law-motion-for-new-trial-no-notice or defective notice
DEFECTIVE NOTICE
In his first appellate issue, Harden argues the trial court abused its discretion by not granting a new
trial based on his proof that he never received notice of the motion for summary judgment or the
submission of that motion. ETMC did not file an appellate brief.[1]
Harden, MD v. East Texas Medical Center Health Care Associates (Tex.App.- Houston [14th Dist.] May 19,
2009)(Frost)
REVERSED AND REMANDED: Opinion by Justice Frost
Before Justices Frost, Brown and Boyce
14-08-00627-CV Samuel Harden, M.D. v. East Texas Medical Center Health Care Associates
Appeal from County Court at Law No 1 of Smith County
Trial Court Judge: Judge Thomas A. Dunn
We review a trial court's denial of a motion for new trial for abuse of discretion. Dir., State
Employees Workers' Comp. Div. v. Evans, 889 S.W.2d 266, 268 (Tex. 1994). An abuse of discretion
occurs when a court acts in an arbitrary or unreasonable manner, or without reference to guiding
rules and principles. Downer v. Aquamarine Operators, 701 S.W.2d 238, 241B42 (Tex. 1985). A
trial court's discretion, however, is Anot unbridled." Craddock v. Sunshine Bus Lines, Inc., 133
S.W.2d 124, 126 (Tex. 1939). If the movant's allegations are uncontroverted and meet the test of
the Craddock requirements, the court is compelled to grant the motion. State Farm Life Ins. Co. v.
Mosharaf, 794 S.W.2d 578, 582 (Tex. App.- Houston [1st.Dist.] 1990, writ denied). Craddock applies
when a summary-judgment non-movant does not receive notice of the submission of the
summary-judgment motion until after the submission date. See Carpenter v. Cimmarron
Hydrocarbons Corp., 98 S.W.3d 682, 686 (Tex. 2002) (holding that Craddock does not apply in
cases in which summary judgment is granted against party who received notice at or before the
submission or oral hearing on the motion but declining to address whether Craddock applies when a
summary-judgment non-movant does not receive notice of the submission of the summary-judgment
motion until after the submission date); Rorie v. Goodwin, 171 S.W.3d 579, 584 (Tex. App.- Tyler
2005, no pet.) (applying Craddock in summary-judgment context).[2] Under Craddock, the judgment
should be set aside when the defendant shows (1) his failure to reply to the motion for summary
judgment was not intentional or the result of conscious indifference but was due to an accident or
mistake; (2) he had a meritorious defense; and (3) a new trial would cause no delay or injury to the
plaintiff. See Craddock, 133 S.W.2d at 126.
As to the first requirement, the record reflects there was no evidence before the trial court to
controvert Harden's sworn affidavit that he never received notice of the submission date for the
summary-judgment motion. ETMC's response does not prove that it properly served the notice of
submission and the summary judgment motion on Harden. Though ETMC attached two envelopes,
the first envelope was not sent to Harden's "last known address." See Tex. R. Civ. P. 21a. As to the
second envelope, ETMC did not present any proof that this envelope was served by delivering it to
Harden (1) in person, (2) by agent, (3) by courier-receipted delivery, or (4) by certified or registered
mail with prepaid postage. See Tex. R. Civ. P. 21a; Ashworth v. Brzoska, 274 S.W.3d 324, 330 (Tex.
App.- Houston [14th Dist.] 2008, no pet.). Although ETMC argued that Harden was Adodging
service," it offered no evidence in support of its claim. We conclude Harden satisfied Craddock's first
element.
Once Harden established by his uncontroverted affidavits he had not received the required notice,
he was relieved from further responsibility of complying with the Craddock requirements. See Rabie
v. Sonitrol of Houston, Inc., 982 S.W.2d 194, 197-98 (Tex. App - Houston [1st Dist.] 1998, no pet.).
Accordingly, we sustain Harden's first issue. Because none of Harden's remaining issues would
afford greater relief if sustained, we do not address them.
III. Conclusion
We hold the trial court abused its discretion in failing to grant Harden a new trial and in failing to set
aside the summary judgment. Accordingly, we reverse the judgment of the trial court and remand for
further proceedings consistent with this opinion.