law-notice-of-hearing | notice of trial setting | due process | sufficiency of notice of hearing | adequate notice |
service of citation |
Notice of Venue Hearing
In his first issue on appeal, Kelly argues that he was not given sufficient notice of the hearing on appellees'
separate motions to transfer venue. Kelly asserts that the trial court's order was granted and conveyed to him
only 29 days before the scheduled date of the hearing. As a result, he contends not only was he denied the
required 45 days' notice of the hearing, but it was impossible for him to timely file a response in opposition to
appellees' motions at least 30 days before the hearing. See Tex. R. Civ. P. 87(1).
Kelly v. American Interstate Insurance Co. (Tex.App.- Houston [14th Dist.] Nov. 25, 2008)(Brown)
(venue, MTV, exhaustion of administrative remedies, workers comp, compensable injury, plea juris)
AFFIRMED: Opinion by Justice Brown
Before Justices Brock Yates, Guzman and Brown
On appeal, Kelly does not object to the court's determination that venue was proper in Harris County; he merely
objects to the lack of notice. For this reason, it is not necessary for this court to conduct a review of the trial
court's venue analysis.
The Texas Rules of Civil Procedure provide that, except on leave of the court, each party is entitled to at least
45 days notice of a hearing on a motion to transfer. Id. Appellees assert that Kelly was given more than 45
days notice of the hearing, because he received a copy of the appellees' joint motion to set a hearing on all of
their venue motions, as well as a proposed order, on July 14, 2005. The cover letter accompanying the motion
and proposed order provides as follows:
The Andrews County Court Coordinator has advised us that the hearing has already been placed on the Court's
September 6, 2005, docket at 10:00 a.m. and that the Motion and Order are simply a formality.
At the venue hearing, Kelly's counsel admitted to having received the letter and its contents. Consequently,
Kelly was aware of appellees' efforts to schedule the hearing on their joint motion as of July 14Cmore than 50
days before the scheduled hearing.
To date, there does not appear to be any Texas case addressing whether receipt of an unsigned scheduling
order qualifies as sufficient notice of a venue hearing. However, several similar cases provide sufficient
authority for this court to hold that the circumstances in this case do qualify as proper notice.
In Mansfield State Bank v. Cohn, 573 S.W.2d 181 (Tex. 1978), the Texas Supreme Court held that a letter sent
to the district court clerk, when copied to opposing counsel, was sufficient notice of a trial setting. Id. at 185. In
that case, the court stated, “It is reasonable to assume that if a trial setting is requested from the district clerk, a
litigant is put on notice that trial may be on that requested date." Id. In the present case, appellees' letter
established that arrangements with the court coordinator had already been made - the date had been set. The
court's act of signing the order was a mere formality. Other courts have similarly held that the forwarding of
unsigned orders to opposing counsel provides sufficient notice of summary-judgment hearings under the Rules
of Procedure. See Goode v. Avis Rent-A-Car, Inc., 832 S.W.2d 202, 204 (Tex. App.- Houston [1st Dist.] 1992,
writ denied) (receipt of an unsigned order was sufficient notice to respondent of summary-judgment hearing);
Longoria v. United Blood Servs., 907 S.W.2d 605, 609-610 (Tex. App.- Corpus Christi 1995) rev'd on other
grounds, 938 S.W.2d 29 (Tex. 1997) (citing Mansfield, 573 S.W.2d at 185, and holding that letter requesting
specific date for trial or hearing, when copy sent to opposing parties, is sufficient notice of setting); West v.
Maint. Tool & Supply Co., Inc., 89 S.W.3d 96, 102-03 (Tex. App.- Corpus Christi 2002, no pet.) (agreeing with
Goode and Longoria, and citing Mansfield, 573 S.W.2d at 185). Here, appellees' letter, accompanied by a copy
of their joint motion and the unsigned order, provided Kelly with actual notice of the hearing date, sufficient to
satisfy Rule 87. As a result, the trial court did not abuse its discretion in overruling Kelly's objection to the venue
hearing. See Bowie Mem'l Hosp., 79 S.W.3d at 52.
We overrule Kelly's first issue.
HOUSTON COURTS AND CASES | TEXAS CASE LAW |