Krystal Hunter v. Candelario Ramirez and Joseph Monteleone

Reversed and Remanded and Opinion filed November 30, 2021.
In The
Fourteenth Court of Appeals
NO. 14-19-00718-CV
KRYSTAL HUNTER, Appellant
V.
CANDELARIO RAMIREZ AND JOSEPH MONTELEONE, Appellees
On Appeal from the 281st District Court
Harris County, Texas
Trial Court Cause No. 2018-35682
OPINION
Plaintiff in this motor-vehicle-accident case appeals the final summary
judgment that the trial court rendered after plaintiff failed to file a response to the
defendants’ motion for a no-evidence summary judgment. Liberally construing
plaintiff’s briefing, the plaintiff argues that the trial court erred by failing to grant
the plaintiff’s motion for new trial because the plaintiff satisfied the three
Craddock elements.1 We reverse and remand.
1
See Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex. 1934).
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellant/plaintiff Krystal Hunter filed suit against appellees/defendants
Candelario Ramirez and Joseph Monteleone (the “Ramirez Parties”) asserting a
negligence claim based on the collision of two vehicles, one of which was
allegedly owned by Ramirez and driven by Monteleone. Hunter alleged that
Monteleone’s negligence proximately caused Hunter’s personal-injury damages
and that Monteleone’s negligence should be imputed to Ramirez under a negligent-
entrustment theory.
The Ramirez Parties filed a motion to compel, asserting that Hunter had not
objected or responded to the Ramirez Parties’ discovery requests, although the
deadline for doing so had passed. The trial court granted the Ramirez Parties’
motion to compel in part, ruled that Hunter had waived all objections to the
Ramirez Parties’ interrogatories and requests for production, and ordered Hunter to
respond within 10 days to the Ramirez Parties’ requests for disclosure,
interrogatories, and requests for production, including production of responsive
documents.
The Ramirez Parties filed a no-evidence motion for summary judgment in
which they asserted that, despite the trial court’s order compelling discovery,
Hunter had failed to produce discovery. Hunter did not file a response to the
summary-judgment motion. The trial court granted the motion and signed a final
judgment ordering that Hunter take nothing on her claims against the Ramirez
Parties.
Hunter timely filed a motion for new trial that was verified by her attorney.
The Ramirez Parties did not respond to this motion, and the motion was overruled
by operation of law. Hunter has timely appealed.
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II. ISSUES AND ANALYSIS
A. Did the trial court err in in failing to grant Hunter’s motion for new
trial?
Hunter timely filed a verified motion for new trial in which she asserted that
Hunter’s attorney was not aware that the Ramirez Parties had filed the summary-
judgment motion or the notice of hearing on the motion until after the trial court
granted the motion because the email giving notice of these filings went to her
attorney’s spam folder. According to Hunter, her attorney became aware of the
summary-judgment hearing and motion after Hunter’s attorney received notice that
the trial court had signed an order granting summary judgment. Hunter asserted
that her failure to file a response to the summary-judgment motion was not
intentional, but the result of a mistake. Hunter argued that she was entitled to a new
trial under the Craddock elements. See Craddock v. Sunshine Bus Lines, Inc., 133
S.W.2d 124, 126 (Tex. 1934). If these elements apply in today’s case, they would
be: (1) Hunter’s failure to file a response to the motion for summary judgment was
not intentional or the result of conscious indifference, but was due to an accident or
mistake; (2) Hunter’s motion for new trial sets up a meritorious claim against the
Ramirez Parties; and (3) a new trial would cause no undue delay or injury to the
Ramirez Parties. See SVT, LLC v. Seaside Village Townhome Assoc., No. 14-19-
00586-CV, 2021 WL 2800463, at *3 (Tex. App.—Houston [14th Dist.] Jul. 6,
2021, no pet.) (mem. op.). Liberally construing Hunter’s appellate briefing, Hunter
argues that the trial court erred by failing to grant her motion for new trial because
she satisfied each of the three Craddock elements.
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1. Applicability of the Craddock elements
On appeal, the Ramirez Parties assert that the Craddock elements do not
apply because the Craddock case involved a no-answer default judgment and
today’s case involves a no-evidence summary judgment granted after the plaintiff
failed to file a response. See Craddock, 133 S.W.2d at 124–26. In cases decided
after Craddock, courts have held that the Craddock elements apply when a trial
court renders summary judgment against a party who did not file a response. See
SVT, LLC, 2021 WL 2800463, at *3; Washington v. McMillan, 898 S.W.2d 392,
396 (Tex. App.—San Antonio 1995, no writ). Thus, we find no merit in the
Ramirez Parties’ argument that the Craddock elements do not apply because
Craddock was a default-judgment case.
The Ramirez Parties also assert that the legal standard in Carpenter v.
Cimarron Hydocarbons Corporation applies to the analysis of Hunter’s motion for
new trial rather than the Craddock elements. See Carpenter v. Cimarron
Hydocarbons Corporation, 98 S.W.3d 682 (Tex. 2002). In Carpenter the Supreme
Court of Texas held that the Craddock elements do not apply to the analysis of a
“motion for new trial filed after summary judgment is granted on a motion to
which the nonmovant failed to timely respond when the [non-movant] 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,” such as a motion for
leave to file a late response or a motion for continuance. Id. at 683–84.
In Carpenter the plaintiff learned two days before the summary-judgment hearing,
before judgment was rendered, that the plaintiff had not filed a timely response to
the motion for summary judgment, and the plaintiff filed a motion for leave to file
a late response and a motion for continuance on the day of the summary-judgment
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hearing, before the trial court ruled on the summary-judgment motion. See id. at
684–85.
In today’s case, Hunter’s verified motion for new trial showed that Hunter’s
attorney was not aware that the Ramirez Parties had filed the summary-judgment
motion or the notice of hearing on the motion until after the trial court granted the
motion because the email giving notice of these filings went to the attorney’s spam
folder. Even though Hunter’s attorney may have had constructive notice of the
summary-judgment motion and hearing through the email, because the email went
to the attorney’s spam folder, Hunter’s attorney did not have an opportunity to
employ the means that the civil procedure rules make available to alter the
deadlines that Rule 166a imposes. See id. at 683–85. Therefore, the Craddock
elements rather than the Carpenter legal standard apply to today’s case. See
Dolgencorp of Texas, Inc. v. Lerma, 288 S.W.3d 922, 927 (Tex. 2009) (concluding
that the Craddock elements rather than the Carpenter legal standard applied to case
because party’s counsel who failed to appear for trial was not actually aware that
trial would begin on that date); SVT, LLC, 2021 WL 2800463, at *2–3 (applying
the Craddock elements rather than the Carpenter legal standard to case in which
party that did not file summary-judgment response “technically received notice of
the hearing before the deadline to file a response”).
2. Application of the Craddock elements
We review the trial court’s failure to grant Hunter’s motion for new trial and
allowing the motion to be overruled by operation of law for an abuse of discretion.
See In the Matter of the Marriage of Sandoval, 619 S.W.3d 716, 721 (Tex. 2021)
(stating that abuse of discretion standard of review applies to trial court’s denial of
a motion for new trial); Awoniyi v. McWilliams, 261 S.W.3d 162, 165 (Tex.
App.—Houston [14th Dist.] 2008, no pet.) (stating that abuse-of-discretion
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standard of review applies to review of trial court’s alleged error in failing to grant
motion for new trial and allowing the motion to be overruled by operation of law).
Nonetheless, if the uncontroverted factual allegations of Hunter’s verified motion
for new trial satisfied the Craddock elements, then the trial court abused its
discretion by not granting the motion. See In the Matter of the Marriage of
Sandoval, 619 S.W.3d at 721; Director, State Employees Workers' Comp. Div. v.
Evans, 889 S.W.2d 266, 268 (Tex. 1994); Awoniyi, 261 S.W.3d at 165.
Under the first Craddock element, we consider whether Hunter’s verified
motion for new trial showed that her failure to file a response to the summary-
judgment motion was not intentional or the result of conscious indifference. See
SVT, LLC, 2021 WL 2800463, at *3. Under this element, some excuse, although
not necessarily a good one, suffices to show that a party’s failure to respond to a
summary-judgment motion was not because the defendant did not care. See In the
Matter of the Marriage of Sandoval, 619 S.W.3d at 721. To constitute conscious
indifference, the failure to respond must arise from more than mere negligence,
and the element of conscious indifference may be overcome by a reasonable
explanation. See id. An excuse can be reasonable if it is based on a mistake of law
that led to an intentional act. See id. Consistent with our preference for courts to
adjudicate cases on the merits, we consider the knowledge and acts of the
particular party to determine whether a failure to answer was not intentional or the
result of conscious indifference, but rather due to mistake or accident. See id.
A party may supply evidence in support of a motion for new trial by filing a
verified motion. See Mathis v. Lockwood, 166 S.W.3d 743, 744 (Tex. 2005); In re
D.R.P., No. 04-14-00191-CV, 2014 WL 3843989, at *2–4 (Tex. App.—San
Antonio Aug. 6, 2014, no pet.) (mem. op.); Joiner v. AMSAV Group, Inc., 760
S.W.2d 318, 321 (Tex. App.—Texarkana 1988, writ denied). Hunter filed a
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verified motion for new trial in which she asserted that Hunter’s attorney was not
aware that the Ramirez Parties had filed the summary-judgment motion or the
notice of hearing on the motion until after the trial court granted the motion
because the email giving notice of these filings went to the attorney’s spam folder.
According to Hunter, her attorney became aware of the summary-judgment hearing
and motion after Hunter’s attorney received notice that the trial court had signed an
order granting summary judgment. The Ramirez Parties did not object to Hunter’s
motion for new trial, file a response in opposition to this motion, or submit any
evidence to the trial court regarding the motion. Because Hunter’s factual
allegations were not controverted, Hunter has satisfied the first Craddock element
if her verified motion provides factual information that, if taken as true, would
negate intentional or consciously indifferent conduct. See In the Matter of the
Marriage of Sandoval, 619 S.W.3d at 721. If Hunter’s attorney was not aware that
the Ramirez Parties had filed the summary-judgment motion or the notice of
hearing on the motion until after the trial court granted the motion because the
email giving notice of these filings went to his spam folder, and if Hunter’s
attorney became aware of the summary-judgment hearing and motion after he
received notice that the trial court had signed an order granting summary judgment,
then these facts would show that Hunter’s failure to file a response to the
summary-judgment motion was not intentional or the result of conscious
indifference. See In the Matter of the Marriage of Sandoval, 619 S.W.3d at 721–
23; SVT, LLC, 2021 WL 2800463, at *3–5; Old Republic Ins. Co. v. Scott, 873
S.W.2d 381, 382 (Tex. 1994). Thus, Hunter satisfied the first Craddock element.
See In the Matter of the Marriage of Sandoval, 619 S.W.3d at 721–23; SVT, LLC,
2021 WL 2800463, at *3–5; Old Republic Ins. Co., 873 S.W.2d at 382.
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Under the facts asserted in Hunter’s motion for new trial, Hunter’s attorney
actually received in his spam folder the email giving notice of the summary-
judgment motion and hearing; therefore, Hunter is not excused from satisfying the
second and third Craddock elements. See Harden v. East Texas Medical Center
Health Care Assoc., No. 14-08-00627-CV, 2009 WL 1382117, at *3 (Tex. App.—
Houston [14th Dist.] May 19, 2009, no pet.) (mem. op.). Under the second
Craddock element, we consider whether Hunter’s motion for new trial set up a
meritorious claim against the Ramirez Parties. See SVT, LLC, 2021 WL 2800463,
at *3. In the summary-judgment context, “to set up a meritorious defense” in the
second Craddock element means to raise a material fact issue on the grounds
contained in the summary-judgment motion. See SVT, LLC, 2021 WL 2800463, at
*3; Washington, 898 S.W.2d at 396.
In one of her other appellate issues, Hunter challenges the legal sufficiency
of the purported no-evidence grounds in the summary-judgment motion. In their
summary-judgment motion, the Ramirez Parties assert that “there is no evidence
Candelario Ramirez and Joseph Monteleone breached any duty to [Hunter] thereby
causing or contributing to the accident made the basis of this suit.” We presume for
the sake of argument that, the motion was sufficient to assert the following
grounds: (1) there is no evidence that Ramirez breached any duty to Hunter; (2)
there is no evidence that Monteleone breached any duty to Hunter; (3) there is no
evidence that any breach of duty by Ramirez was the proximate cause of the
accident made the basis of this suit; and (4) there is no evidence that any breach of
duty by Monteleone was the proximate cause of the accident made the basis of this
suit.
In her verified motion for new trial, Hunter asserted that (1) Monteleone
failed to properly switch lanes and sideswiped her vehicle; (2) Ramirez failed to
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exercise due care when he allowed Monteleone to operate Ramirez’s vehicle; (3)
the Ramirez Parties were negligent in creating an unreasonable risk of danger to
Hunter and her property when Ramirez allowed Monteleone to have care, custody,
and control of his vehicle knowing Monteleone was an unfit driver; and (4) the
elements necessary to establish Hunter’s negligence claim were established in the
discovery Hunter responded to that the Ramirez Parties failed to mention in their
summary-judgment motion. We conclude that Hunter’s motion for new trial set up
a meritorious claim against the Ramirez Parties and thus satisfied the second
Craddock element. See SVT, LLC, 2021 WL 2800463, at *5–6; In re D.R.P., 2014
WL 3843989, at *4.
The third Craddock element examines whether a new trial would cause
undue delay or injury to the Ramirez Parties. See SVT, LLC, 2021 WL 2800463, at
*3. As to this element, Hunter asserted in her verified motion for new trial that the
granting of the motion would not delay or otherwise work an injury to the Ramirez
Parties. When Hunter made this assertion, the burden of going forward with proof
of injury shifted to the Ramirez Parties. See Mathis, 166 S.W.3d at 744; Cliff v.
Huggins, 724 S.W.2d 778, 779 (Tex. 1987). The Ramirez Parties did not respond
to Hunter’s motion, and thus they did not submit any proof of injury. We conclude
that Hunter has satisfied the third Craddock element. See Mathis, 166 S.W.3d at
744; Cliff, 724 S.W.2d at 779.
III. CONCLUSION
We conclude that the uncontroverted factual allegations of Hunter’s verified
motion for new trial satisfied the Craddock elements and that the trial court abused
its discretion by not granting Hunter’s motion and allowing it to be overruled by
operation of law. Therefore, we sustain Hunter’s first issue, reverse the trial court’s
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judgment, and remand the case for further proceedings consistent with this
opinion.2
/s/ Randy Wilson
Justice
Panel consists of Justices Wise, Bourliot, and Wilson.
2
We need not and do not address the two appellate issues that Hunter presented in the
supplemental brief that this court gave her leave to file.
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