Jacqueline Renee Varady v. Christina Lee Gyorfi and James Steven Gyorfi ( 2016 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-15-00237-CV
____________________
JACQUELINE RENEE VARADY, Appellant
V.
CHRISTINA LEE GYORFI AND JAMES STEVEN GYORFI, Appellees
__________________________________________________________________
On Appeal from the 284th District Court
Montgomery County, Texas
Trial Cause No. 14-02-01328 CV
________________________________________________________________________
MEMORANDUM OPINION
Jacqueline Renee Varady (Varady) sued her sister, Christina Lee Gyorfi
(Christina), and Christina’s husband, James Steven Gyorfi (James) (hereinafter
collectively Defendants), alleging that the Defendants adopted Varady’s biological
child and improperly used money Varady set aside for the Defendants to use for
the care and support of Varady’s biological child. The Defendants filed a no-
evidence motion for summary judgment and Varady failed to file a timely
response. The trial court granted summary judgment in favor of the Defendants.
1
Varady appeals the trial court’s order denying Varady’s Motion for New Trial and
denying her leave to file a late response to the motion for summary judgment. We
affirm.
BACKGROUND FACTS
On February 5, 2014, Varady filed Plaintiff’s Original Petition alleging that
the Defendants adopted Varady’s biological daughter in 2012. According to
Varady’s Original Petition, Varady claims that she was “led to believe that her
money was needed in order to support, maintain, and care for” the child and that
Varady “entrusted” her money to the Defendants for that “limited purpose.”
Varady alleged that the Defendants withdrew $117,000 from a bank account that
was jointly owned by Varady and Christina, and that the Defendants did not use
the money to support, maintain, and care for Varady’s biological child. Varady’s
Original Petition included claims for breach of fiduciary duty, common law fraud,
money had and received, negligent misrepresentation, and breach of contract.
The Defendants filed an answer, jury demand, requests for disclosure, and a
counterclaim. Varady filed an answer to the counterclaim. The Defendants then
filed an amended answer and special exceptions to Varady’s petition, and they also
filed an amended counterclaim. On February 25, 2015, the defendants filed a no-
evidence motion for summary judgment. That same day, the Defendants filed a
2
notice of submission notifying the parties that the matter was set for submission
hearing on March 18, 2015.
On March 5, 2015, the trial court signed an order granting some of the
Defendants’ special exceptions and requiring Varady to replead to cure the defects.
Varady filed her First Amended Petition on March 17, 2015, and then she filed her
Second Amended Petition on March 18, 2015. She asserted the same causes of
action in both amended petitions as in her Original Petition.
Varady did not file a response to the no-evidence motion for summary
judgment, and on March 24, 2015, the trial court signed an order granting the no-
evidence motion for summary judgment. On March 26, 2015, the Defendants filed
a notice of non-suit of their counterclaim.
On April 16, 2015, Varady filed a Motion for New Trial and for Leave to
File Summary Judgment Response Out of Time (hereinafter Motion for New
Trial).1 In the Motion for New Trial, Varady stated that “[a]pplying the Craddock
[v. Sunshine Bus Lines, 133 S.W.2d 124 (Tex. 1939),] standards to this case,
Plaintiff can show that she meets those standards, and this Court should grant a
1
The next day Varady also filed an Amended Motion for New Trial,
wherein she asserted the identical arguments and included the same attachments as
in her original Motion for New Trial. Accordingly, unless specifically stated, we
reference the arguments and evidence from the Motion for New Trial and the
Amended Motion for New Trial collectively as “Motion for New Trial.”
3
new trial, if a new trial is necessary[.]” In regards to the first Craddock factor,
Varady’s counsel stated in the motion that he also represented Varady’s parents in
a suit in Family Court involving Christina and James Gyorfi. According to
Varady’s counsel, his failure to file a response to the motion for summary
judgment was not intentional or the result of conscious indifference because “it is
easy to see how the attorney juggling both sets of plates at the same time can make
an honest mistake as to the deadlines he actually knows about.” In an affidavit that
is attached as an exhibit to the Motion for New trial, Varady’s counsel swears to
the following:
“I am an attorney representing Plaintiff Jacqueline Renee
Varady in this lawsuit, which arose from Defendants’ adoption of
Plaintiff’s biological child. I also represent Plaintiff’s parents in a
related family law case, currently ongoing in the 410th District Court,
against these same Defendants. On February 25, 2015, I apparently
received notice that Defendants had e-filed a motion for summary
judgment in this case. I recall being aware of a rejected filing of this
MSJ at some point.
“After the notice that this e-filing had been rejected, it appears
that I received an e-mail from [] opposing counsel in this case[] that
attached a motion for summary judgment, exhibits, and a notice of
submission for March 18, 2015. I did not think that a response was
necessary and I did not calendar a date to file a timely response to the
summary judgment motion. I did not realize at that time, or at any
time prior to the court’s order granting summary judgment, that the
summary judgment motion had been successfully filed in this case and
that I needed to file a response.
4
“Another attorney [] is assisting me with this case. He we [sic]
not notified by myself, the court, or even opposing counsel (who had
rightly seen fit to “cc” him on other matters, but, for whatever reason,
had failed to “cc” him on this one) of the motion for summary
judgment. As a result, any lack of response to such a motion on [his]
part was, like my response (or lack thereof,) not due to conscious
indifference but instead due to accident or mistake.
“Subsequent to the filing of the summary judgment motion,
several e-mails were exchanged between myself and opposing counsel
in this case as well as the attorney representing Defendants in the
family law case. In the course of these e-mails, all attorneys were
attempting to schedule the Defendants’ depositions for dates in
March, including the date that the summary judgment motion was set
for submission. Defendants’ attorneys, like [the assisting attorney] and
I, had to clarify which deposition dates pertained to which of
Defendants’ cases—two different cases in two different courts in
which I am actively representing two different sets of clients. The
similar facts and parties and circumstances in these cases also
contributed to my mistake.
. . . .”
In her Motion for New Trial, Varady alleged that she produced “some
evidence” to support her claims against the Defendants and that she satisfied
Craddock. More specifically, Varady argued in her Motion for New Trial that the
bank records she produced during discovery and attached to her Motion for New
Trial depict a wire transfer from her to the Defendants and expenditures by the
Defendants that were not reasonably related to the child’s care. According to
Varady, “[a]t the very least, these deposits and expenditures meet the minimum
burden of evidentiary proof necessary to grant a new trial.” Varady argued that
5
because the Defendants cannot explain how the withdrawals and payments from
the joint account benefit the child, the bank records constitute “some evidence to
support Plaintiff’s claims[.]” However, Varady failed to explain how the account
information established the necessary elements of any of her claims. Varady
alleged in her Motion for New Trial that the granting of a new trial will not cause
undue delay or injury to the Defendants. And, Varady alleged that she was ready to
go to trial and was willing to reimburse Defendants for their attorney’s fees
incurred “in presenting their motion[.]”
On May 1, 2015, the Defendants filed their Response to Plaintiff’s Motion
for New Trial with exhibits attached thereto. In Defendants’ Response to the
Motion for New Trial, the Defendants argued that Varady was properly “e-served”
with the no-evidence summary judgment and notice of hearing. According to the
Defendants, because Varady did not file a response within seven days before the
submission date of the summary judgment motion, the Defendants were entitled to
summary judgment as a matter of law under Rule 166a(i) of the Texas Rules of
Civil Procedure. See Tex. R. Civ. P. 166a(i). The Defendants attached several
exhibits to their Response to the Motion for New Trial including Exhibit A which
contained the following: an email from defense counsel to Varady’s attorney who
the Defendants allege is “the only counsel of record for Plaintiff[,]” and who is the
6
same counsel who filed the Motion for New Trial on behalf of Varady; and a copy
of an email dated February 25, 2015, time stamped at 2:32 p.m., which reads as
follows: “I have attached our Motion for Summary Judgment, Exhibits A-E, Notice
of Submission and Order which were filed with the court today.” The email
referenced several attachments, including “Gyorfi MSJ.doc[,]” “Gyorfi notice of
submission.rtf[,]” and “Gyorfi Order Granting MSJ.rtf[.]” The attachments
included an email response the same day at 2:48 p.m. from plaintiff’s counsel
stating, “Got it.” Exhibit B attached to Defendants’ Response to the Motion for
New Trial included an e-filing receipt dated February 25, 2015, and time stamped
2:19 p.m. advising the parties that (1) exhibits to the summary judgment motion
had been rejected and that the summary judgment exhibits needed to be refiled
together with the motion, (2) that the notice of submission and the proposed order
on the summary judgment motion had been accepted, and (3) that service had been
made on plaintiff’s counsel at 2:20 p.m. that same day. Exhibit C appears to be a
copy of an email from defense counsel to Varady’s counsel dated February 25,
2015, at 7:01 p.m., and therein it explained that the motion for summary judgment
was re-filed as a single document, per the clerk’s request, and stating that the re-
filed motion and exhibits were attached to the email. Exhibit D is another e-filing
receipt that shows that the motion for summary judgment and exhibits were re-
7
filed on February 25, 2015, at 6:56 p.m. (and accepted for filing on February 26,
2015, at 9:11 a.m.), and that Varady’s counsel was e-served with the re-filed
motion for summary judgment and exhibits. Exhibits E, F, and G include the
accepted Notice of Submission, setting the submission of the no-evidence motion
for summary judgment for March 18, 2015, the accepted proposed order granting
the motion, and the first page of the accepted no-evidence motion for summary
judgment. Exhibits H through O include copies of documents in support of the
Defendants’ argument that Varady repeatedly failed to timely respond to discovery
deadlines and orders. Exhibit P is a register of filings in the case from the clerk’s
website, and Exhibit Q is an affidavit from defense counsel stating that the exhibits
are true and correct copies.
Defendants argued that Varady’s counsel’s “failure to understand” that a
response was necessary to defeat a no-evidence summary judgment motion did not
constitute an accident or mistake, that Varady’s counsel’s assertion that his failure
to respond was the result of an accident or mistake was conclusory and cannot
support a motion for new trial, and that Varady’s counsel’s pattern of ignoring
deadlines constituted conscious indifference. Defendants also argued that Varady
“failed to set up a meritorious defense via adequate summary judgment proof[,]”
and they objected to her late-filed response, objected to exhibits attached to her
8
Motion for New Trial, and asserted that she failed to present evidence on any of
her claims. Specifically, Defendants objected to copies of bank statements Varady
had filed with her Motion for New Trial, and Defendants asserted the statements
were “not sworn to, proved up, authenticated, properly predicated or otherwise
admissible.”
On May 11, 2015, the trial court signed an order denying Varady’s Motion
for New Trial and denying Varady leave to file a summary judgment response late.
Varady appealed.
ISSUE ON APPEAL
In her sole issue on appeal, Varady argues that the trial court abused its
discretion in denying her Motion for New Trial and Request for Leave to File a
Summary Judgment Response Late, and that she has met all three elements of the
Craddock test.
STANDARD OF REVIEW
We review a trial court’s disposition 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
trial court has broad discretion in ruling on a motion for new trial. In re Columbia
Med. Ctr. of Las Colinas, 290 S.W.3d 204, 210 (Tex. 2009); Cliff v. Huggins, 724
S.W.2d 778, 778-79 (Tex. 1987). A trial court abuses its discretion if it acts in an
9
unreasonable or arbitrary manner or without reference to any guiding rules and
legal principles. K-Mart Corp. v. Honeycutt, 24 S.W.3d 357, 360 (Tex. 2000).
Because the record contains no findings of fact or conclusions of law, we must
affirm the trial court’s judgment if it can be upheld on any legal theory that finds
support in the evidence. Strackbein v. Prewitt, 671 S.W.2d 37, 38 (Tex. 1984).
Under Craddock, 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. 133 S.W.2d at 126. When a
defaulting party moving for a new trial meets all three elements of the Craddock
test, then a trial court abuses its discretion if it fails to grant a new trial.
Dolgencorp, 288 S.W.3d at 926. The Texas Supreme Court has held Craddock
applies to no answer and post-answer default judgments. Ivy v. Carrell, 407
S.W.2d 212, 213 (Tex. 1966).
In Carpenter v. Cimarron Hydrocarbons Corp., the Texas Supreme Court
considered whether Craddock applied where a party failed to timely respond to a
motion for summary judgment. 98 S.W.3d 682 (Tex. 2002). In Carpenter, after
Cimarron filed suit against Carpenter, Cimarron’s attorney of record withdrew.
10
Ten days later Carpenter filed a motion for summary judgment, and a hearing was
set on the motion for summary judgment. Id. at 684. Thereafter, Cimarron hired a
new attorney who contacted Carpenter’s counsel and obtained an agreement to
reset the hearing on the motion for summary judgment. Id. The new attorney then
assigned the motion for summary judgment to an associate to prepare a response.
Id. On April 28th, the new attorney received notice that the hearing on the motion
for summary judgment had been reset, making Cimarron’s response to the motion
for summary judgment due on May 28th. Id. The new attorney testified at the
hearing on the motion for new trial that he put the notice of hearing in his outbox
but failed to have his assistant calendar the date for the associate. Id. The attorney
mistakenly assumed that his associate was aware of the new hearing date and
would prepare a response. Id. Two days before the hearing on the motion for
summary judgment the attorney was reminded about the hearing and he asked his
associate for a copy of the response. Id. At that time, he learned that a response to
the motion for summary judgment had never been filed. Id. The day of the hearing
on the motion for summary judgment, Cimarron filed a motion for leave to file a
late response and alternatively asked the trial court for a continuance of the hearing
on the motion for summary judgment. Id. at 685. In the motion for leave, Cimarron
11
gave “no reason for Cimarron’s failure to file a timely response.” Id. at 688 (J.
Hecht, concurring).
At the hearing on the motion for summary judgment the Cimarron attorney
told the court he “had mis-calendared” the setting. Id. The trial court denied the
motion for continuance and the motion for leave to file a late response to the
summary judgment, and granted the summary judgment. Id. at 683. Cimarron filed
a motion for new trial, which was set for an evidentiary hearing, after which the
trial court also denied the motion for new trial. Id. at 683, 685. On appeal, the court
of appeals reversed the trial court, concluding that Craddock applied and that the
plaintiff had met the Craddock standard. Id. at 683. The Supreme Court expressly
disapproved of the intermediate level appellate decisions that applied Craddock
when the nonmovant is aware of its mistake at or before the hearing on the motion
for summary judgment and has an opportunity to apply for relief under the rules.
Id. at 686.
According to the Supreme Court, we review a trial court’s ruling on a
motion for leave to file a late summary judgment response for an abuse of
discretion. Id. The Supreme Court held that a motion for leave to file a late
summary-judgment response should be granted when the party who files the
motion for leave establishes “good cause” by showing that the failure to timely
12
respond (1) was not intentional or the result of conscious indifference, but the
result of accident or mistake, and (2) allowing a late response will not cause any
undue delay or otherwise injure the other party. Id. at 688. Applying the articulated
standard, the Supreme Court concluded that the trial court did not abuse its
discretion in denying the motion for leave to file a late response. Id. The Texas
Supreme Court expressly did not decide whether Craddock should apply in cases
where the defendant fails to respond to a motion for summary judgment and does
not discover his mistake until after the summary judgment hearing or after
rendition of judgment. Id. at 686.
In Wheeler v. Green, 157 S.W.3d 439 (Tex. 2005), the Texas Supreme Court
again discussed whether Craddock applied in the context of a summary judgment.
Wheeler involved a dispute regarding the modification of a custody order. Id. at
441. Green, the father of the child, filed a petition to modify the parent-child
relationship. Id. Green served Wheeler, the mother of the child, with sixty-four
requests for admissions. Id. Wheeler, acting pro se, sent her responses to the
requests twenty-seven days after she received the requests, but thirty-five days
after the “mailbox rule” deemed the requests served. Id. Green’s attorney then filed
a motion for summary judgment based upon the deemed admissions. Id. Wheeler
filed no response to the motion for summary judgment but she attended the
13
hearing. Id. The trial court granted the motion for summary judgment, and
thereafter Wheeler hired an attorney who then filed a motion for new trial, wherein
Wheeler argued that the summary judgment should be set aside. Id. at 441-42. The
trial court denied the motion for new trial. Id. at 442. On appeal, the court of
appeals affirmed. Id. The Supreme Court reversed and remanded the matter to the
trial court. Id. at 444. According to the Supreme Court, nothing in the record
suggested that Wheeler, a pro se party, realized her responses to the requests for
admissions were late, or that she needed to move to withdraw the deemed
admissions, or that she needed to file a response to the motion for summary
judgment. Id. at 442, 444.
Utilizing the Carpenter standard, the Court examined the record to
determine if Wheeler established “good cause” and no undue prejudice. Id. The
Court stated: “[o]n this record, the lower courts could have concluded that [the pro
se plaintiff] was wrong on her dates and wrong on how to correct them, but not that
either was the result of intent or conscious indifference.” Id. But, the Court noted
that the same might not have been the case if the same mistakes had been made by
a lawyer. Id. at 442 n.1. The Court discussed the fact that the responses to the
requests for admissions were received by Green’s attorney and that the nature of
14
the requests were not evidentiary but were more akin to a demand upon Wheeler to
admit she had no cause of action or ground for defense. Id. at 443.
The Court concluded that the trial court should have granted the motion for
new trial and allowed the deemed admissions to be withdrawn. Id. at 444.
Since Carpenter, several intermediate appellate courts have discussed
whether Craddock, a modified Craddock standard, or Carpenter applies when
reviewing a request for a new trial after entry of a default summary judgment. See,
e.g., Weech v. Baptist Health Sys., 392 S.W.3d 821, 825-26 (Tex. App.—San
Antonio 2012, no pet.); Imkie v. Methodist Hosp., 326 S.W.3d 339, 345-47 (Tex.
App—Houston [1st Dist.] 2010, no pet.); Urbanczyk v. Urbanczyk, 278 S.W.3d
829, 835-36 (Tex. App.—Amarillo 2009, no pet.); Limestone Constr. v. Summit
Commercial Indus. Props., 143 S.W.3d 538, 542-44 (Tex. App.—Austin 2004, no
pet.); West v. Maint. Tool & Supply Co., 89 S.W.3d 96, 100-02 (Tex. App.—
Corpus Christi 2002, no pet.). The modified Craddock standard provides that a
default summary judgment should be set aside if (1) the failure to answer was not
intentional or the result of conscious indifference but instead was the result of an
accident or mistake, and the nonmovant’s motion for new trial (2) alleges facts and
contains evidence sufficient to raise a material question of fact (as opposed to
setting up a meritorious defense, as Craddock requires) and (3) demonstrates that
15
granting the motion will cause no undue delay or other injury to the movant. See
Weech, 392 S.W.3d at 825-26.
Under Craddock or a modified Craddock standard, the first prong of each
standard is the same: the defaulting party must establish that its failure to respond
was not intentional or the result of conscious indifference but instead was the result
of a mistake or accident. Fernandez v. Peters, No. 03-09-00687-CV, 2010 Tex.
App. LEXIS 8473, at **22-27 (Tex. App.—Austin Oct. 19, 2010, no pet.) (mem.
op.) (the trial court could reasonably have concluded that the failure to respond
was the result of conscious indifference and the court of appeals need not
determine which standard should apply); see also Craddock, 133 S.W.2d at 126;
Limestone Constr., 143 S.W.3d at 542. Similarly, under Carpenter, the appellate
court examines the trial court’s refusal to grant a motion for leave to file a late
response to a motion for summary judgment to determine whether the trial court
abused its discretion in denying the motion for leave to file a late response,
examining whether the party who filed the motion for leave established “good
cause” by showing that the failure to timely respond was not intentional or the
result of conscious indifference, but the result of accident or mistake. Carpenter,
98 S.W.3d at 688.
16
Accordingly, Varady’s burden under the first element of Craddock, a
modified Craddock, and Carpenter would require Varady to negate intentional or
consciously indifferent conduct. The first element is satisfied if the factual
allegations asserted, if true, negate intentional or consciously indifferent conduct,
and the opposing party does not controvert the factual allegations. In re R.R., 209
S.W.3d 112, 115 (Tex. 2006). We look to all the evidence in the record to
determine whether the defendant’s factual assertions are controverted. Id.
ANALYSIS
“Intentional or conscious indifference for purposes of Craddock means ‘that
the defendant knew it was sued but did not care.’” Hampton-Vaughan Funeral
Home v. Briscoe, 327 S.W.3d 743, 747-48 (Tex. App.—Fort Worth 2010, no pet.)
(quoting Fidelity & Guar. Ins. Co. v. Drewery Constr. Co., 186 S.W.3d 571, 576
(Tex. 2006)). A defendant’s mere negligence does not show conscious
indifference. Id. at 748; see Levine v. Shackelford, Melton & McKinley, L.L.P., 248
S.W.3d 166, 169 (Tex. 2008) (“[T]he complete definition of conscious indifference
amounts to more than mere negligence[.]”). A defendant must offer some excuse
for the failure to appear at trial, which need not necessarily be a good excuse. See
Briscoe, 327 S.W.3d at 748; Sharpe v. Kilcoyne, 962 S.W.2d 697, 701 (Tex.
App.—Fort Worth 1998, no pet.) (“Even a slight excuse may justify a new trial.”).
17
In other words, a “failure to appear is not intentional or due to conscious
indifference . . . merely because it is deliberate; it must also be without adequate
justification. Proof of such justification—accident, mistake or other reasonable
explanation—negates the intent or conscious indifference for which reinstatement
can be denied.” Smith v. Babcock & Wilcox Constr. Co., 913 S.W.2d 467, 468
(Tex. 1995) (holding that failure to appear at trial was not consciously indifferent
when party’s attorney requested continuance and mistakenly understood
continuance would be granted).
The party seeking a new trial has the burden to prove the lack of intent or
lack of conscious indifference. Liberty Mut. Fire Ins. Co. v. Ybarra, 751 S.W.2d
615, 618 (Tex. App.—El Paso 1988, no writ). “Where the factual allegations in a
movant’s affidavits are not controverted, it is sufficient that the motion and
affidavit set forth facts which, if true, would negate intentional or consciously
indifferent conduct.” Jackson v. Mares, 802 S.W.2d 48, 50 (Tex. App.—Corpus
Christi 1990, writ denied). If the nonmovant provides controverting evidence
showing conscious indifference by the movant, then the issue becomes a fact
question for the trial court to determine. Id.
Varady asserted that her failure to respond to the summary judgment motion
was not intentional or the result of conscious indifference, but was the result of an
18
accident or mistake. The Defendants argued in their Response to the Motion for
New Trial and on appeal that Varady failed to establish that her failure to respond
was the result of an accident or mistake. Varady was not a pro se party as in
Wheeler, and the record now before us clearly establishes that Varady’s attorney
received multiple notices of the filing of the no-evidence motion for summary
judgment and of the setting of the hearing on the submission docket.
In her appellate brief, Varady argues that her trial attorney’s failure to file a
timely response to the Defendants’ motion for summary judgment was not the
result of him failing to understand summary judgment procedure or a result of
indifference, but instead the result of his “mistaken belie[f]” that the e-file system
had rejected the filing of the Defendants’ motion for summary judgment and that a
corrected version had not been filed. According to Varady’s brief, her trial counsel
“admittedly should have paid closer attention to the notifications that he received,
[but] he did not simply decide to ignore the motion.”
The Defendants argue that the record supports the conclusion that Varady’s
counsel engaged in conduct that demonstrated a pattern of ignoring deadlines that
would constitute conscious indifference. They assert that Varady’s counsel’s
affidavit contained inconsistencies. In his affidavit, counsel stated he “did not think
that a response was necessary.” In his affidavit, Varady’s counsel failed to
19
acknowledge his receipt of multiple notices for the no-evidence motion for
summary judgment that he received from the Texas electronic filing system. The
controverting affidavit defendants filed with their Response to the Motion for New
Trial and exhibits attached thereto established that Varady’s attorney received
multiple notices of the no-evidence motion for summary judgment and of the
acceptance of the filing by the clerk’s office. The controverting affidavit also set
forth evidence regarding various deadlines for requests for discovery that Varady’s
counsel repeatedly missed throughout the litigation. Attached to the Defendants’
Response to Motion for New Trial were exhibits supporting the Defendants’ claim
that Varady’s counsel repeatedly failed to timely respond to discovery requests
despite multiple requests and reminders. Looking at the record as a whole, we
determine that the trial court could have reasonably concluded that Varady’s
excuse for failing to respond to the no-evidence motion for summary judgment has
been controverted by the Defendants.
The trial court could reasonably have concluded that Varady’s counsel’s
failure to respond to the e-file notices alone amounted to more than mere
negligence. Furthermore, the trial court could have reasonably determined that this
failure, along with the Defendants’ uncontroverted allegations of Varady’s
counsel’s pattern of ignoring deadlines in the case (as presented by the Defendants
20
in their response to Varady’s Motion for New Trial), amounted to conscious
indifference. See Kern v. Spencer, No. 2-06-199-CV, 2008 Tex. App. LEXIS 5582,
**15-16 (Tex. App.—Fort Worth July 24, 2008, no pet.) (no abuse of discretion
for trial court to deny motion for new trial when evidence included: six certified
mailings notifying attorney of submission date; uncontroverted statements
regarding attorney’s recurring pattern of failure to prosecute case, show up for
depositions, and respond to discovery; and testimony that attorney often used
excuse of not having been notified); see also Levine, 248 S.W.3d at 169 (in a
default judgment setting, a pattern of ignoring deadlines and warnings from
opposing party amounts to conscious indifference).
Additionally, were we to apply the remaining prongs of the modified
Craddock test as Varady requests, we note that Varady also failed to establish a
genuine issue of material fact on the issues the Defendants raised in their no-
evidence motion for summary judgment. See Weech, 392 S.W.3d at 825. In the no-
evidence motion for summary judgment, the Defendants argued that Varady’s
claims are based on her allegations that the Defendants wrongfully took $117,000
from a bank account that was jointly owned by Varady and Christina, but Varady
failed to produce evidence to support the basis of her claims as asserted in her
petition, and more specifically Varady produced no evidence to support her
21
contentions that the Defendants owed or breached a fiduciary duty, made
misrepresentations, breached a contract, held money belonging to Varady, or made
negligent misrepresentations.2
In her Motion for New Trial, Varady claimed she provided the Defendants
with bank records on March 17, 2015, that the records represent “some evidence”
that the Defendants misused the money that Varady provided for the benefit of the
child, and that this evidence at the very least met the minimum burden of
evidentiary proof necessary to grant a new trial. A copy of Varady’s counsel’s
March 17, 2015 email to opposing counsel with copies of what appears to be pages
from a bank statement were filed as Exhibits J and K to Varady’s Motion for New
Trial. On appeal, Varady asserts these records are “some evidence that the
[Defendants] had used the money for purposes other than those agreed to, and/or,
had failed to explain how the expenditures were in furtherance of their agreement.”
Documents submitted as summary judgment proof must be sworn to or certified.
Llopa, Inc. v. Nagel, 956 S.W.2d 82, 87 (Tex. App.—San Antonio 1997, writ
denied). Unauthenticated or unsworn documents do not constitute summary
judgment evidence. Kleven v. Tex. Dep’t of Crim. Justice Institutional Div., 69
2
Varady did not object to the form or substance of the Defendants’ Motion
for Summary Judgment in her Motion for New Trial and she does not raise a
complaint regarding the form or substance of the Motion for Summary Judgment
on appeal.
22
S.W.3d 341, 345 (Tex. App.—Texarkana 2002, no pet.); Llopa, Inc., 956 S.W.2d
at 87. Nothing in the record before us indicates that the copies of the bank records
were authenticated or sworn to. The trial court could have reasonably concluded
that Varady failed to establish how the bank records created a fact issue on any of
her alleged claims.
Because the trial court could have reasonably concluded that Varady did not
meet her burden of proof to show that her failure to respond, together with the
pattern of ignoring deadlines, was not the result of conscious indifference and
could have concluded that Varady did not present evidence sufficient to raise a
genuine issue of material fact on the issues raised in the Defendants’ no-evidence
summary judgment motion, the trial court did not abuse its discretion in denying
Varady’s Motion for New Trial and Request for Leave to File a Summary
Judgment Response Late. We overrule Varady’s issue on appeal. We affirm the
trial court’s judgment.
AFFIRMED.
_________________________
LEANNE JOHNSON
Justice
Submitted on November 30, 2015
Opinion Delivered April 14, 2016
Before McKeithen, C.J., Horton and Johnson, JJ.
23