668 S.W.3d 947
Tex. App.2023Background
- Appellees filed a motion for summary judgment (MSJ) on March 18, 2021; the MSJ was set for an April 9, 2021 hearing.
- Appellants were unrepresented when the MSJ was filed; JFAL filed bankruptcy on April 8, 2021, prompting questions about an automatic stay and causing the April 9 hearing to be postponed.
- The trial court did not decide the MSJ on April 9; the case was removed to bankruptcy court and later remanded.
- Appellees requested entry of final summary judgment; an ambiguous notice titled “Request for Entry of Summary Judgment” (served Aug. 11–12) set a Zoom proceeding for Aug. 17, 2021 and was served less than seven days before that date.
- At the Aug. 17 proceeding the trial court proceeded on the MSJ over Appellants’ objection, Appellees withdrew an attorneys’ fees claim after discovering a missing exhibit, and the court signed final summary judgment for Appellees.
- Appellants appealed, arguing they were entitled to a new, timely notice and opportunity to respond before the MSJ could be considered; the court reversed and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a nonmovant loses the right to file a response after failing to respond within seven days of an initial hearing that was later canceled | Once Appellants failed to respond seven days before the originally noticed April 9 hearing, the response deadline had passed and the court could rule thereafter without new notice | Timeliness is measured by the actual hearing date; when an initially noticed hearing is canceled, the nonmovant is entitled to a new notice and new response deadline | Held for Appellants: the response deadline is tied to the actual hearing date; a canceled hearing nullifies the initial notice and a new notice is required |
| Whether the August 11/12 notice was timely (reasonable) as to the Aug. 17 hearing | No new seven-day notice was required; the MSJ could be decided on submission or with the prior setting | The August notice was ambiguous and was served fewer than seven days before the hearing, depriving Appellants of the minimum required notice when no response was on file | Held for Appellants: where no response is on file, reasonable notice of a reset must be at least seven days; the Aug. notices (6 and 5 days) were insufficient |
Key Cases Cited
- B. Gregg Price, P.C. v. Series 1 - Virage Master LP, 661 S.W.3d 419 (Tex. 2023) (a rescheduled hearing requires new notice; cancelled oral hearings nullify prior notice)
- Martin v. Martin, Martin & Richards, Inc., 989 S.W.2d 357 (Tex. 1998) (the hearing date determines the time for response to an MSJ)
- Int’l Ins. Co. v. Herman G. West, Inc., 649 S.W.2d 824 (Tex. App.—Fort Worth 1983) (seven days is a minimum for reasonable notice of reset)
- LeNotre v. Cohen, 979 S.W.2d 723 (Tex. App.—Houston [14th Dist.] 1998) (holds amended notice served 21 days before new hearing was reasonable; discusses mailbox rule)
- Huffine v. Tomball Hosp. Auth., 979 S.W.2d 795 (Tex. App.—Houston [14th Dist.] 1998) (rescheduling increases nonmovant’s time to respond)
- Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682 (Tex. 2002) (standard: appellate review of trial court’s rulings on leave to file late responses/continuances is abuse-of-discretion)