Sunday, February 7, 2010

Insufficient Notice of Summary Judgment Hearing: The three extra days when service is by mail cannot be taken for granted

Question: Is the nonmovant entitled to 24 days notice instead of 21 when a motion for summary judgment is served by mail or fax? [under Tex. R. Civ. P. 21a]

Answer: Yes, but ...

As Justice Higley explains in an opinion released last week, a complaint about insufficient notice must be made to the trial court, and not after the fact. A motion for new trial is too late to raise the issue. Nor will the non-movant prevail on appeal if error was not properly preserved in the court below.

Hatler filed a motion for new trial in which he asserted, for the first time, that he had not received timely notice of the motion-for-summary-judgment hearing. Hatler pointed out that he had received only 21-days notice of the hearing. He asserted that, pursuant to the rules of civil procedure, he was entitled to 24-days notice. The trial court did not rule on the motion for new trial, and it was ultimately overruled by operation of law.

Hatler now appeals the summary judgment.
Preservation of Complaint Regarding Late Notice
In his only issue, Hatler contends that the trial court erred in granting Moore Wallace's motion for summary judgment. As he did in his motion for new trial, Hatler contends that he did not receive timely notice of the summary judgment hearing.
A. Relevant Legal Principles
In a summary judgment proceeding, the nonmovant is entitled to 21-days notice of the hearing or submission. Tex. R. Civ. P. 166a(c). When the motion is served by certified mail or by facsimile, three additional days are added to the prescribed period. See Tex. R. Civ. P. 21a. As a result, a nonmovant is entitled to a minimum of 24-days notice of a hearing or of the submission date if he has been served by certified mail or by facsimile. See Tex. R. Civ. P. 21a, 166a(c); Lewis v. Blake, 876 S.W.2d 314, 316 (Tex. 1994). The notice provision serves to provide the nonmovant with a full opportunity to respond to the merits. See Stephens v. Turtle Creek Apartments, Ltd., 875 S.W.2d 25, 26 (Tex. App.--Houston [14th Dist.] 1994, no writ).

Nonetheless, lack of proper notice of a summary judgment hearing is a non-jurisdictional defect that the nonmovant can waive. See May v. Nacogdoches Mem'l Hosp., 61 S.W.3d 623, 626 (Tex. App.--Tyler 2001, no pet.); see also White v. Wah, 789 S.W.2d 312, 319 (Tex. App.--Houston [1st Dist.] 1990, no writ).

To preserve error, a nonmovant, who receives notice that is untimely but sufficient to enable the nonmovant to attend the summary judgment hearing, must file a motion for continuance or raise the late-notice complaint in writing, supported by affidavit evidence. May, 61 S.W.3d at 626; Rios v. Texas Bank, 948 S.W.2d 30, 33 (Tex. App.--Houston [14th Dist.] 1997, no writ). The nonmovant should also raise the issue before the trial court at the summary judgment hearing. May, 61 S.W.3d at 626; Rios, 948 S.W.2d at 33.

A nonmovant may not preserve a complaint that he received late notice in a post-trial motion. See Nguyen v. Short, How, Frels, & Heitz, P.C., 108 S.W.3d 558, 561 (Tex. App.--Dallas 2003, pet. denied). A nonmovant may preserve error in a post-trial motion only when he complains that he was not given notice of the summary judgment hearing or that he was deprived of his right to seek leave to file additional affidavits or other written response. See id. at 560-61; May, 61 S.W.3d at 626.
B. Analysis
In this case, Hatler correctly asserts that he did not receive timely notice of the motion for summary judgment hearing. It is undisputed that he was entitled to a 24-day notice but received only a 21-day notice. Nevertheless, to preserve his complaint, Hatler was required to file a motion for continuance or to raise the late-notice complaint in writing before the trial court granted Moore Wallace's motion for summary judgment. See May, 61 S.W.3d at 626; Rios, 948 S.W.2d at 33. Despite having ample time to do so, Hatler did neither. See, e.g., Fertic v. Spencer, 247 S.W.3d 242, 247-48 (Tex. App.--El Paso 2007, pet. denied) (determining that nonmovant had sufficient time to file written objection to late notice when nonmovant claimed he had only 8 days notice); Mays, 61 S.W.3d at 627 (concluding that two-day notice was adequate time for nonmovant to have filed a written objection to late notice). Instead, Hatler raised the complaint for the first time in his motion for new trial. Hatler's motion for new trial does not preserve his late-notice complaint. See Fertic, 247 S.W.3d at 248 n.4 (noting that raising late notice issue in motion for new trial did not preserve complaint); Nguyen, 108 S.W.3d at 561 (concluding that late-notice issue raised for first time in affidavit attached to motion for new trial did not preserve error).

We hold that Hatler did not preserve his late-notice complaint for our review. See Nguyen, 108 S.W.3d at 561; Mays, 61 S.W.3d at 627. We overrule his sole issue.
We affirm the judgment of the trial court.

Hatler v. Moore Wallace North America, Inc. (Tex.App.- Houston [1st Dist.] Feb. 4, 2010)(Higley) (21 days vs 24 days notice prior to summary judgment hearing depending on method of service; insufficient notice is not jurisdictional and can be waived, requirement for preservation of complaint about inadequate notice in the trial court)
Justice Higley
Before Chief Justice Radack, Justices Alcala and Higley
01-07-00181-CV Paul Hatler v. Moore Wallace North America, Inc.
Appeal from 268th District Court of Fort Bend County
Trial Court Judge: Hon. Brady G. Elliott

Texas Rule of Civil Procedure (TRCP) 21a provides in relevant part: Whenever a party has the right or is required to do some act within a prescribed period after the service of a notice or other paper upon him and the notice or paper is served upon him by mail or by telephonic document transfer, three days shall be added to the prescribed period. Tex. R. Civ. P. 21a

No comments: