law-notice-of-summary-judgment-hearing-or-submission | presumption to receipt of notice if served under Rule
21a | notice of hearing generally | notice of trial setting |
In the summary judgment context, Texas Rules of Civil Procedure 166a(c) requires "[e]xcept on leave of court,
with notice to opposing counsel, the motion and any supporting affidavits shall be filed and served at least
twenty-one days before the time specified for hearing." Tex. R. Civ. P. 166a(c). The rules for filing and serving
pleadings apply to summary judgment motions, including Rule 21a, which extends the minimum notice by three
days when the motion is served by mail. See Lewis v. Blake, 876 S.W.2d 314, 315-16 (Tex. 1994).
A certificate of service is prima facie evidence of the fact of service, but nothing in the rule "preclude[s] any party
from offering proof that the notice or instrument was not received, or, if service by mail, that it was not received
within three days . . . ." Tex. R. Civ. P. 21a.
Due process requires "notice reasonably calculated, under the circumstances, to apprise interested parties of
the pendency of the action and afford them an opportunity to present their objections." Peralta v. Heights Med.
Ctr., Inc., 485 U.S. 80, 84 (1988). Under rule 166a(c) of the Texas Rules of Civil Procedure, a non-movant is
afforded twenty-one days' notice before a summary judgment hearing or date of submission. See Tex. R. Civ. P.
166a(c); see also Aguirre v. Phillips Props., Inc., 111 S.W.3d 328, 332 (Tex. App.-Corpus Christi 2003, pet.
denied). The Texas Supreme Court has held that a trial court must give notice of the submission date for a
motion for summary judgment, because this date determines the date the non-movant's response is due. Martin
v. Martin, Martin & Richards, Inc., 989 S.W.2d 357, 359 (Tex. 1998); Aguirre, 111 S.W.3d at 332. Failure to give
notice of the submission date is not jurisdictional and therefore can be rendered harmless when the trial court
considers the non-movant's response. See Martin, 989 S.W.2d at 359 (holding that error was harmless where,
after granting summary judgment, the trial court considered the non-movant's response and reconfirmed its
ruling).
ENTITLEMENT TO NOTICE OF SUMMARY JUDGMENT HEARING / SUBMISSION
Texas Rule of Civil Procedure 21a
In her sixth issue, Davis argues that the trial court erred by granting summary judgment for the Bank because
she did not receive sufficient notice of the hearing on the Bank's motions and because she lacked "adequate
time" to conduct discovery.
The certificate of service on the Bank's motion for summary judgment states that the document was forwarded to
Davis "via Facsimile and/or Certified Mail, Return Receipt Requested and/or First Class Mail" on July 17, 2008.
The summary judgment motion in the record reflects that the motion was filed on July 21, 2008. Davis's response
to the Bank's motion for summary judgment alleged that an inadequate time for discovery had elapsed and that
she had not been afforded proper notice of the hearing on the Bank's motion. Davis did not, however, move for
a continuance nor did she file an affidavit as to any of the facts supporting her objection. The summary judgment
hearing took place on August 12, 2008. There is no evidence in the record to establish when Davis first received
notice of the August 12, 2008 hearing date. At the summary judgment hearing, Davis again objected to
inadequate notice and inadequate time for discovery but she failed to present any motion to continue or file any
affidavits regarding her objection.
In the summary judgment context, Texas Rules of Civil Procedure 166a(c) requires "[e]xcept on leave of court,
with notice to opposing counsel, the motion and any supporting affidavits shall be filed and served at least
twenty-one days before the time specified for hearing." Tex. R. Civ. P. 166a(c). The rules for filing and serving
pleadings apply to summary judgment motions, including Rule 21a, which extends the minimum notice by three
days when the motion is served by mail. See Lewis v. Blake, 876 S.W.2d 314, 315-16 (Tex. 1994).
A certificate of service is prima facie evidence of the fact of service, but nothing in the rule "preclude[s] any party
from offering proof that the notice or instrument was not received, or, if service by mail, that it was not received
within three days . . . ." Tex. R. Civ. P. 21a.
Davis complains that the trial court erred in holding the hearing on the motion for summary judgment because
the hearing took place 22 days after the filing of the motion and "a hearing may not be held fewer than 24 days
between the time the motion is mailed and the day of the hearing." Davis's argument confuses the filing of a
motion with the trial court, serving a copy of the motion upon a nonmovant, and notice that the motion is set for
hearing or submission.
The Bank's motion for summary judgment was served by mail upon Davis 26 days before the hearing on the
motion was held. The motion was then filed with the trial court 22 days before the hearing. We do not read the
rules as requiring that Davis be afforded 24 days' notice of the filing date of the motion for summary judgment.
We overrule Davis's issue relating to service of the motion.
Davis also argues on appeal that Rule 166a(i) states that a no-evidence motion for summary judgment may be
filed "after an adequate time for discovery." Tex. R. Civ. P. 166a(i). Davis contends that she did not have an
adequate time for discovery in light of health problems she encountered while the case was on file. However,
Davis waived any objection to an inadequate time for discovery by failing to file an affidavit explaining the need
for further discovery or a verified motion for continuance. Tenneco, Inc. v. Enterprise Prods., 925 S.W.2d 640,
647 (Tex. 1996) (failure to file affidavits or verified motion for continuance waives objection as to lack of time for
adequate discovery); Blanche v. First Nationwide Mortgage Corp., 74 S.W.3d 444, 450-51 (Tex. App.--Dallas
2002, no pet.) (same). We overrule Davis's sixth issue.
Davis v. West (Tex.App.- Houston [1st Dist.] Dec. 31, 2009)(Hanks)(derived judicial immunity) (turnover relief,
void vs voidable order, existence of fiduciary duty, sufficiency of notice of summary judgment hearing)
AFFIRM TC JUDGMENT: Opinion by Justice Hanks
Before Justices Keyes, Alcala and Hanks
01-08-01006-CV Veronica Davis v. James A. West, Henry V. Radoff,
Houston Reporting Services & Prosperity Bank, Inc..
Appeal from 149th District Court of Brazoria County
Trial Court Judge: Hon. Robert E. May
NOTIVE OF SUMMARY JUDGMENT HEARING - ORAL HEARING OR "HEARING"
BY SUBMISSION
Although an oral hearing on a motion for summary judgment is not mandatory, notice of hearing or submission of
a summary judgment motion is required. See Martin v. Martin, Martin, & Richards, Inc., 989 S.W.2d 357, 359
(Tex. 1998). The rules of civil procedure afford the nonmovant twenty-one days' notice before a summary
judgment hearing. Tex. R. Civ. P. 166a(c). The nonmovant may “file and serve opposing affidavits or other
written response” not later than seven days before the hearing date. Id. Without notice of the hearing date, the
nonmovant would not know when his response is due. Whiteside v. Ford Motor Credit Co., 220 S.W.3d 191, 194
(Tex. App.-Dallas 2007, no pet.) (citing Martin, 989 S.W.2d at 359).
The Fourteenth Amendment of the United States Constitution protects against deprivation of life, liberty, or
property by the State “without due process of law.” U.S. Const. amend. XIV, § 1. The Texas Constitution states
that no citizen of this state shall be deprived of life, liberty, property, privileges or immunities, or in any manner
disfranchised, except by the “due course of law of the land.” Tex. Const. art. I, § 9. At a minimum, due process
requires notice and an opportunity to be heard at a meaningful time and in a meaningful manner. See Campbell
v. Stucki, 220 S.W.3d 562, 570 (Tex. App.-Tyler 2007, no pet.). When a hearing has been scheduled on a
motion and the trial court grants that motion before the scheduled hearing date, the trial court violates the non-
moving party's procedural due process right to be heard. See id. (trial court violated due process where hearing
scheduled regarding motion and notice provided, but trial court granted motion before scheduled hearing date);
see also Mosser v. Plano Three Venture, 893 S.W.2d 8, 13 (Tex. App.-Dallas 1994, no writ) (it would violate due
process to require nonmovant, who did not receive actual or constructive notice of summary judgment hearing,
to meet Craddock requirements to obtain new trial); Averitt v. Bruton Paint & Floor Co., 773 S.W.2d 574, 576
(Tex. App.-Dallas 1989, no writ) (defendant did not appear at hearing on motion to compel discovery and trial
court entered default judgment, but trial court abused discretion when it denied defendant's motion for new trial
because motion showed defendant did not receive notice of hearing satisfying requirements of Craddock by
establishing his conduct was not intentional or consciously indifferent); Limestone Constr., Inc. v. Summit
Commercial Indus. Props., Inc., 143 S.W.3d 538 (Tex. App.-Austin 2004, no pet.) (nonmovant failed to respond
or appear at hearing and trial court granted summary judgment, but trial court abused discretion when it denied
motion for new trial because nonmovant established it did not receive notice of motion or hearing).
PRESERVATION OF ERROR REGARDING INSUFFICIENT NOTICE REQUIRED
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).
Preservation of Complaint Regarding Late Notice 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.
Motion for New Trial - Too Late 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.
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;
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
CERTIFICATE OF SERVICE | PRESUMPTION OF PROPER SERVICE | NONRECEIPT
CONTENTION
On appeal, Monk contends that he did not receive service of Westgate's motion for summary judgment or timely
notice of the hearing.[4] In his brief, he claims Westgate's motion for summary judgment did not include a
certificate of service. However, the record includes a certificate of service following Westgate's motion for
summary judgment and notice of hearing. Therefore, at the time the trial court granted the motion for summary
judgment, nothing in the pleadings or evidence suggested that Monk had not received service of the motion or
timely notice of the hearing. Given the state of the record before it, the trial court did not err in rendering
summary judgment for Westgate. Appellant's first issue is overruled.
Monk v. Westgate Homeowners' Association, Inc. (Tex.App.- Houston [14th Dist.] Aug. 11, 2009)(Price)
(motion for new trial overruled by operation of law insufficient to preserve complaint regarding lack of timely or
proper notice of summary judgment motion hearing)(discharge in bankruptcy was not pleaded as affirmative
defense and not raised in summary judgment response and thus waived)(pro se appeal)
AFFIRMED: Opinion by Senior Justice Frank C. Price, sitting by assignment
Before Price, Justices Brock Yates and Guzman
14-07-00886-CV Joseph Monk v. Westgate Homeowners' Association, Inc.
Appeal from 270th District Court of Harris County
Trial Court Judge: Brent Gamble
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