AFFIRM; and Opinion Filed August 4, 2014.

S

In The

Court of Appeals

Fifth District of Texas at Dallas

No. 05-13-01189-CV

DAWN M. BROWN, Appellant

V.

MELISSA 121/5 PARTNERS, LTD., Appellee

On Appeal from the 366th Judicial District Court

Collin County, Texas

Trial Court Cause No. 366-03721-2012

MEMORANDUM OPINION

Before Justices Moseley, O’Neill, and FitzGerald 

Opinion by Justice O’Neill

Appellant Dawn M. Brown appeals the trial court’s summary judgment in favor of 

appellee Melissa 121/5 Partners, Ltd. Appellant argues the trial court abused its discretion by 

denying her request for leave to file a late response to the summary judgment and by not granting 

her motion for new trial. We affirm. 

Background

Appellee and appellant entered into a lease agreement regarding property located in 

Melissa, Texas. Appellee filed suit against appellant and Joseph S. Hobbs1 after they failed to 

pay rent for seven months. Appellee sought damages in the amount of $17,500.00 for rent and 

$315.00 in late fees for each month. Appellant filed a general denial.

 1 A default judgment was entered against Hobbs. He is not a party to this appeal. 
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Appellee later filed a motion for summary judgment, with supporting affidavits, based on 

the alleged undisputed facts establishing a breach of the lease agreement. A hearing was set on 

the motion for May 29, 2013. Appellant filed a motion for leave to file a late response to the 

motion for summary judgment arguing that her attorney was unaware of the hearing date. Her 

attorney alleged he received the forty-one-page motion for summary judgment and the forty-sixpage default judgment motion against Hobbs at the same time via facsimile. A one page fax 

cover sheet indicating the hearing date was in between the two documents, and he “did not see 

this page and assumed he would later receive notice of a hearing date.” Appellee filed a 

response in opposition to the motion. The trial court denied appellant’s request for leave to file a 

last response and granted appellee’s motion for summary judgment on May 29, 2013. The court 

awarded $36,445.00 in damages and attorney’s fees. Appellant timely filed a motion for new 

trial, which was overruled by operation of law. This appeal followed. 

Denial of Motion for Leave to File a Late Summary Judgment Response

In her first issue, appellant argues the trial court abused its discretion by not granting her 

leave to file a late response to appellee’s motion for summary judgment. Appellee responds 

appellant (1) failed to show the required good cause for failing to timely file a response; (2) 

failed to file a sworn motion or affidavits in support of her response; and (3) failed to answer 

requests for disclosures. 

We review the trial court’s ruling under an abuse of discretion standard. Carpenter v. 

Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 686–87 (Tex. 2002). The trial court abuses its 

discretion when it acts without reference to any guiding rules or principles. Id. at 687. 

In a summary judgment proceeding, the nonmoving party may file and serve opposing 

affidavits or other written responses no later than seven days prior to the scheduled date of the 

hearing. TEX. R. CIV. P. 166a(c). The nonmoving party must obtain leave to file evidence after 
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the deadline. Id. A motion for leave to file a late summary judgment response should be granted 

when the nonmovent establishes good cause by showing that the failure to timely respond (1) 

was not intentional or the result of conscious indifference but the result of accident or mistake 

and (2) allowing the late response will not cause any undue delay or otherwise injure the party 

seeking summary judgment. Carpenter, 98 S.W.3d at 686. 

We first acknowledge that appellant’s motion for leave to file a late summary judgment 

response is neither verified nor has any supporting evidence attached. While appellee argues this 

alone is a ground to affirm, we follow the supreme court’s lead in Carpenter and consider the 

merits of the motion to determine if appellant established good cause for failing to timely file a 

summary judgment response. See id. (noting party failed to attach any evidence or supporting 

affidavits to motion and “[e]ven assuming that the trial court could consider counsel’s unsworn 

argument” at the hearing, counsel’s bare assertion the he miscalculated hearing date did not 

establish good cause). 

Here, appellant’s motion for leave to file a late response alleged her attorney did not see 

the hearing notice because it was mixed in the middle of two large documents. The attorney 

further alleged he only learned of the hearing date when he checked the docket of his open cases 

one day before the scheduled hearing. Counsel failed to state in his motion that his actions were 

not intentional or the result of conscious indifference but the result of accident or mistake. 

However, even assuming his unverified arguments established the first Carpenter element, 

appellant failed to show the late response would not cause any undue delay or otherwise injure 

appellee. In fact, the motion does not even mention the possibility of delay if the court granted 

the motion for leave. See, e.g., Swett v. At Sign, Inc., No. 2-08-315-CV, 2009 WL 1425161, at 

*2 (Tex. App.—Fort Worth May 21, 2009, no pet.) (mem. op.) (holding trial court did not err by 

denying motion for leave to file a late summary judgment response when neither the unsworn 
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motion nor the attached affidavits discussed the possibility of delay if the trial court granted the 

motion). Appellee, however, specifically argued in its response that it would be prejudiced by a 

delay because it would delay entry of judgment and cause increased legal fees. Thus, we 

conclude appellant wholly failed to establish the second Carpenter element–that allowing the 

late response would not unduly delay or otherwise injure appellee. As such, appellant failed to 

establish good cause for not timely filing her motion for summary judgment response. We 

therefore hold the trial court did not abuse its discretion by denying appellant’s motion for leave 

to file a late summary judgment response. Appellant’s first issue is overruled. 

Denial of Motion for New Trial

Appellant also contends the trial court abused its discretion by denying her motion for 

new trial. We review the trial court’s failure to grant a new trial for an abuse of discretion. Cliff 

v. Huggins, 724 S.W.2d 778, 779 (Tex. 1987). 

Although appellant argues she established the Craddock elements and is entitled to a new 

trial, the supreme court in Carpenter determined “Craddock does not apply to a motion for new 

trial filed after judgment has been granted on a summary-judgment motion to which the 

nonmovant failed to timely respond when the movant had an opportunity to seek a continuance 

or obtain permission to file a late response.” Carpenter, 98 S.W.3d at 686. While we 

acknowledge appellant requested permission to file a late response, her attempt was insufficient, 

as determined above. Moreover, appellant made the same arguments in her motion for new trial, 

without supporting affidavits, that she made in her motion for leave to file a late summary 

judgment response. Having found no abuse of discretion in the trial court’s denial of her motion 

for leave to file a late summary judgment response, we likewise cannot conclude the trial court 

abused its discretion by not granting her motion for new trial. Contra Nguyen v. Kuljis, 414 

S.W.3d 236, 242 (Tex. App.—Houston [1st Dist.] 2013, pet. denied) (holding appellants entitled 
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to a new trial after summary judgment granted against them when motion for new trial 

established good cause and no undue prejudice by attaching affidavits stating readiness to 

proceed to trial, to defend claims, to prosecute counterclaims, and a willingness to reimburse 

reasonable expenses). We overrule appellant’s second issue.

Conclusion

The judgment of the trial court is affirmed. 

131189F.P05

/Michael J. O'Neill/

MICHAEL J. O’NEILL

JUSTICE
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Court 

S

of Appeals

Fifth District of Texas at Dallas

JUDGMENT

DAWN M. BROWN, Appellant

No. 05-13-01189-CV V.

MELISSA 121/5 PARTNERS, LTD., 

Appellee

On Appeal from the 366th Judicial District 

Court, Collin County, Texas

Trial Court Cause No. 366-03721-2012.

Opinion delivered by Justice O’Neill. 

Justices Moseley and FitzGerald 

participating.

In accordance with this Court’s opinion of this date, the judgment of the trial court is 

AFFIRMED.

It is ORDERED that appellee MELISSA 121/5 PARTNERS, LTD. recover its costs of 

this appeal from appellant DAWN M. BROWN.

Judgment entered this 4th day of August, 2014.