675 S.W.3d 399
Tex. App.2023Background
- Donato and Modesto (brothers) acquired real property in 1998; Donato later died and Estella became independent administratrix of his estate. A lis pendens was filed in 2009 during estate administration.
- Estella executed a general warranty deed transferring the property to Modesto in 2012, but the lis pendens remained on title.
- Modesto sued in 2019 to quiet title and filed traditional and no‑evidence motions for summary judgment on April 5, 2022. An unsigned order (reciting a hearing date of April 28, 2022) was filed and served with the motion on April 5.
- The trial judge signed the order setting hearing on April 8 (20 days before the scheduled hearing). Appellants filed an untimely response on April 27 and sought leave to file; the trial court denied leave, then granted both no‑evidence and traditional summary judgment and quieted title in favor of Modesto.
- Appellants appealed, principally arguing insufficient notice of the summary‑judgment hearing and that genuine fact issues precluded summary judgment. The court affirmed.
Issues
| Issue | Plaintiff's Argument (Barrientos) | Defendant's Argument (Appellants) | Held |
|---|---|---|---|
| Sufficiency of notice of summary‑judgment hearing | The unsigned setting order attached to the filed motion (served Apr 5) gave proper/constructive notice of the Apr 28 hearing | The signed setting order (signed Apr 8) was the operative service and gave only 20 days’ notice, violating the 21‑day Rule 166a(c) requirement | The unsigned order served Apr 5 that specified Apr 28 provided sufficient notice (or at least constructive notice); issue overruled |
| Preservation of late‑notice complaint | Barrientos argued Appellants raised the timing problem at the hearing | Appellants argued they lacked timely notice and thus preserved complaint | Court noted preservation was doubtful but addressed the issue on the merits and rejected Appellants’ late‑notice argument |
| No‑evidence summary judgment (Appellants’ affirmative defenses) | Appellants claimed affidavits and deposition testimony created more than a scintilla of evidence | Barrientos argued Appellants produced no timely controverting evidence; trial court did not consider late filings | Appellants’ response and evidence were untimely and not considered; no‑evidence summary judgment proper |
| Traditional summary judgment / quiet title and 100% ownership | Appellants argued deed lacked consideration, Eusebio had interest, statute of frauds/partial performance and Duhig issues create fact questions | Barrientos submitted the 1998 and 2012 deeds, lis pendens, affidavit and correspondence establishing title and cloud; argued he conclusively proved entitlement | On the record before the court (no timely response), Barrientos established entitlement as a matter of law; judgment declaring 100% ownership affirmed |
Key Cases Cited
- Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306 (1950) (due‑process notice must be reasonably calculated to inform interested parties)
- Armstrong v. Manzo, 380 U.S. 545 (1965) (parties must have an opportunity to be heard at a meaningful time and in a meaningful manner)
- City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671 (Tex. 1979) (if movant shows entitlement, burden shifts to nonmovant to raise issues/evidence)
- Merriman v. XTO Energy, Inc., 407 S.W.3d 244 (Tex. 2013) (standard of review for summary judgment; treat no‑evidence grounds first)
- King Ranch, Inc. v. Chapman, 118 S.W.3d 742 (Tex. 2003) (no‑evidence standard explained)
- West v. Maint. Tool & Supply Co., Inc., 89 S.W.3d 96 (Tex. App.—Corpus Christi–Edinburg 2002) (unsigned setting notice can suffice when it notifies opposing parties of a specific hearing date)
- Goode v. Avis Rent‑A‑Car, Inc., 832 S.W.2d 202 (Tex. App.—Houston [1st Dist.] 1992) (unsigned order attached to motion may provide sufficient notice)
- Okoli v. Tex. Dep’t of Hum. Servs., 117 S.W.3d 477 (Tex. App.—Texarkana 2003) (distinguishes mere “presentment” notice from a definitive hearing setting)
- Duhig v. Peavy‑Moore Lumber Co., 144 S.W.2d 878 (Tex. 1940) (limits a grantor’s ability to convey greater title than owned)
- Tenneco, Inc. v. Enter. Products Co., 925 S.W.2d 640 (Tex. 1996) (party seeking more time for discovery must request continuance or file affidavit)