Opinion
No. 05-02-01877-CV.
Opinion Filed March 17, 2004.
On Appeal from the County Court at Law No. 2, Dallas County, Texas, Trial Court Cause No. CC-00-08260-B.
Reverse and Remand.
Before Justices WRIGHT, MOSELEY and RICHTER.
MEMORANDUM OPINION
This is a restricted appeal. Appellant filed this appeal attacking the trial court's summary judgment in favor of appellee two days short of the six month statutory bar. §§ 30; 26.1(c). In six issues, appellant claims that he never received notice of the summary judgment hearing, that conflicting evidence raises issues of material fact, and that attorney fees are not recoverable. Because we agree that appellant never received notice of the summary judgment hearing, we reverse the judgment of the trial court and remand for further proceedings. The facts are known to the parties, and we do not recite them in any detail. Further, because all dispositive issues are settled in law, we issue this memorandum opinion. See § 47.1.
A restricted appeal must (1) be brought within six months after the trial court signs the judgment, (2) by a party to the suit, (3) who, either in person or through counsel, did not participate at trial, and (4) the error complained of must be apparent from the face of the record. § 26.1(c), 30; Norman Communications v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997); Sutton v. Hisaw Assoc., 65 S.W.3d 281, 284 (Tex. App.-Dallas 2001, pet. denied). The first three requirements are uncontested and are not an issue.
Rule 166a of the Texas Rules of Civil Procedure requires that a party serve notice of a summary judgment hearing on opposing counsel at least twenty-one days before the hearing date. Tex. R. Civ. P. 166a(c); Mosser v. Plano Three Venture, 893 S.W.2d 8, 11 (Tex. App.-Dallas 1994, no writ). An elementary and fundamental requirement of due process in any proceeding that is to be accorded finality is notice reasonably calculated, under the circumstances, to apprise interested parties of the pendency of the action and afford them the opportunity to present their objections. Mosser, 893 S.W.2d at 12. The failure to give adequate notice violates the most rudimentary demands of due process of law. Id.
Proper notice to the non-movant of the summary judgment hearing is a prerequisite to summary judgment. E.g. Rozsa v. Jenkinson, 754 S.W.2d 507, 509 (Tex. App.-San Antonio 1988, no writ). The right to summary judgment exists only in compliance with Tex. R. Civ. P. 166a, and the movant must comply with all of the requirements of the rule before being entitled to summary judgment. Id. Summary judgment is a harsh remedy, and we will strictly construe a party's entitlement to summary judgment in procedural as well as substantive matters. Guinn v. Zarsky, 893 S.W.2d 13, 17 (Tex. App.-Corpus Christi 1994, no writ). In Guinn, the court concluded that the non-movant did not receive proper summary judgment notice when the record did not contain a certificate by a party or attorney of record, the return of an officer, or the affidavit of any person showing service of the summary judgment hearing date. Id.
In this case, the summary judgment motion was filed on April 18, 2002. The certificate of service avers the document was served on April 17, 2002. However, a setting for the summary judgment hearing on June 4, 2002 was obtained from the court on April 18, 2002 and the fiat was signed by the judge on the same day, April 18, 2002. The certificate of service and the fiat are contained on the same page. The fact that service was accomplished before the judge set the hearing date is readily apparent from the face of the record.
Additionally, Rule 21a of the Rules of Civil Procedure imposes a duty upon the party or attorney of record to certify to the court compliance with this rule in writing over signature and on the filed instrument. Tex. R. Civ. P. 21a. The record does not show that appellee mailed notice of the scheduled hearing to appellant after the hearing date was obtained in compliance with Rule 21a, and the record does not show that appellant actually or constructively received notice of the summary judgment hearing. The record is otherwise devoid of any reference to notice of a summary judgment hearing.
Although the judgment of the court below recites that a hearing was held, it omits the ususal recitation that notice formalities have been completed. In this Court, appellees have not directed our attention to record evidence of notice, and in fact, have not filed a brief at all.
We conclude that the lack of notice is apparent from the face of the record, and the fourth requirement for a restricted appeal is satisfied. Since appellant did not receive actual or constructive notice of the summary judgment hearing, we reverse the judgment of the trial court and remand for further proceedings. Our disposition of appellant's first issue obviates any need to discuss the remaining five issues. § 47.1.