24 vs 21 days notice of summary judgment hearing required when service by mail; but non-movant must complain of insuffiecient notice | Hatler v. Moore Wallace North America, Inc. (Tex.App.- Houston [1st Dist.] Feb. 4, 2010)(Higley)

Hatler v. Moore Wallace North America, Inc. (Tex.App.- Houston [1st Dist.] Feb. 4,
2010)(Higley)
(2 4 days vs 2 1 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.