Hatler v. Moore Wallace North America, Inc. (Tex.App.- Houston [1st Dist.] Feb. 4, 2010)(Higley)
(24 days vs 21 days notice prior to summary judgment hearing depending on method of service; three extra
days if motion served by mail or fax; 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

MEMORANDUM OPINION

Appellant, Paul Hatler, appeals the summary judgment granted in favor of appellee, Moore Wallace North
America, Inc. ("Moore Wallace"). In one issue, Hatler contends that the trial court erred in rendering summary
judgment because he did not have adequate notice of the summary judgment proceeding.

We affirm.

Background

Moore Wallace sued its former employee, Paul Hatler, for breach of contract, conversion, and unjust enrichment.
Moore Wallace alleged that it had accidently overpaid Hatler $11,943.92 in wages after Hatler resigned his
employment. Moore Wallace asserted that Hatler had refused to return the overpayment. Hatler answered the
suit, asserting a general denial of Moore Wallace's claims. On October 27, 2006, Moore Wallace filed a motion
for summary judgment against Hatler. That same day, Moore Wallace served Hatler by facsimile and by certified
mail with a copy of the motion and with a notice of hearing. The notice provided that the hearing was set for 21
days later on November 17, 2006. Halter did not file a response. The trial court signed an order granting Moore
Wallace's motion for summary judgment on November 17, 2006.

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.

Laura Carter Higley

Justice


Panel consists of Chief Justice Radack and Justices Alcala and Higley.