James Wimpy v. Motel 6 Operating, L.P.
461 S.W.3d 619
Tex. App.2015Background
- Wimpy slipped on Motel 6 stairs in October 2009 and sued for premises liability, alleging defective riser/tread placement and inadequate lighting.
- Counsel filed a motion to non-suit about a year after filing; later proceedings and a hearing resulted in orders reinstating the case “as if never non-suited.”
- Motel 6 filed traditional and no-evidence summary judgment motions (asserting, among other things, lack of evidence on invitee status, notice, breach, proximate cause, and that the non-suit terminated the case and limitations ran).
- The court coordinator sent a clerk’s letter setting “Motions Before the Court” for June 5, 2013; Wimpy’s counsel believed the hearing was to be canceled and did not appear or file a response.
- On June 5 the trial court granted Motel 6’s summary judgment; Wimpy moved for new trial arguing he lacked notice of the summary-judgment hearing.
- The trial court denied the motion for new trial; the appellate court reviewed whether Wimpy received adequate notice and whether reversal was required.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Wimpy had constitutionally or procedurally adequate notice that the June 5 hearing would include Motel 6’s summary-judgment motion | Wimpy argued the clerk’s letter setting “Motions Before the Court” and the May 9 hearing discussion did not put him on notice that the summary-judgment motion would be heard, so he lacked meaningful notice and opportunity to be heard | Motel 6 argued the clerk’s notice set a motions hearing on June 5 and that Wimpy received the letter; counsel should have confirmed cancellation or attended | Court held Wimpy did not receive adequate notice that the summary-judgment motion was set for June 5 and reversed and remanded for trial |
| Whether strict compliance with Rule 21a/166a (timing/form of notice) mandates reversal where proof of mailing/receipt is missing | Wimpy contended absence of a certificate of service or mailing proof undermined required 21-day notice | Motel 6 noted Wimpy did receive the clerk’s letter and never raised a late-notice objection at the hearing | Court declined to base reversal on lack of mailing proof because Wimpy did receive the letter; disposition rests on insufficiency of notice content rather than strict service technicality |
| Whether the trial court abused discretion by denying motion for new trial (Craddock factors) | Wimpy alternatively argued Craddock criteria for post-default new trial were satisfied given lack of notice and need to present evidence against no-evidence MSJ | Motel 6 contended the court properly exercised discretion; counsel’s failure to attend and attempt to secure court approval to cancel were culpable | Court sustained the notice issue and reversed/remanded on that ground; it did not reach or decide the motion-for-new-trial abuse-of-discretion issue |
| Whether omnibus/motions-setting practice is improper or automatically provides notice of all pending motions | Wimpy argued the specific context (May 9 statements and later cancellation attempts) made the omnibus notice inadequate | Motel 6 maintained omnibus setting was sufficient and standard practice | Court clarified it was not condemning omnibus notices generally but found that, on these facts, the notice was not reasonably calculated to apprise Wimpy that the MSJ was scheduled |
Key Cases Cited
- Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223 (Tex. 1991) (trial court abuse-of-discretion standard explained)
- LBL Oil Co. v. International Power Serv., Inc., 777 S.W.2d 390 (Tex. 1989) (failure to give notice of default judgment requires reversal)
- Lewis v. Blake, 876 S.W.2d 314 (Tex. 1994) (nonmovant entitled to proper summary-judgment notice under Rule 166a)
- Etheredge v. Hidden Valley Airpark Ass'n, Inc., 169 S.W.3d 378 (Tex.App.—Fort Worth 2005) (summary-judgment reversal when nonmovant lacked notice)
- Valdez v. Robertson, 352 S.W.3d 832 (Tex.App.—San Antonio 2011) (notice-of-hearing principles for summary judgment)
- Cliff v. Huggins, 724 S.W.2d 778 (Tex. 1987) (presumption of receipt when properly addressed and mailed)
- Peralta v. Heights Medical Center, Inc., 485 U.S. 80 (U.S. 1988) (due-process notice must be reasonably calculated to apprise interested parties)
- Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (U.S. 1950) (foundational due-process notice standard)
- Mansfield State Bank v. Cohn, 573 S.W.2d 181 (Tex. 1978) (constructive/adequate notice by copy to opposing counsel)