*1
491
according
hearing,
the claimant a
de-
ever
D. ADAMO and Tana
Samuel
timely
spite
proper
request
his
and
for one.
Adamo, Petitioners,
judgment
for the claimant
Had the
been
v.
abuse,
discovery
of the
not
because
insurer’s
hearing
only
an oral
have been re-
would
COMPANY,
FARM
STATE
LLOYDS
922,
Downey,
quired, Braden v.
811 S.W.2d
Respondent.
(Tex.1991, orig. proceeding),
trial
929
but the
No. D-3835.
detailing
specific
findings
of
factual
court’s
justifying
judgment
the
would have been well
Supreme Court of Texas.
Blackmon,
advised,
Corp.
841
Chrysler
see
v.
844,
(Tex.1992),
re-
850
and de novo
S.W.2d
3,
Nov.
1993.
every
trial
by this
of
detail of the
view
Court
would have been assured. See
court’s order
Caldwell,
Remington
v.
850
Arms Co.
S.W.2d
(Tex.1993)
167,
J.,
(Doggett,
dissenting).
174
Corp. v.
See also Transamerican Nat. Gas
(Tex.1991).
Powell,
But not
Application for writ 'd writ of error denied. Lummis, 916, prises, Inc. v. 596 S.W.2d 923 writ). 1980, (Tex.App. no [14th] — Houston DENIAL DISSENTING OPINION TO 166a, rule, operative procedural the re Rule OF APPLICATION FOR WRIT times;1 hearing a not once but six it fers to OF ERROR clearly contemplates hearing that a on a mo DOGGETT, Justice, summary judgment tion for will occur before dissenting. the trial court rules on the motion. This justice Mail order kind that comes —the analyzed provision correctly in was Williams stamp opportunity with a but no to be (Tex. 953, Carpentier, v. 767 954 S.W.2d heard —could and should have been discour- writ): 1989, App. no — Beaumont aged by here this Court. The trial court had summary hearing. judgment terminating specifically rendered an for a [Rule 166a] calls against company specific imposed action an insurance without There are deadlines (c) court, provides, part, judgment permission 1. Subsection in relevant that before with of the court, that, Except oppos- except on leave of to the amount of dam- with notice to show as counsel, ing any supporting the motion and ages, genuine any there is no issue as to mate- affidavits shall be filed and served at least moving party rial fact and the is entitled to twenty-one days specified before the time for judgment a law on as matter of the issues court, hearing. Except on leave of the adverse expressly out in the motion or in an answer set party, days prior day later than to not seven the any response. or other hearing may opposing file and serve affida- of (d) provides, part, in relevant that Subsection response. vits other written No oral testi- or Discovery products not on file with the clerk mony hearing. The shall be received at the judgment may summary be used as evidence if judgment sought shall be rendered forthwith if (i) copies ... are filed and served ... at least (i) deposition transcripts, interrogatory the an- twenty-one days hearing before the if such swers, discovery responses and other refer- summary proofs support are to be used to the response, the enced or set forth in motion or (ii) days judgment; or at least seven before the admissions, affidavits, (ii) pleadings, the and stipulations oppose hearing proofs such are to be used to if parties, or of the and authenticated records, summary judgment. the public any, certified if on file at the 166a(c) (d) added). hearing, (emphasis the or filed thereafter and time of Tex.R.Civ.P. and *2 492 makes preferred the alternative which the hearing a to the date.... Without
around at which a specified day, appeals court the first forum hearing being on a of held ap- judgment argued can concerning summary be uncertainty created no- there is —an by tice, might avoided pellate trip that have been appropriateness the timeliness and/or to the trial responses. explanation sum- a brief of counsel pleadings of and Because remedy, rule mary judgment a harsh court. is The strictly must be construed.... 166a today’s to consider Fortunately, refusal hearing speci- a on the failure to conduct binding legal particular ease no this sets day fied was error. disturbing signal precedent; only sends a it decision, for its the Citing no textual basis or of by finding requiring reversal no error rejected the for a appeals here call court of jurisprudence the importance the of state. to merely hearing in Rule 166a as “disere- 133(a). I a matter think this is T.R.A.P. Lloyds tion[ary].” Farm Adamo v. State par- highly important jurisprudence, to our 673, (Tex.App.— Company, 853 677 S.W.2d ex- urge the ticularly at a time when some 1980). Although that court [14th] Houston judg- scope summary pansion of the of the persuasive “potentially conceded both the to while at ment as a device whittle dockets attorney summary in a appellant’s skills of right the suggesting the time that to same hearing,” argument that oral
judgment and judge judge’s lay eyes a at the ever on is “interesting helpful,” none- might and it be True, justice might system our discretion. no found there was “clear and theless that if all motions were handled be more efficient law,” error since neither oral prejudicial of intruding, lawyers by talkative mail without testimony nor new evidence would be other just. Because a it also be far but would less proceeding. at such a admissible judge duty a corre- a to be more than has hearing requirement of 166a is The Rule litigant right to more spondent and a has a 87, defeat, of Tex.R.Civ.P. Both to that Rule I announcing similar dissent postcard than a date; hearing the deadlines on deny applica- contain based the to the decision to Court’s hearing. at the Yet neither allows evidence tion for of error. writ holding of the of in contrast to the court here, has held that
appeals Court where this a requests hearing on motion to
a movant a venue, not to is reversible error
transfer it O’Neill, one. Henderson v. 797 S.W.2d
hold (Tex.1990, (per cu- orig. proceeding)
905
riam).2 judg- Surely hearing summary a on
ment, may in termination of a which result important a defense no less than claim or is CURTIS, Petitioner, Sr., Jimmy E. con- hearing on whether an action should be in another forum. tinued v. or, indeed, day deny litigant this his To Virgil and Blake C. STEPHENS only ignores not a his moment in court even Morgan, Respondents. L. rule, disregards a basic
procedural but also No. D-3999. system upon of which our principle fairness moving party has if the is founded. Even Texas. Supreme Court of judgment persuasive claim that made a required granted, for a the time should be 17, 1993. Nov. brief, hearing is than nonevidentiary more allowing a by party the to justified value of prevent an possibly
argue on its behalf and judgment. certainly to be This is
erroneous with- Houston, stating was not prosecution and “it City want 815 of v. 2. See also Thordson of curiam) to hold to fail (Tex.1991) of the trial court (reversing in the (per discretion S.W.2d 550 reinstate”). hearing to on the motion an appeals regarding for oral a suit dismissed court of