467 S.W.3d 580
Tex. App.2015Background
- Ready (subcontractor) sued Douglas (Alpha employee) and Alpha Building for assault and battery after an on-site altercation where Ready alleged Douglas punched him.
- Alpha filed traditional and no-evidence summary-judgment motions; initial Alpha notice set submission for a specific date (Nov. 11, 2013) and court granted judgment; Ready obtained a new trial on that ruling.
- Douglas and Alpha later filed separate traditional and no-evidence summary-judgment motions with notices stating each motion would be submitted “without a hearing after” specified dates (Douglas: after Jan. 8, 2014; Alpha: after Feb. 7, 2014).
- Ready did not file responses; the trial court granted both summary judgments. Ready promptly moved for new trial, arguing the notices failed to specify a date certain and thus deprived him of Rule 166a response time.
- The trial court denied the motions for new trial; Ready appealed, challenging adequacy of notice for the submission dates.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a notice stating a motion will be submitted “after” a date certain satisfies Rule 166a(c) notice requirements | Ready: “After” language is indefinite; no date certain given so he could not calculate when responses were due | Defendants: “After [date]” effectively fixes earliest submission date (so nonmovant should have treated that as the submission date and responded) | Court: Notices were indefinite; they did not give a date certain and therefore failed to comply with Rule 166a(c); judgments reversed and remanded |
| Whether Ready waived the notice objection by not seeking relief before judgment | Ready: Objection preserved by prompt motions for new trial after learning of rulings | Defendants: Failure to act (respond, seek continuance, clarify) waived complaint; Carpenter and similar cases control | Court: Objection preserved — Ready raised lack of any date certain in timely motions for new trial; issue not waived |
Key Cases Cited
- Carpenter v. Cimarron Hydrocarbons, 98 S.W.3d 682 (Tex. 2002) (distinguishes Craddock standard for relief from default from failures to respond to summary-judgment notices when party had actual notice)
- Craddock v. Sunshine Bus Lines, 133 S.W.2d 124 (Tex. 1939) (standard for setting aside default judgments for mistake, inadvertence, or excusable neglect)
- Martin v. Martin, Martin & Richards, Inc., 989 S.W.2d 357 (Tex. 1998) (notice of hearing for summary judgment is mandatory and essential to due process)
- Rorie v. Goodwin, 171 S.W.3d 579 (Tex. App.—Tyler 2005, pet. denied) (indefinite “on or after” submission language failed to state a specific submission date under Rule 166a)
- Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844 (Tex. 2009) (standard of review for summary-judgment rulings is de novo)
- Aguirre v. Phillips Props., Inc., 111 S.W.3d 328 (Tex. App.—Corpus Christi 2003, pet. denied) (failure to give notice of summary-judgment submission date constitutes error)