment motions and their sub missio n until after t he trial court gr anted the motions. But Stettner ’ s attorney ’ s month

- long delay in opening th e June 2 9 Email do es not mean that he d id not receive the Ju ne 29 Email giving notice of the m otions and thei r sub mission. See La mpkin , 2016 W L 3917180, at *2 ; Pere z , 2013 WL 4478020, at * 3

– 4 ; Buck , 291 S.W.3d at 60

. I n response to the Motion for New Trial, Lewis & M aese present ed documents showing t hat the motion s and notice s of s ubmission were served on Stett ner ’s counsel through th e e lectro nic fili ng manager on June 29, 2 018. On

a ppeal, Stettn er challenges the lack of a uthentication of these document s.7

Nonetheless, eve n if we ignor e the documents Lewis & M aese submitte d in resp onse to the Mo t ion for New Tri al, the record shows Stett n er sub mitted no evide nce to t he trial court rebut ting the presumpt ion of pro per service, receipt, and notice

. See M

odelist , 2011 W L 3717010, at *2 ; Approximatel y $1 4, 980.00 , 261 S.W.3d at 186

. In the ab sence of an y evidence reb u tting these presumptions, t h e tri al c ourt did not err in denying the part of the Mot io n for N ew Tr ial i n which Stet tner s ought a new trial on the ground that he di d not re ceive notice of Lewis & Maese ’ s summary -

judgment moti o ns or their submission

. Se e Mo de list , 2011 W L 3717010, at *2 ; Appro x imatel y $14,980.00 , 261 S.W.3 d at 186

. Thu s, we over rule St ettner ’ s first issue.
B. Did the trial c ourt err in fail ing to gr ant a new trial on the ground that Stettner ’ s failure to respon d to the summary
- judgment moti ons was not intentional or due to con s cio us indifference ? In his se cond issue , Stettner asserts that the trial co urt erred in failing to grant Stettner a new trial on the groun d that Stettn er ’ s failure to re spond to the summary - judgment m otio ns was not int enti on al or due to consc ious i nd iffer e nce. Stettner asserts that h is failure to respond to th e summary - judgment m o t ions was due to accident or mistake.
A motion for new t rial preserves for appellate review only those complaints raised in the motion. App roximately $5,602.00 v. State , No. 1 4

- 0 8

- 0035 9

- CV, 200 9 WL 1886 1 27 , at *1 (Tex. App.

— Hou ston [14th Dist.] Ju ly 2, 2009, no pet.) (mem. op.)

. A co mplaint on appeal is not preserved by a motion for new tr ial that raised a different issue before the trial co urt. Approximately $5,602.00 , 20 09 WL 1 8 86127 , at *1

. Stettner had to preserve his second issue by raising it in the trial court through a timely request, objecti on, or motion stating the grounds for the rul ing he sought from the trial court with suffi cie nt specificity to make the trial court a ware of his complaint, u nless the specific grounds were apparent from the context. See8

T ex. R. App. P. 33.1(a); Approximat ely $5,602.00 , 20 09 WL 1886127, at *1

. Stettn er did not assert in the trial cour t that hi s f ailure to re spond to the summary

judgme n t m ot io ns was not intent i on al or due to consc ious i nd iffer ence or that the trial court should grant him a new trial on this basis. Because Stett ner did not raise the se cond issue in the trial court, and this spec ifi c ground was not apparent from conte xt, Stett ner failed to prese rve error in the trial court , and th us waived h is second i ssue. See Approximately $5,602.00 , 20 09 WL 1886127, at *1 ; Gammill v. Fettner , 297 S.W.3d 792, 801

– 02 (Tex. App.

— Houston [14th Dis t.] 2009, no pet.). Stett ner cites cases in wh ich courts apply the t hree factors fro m C raddock v. Sunshi ne Bus Lines , Inc. See 133 S.W.2d 124, 126 ( Tex. 1 939)

. Wit hou t addressing wh ether th ese factor s would apply in this case, we note that Stettner did not ra ise eac h of the t hr ee factors in t he trial court , and h e has n ot argued each of th ese factors on appeal. So, th e applic ability of the Craddoc k test is not befo re this

co urt. See Ellis v. El lis , No. 13

- 0 7

- 0 0 34

- CV, 200 8 WL 328025 , at *1 (Tex. App.

— Corpu s Chri sti Fe b

. 7 , 200 8 , pet. denied ) (mem . op.) ; Ste w art v . C. L. Tra mmell Props., Inc. , No. 05

- 04

- 01027

- CV, 2005 WL 2234637, at *1

– 2 (Tex. App.

— Dallas Sept. 15, 20 05 , no pet.) (mem . op.)

. O u r concurring colleague asserts that we shou ld a ddress w hether the Craddoc k t est or the good

- caus e legal standard from Carpen ter v. Cimarron Hydroc arbons Corp ora tion applies to this case. See 98 S.W.3d 682, 68 8 (Tex. 2002)

. Stet tner did not preserve error in the trial court as to either potential basis for relief

. Stet tner does not c it e this court ’s opinion in Ramey v. B ank o f Am., N.A.

or assert that it applies to t oday ’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 sho w ed entitl ement to relief un der the Carpenter good

- c ause
s ta ndard

. We were able to overrule Stettner ’s first iss ue with out addressing9

whether either legal standar d applied. See M odelist , 2011 W L 3717010, at *2 (de termining that the trial cour t did not ab use i ts di scretion by rejecting the appellant ’ s lack

- of

- no tice arguments becau se appellant did not reb ut the pr esum ption of notice , wit hout addressing w hether the appellant ha d shown good

cause or satisfied the Craddock test). A ny statement by this court as to the applic ability of the Craddoc k test or the g ood

- ca us e legal standard from Carpenter would be an obiter dictum that would not aid the bench or the bar. Se e Metro. Stevedore Co. v. Rambo , 515 U.S. 291, 299

– 300, 115 S.Ct. 2144, 2149, 132 L.Ed.2d 226 (1995)

. W e overrule the second issue. C. Has Stettner sho wn tha t the trial court erred in granting Lewis & M aese ’ s motion for a n o - evidence s umm ary judgment? Und er his third issue, Stettner asserts that Lewis & Maese failed to demonstrate its entitlement to a no

- e vidence summary judgment. In response to Lewis & Maes e ’ s petition, Stett ner as serted affirmative defenses of estoppel, fraud, lack of consideration , and failure of considera ti on a s well as counterclaims for breach of contract and fraud

. In its n o - evidence motion, Lewis & Maese asserte d that Stettner ha d no e vidence as to ( 1 ) five essential elements of his affirmative defe nse of estoppel, ( 2 ) six e sse n t ia l ele ments of his affirmative defense of fraud, ( 3 ) one essen tial element of his affirm ative def enses o f l ack of consi derat ion and failure of consid era tion , (4 ) three of the four es sential e lements of his breach

- of

contr act co unt erclaim, and ( 5 ) s ix e sse nt ial ele ments of his fraud counterclaim

. L iberally const ruing his appellate brief, we conclud e that Ste ttner assert s that the evidence raises fact issu es as to h is affirmative defense of fraud and his counterclaim for fraud

. But all of the evidence Stett n er cites i s evidence attached to Lewis & Maese ’ s summary - judgment motion

. In reviewing the p ropriety of10

summary judgment on no

- evidence grounds, we i gnore evidence attached to a combined summary

-

judgment motion and offere d in support of traditional

summa ry - j udgment grounds , unles s the non

- movant direct ed the trial court to that evidence in the r e sponse to the movant’s no

- evidence motion. See P erk ins v

. Walk e r , No. 14

- 17

- 00579

- CV, 2018 WL 3543525, at *4 (Tex. App.

— Houston [14th Dist.] J uly 24, 2018, no pe t.) (mem. op.) . Li kewi se, Stettner may not obta in a reversal of a no

- ev idence summary - judgme n t motion based on evidence attached to items filed in the trial court o ther than a summary - judgment response, unless he identifie d the evidence purportedly raisin g a genuine fact issue in a summary

judgment response

. See Lee v. Palacios, No. 14

– 06

– 00428

– C V, 2007 W L 2990277, at * 2 (Tex. App.

— Houston [14th Dist.] Oct. 1 1, 2007, pet. denied) (mem. op.)

. Thus, the ev idence up on which Stettner relies cannot be used to get a re versal of the trial court ’ s no - evide nce summary judgment as t o the fraud affirmative de fense o r the fraud counterclaim

. See P erk ins , 2018 WL 354352 5, at *4 ; Lee , 2007 WL 2990277, at * 2

. In its no

- evidence motion, Lewis & Maese asserted n o - eviden c e ground s
a gains t at least one essential element of each of Stettn er ’ s affirmative offenses a nd counte rclaims

. Stet tner di d no t fil e a summary - jud gmen t resp ons e
. Thus, Stettn er has not shown that the trial court err ed in g ranting the no - evidence summary j udgment m otion as to Stettn er ’s affirmative defenses and counterclaims , and we need not add re s s whether the tri a l court er red in g ranting a traditional summa ry judgment as to Stettn er ’s affirmative offenses and counterclaim s
. See Modelis t , 2 011 W L 3 71 7010, at *2 ; L ee , 2007 WL 2990277, at * 1

– 3

. D. Has Stettner shown that the trial court erred in gr a nting L ewi s & M aese ’s motion for summary judgment on its breach
- of

- con tract claims? Under his third is sue, Stettn er also challen ges the trial court ’ s granting of11

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

- of

- contr ac t claims ( the “ Traditional Motion ” )

. S tettner asserts tha t a fa ct issue exists beca use David Lewis testified in his summary

- judgm ent affidavit that the Lewis & Maese aucti on at issue in this case t ook pl ace on September 1, 2016 , but oth er summary -

judgment evidence shows that the auction occurred on September 21, 2016. The documentary evidence Lewis & Maese submitted shows that the a uction occurred on September 2 1, 2016. Lewis & Maese alle ged in its live plead ing and i n its Traditional Motion that the auct ion took place on that date

. Even presuming that the erro r in David L ewis ’ s affidavit raised a fact issue, it

w ould not be a genuine is sue of material fact pre c ludin g summary judgment

. See Vela v. Vela , No. 14

- 12

- 00822

- CV, 201 3 W L 6700270 , at *4 (Tex. Ap p.

— Hou ston [14 th Dist.] Sept. 24, 2013, no pet.) (mem. op.); Her nandez v. Lukefahr , 879 S.W.2d 137, 143 (Tex. App.

— Houston [14th Dist.] 1994, no writ)

. Though S te tt ne r did not file a response to the Traditional Mot ion, he still may challe ng e on a ppeal whet her th e summar y - judgment evi dence conclusively p roved Lewis & Ma ese ’s ent it lement to s ummar y judgment on its brea ch

- of

contract claims. See M.D. Anderso n Hos p
. & 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.

—

Houst on [14th Dist.] Mar. 14, 2017, no pet.) (mem. op.)

. In a traditio nal motion for summary judgmen t, if the movant’s motion and summary judgment evidence facially establish its right to judgment as a matter of law, the burde n shifts to th e nonmovant to raise a genuine, material fact issue sufficient to defeat summary judgm ent. M.D. Anderson Hosp. & Tu mor In st. , 28 S.W.3d at 23

. In our de novo review of a trial court’s summa ry judgment, we consid er all the evidence in the lig ht most favora ble to the non movant , crediting evidence favorable to the nonmovant if reasonable juro rs could a nd disregarding con trary12

evidence unless reasonabl e jurors could not. Mack Trucks, Inc. v. T amez , 206 S.W.3d 572, 5 82 (Tex. 2006). The evidence raises a genui ne issue of fa ct if reasonable and fair

- minded jurors could differ in their conclusion s in light of all of the summ ary -

judgment evidence. Goodyea r Tire & Rubber Co. v. Mayes , 236 S.W.3d 75 4, 755 (Tex. 2007). Section 2.703 of the T e xas Bus iness and Comm erce Code , ent itled “ Seller ’ s Remedies in General, ” provides as follows: Where the buy er wrongfully rejects or revokes acceptance of goods or fail s to make a payment due on or before delive ry or repudiates with r espect to a part or the whole, then with res pect to any go ods di rectly affected and, if the breach is of the whole co ntract ( Section 2.612 ), then also with respect to the whole undelivered balance, the aggrie ved seller may (1) withhold deli very of such goods. (2) stop delivery by any bailee a s hereafter pr ovided ( Section 2.705 ); (3) proceed under the next section respecting goods stil l unidentifie d to the contract; (4) resell and recover damages as hereaft er provided ( Sectio n 2.706 ); (5) recover damages f

or non - acceptance ( Section 2.70 8 ) or in a proper case the pr ice ( Sec tion 2.709 ); (6) cancel. Te x. Bus . & Comm . Code Ann § 2.703. In the Traditional Motion, Lewis & M a ese s ought damages under section 2.706 of the Texas Busin ess and Commerce Code

. This provision, entitled “ Seller ’ s Resale Incl uding Contract for Resale, ” pr ovides as foll ows: (a) Under the c onditions stated in Section 2.703 on seller ’ s remedies, the seller may re sell the goods concerned or the undelivered balance thereof. Where the resale is made in good faith and in a commer cially reas onable manner the sell er may r ecover the dif ference betwee n the13

resale price and the contract price together with any incidental d amages allowed under the provisions of this chapter ( Section 2.710 ) , but less expenses saved in consequence of the buyer ’ s breach.

. . . (c) Where the resa le is at private sale the seller mus t give the buyer reasonable notification of his intention to re sell. (d) Where the resale is at public sale

. . . (2)

. . . except in the case of goods which are perishable or threaten to decline i n value speedily the s eller mu st give the bu yer reasonable notic e of the time and place of the resale

. Tex. Bus. & Comm. Code Ann § 2.70 6

. Under s ection 2.706 , if an aggrieved sel ler rese l l s the goods concerned in good faith and i n a commer cially reasonab le

manner , the sell er may reco ver breach

- of

- contract damag es mea sured by the difference between the resale price and the contract price , together with any incidental damages allowed under se ction 2.710 , but less expenses saved in

c onsequence of the buyer ’ s breach. See Tex. B us. & Com

. Code § 2 .706 ; Cook Composite s, Inc . v. Westlake Sty rene Corp. , 15 S.W.3d 124, 137 (Tex. App.

— Houston [14th Dist.] 2000 , no pet.)

. The se ller must give the buyer reason able notice of the seller ’ s intent ion to resell the goods

. S ee Tex. Bus. & Co m . Code § 2 .706 ; Cook Com

posites, Inc. , 15 S. W.3d at 137

. St ettner contends that Lewis & Maese d id not prove t hat (1) any of the goo d s were resold in good faith and in a commercially re asonable manner , or (2) Le wis & Maese notified Stet tner of its intent t o sell any o f the goods either at a pr ivate sale or at a public sale. This co urt has held that each of these requiremen ts is an essential element of a selle r ’ s pr i ma fac ie breach

- of

- contract case. S

ee Tex. Bus. & Com . Code § 2 .706 ; Coo k Composites, Inc. , 15 S.W.3d at 137

– 38

. So , for Le w is & Ma ese to be e ntit led to summary judgment as to each of the thir t y breach

- of

- contract claims , the summary - judgment evidence must pr ov e as a matter of law that (1) each of the14

th irty item s w as resold i n good faith and in a commerc ially re asonab le m anner , and (2) L ewis & Maese notified Stettner of its intent to sell each item sol d either at a private sale or at a public sale. See id

. at 137

– 38.
Le w is & Ma ese presented evidence that Stettner had asked L e wis & Maese to relea se the i tems to the un der bi dders. Pre s uming without dec id ing th at this request is equivalent to n ot i ce of th e seller ’ s intention to resell the goods under section 2.706 , L e w i s & Maese also had to prove con clusively that it resold each item in a commercially re ason able manner

. S ee Tex. Bus. & Com

. Code § 2 .706 ; Cook Composites, Inc. , 15 S.W.3d at 137

– 38

. Lewis & Maese di d n ot presen t any evidence showing that it resold one or more of the items i n a commercially

r easonabl e manner. On a ppeal, Lew is & Maese contends that it also w as entitled to reco v er damages under sections 2.708 and 2.7 09 of the T e xas Business an d Commerce Code

. See Tex. Bus. & Comm. Code Ann

. § § 2.70 8, 2.709. Lewis & Maes e, ho wever, expressly moved f or sum mary j u dgme nt based on damages under sec tion 2.706 ; Le wis & Maese did not a ssert any summary

- judgment ground seeking damage s under either sec tion 2.708 or section 2.709. Thus, we may not affirm the

s um mary judgment based on damages under section 2.708 or section 2.7 09

. See Rush v. Bar rios , 56 S.W.3d 88, 97 (Te x. App.

— Hous t on [1 4th Dist.] 2001, pet. denied) ( stating that “ [o] ur review is limi t ed to th e issues presented to th e tria l

cour t in the motion for summary judgment , as the judgment may be affirmed only on g rou nds presented in the motion. ” ).
Mo reov er, und er section 2 .708, the me asur e of damages is “ the differen ce b et ween the ma rke t price at the t ime and place for tender and t he unp a id contract p rice t ogether with an y incidental damages , but less expens es saved in conseq uence of the buyer ’ s breach. ” Tex. Bus. & Com. Co de § 2 .70 8 (a). Lewis &15

Maese did not prove conclusively the mark e t price at the time and place fo r ten d er. Un d er section 2.709, th e seller may recover the price of goods iden tified to the contract “ if the se ller is unable afte r reasonable e ffort to resell them a t a reasonable price or the circumstances reasonably indic ate th at such effort will be unav ailin g
. ” Id

. § 2.709 (a)(2). L ewis & Maese di d not prove as a matter of law (1) a re asonable effo r t to resell t he goods at a reaso nable pric e , o r (2) that the c ircums tan ces
r e asonably indicated such an effort would b e unavail ing. Se e id

. U n der the applicable sta ndard of review, the summary

- judgment evidence did not prove as a matter of law the damages Lewi s & Maese sought in the Trad itional Mo tion as to any of it s brea ch

- of

- contract c laim s
. S

ee Tex. Bus. & Com . Code § 2 .706 ; Cook Co mposites, Inc. , 15 S .W.3d at 137

– 38

. Thus , we sustain the third issue to t his extent, and we conclude that the tr ial court err ed in gran ting summary judg m ent in fa vor o f Lewis & Maese on i ts b r each

- of

- contract claim s
. We overr

ule the remainder of the thir d issue.

III. C ONCLUSION Stett ner submitted no evide nce to the t rial court rebut ting the presumpt ion s of pro per service, receipt, an d notice

. In the ab sence of any evidence reb utting thes e presum ptions, th e trial c ourt did not err in denying the part of the Mot io n for N ew Tr ial i n which Stet tner s ought a new trial on the stated grou nds that he did not

re ceive notice of Lewis & Maese ’ s summary - judgment moti o ns or their submiss ion

. Stettner failed to preserv e error in t he trial court as to his second issue, in

w hich he ass erts that the trial co urt erred in failing to g rant Stettner a new trial on the groun d that Stettn er ’ s failure to r e spond to the summary

- judgme nt m otio ns was not intenti on al or du e to consc i ous i nd iffer ence. Stettn er has not shown that the tria l court err ed in granting the no - evidence summary - judgment motion as to16

Stettn er ’s affirmative offense s and counterclaims

. Eve n so , t he summary

- judgment

e vidence did no t prove as a mat ter of law the da mages Lewis & Maese sought to

r ecover in the Traditional Mo tion as to any of Lewis & Maese ’ s breach

- of

- contract

c laim s
. W e reverse the trial court ’ s ju dgment as to Lewis & Maese ’ s bre ach

- of

contra ct cla im s a nd remand for procee di ng s consis te nt wit h this opinion

. W e affirm t he tria l court ’ s ju dg ment in all other respects.

/s/ Kem Thompson Fr ost Chief Justice
Pane l consists of C hief Justic e Frost and Justices C hr is to phe r a nd B ourliot ( Bou rliot, J ., co n curring).