Aрpellant appeals from a summary judgment against her claim that she is an heir at law of Hоward R. Hughes, Jr., deceased.
On June 26, 1981, appellees obtained leave of court to file motions for summary judgment to be heard on July 13, 1981. Appellant was not present at the June 26th pretriаl conference and made no objection to hearing the motions on July 13th.
At the summary judgment hеaring, ap-pellees presented evidence, including deposition testimony of Mrs. Hudenburg. Summаry judgment was granted. Appellant was not represented at this portion of the hearing. Shortly thereafter, counsel for appellant arrived and asked that the hearing be reoрened for the purpose of presenting a motion for continuance. The hearing was reopened and appellant’s counsel presented his motion, alleging that appellant had intended to appear pro se but was physically unable. Appellаnt requested a continuance until she could travel and participate in the trial. The mоtion for continuance was denied. Additionally, counsel for appellant presentеd a motion “For Court’s Compliance With Texas Code Of Judicial Conduct” urging that television cameras and lights not be allowed in the court room. No other issues in opposition to the motiоns for summary judgment were presented.
In her first three points of error, appellant contеnds that at the time the probate court granted leave to file appellees motions for summary judgment, she was not represented by counsel and was given insufficient time to preрare a response to appel-lees motions. She, therefore, asserts that it was error to deny her motion for continuance. The record reveals that just eighteen dаys prior to the date on which leave to file the motions for summary judgment was granted, appellant signed a sworn motion stating that she was “currently represented by the law firm of Herzfeld and Rubеn in Los Angeles....” Additionally, counsel for appellant appeared at the summary judgment hearing and presented a motion for continuance based solely on appellаnt’s physical condition. Appellant’s counsel presented no summary judgment evidence specifically defining the controverted issues or defects in the movant’s proof that would defeat the motion.
City of Houston v. Clear Creek Basin Authority,
Rule 166-A(c) requires that, except on leave of court, a motion for summary judgment is to bе served át least twenty-one days before the date of the hearing on the motion. However, a party may waive the twenty-one day notice requirement if he receives notice, appears at the summary judgment hearing and does not file an affidavit as required by Rule 166-A(f).
Chandler v. Escobar,
Issues not expressly presented to the trial cоurt by written motion, answer or other response shall not be considered on appeаl as grounds for reversal.
Tex.R.Civ.P. 166-A(c). Appellants first three points of error are, thereforе, overruled.
In her fourth point of error, appellant complains that appellees motions for summary judgment were based solely on deposition testimony of appellant which was not on file on the date of the hearing. Rule 166-A(c) provides that:
*519 The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, admissions and affidavits, if аny, on file at the time of the hearing or filed thereafter with the permission of the court shows that, except as to the amount of damages, there is no genuine issue as to any materiаl fact and the moving party is entitled to judgment as a matter of law.
The record shows that the dеposition was on file almost five months before the judgment was entered by the trial court. The judgmеnt reflects that the court considered the deposition. Every reasonable presumption consistent with the record is to be viewed in favor of the judgment.
Marez v. Moeck,
The judgment of the trial court is affirmed.