Saturday, February 13, 2010

Wrongful Termination of Employment: Can Sabine-Pilot claim be brought against supervisors in their individual capacity?


Employee's Choice: Do as told and commit illegal act or risk getting fired?

SCOPE OF SABINE-PILOT EXCEPTION TO EMPLOYMENT-AT WILL NARROWED

Can supervisors be held liable individually for wrongfully terminating an employee who refuses to commit an illegal act when instructed to do so under the Sabine-Pilot exception to the employment-at will doctrine?


Justices on the Fourteenth Court of Appeals split on how to answer that question. Characterizing the issue as one of first impression (i.e., no controlling case law exists), the panel majority, led by Justice Brock Yates as author of the court's opinion, votes to let the bosses off the hook.

Senior Justice Harvey Hudson writes a vigorous dissent, detailing the egregious conduct of the defendants, who fired an employee for refusing to commit criminal acts to increase revenues for the business by billing for services not rendered, and subsequently tried to destroy the former employee's professional career.


Physio, Ltd v. Naifeh (Tex.App. - Houston [14th Dist.] Feb. 4, 2010)(Yates) (employment law - wrongful termination; liability on Sabine-Pilot wrongful termination claim)
Appellants appeal the trial court’s judgment holding them individually liable for firing appellee for the sole reason that she refused to perform an illegal act. See
Sabine Pilot Serv., Inc. v. Hauck, 687 S.W.2d 733, 735 (Tex. 1985). Because we hold that the Sabine Pilot doctrine should not be extended to impose liability on individual employees rather than the plaintiff’s employer, we reverse and render.
DISMISSED IN PART AND REVERSED AND RENDERED IN PART:
Opinion by
Justice Brock Yates
Before Justices Brock Yates, Hudson and Sullivan
14-08-00017-CV Physio GP, Inc., Physio, Ltd, Tanja Saadat and Shawn Saadat v. Natalie Naifeh
Appeal from 295th District Court of Harris County
Trial Court Judge:
Tracy Kee Christopher (who is now a Justice on the same court of appeals)

Dissenting Opinion by Justice Hudson in Physio GP, Inc. v. Natalie Naifeh (Sabine Pilot claim against supervisors individually should be viable)

DISSENTING OPINION BY JUSTICE HUDSON:

Does the Sabine Pilot[1] exception to the “employment-at-will doctrine” extend to an individual defendant who is not the employer of the plaintiff? In other words, may an individual, who is not the employer of the plaintiff, be liable for wrongful discharge of the plaintiff under the Sabine Pilot doctrine? The majority answers negatively and supports its position with cogent arguments and authorities. However, as the majority acknowledges, this is an issue on which jurists have struggled and the states are divided. Unlike my colleagues, I find myself persuaded by a contrary rationale and opposing authorities.

The majority argues the Saadats could not logically be liable for wrongful termination because they had no authority to fire Naifeh. The majority concludes that only the employers, i.e., Physio GP, Inc. and Physio, Ltd., had the power to terminate Naifeh’s employment. While the rationale has a logical allure, it rests on a legal fiction. In the real world, no one disputes the fact that Naifeh was fired by Tanja Saadat. Moreover, no one disputes the effectiveness of that termination. Only in the most abstract sense can it be said that Tanja did not fire Naifeh, and it is little comfort to her to now learn that Tanja had no intrinsic, individual authority to terminate her employment.

The majority’s strongest argument, in my mind, is that the specter of individual liability could discourage corporate supervisors from terminating employees in legitimate situations. In the majority of cases, an employer is shielded by the employment-at-will doctrine. The doctrine does not stem from an inherent right of the employer, but from the absence of a contractual agreement regarding the period of employment. Thus, employment may be terminated by the employer or the employee at will, for good cause, bad cause, or no cause at all. Montgomery County Hosp. Dist. v. Brown, 965 S.W.2d 501, 502 (Tex. 1998). By definition, the employment-at-will doctrine does not require an employer to be reasonable, or even careful, in making its termination decisions. Tex. Farm Bureau Mut. Ins. Cos. v. Sears, 84 S.W.3d 604, 609 (Tex. 2002).

Further, I do not doubt that the employment-at-will doctrine is decidedly beneficial to economic efficiency. Nor do I dispute the notion that fear of unjustified litigation can cripple corporate productivity. However, the Texas Supreme Court recognized a common law exception to the employment-at-will doctrine in Sabine Pilot when a termination is based on an employee’s refusal to do an unlawful act. The wisdom of that decision and its public policy ramifications are not at issue here. Having found such an exception, it is our duty, as in intermediate appellate court, to give it application where appropriate.

There are good reasons to believe a corporate employee may be liable in his or her individual capacity for wrongful termination. First, the tort is intensely personal. It is not based on negligence, but on intentional malice. In other words, the gravamen of wrongful termination is not found in some corporate mistake, but in the uniquely human passion of hatred, spite, meanness, and revenge. For example, the uncontroverted evidence in this case shows that Tanja asked Naifeh to participate in a massive insurance fraud scheme by signing patient records reflecting treatments and services that had never been administered. Naifeh refused, and she was fired.

The Saadats then set out on a campaign to destroy Naifeh’s credibility and professional reputation. The Saadats alleged that Naifeh was fired because she had performed unauthorized treatment on a patient’s knee. The allegation was untrue, and the Saadats later admitted at a Texas Workforce Commission hearing that they had a copy of the prescription, authorized by the patient’s physician, for treatment of the knee.

The day after Naifeh was fired, the Saadats filed a police report falsely alleging Naifeh had stolen documents. The Saadats also manufactured a fake “Confidentiality Agreement” (with Naifeh’s forged signature) stating that “all information related to Physio[’s] day-to-day operation in regards to patient information and billing shall be kept confidential[,] and I shall not share any of this information with any patient or any individual.” Using the fabricated Confidentiality Agreement and false police report, the Saadats asserted claims against Naifeh for misappropriation of confidential and proprietary information and conspiracy to misappropriate confidential and proprietary information. They also filed a claim under the Texas Theft Liability Act.

The Saadats also created multiple false disciplinary records and submitted them to the Texas Workforce Commission in an attempt to prevent Naifeh from receiving unemployment benefits. Finally, the Saadats submitted multiple false disciplinary records to the Texas Physical Therapy Board in an effort to have Naifeh’s professional license revoked.

The tort committed here is akin to assault, battery, false imprisonment, and other intentional torts. The conduct was purposely directed at Naifeh with the deliberate intention of inflicting an injury upon her. This is the very behavior Sabine Pilot was intended to prevent, and there is no Texas authority restricting liability solely to the corporate employer.

As the majority notes, other states have considered, with mixed results, whether the common law tort of wrongful discharge can expose a corporate employee to personal liability.[2] Some view wrongful discharge as any other tort and impose individual liability on employees for their own tortious conduct.[3] Others have reasoned that the tort can only be committed by the person or legal entity that employed the terminated employee.[4] “These courts reason that an individual officer or employee of a corporation cannot commit the tort of wrongful discharge because an individual officer or employee has no authority separate from the authority exercised on behalf of the corporation to discharge an employee of the corporation.” Jasper v. H. Nizam, Inc., 764 N.W.2d 751, 775 (Iowa 2009). Thus, they reason that “the existence of an employment contract is . . . the most fundamental prerequisite to a claim of wrongful discharge.” Bourque v. Town of Bow, 736 F. Supp. 398, 401 (D.N.H. 1990). Accordingly, these courts hold that “wrongful discharge is a corporate tort within a corporate setting, not an individual tort.” Jasper, 764 N.W.2d at 776.


In Texas, however, the common law tort of wrongful discharge is not derived from principles of contract law; neither does it spring from a contract of employment. If the employee’s termination violates some contractual provision, he can sue for its breach. It is precisely because an “at-will” employee is not protected from a “bad cause” termination; because he has no contractual protections; and because public policy seeks to discourage criminal acts, that Sabine Pilot created a narrow exception to the employment-at-will doctrine. Further, it is the general rule in Texas that a corporation’s employee is personally liable for tortious acts which he directs or participates in during his employment. Walker v. Anderson, 232 S.W.3d 899, 918 (Tex. App.—Dallas 2007, no pet.).


A corporate shareholder or director, for example, who wrongfully terminates an employee is liable for tortious interference with the corporation’s employment contracts if the action is willful, intentional, and advances the interest of the actor rather than the interests of the corporation. See Holloway v. Skinner, 898 S.W.2d 793, 795–96 (Tex. 1995). Here, the evidence and the reasonable inferences there from would be sufficient to establish that Tanja’s actions were willful and intentional, that although it was not in Physio’s interest to terminate Naifeh for refusing to commit a criminal act, Tanja acted in her own interests in doing so.[5]


In my view, the public policy considerations raised in Sabine Pilot, i.e., to relieve “at-will” employees from being pressured to commit criminal acts, would rationally apply to both the employer and its agents. The pressure exerted against Naifeh to falsify records was no less intimidating because it was asserted by a fellow employee. Tanja had the power to terminate Naifeh and did so because she would not become a party to a criminal enterprise. Her conduct constitutes the very essence of the common law tort created by Sabine Pilot.

Accordingly, I respectfully dissent.

/s/ J. Harvey Hudson

Senior Justice

Panel consists of Justices Yates (majority), Sullivan, and Senior Justice Hudson.*

[1] Sabine Pilot Serv., Inc. v. Hauck, 687 S.W.2d 733, 735 (Tex. 1985).

[2] Other jurisdictions take varied approaches to claims of individual liability for wrongful termination. At one end of the spectrum, California, Illinois, and Kansas do not recognize liability for wrongful-discharge claims against individual non-employers. See Reno v. Baird, 957 P.2d 1333, 1334 (Cal. 1998) (holding that supervisors may not be sued individually under California’s Fair Employment and Housing Act, and stating that this holding “also applies to common law actions for wrongful discharge”); Buckner v. Atl. Plant Maint., Inc., 694 N.E.2d 565, 569–70 (Ill. 1998) (no personal liability for retaliatory discharge of subordinate for filing a workers’ compensation claim); Rebarchek v. Farmers Coop. Elevator, 35 P.3d 892, 903–04 (Kan. 2001) (same). At the opposite end of the spectrum, Iowa, New Jersey, Pennsylvania, and West Virginia recognize the personal liability of individual non-employers for wrongful termination even when the individual acted within the course and scope of his or her employment in firing another employee. See, e.g., Jasper v. H. Nizam, Inc., 764 N.W.2d 751, 777 (Iowa 2009) (holding that liability for the tort of wrongful discharge based on refusal to commit an unlawful act can extend to the corporate officers who authorized or directed the discharge); Ballinger v. Del. River Port Auth., 800 A.2d 97, 110 (N.J. 2002) (“[A]n individual who personally participates in the tort of wrongful discharge may be held individually liable.”); Kamensky v. Roemer Indus., Inc., 1 Pa. D. & C.4th 497, 499–500 (1988) (president of employer corporation is subject to personal liability for terminating a reinstated worker’s employment for failure to withdraw an unemployment compensation claim); Harless v. First Nat’l Bank in Fairmont, 289 S.E.2d 692, 698 (W. Va. 1982) (“The discharge serves to fix responsibility on the employer but this does not mean that another employee who has been the principal protagonist in obtaining the employee’s discharge would not also be liable.”). Other jurisdictions consider whether the “principal protagonist” acted within the course and scope of his own employment when wrongfully discharging another employee. For example, the Mississippi Supreme Court has held that an individual is not liable for his actions in wrongfully discharging an employee if the individual acted within the course and scope of his employment, but it has not addressed the question of whether an individual should be held liable for wrongful termination if he acted outside his employment duties or contrary to the employer’s interests. See DeCarlo v. Bonus Stores, Inc., 989 So. 2d 351, 358–59 (Miss. 2008) (en banc); see also Bourgeous v. Horizon Healthcare Corp., 872 P.2d 852, 855–56 (N.M. 1994) (leaving open “the question of whether a retaliatory discharge claim lies against a supervisor, agent, or coemployee if the firing was an intentional act done solely for the supervisor, agent or coemployee’s own interest and therefore outside the scope of employment”).

[3] See DeCarlo v. Bonus Stores, Inc., 512 F.3d 173, 176–77 (5th Cir. 2007) (collecting cases); Higgins v. Assmann Elecs., Inc., 173 P.3d 453, 458 (Ariz. Ct. App. 2007); Ballinger, 800 A.2d at 110–11; Harless, 289 S.E.2d at 698–99.

[4] See Hooper v. North Carolina, 379 F. Supp. 2d 804, 814–15 (M.D.N.C. 2005) (North Carolina law); Miklosy v. Regents of the Univ. of Cal., 188 P.3d 629, 644–45 (Cal. 2008); Reno, 957 P.2d at 1347; Buckner, 694 N.E.2d at 569–70; Rebarchek, 35 P.3d at 904.

[5] Although no question of whether Tanja’s conduct was itself criminal is at issue in this civil case, the difference between Tanja’s interests and Physio’s interests is easily seen when one considers separately the risks and benefits to each arising from Tanja’s conduct in (a) altering the documents, and in (b) asking Naifeh to sign the altered documents and in terminating her for refusing to do so. It was conceivably in Physio’s financial interests to inflate its bills, and thus, one could make a colorable argument that by altering records used to support its billing practices, Tanja was acting in Physio’s best interests. But because a person who makes false statements in connection with the delivery of or payment for health care services can face imprisonment for up to five years, the person who makes such a statement has a personal stake, distinct from that of a corporate employer, in avoiding detection. A reasonable factfinder therefore could conclude that in asking Naifeh to sign the patient records, Tanja was acting in her own interest to conceal the fact that the documents had been altered, so that if it were discovered that insurers were billed by Physio for services that were not performed, it would appear that Naifeh and not Tanja was responsible.

* Senior Justice J. Harvey Hudson, sitting by assignment.

RELATED BLAWGPOST(S):

Houston Court of Appeals Nixes Individual Supervisor Liability in Public Policy Wrongful Termination Claim
Individuals could not be held personally liable for wrongful discharge in violation of public policy
KEY WORDS: employment at will doctrine in Texas, public policy exception to at-will employment, wrongful termination of employment, discharge, refusal to commit illegal act, whistleblowing, private employer, employer, corporate liability vs. individual personal liability of manager, supervisor, owner for Sabine-Pilot wrongful termination claim




Thursday, February 11, 2010

Right to Nonsuit Vindicated by Mandamus: Defendant's DJA counterclaims weren't independent claims for affirmative relief


One way to deprive a
Plaintiff of the ability to obtain a quick dismissal (without prejudice to refiling) by exercising the unilateral right to non-suit is to file a counterclaim. It's routinely done in divorce actions. But it does not always work, as seen in a civil case decided by the 14th Court of Appeals today. Defensive arguments cannot be dressed up as counterclaims under the Declaratory Judgments Act because they do not qualify as independent claims for affirmative relief. Finding that the trial court judge abused his discretion in denying the Plaintiff's attempted nonsuit under such circumstances, the appellate panel grants mandamus relief and orders the trial court to dismiss the suit, including the defendant's phoney counterclaims for declaratory relief.


In Re John D. Hanby (Tex.App.- Houston [14th Dist.] Feb. 11, 2010)(per curiam) (declaratory judgment counterclaims that mirrored plaintiff's causes of action were not independent claims that could survive nonsuit by plaintiff) (mandamus granted to vindicate plaintiff's right to nonsuit)

FROM THE PER CURIAM OPINION:

Hanby filed a notice of nonsuit dismissing the entire lawsuit. See Tex. R. Civ. P. 162. Weatherford filed an objection and motion to strike the notice of nonsuit, claiming it has sought relief that is independent of the relief sought by Hanby. The trial court granted Weatherford’s objection and motion to strike. The trial court found that “Weathford has sought relief that is independent of the relief sought by Plaintiff Hanby,” but did not specify the independent relief.

The granting of a nonsuit is a ministerial act by the court. See Shadowbrook Apartments v. Abu-Ahmad, 783 S.W.2d 210, 211 (Tex. 1990). Accordingly, a party is entitled to mandamus relief if the trial court erroneously refuses to grant a nonsuit and dismiss the case. See BHP Petroleum Co,. Inc. v. Millard, 800 S.W.2d 838, 840, n.7 (Tex. 1990).

“The plaintiff's right to take a nonsuit is unqualified and absolute as long as the defendant has not made a claim for affirmative relief.” Id. at 841 (original emphasis). A defensive pleading must allege the defendant has an independent cause of action on which he could recover to qualify as a claim for affirmative relief. Id. at 841. Restating defenses as a claim for declaratory judgment does not deprive the plaintiff as his right to the nonsuit. Id. Denials of the plaintiff’s cause of action do not suffice. Id. The allegations pleaded in the defendant’s counterclaim must aver facts upon which affirmative relief could be granted. Id.

Weatherford contends that its counterclaims exceed the scope of Hanby’s suit by seeking declarations that (1) Weatherford had no obligation to exercise the license option or negotiate a license; (2) Weatherford owned all intellectual property at issue; and (3) Hanby failed to cooperate with preparation of a patent application. Weatherford does not argue that any of its other claims for declaratory relief are independent of the relief sought by Hanby.

We conclude that the declaratory relief sought by Weatherford does not exceed the scope of Hanby’s suit. A declaration that Weatherford had no obligation to exercise the option for or negotiate a license with Hanby would establish that Weatherford did not breach the contract as alleged by Hanby. Accordingly, the counterclaims for license-related declarations are merely defenses to Hanby’s breach of contract claim. “Restating a defense in the form of a request for a declaratory judgment does not defeat a plaintiff’s claim to a nonsuit.” Digital Imaging Assoc., Inc. v. State, 176 S.W.3d 851, 854 (Tex. App. – Houston [1st Dist.] 2005, no pet.). Therefore, Weatherford’s second and third counterclaims are not independent claims for affirmative relief.

* * *
A declaratory judgment action is not available to settle disputes already pending before a court. See BHP Petroleum Co., 800 S.W.2d at 841-42. Weatherford’s counterclaims do not aver any facts upon which affirmative relief could be granted. See Digital Imaging Assoc., 176 S.W.3d at 855. Because the counterclaims asserted by Weatherford already are encompassed by Hanby’s original suit, the trial court abused its discretion in refusing to nonsuit the entire case.

* * *
For these reasons, we conditionally grant the petition for a writ of mandamus and direct the trial court to vacate its order of October 9, 2009 granting Weatherford’s objection and motion to strike Hanby’s notice of nonsuit. We direct the trial court to sign an order dismissing the underlying lawsuit. The writ will issue only if the trial court fails to act in accordance with this opinion.

MOTION OR WRIT GRANTED: Per Curiam
Before Justices Brock Yates, Anderson and Boyce
14-09-00896-CV In Re John D. Hanby
Appeal from 270th District Court of Harris County
Trial Court Judge:
Brent Gamble

2-Step in Suit to Partition Land Explained


Not only are appeals from partition-of-land suits rare; they are also procedurally weird, as a panel of the Fourteenth Court of Appeals had occasion to explain in a case decided this week, in which the effect of a partial non-suit was at issue. Among other oddities, suits to partition real estate yield two separate final judgments, each of which triggers its own appellate time-table.


Johnson v. Evans (Tex.App.- Houston [14th Dist.] Feb. 9, 2010)(Hedges) (suit for partition of land, two-stage proceedings with two final judgments, effect of nonsuit) (amount of ad litem fee affirmed, ad litem attorney for defendants served by publication)

FROM THE OPINION:

Unlike most other proceedings, a partition cause involves two final appealable judgments. Griffin v. Wolfe, 610 S.W.2d 466, 466–67 (Tex. 1980) (per curiam); Ellis v. First City Nat’l Bank, 864 S.W.2d 555, 557 (Tex. App.—Tyler 1993, no writ). In the first judgment, the trial court: (1) determines the interests of each of the joint owners or claimants in the real estate sought to be divided and decides all questions of law and equity affecting the title to such land; (2) determines whether the property is susceptible to partition or the subject of a sale; and (3) appoints commissioners to partition the property in accordance with the respective shares or interests of each of such parties entitled thereto. Ellis, 864 S.W.2d at 557; see also Tex. R. Civ. P. 760, 761. Although the first judgment has been characterized as preliminary, it is final for purposes of appeal. Ellis, 864 S.W.2d at 557. Matters decided in the first decree cannot be reviewed in an appeal from the second judgment. Id.

In the second judgment, the court approves the commissioners’ report and partitions the property in kind or by sale. Campbell v. Tufts, 3 S.W.3d 256, 259 (Tex. App.—Waco 1999, no pet.). If, however, the trial court finds the report “to be erroneous in any material respect, or unequal and unjust,” the trial court rejects the report and appoints other commissioners to partition the land. Id. (citing Martin v. Dosohs I, Ltd., 951 S.W.2d 821, 824 (Tex. App.—San Antonio 1997, no writ)); see also Tex. R. Civ. P. 771. A party objecting to the commissioners’ report has the burden of proving that the report is materially erroneous or that it unequally and unjustly partitions the property. Ellis, 864 S.W.2d at 557; Roberts v. Philpot, 435 S.W.2d 614, 615 (Tex. Civ. App.—Tyler 1968, no writ).

***

The instant partition suit involves two judgments, both independent of one another. See Griffin, 610 S.W.2d at 466. The issues litigated in the first judgment—ownership and susceptibility to partition—were distinct from the issue to be adjudicated in the second judgment—physical partition. Correspondingly, in the proceedings below, the trial court adjudicated ownership in the first judgment: the Evanses owned an undivided 7/8 interest in Tract 1 and the Jasper heirs owned the remaining undivided 1/8 interest; the Evanses owned an undivided 1/2 interest in Tract 2 and the Jasper heirs and Johnson owned the other 1/2 interest. After the trial court adjudicated ownership in the first judgment, it then proceeded to adjudicate the second claim—physical partition of both tracts. However, before the Evanses’ physical-partition claims were adjudicated, the Evanses moved to nonsuit their claim to partition Tract 1. See Cook, 167 S.W.3d at 482 (recognizing that a party may choose to take a nonsuit as to some claims without nonsuiting the rest of the pending claims). Because ownership had been adjudicated at the time of nonsuit, the nonsuit could not, and did not, alter ownership. See Alvarado, 892 S.W.2d at 855 (“Once a judge announces a decision that adjudicates a claim, that claim is no longer subject to the plaintiff’s right to nonsuit.”). For that reason, the Jasper heirs’ 1/8 interest in Tract 1 was untouched and unaffected by the Evanses’ nonsuit.

Procedurally, the issue of ownership was not pending at the time of nonsuit; the only claim pending at the time of nonsuit was the claim to physically divide both tracts of land. As a pending claim, yet to be litigated, physical partition of Tract 1 was amenable to nonsuit. See Kilpatrick, 112 S.W.3d at 634 (“[A] nonsuit vitiates any . . . claims that are pending as to a defendant against whom a nonsuit is taken.”). Furthermore, the first judgment did not establish Johnson’s right to Tract 1. The first judgment determined that only the Evanses and the Jasper heirs had ownership rights to Tract 1. While Johnson claimed an interest in Tract 1 as an heir of Eldredge Jasper, Johnson did not file a counterclaim or otherwise seek affirmative relief to prove his heirship. Moreover, Johnson did not file a counterclaim or otherwise make a request for affirmative relief to partition Tract 1. See Kilpatrick, 112 S.W.3d at 634. For these reasons, we conclude that the trial court did not err in granting the Evanses’ nonsuit.

AFFIRMED: Opinion by Chief Justice Adele Hedges
Before Chief Justice Hedges, Justices Seymore and Sullivan
14-08-00610-CV Gerald K. Johnson v. Christine Evans and Frederick M. Evans
Appeal from 3rd District Court of Anderson County
Trial Court Judge: Bascom W. Bentley

Tuesday, February 9, 2010

Settlement Agreement Enforced


Houston Court of Appeals reverses trial court's refusal to enforce settlement agreement breached by defendant in legal malpractice suit.


Hernandez v. Labella
(Tex.App.- Houston [14th Dist.] Feb. 9, 2010)($100K settlement agreement reached after jury trial in malpractice lawsuit against lawyer enforced)(breach of settlement agreement addressed in same suit as underlying claim tried to jury)


MEMORANDUM OPINION BY JUSTICE JOHN S. ANDERSON

Appellant, Salomon Juan Hernandez, sued appellees, Joseph J. LaBella and LaBella, Dennis & Associates, P.L.L.C., for breach of fiduciary duty arising out of their legal representation of appellant. After the jury rendered a verdict in favor of appellant, the parties negotiated a settlement of the dispute. Following a short delay by a third party in the completion of one of the terms of the settlement agreement, the trial court entered a final judgment holding that (1) the settlement agreement was unenforceable; (2) the issue of damages in the case was a question of law for the court; and (3) appellant’s damages were limited to the forfeiture of the $1,000.00 fee collected by appellees. We reverse.

* * *

After a bench trial on the disputed Settlement Agreement, the trial court entered a final judgment holding (1) the Settlement Agreement was unenforceable and the case was returned to its posture before the attempted settlement; (2) the issue of damages for breach of fiduciary duty is a question of law;[2] and (3) appellees were to forfeit their $1,000.00 fee as damages for their breach of fiduciary duty. This appeal followed.

Discussion

While appellant raises five issues on appeal, they can be divided into two groups. First, appellant contends the trial court erred when it (1) ruled the issue of damages for breach of fiduciary duty is a question of law for the trial court, (2) disregarded the jury’s damages finding, and (3) determined appellant’s damages were limited to appellees’ forfeiting their $1,000.00 fee. Second, appellant argues the trial court erred when it determined the Settlement Agreement was breached and unenforceable as a result of a third party’s failure to perform, thereby allowing appellees to elect the remedy of setting the Settlement Agreement aside. Because they are dispositive, we need only address appellant’s second group of issues.[3]

I. Did the trial court err when it refused to enforce the Settlement Agreement?

A. The Standard of Review

The law of contracts is applicable to settlement agreements. Shaw v. Kennedy, Ltd., 879 S.W.2d 240, 247 (Tex. App.—Amarillo 1994, writ denied). Once the parties accept the terms of the settlement, the agreement is binding and can be enforced by the courts. Id. When, as in this case, the contract is unambiguous and the relevant facts are undisputed, we interpret the contract and determine whether a party has breached the contract as a matter of law. Gupta v. E. Idaho Tumor Inst., 140 S.W.3d 747, 756 (Tex. App.—Houston [14th Dist.] 2004, pet. denied).

B. Was the Settlement Agreement enforceable?

Citing Murray v. Crest Const., Inc., appellees argued in the trial court and again here that Medley’s January 22, 2008 letter constituted an anticipatory repudiation or breach of the Settlement Agreement which permitted appellees to elect not to go forward with the Settlement Agreement. Murray v. Crest Const., Inc., 900 S.W.2d 342, 344 (Tex. 1995). We disagree.

If a settlement agreement is breached by one of the parties, the other party may treat the agreement as repudiated and claim rights either under the settlement or the underlying cause of action. Shaw, 879 S.W.2d at 247. An anticipatory repudiation of a contract may consist of either words or actions by a party to a contract which indicate an intention that he or she is not going to perform the contract according to its terms in the future. Builders Sand, Inc. v. Turtur, 678 S.W.2d 115, 120 (Tex. App.—Houston [14th Dist.] 1984, no writ). The intention to abandon a contract must be expressed in positive and unconditional terms. Pollack v. Pollack, 39 S.W.2d 853, 856–57 (Tex. Comm’n App. 1931, holding approved).

A party claiming anticipatory breach of a contract must establish the following three elements: (1) a party to a contract has absolutely repudiated the obligation; (2) without just excuse; and (3) the other party is damaged as a result. Id. at 855; Hauglum v. Durst, 769 S.W.2d 646, 651 (Tex. App.—Corpus Christi 1989, no writ). Appellees’ claim of anticipatory repudiation falls short on each element; however, we need only address the first.

We conclude that no party to the Settlement Agreement absolutely repudiated an obligation under the Settlement Agreement when appellant forwarded Medley’s January 22, 2008 letter to appellees’ attorney. The January 22, 2008 letter from Medley cannot represent an absolute repudiation by a party as neither Stephen Dennis nor Kandis Renee Garrett Dennis, Medley’s clients, were parties to the Settlement Agreement. See Willis v. Donnelly, 199 S.W.3d 262, 271 (Tex. 2006) (holding that shareholder of corporate defendant was not a party to agreement as he had no duties under the agreement and refused to sign the agreement); see also Haddad v. Bagwell, 317 S.W.2d 781, 786 (Tex. App.—Amarillo 1958, writ ref’d n.r.e.) (holding architects were not parties to contract at issue in litigation even though the parties to the contract agreed architects would do certain things).

Appellees attempt to avoid this simple fact by arguing appellant’s forwarding Medley’s letter to appellees’ attorney constituted a material breach of a contractual duty to obtain a signature from the Dennis parties. Appellees’ argument is not persuasive. Even if we were to accept appellees’ contention that appellant alone had the contractual duty to obtain the Dennis parties’ signatures on documents dismissing the LaBella-Dennis litigation, the fact appellant’s attorney forwarded, without comment, a copy of Medley’s letter to appellees, is insufficient to constitute a distinct and absolute refusal to perform the Settlement Agreement by appellant. See McKenzie v. Farr, 541 S.W.2d 879, 882 (Tex. App.—Beaumont 1976, writ ref’d n.r.e.) (holding that a party not in default will be justified in treating the contract as repudiated or abandoned only where the other party to the agreement by his conduct or misconduct, clearly shows a fixed intention during nonperformance to repudiate the agreement and not to comply with its terms in the future). The undisputed evidence also demonstrates that appellant continued his efforts to obtain the Dennis parties’ approval of the dismissal of the LaBella-Dennis litigation and attempted to deliver the executed LaBella-Dennis settlement documents two days later on January 24, 2008, which appellees would not accept. Therefore, we hold that (1) appellant did not repudiate or breach the Settlement Agreement as a result of Medley’s initial refusal to execute the LaBalla-Dennis dismissal documents, and (2) the Settlement Agreement was an enforceable contract between appellant and appellees.

C. Did appellees breach the Settlement Agreement?

Finally, the undisputed evidence establishes appellees materially breached the Settlement Agreement when they rejected the delivery of the LaBella-Dennis dismissal documents and refused to pay appellant the required $100,000.00 settlement amount. Therefore, we sustain appellant’s third, fourth, and fifth issues on appeal.[4]

Conclusion

Having sustained appellant’s third, fourth, and fifth issues, we reverse the judgment of the trial court and render judgment that (1) the Settlement Agreement was enforceable; (2) appellees breached the Settlement Agreement when they refused to perform their obligation to pay appellant $100,000.00; and (3) appellant recover $100,000.00 from appellees. We remand to the trial court for further proceedings to determine appellant’s entitlement to prejudgment interest and the calculation of the amount of prejudgment interest to be awarded, if any.

Hernandez v. Labella (Tex.App.- Houston [14th Dist.] Feb. 9, 2010)(Anderson) (breach of settlement agreement in attorney malpractice case, settlement agreement enforced)(fee forfeiture for breach of fiduciary duty by lawyer to client, election of remedies in breach of contract case, repudiation of settlement agreement, anticipatory repudiation, rescission of contract)
REVERSED AND RENDERED IN PART AND REMANDED IN PART: Opinion by
Justice Anderson
Before Chief Justice Hedges, Justices Anderson and Boyce
14-08-00327-CV Salomon Juan Hernandez v. Joseph J. Labella and LaBella Dennis & Associates, P.L.L. C. | Appeal from 284th District Court of Montgomery County (name of trial court judge not shown on docket)

Verbal Presentment of Claim Sufficient for Recovery of Attorney's Fees under Chapter 38 of the Civil Practice & Remedies Code


In an opinion issued today, Texas Supreme Court aspirant and current 14th Court of Appeals Associate Justice Jeff Brown writes that oral presentment of a claim is sufficient to satisfy the condition precedent for attorney fee recovery based on a successful breach-of-contract claim under Chapter 38 of the Civil Practice & Remedies Code.

Pleading that "all conditions precedent have been satisfied" is not required either as long as the Plaintiff proves that the claim was presented to the opposing party prior to attorney's fees being incurred in litigation.


Giannakopulos v. Eris (Tex.App.- Houston [14th Dist.] Feb. 9, 2010) (presentment of claim as condition precedent in attorney's fees claim based on breach of contract)

FROM THE OPINION: [which uses roman numerals as a structuring device, rather than descriptive subheadings, which would be a lot more reader- and search-engine-friendly]

In his first issue, Giannakopoulos contends the trial court erred in awarding attorney’s fees to Eris because Eris’s attorney failed to properly notice and present a claim under Chapter 38 of the Texas Civil Practice and Remedies Code. Specifically, Giannakopoulos contends Eris’s attorney failed to plead and prove that all conditions precedent had been met, and his demand letter did not satisfy Chapter 38 because it did not give Giannakopoulos thirty days to pay the amount demanded. Whether a party is entitled to recover attorney’s fees is a question of law for the court; the amount to be awarded is a question for the trier of fact. See Holland v. Wal-Mart Stores, Inc., 1 S.W.3d 91, 94 (Tex. 1999) (per curiam). In the absence of findings of fact and conclusions of law, we will imply all findings necessary to the court’s judgment so long as the record supports them. Vickery v. Comm’n for Lawyer Discipline, 5 S.W.3d 241, 251–52 (Tex. App.—Houston [14th Dist.] 1999, pet. denied).

Section 38.001 provides that a person may recover reasonable attorney’s fees on a claim based on an oral or written contract. Tex. Civ. Prac. & Rem. Code Ann. § 38.001(8) (Vernon 2008).

To recover attorney’s fees, the claimant must comply with the following requirements of section 38.002: (1) the claimant must be represented by an attorney; (2) the claimant must present the claim to the opposing party or to a duly authorized agent of the opposing party; and (3) payment for the just amount owed must not have been tendered within thirty days of presentment. Id. § 38.002 (Vernon 2008).

Presentment of the claim is required to provide the other party with an opportunity to pay the claim before incurring an obligation for attorney’s fees. Jones v. Kelley, 614 S.W.2d 95, 100 (Tex. 1981). No particular form of presentment is required. France v. Am. Indem. Co., 648 S.W.2d 283, 286 (Tex. 1983); Harrison v. Gemdrill Int’l, Inc., 981 S.W.2d 714, 719 (Tex. App.—Houston [1st Dist.] 1998, pet. denied).

All that is necessary is that a party show that its assertion of a debt or claim and a request for compliance was made to the opposing party, and the opposing party refused to pay the claim. Standard Constructors, Inc. v. Chevron Chem. Co., 101 S.W.3d 619, 627 (Tex. App.—Houston [1st Dist.] 2003, pet. denied).

It is undisputed that Eris pleaded for recovery of his attorney’s fees pursuant to Texas Civil Practice and Remedies Code section 38.001. Giannakopoulos complains, however, that Eris is not entitled to attorney’s fees because he failed to plead that “all conditions precedent have been performed or have occurred.” See Tex. R. Civ. P. 54. But the failure to plead that all conditions precedent have been met does not preclude an award of attorney’s fees; it merely requires the claimant to prove the requirements of section 38.002. See Wingate v. Acree, No. 14-01-00851-CV, 2003 WL 1922569, at *6 (Tex. App.—Houston [14th Dist.] Apr. 24, 2003, no pet.) (mem. op.); Cook Composites, Inc. v. Westlake Styrene Corp., 15 S.W.3d 124, 138 (Tex. App.—Houston [14th Dist.] 2000, pet. dism’d); see also Grimm v. Grimm, 864 S.W.2d 160, 162 (Tex. App.—Houston [14th Dist.] 1993, no writ) (explaining generally that when a plaintiff fails to plead performance of conditions precedent she may nevertheless obtain judgment on her claim if she proves all essential elements of the claim, including the performance of any conditions precedent). Therefore, Eris’s failure to plead that all conditions precedent have been met will not preclude an award of attorney’s fees if he proved that he complied with the requirements of section 38.002.

Giannakopoulos contends, however, that Eris failed to show that he made a proper demand on him. He also contends that Eris’s demand letter failed to satisfy the requirements of Chapter 38 because it did not give Giannakopoulos thirty days to pay the amount demanded, but rather demanded payment in three days. We disagree.

At trial, Eris testified that he asked Giannakopoulos to pay his fifty percent of the additional property taxes, but Giannakopoulos refused and told Eris that he would have to pay the taxes. Oral presentment of a claim is sufficient to satisfy the presentment requirement; it is not necessary for a party to present a claim in writing. Jones, 614 S.W.2d at 100; Harrison, 982 S.W.2d at 719. Further, on January 26, 2007, Eris’s attorney sent a letter to Giannakopoulos’s attorney demanding that Giannakopoulos pay his fifty percent of the excess taxes for 2006 ($3,280.52) as the contract provided.

Although the letter demanded payment by January 30, 2007, we nevertheless conclude it is adequate to show presentment. See Harrison, 981 S.W.2d at 719 (holding employee’s oral demand for payment “when he got through with his two-week tour” satisfied presentment requirement); Carr v. Austin Forty, 744 S.W.2d 267, 271 (Tex. App.—Austin 1987, writ denied) (holding letter requesting payment at unspecified time satisfied presentment requirement). Therefore, Eris’s oral and written requests for payment adequately presented Eris’s claim for purposes of section 38.002. We overrule Giannakopoulos’s first issue.

AFFIRMED: Opinion by Justice Jeff Brown
Before Justices Brock Yates, Frost and Brown
14-08-00566-CV Illas Giannakopulos v. Bill Eris
Appeal from 295th District Court of Harris County

Trial Court Judge:
Hon. Tracy Christopher

What if the Motion for New Trial Is Not Sworn (or accompanied by proper affidavit)?


In this default judgment case, the non-answering Defendant filed an unverified motion for new trial, then supplemented it with an unverified purported "affidavit." At the hearing on the post-judgment motion, the trial judge gave the Defendant another chance to fix up the affidavit, and eventually granted the motion for new trial by written order. By that time, the court's plenary power over the judgment would normally have expired. In this case, however, it had not.

Plaintiff had obtained default judgment on only one cause of action and one form of relief, leaving others pending; So the default judgment was not a final judgment, and the running of the period leading to expiration of plenary power was never triggered. The court of appeals accordingly denies Plaintiff's request for an order telling the trial court judge to set aside her new-trial order.


In re Drake
(Tex.App.- Houston [14th Dist.] Feb. 9, 2010)(per curiam)
(mandamus challenging order granting new trial denied; default judgment was only a partial judgment, did not dispose of all claims in the lawsuit; there was thus no final judgment and plenary power had not expired)

ANALYSIS [ from the court's per curiam opinion]

Relator asserts that the trial court’s written order granting Godfrey’s motion for new trial is void because (1) it was signed 167 days after the April 2, 2009 default judgment; and (2) an oral ruling on the motion for new trial at the June 22, 2009 hearing was not effective. See Faulkner v. Culver, 851 S.W.2d 187, 188 (Tex. 1993) (orig. proceeding) (per curiam) (“An order granting a new trial or modifying, correcting, or reforming a judgment must be written and signed.”); Tex. R. Civ. P. 329b(e) (if motion for new trial is overruled by operation of law, trial court’s plenary power expires 105 days after signing of judgment).

We first must determine whether the April 2, 2009 default judgment is a final judgment. If the default judgment is interlocutory, then the trial court “retains continuing control . . . and has the power to set [it] aside any time before a final judgment is entered.” Fruehauf Corp. v. Carrillo, 848 S.W.2d 83, 84 (Tex. 1993) (per curiam).

A default judgment is not presumed to be final. In re Burlington Coat Factory Warehouse of McAllen, Inc., 167 S.W.3d 827, 829 (Tex. 2005) (orig. proceeding); Houston Health Clubs, Inc. v. First Court of Appeals, 722 S.W.2d 692, 693 (Tex. 1986) (orig. proceeding) (per curiam). When there has not been a conventional trial on the merits, an order or judgment is not final for purposes of appeal unless it (1) actually disposes of every pending claim and party, or (2) clearly and unequivocally states that it finally disposes of all claims and all parties. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 205 (Tex. 2001). “[A] default judgment that fails to dispose of all claims can be final only if the ‘intent to finally dispose of the case’ is ‘unequivocally expressed in the words of the order itself.’” In re Burlington Coat Factory Warehouse of McAllen, Inc., 167 S.W.3d at 830 (quoting Lehmann, 39 S.W.3d at 200); see also In re Lynd. Co., 195 S.W.3d 682, 685 (Tex. 2006) (orig. proceeding) (“A default judgment is deemed final if it expresses an unequivocal intent to finally dispose of the case.”).

Relator asserted claims in his original petition for negligence, negligence per se, gross negligence, breach of fiduciary duty, violations of the Deceptive Trade Practices Act, negligent misrepresentation, fraud, and breach of contract. The April 2, 2009 default judgment expressly disposes of only the breach of contract claim: “On the claim of Breach of Contract, the court finds in favor of Plaintiff, John Drake, and against Defendant, Sandra Roach Godfrey, in the amount of $100,000.00 (One Hundred Thousand and No/100 Dollars).” The April 2, 2009 default judgment does not refer to relator’s other causes of action or his requests for mental anguish damages, punitive damages, or treble damages; nor does it contain any clear and unequivocal language demonstrating an intent to render a final judgment. Therefore, the April 2, 2009 default judgment is interlocutory. See Burlington Coat Factory Warehouse of McAllen Inc., 167 S.W.3d at 830 (default judgment was interlocutory because it awarded damages on negligence claim, but did not dispose of request for exemplary damages based on gross negligence); Houston Health Clubs, Inc., 722 S.W.2d at 693 (default judgment was interlocutory because it did not dispose of punitive damage issue). Because the April 2, 2009 default judgment is interlocutory, the trial court retained jurisdiction to set aside the default judgment and grant a new trial. See Houston Health Clubs, 722 S.W.2d at 693–94; In re Bro Bro Props., Inc., 50 S.W.3d 528, 530 (Tex. App.—San Antonio 2000, orig. proceeding [mand. denied]).

Relator has not established his entitlement to the extraordinary relief of a writ of mandamus. Accordingly, we deny relator’s petition for writ of mandamus.

MOTION OR WRIT DENIED:
Per Curiam
Before Justices Frost, Boyce and Sullivan
14-09-01058-CV In Re John Drake
Appeal from 133rd District Court of Harris County

Trial Court Judge:
Jaclanel McFarland

Texas Courts May Not Issue Advisory Opinions: Temporary Injunction Appeal Dismissed As Moot


Although an order granting temporary injunctive relief may be appealed, a live controversy must remain. If the temporary injunction becomes inoperative and of no effect, the appeal is rendered moot. Dismissal of want of jurisdiction is thus required, as demonstrated in this case.


NW Enterprises, Inc. v. City of Houston (Tex.App. - Houston [14th Dist.] Feb. 4, 2010)(per curiam) (temporary injunction appeal dismissed as moot, court may not render advisory opinions)

M E M O R A N D U M O P I N I O N

This appeal is from an order signed June 9, 2009, in which the trial court granted a temporary injunction. Appellee filed a motion to dismiss the appeal as moot and appellant responded.

In the order on appeal, the trial court enjoined appellant from operating an adult arcade and ordered appellant to secure that section of the premises. Subsequently, in accordance with a lease termination agreement between appellant and the landlord, appellant vacated the premises. Appellee and the landlord of the premises then entered into an agreed interlocutory declaratory judgment and permanent injunction declaring the premises ineligible for the operation of any sexually-oriented business.

Appellee claims the appeal is moot because appellant no longer occupies or operates an adult arcade at the premises. Appellant argues the appeal is not moot because appellant has an interest in recovering damages, resuming operations at another location, and protecting the operation of a second store that is under threat of similar injunction.

We are prohibited from reviewing a temporary injunction that is moot because such a review would constitute an impermissible advisory opinion. Nat’l Collegiate Athletic Ass’n v. Jones, 1 S.W.3d 83, 86 (Tex. 1999). When a temporary injunction becomes inoperative, the issue of its validity is moot. Id. We must dismiss the case once it becomes moot on appeal. Isuani v. Manske-sheffield Radiology Group, P.A.,, 802 S.W.2d 235, 236 (Tex. 1991).

The temporary injunction on appeal has clearly become inoperative. Any opinion regarding whether the trial court erred in granting the temporary injunction would therefore be advisory and without any practical legal effect. Appellee’s motion is granted and the appeal is ordered dismissed.

DISMISSED: Per Curiam
Before Justices Frost, Boyce and Sullivan
14-09-00561-CV N.W. Enterprises, Inc d/b/a Gaslight News & Video v. City of Houston
Appeal from 133rd District Court of Harris County
Trial Court Judge:
Jaclanel McFarland

Mistrial Order Not Immediately Appealable


Interlocutory appeal from trial court's order granting a mistrial is not authorized by statute. Attempted appeal in absence of final judgment is therefore dismissed for want of jurisdiction.

Vo v. Doan (pdf) (Tex.App. - Houston [14th Dist.] Feb. 4, 2010)(per curiam dismissal)(no interlocutory appeal permitted from trial court's order granting mistrial)

OPINION EXCERPT


This is an attempted appeal from an order declaring a mistrial signed October 20, 2009. The clerk’s record was filed on January 7, 2010.

Generally, appeals may be taken only from final judgments. Lehmann v. Har‑Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). Interlocutory orders may be appealed only if permitted by statute. Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 352 (Tex. 2001); Jack B. Anglin Co., Inc. v. Tipps, 842 S.W.2d 266, 272 (Tex. 1992) (orig. proceeding).

There is no statutory provision to appeal an order granting a mistrial.

On January 12, 2010, notification was transmitted to the parties of this court’s intention to dismiss the appeal for want of jurisdiction unless appellant filed a response demonstrating grounds for continuing the appeal on or before January 25, 2010. See Tex. R. App. P. 42.3(a). Appellant filed a response acknowledging that no final judgment has been signed in this case. Appellant also stated he did not object to dismissal of the appeal, but he did not waive any other rights to seek review the trial court’s order, including by petition for writ of mandamus.

Accordingly, the appeal is ordered dismissed.

DISMISSED: Per Curiam
Before Chief Justice Hedges, Justices Anderson and Christopher
14-09-01009-CV Andrew T. Vo d/b/a Larry Vo, Viet Le, Tam Van Le, and Vo-Le, Inc. v. Ho Kim Doan
Appeal from 129th District Court of Harris County
Trial Court Judge:
Michael Gomez

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.

FROM THE OPINION:
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.
Conclusion
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)
AFFIRM TC JUDGMENT: Opinion by
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