What would you do if you received notice today of a summary-judgment hearing scheduled for this Friday? You might be tempted to disregard it. After all, the rule is quite clear that you are entitled to notice 21 days before the hearing. But two recent cases reiterate that the nonmovant must complain in the trial court about inadequate notice of a summary-judgment hearing. At the same time, these cases reveal a split among Texas courts about when such a complaint must be raised.
First, in Torres v. Garcia, the nonmovant received written notice of the hearing only seven days in advance. No. 04-11-00822-CV, 2012 WL 3808593 (Tex. App.--San Antonio Aug. 31, 2012, no pet. h.). The court of appeals noted that there is a difference between receiving inadequate notice and not receiving any notice at all. Because the nonmovant received some notice, he was required to complain to the trial court before he could raise the issue on appeal.
And last week, the Fort Worth Court of Appeals reached the same result in Rockwell v. Wells Fargo Bank, N.A., No. 02-12-00100-CV, 2012 WL 4936619 (Tex. App.--Fort Worth Oct. 18, 2012, no pet. h.) Again, the nonmovant did not receive notice of the hearing until less than a week before the hearing was scheduled. But the court of appeals found the complaint waived because the nonmovant did not complain in the trial court.
But these two cases differ on when the nonmovant must first complain about the timeliness of the notice. In Torres, the court suggested that the complaint could be raised in a motion for new trial after the hearing. 2012 WL 3808593 at *2. But in a footnote, the court seemed to acknowledge that it may stand alone in permitting the complaint to be raised post-hearing. Id. at *2 n.2 (noting that the Dallas, El Paso, Tyler, 14th, and Corpus Christi courts require a motion for continuance to preserve error). In light of Rockwell, we can add the Fort Worth court to that list. The court held that the nonmovant should have raised its complaint by filing a motion for continuance of the summary-judgment hearing. 2012 WL 4936619 at *2.
Therefore, the safest way to preserve a complaint about inadequate notice of a summary-judgment hearing is to file a motion for continuance before the hearing. Any other course risks waiver.
-- Rich Phillips, Thompson & Knight
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