Opinion
No. 04-03-00528-CV
Delivered and Filed: February 16, 2005.
Appeal from the 221st Judicial District Court, Montgomery County, Texas, Trial Court No. 02-06-04089-CV, Honorable Suzanne Stovall, Judge Presiding.
Reversed and Remanded.
Sitting: Sarah B. DUNCAN, Justice, Karen ANGELINI, Justice, Sandee Bryan MARION, Justice.
MEMORANDUM OPINION
This is an appeal from an order granting summary judgment in favor of Woodlane Forest Civic Association, Inc. Appellants Khevaja and Linda Nazimuddin bring six issues on appeal. We reverse and remand to the trial court.
Discussion
The Nazimuddins are homeowners in the Woodlane Forest Subdivision. Woodlane's home owner's association is administered by the Woodland Forest Civic Association, Inc. ("Association"). The Association filed suit against the Nazimuddins for painting their fence without first obtaining approval from the Association's Architectural Control Committee. The Nazimuddins filed an answer and counter-claim. In their counter-claim, the Nazimuddins alleged violations of their constitutional rights, breach of contract, harassment, and malicious prosecution. The trial court granted the Association's motion for summary judgment both as to the Association's claims and the Nazimuddins's counter-claim.
1. Inadequate Notice of Summary Judgment
In their first issue on appeal, the Nazimuddins contend that they received inadequate notice of the Association's motion for summary judgment. The Association filed a motion for summary judgment on March 25, 2003, along with a Notice of Submission setting the case for submission on April 17, 2003. The Nazimuddins filed a timely response on March 27, 2003, and a timely supplemental response on April 4, 2003. The Nazimuddins filed a second supplemental response on April 14, 2003, three days before the submission date.
It is apparent from the record that the trial court prematurely signed an order granting the Association's motion for summary judgment on April 11, 2003, several days before the submission date. The trial court then modified the date on the judgment to indicate that it was signed on April 23, 2003. If the trial court did, in fact, sign the summary judgment order on April 11th, then the Nazimuddins did not have the requisite twenty-one-days notice as set forth in Texas Rule of Civil Procedure 166a.
Where the summary judgment movant fails to provide the twenty-one-days notice, the non-movant must raise the issue in a motion for new trial, and, additionally, the non-movant must make a showing of harm. Tivoli Corp. v. Jewelers Mut. Ins. Co., 932 S.W.2d 704, 710 (Tex.App.-San Antonio 1996, writ denied). In Tivoli, the movant gave the nonmovant the prescribed twenty-one-days notice, but the trial court signed the summary judgment four days before the end of the notice period. Id. The nonmovants raised this issue in their motion for new trial; the trial court overruled their motion. Id. On appeal, in affirming the summary judgment, the court of appeals held that the nonmovants had failed to show harm. Id.
Likewise, in this case, the Association gave the prescribed twenty-one-days notice, but the trial court signed the order prematurely. The Nazimuddins then filed a motion for new trial in which they urged the issue of inadequate notice. The trial court overruled their motion for new trial. As with the non-movants in Tivoli, the Nazimuddins have failed to make a showing of harm. They were given the requisite twenty-one-days notice. They filed a timely response and a timely supplemental response. Their second supplemental response was untimely because it was filed within seven days of the submission date, see Tex R. Civ. P. 166a(d); it was not untimely because it was filed after the trial court initially signed the judgment. Although the trial court apparently initially signed the order prematurely on April 11, 2003, the trial court later modified the date on the judgment to reflect a signature date of April 23, 2003. Under these circumstances, there is no error. The Nazimuddins were allowed to present the inadequate notice issue to the trial court in their motion for new trial, and they failed to show how they were harmed by the trial court's premature signing of the order granting summary judgment. We overrule the Nazimuddins's first issue on appeal.
2. Factual Issues Precluding Summary Judgment
The Association's motion for summary judgment as to its claims against the Nazimuddins was a traditional motion for summary judgment. Its motion for summary judgment as to the Nazimuddins's counter-claim, however, was a no-evidence motion. In their third issue, the Nazimuddins argue that the trial court erred in granting the Association's motion for summary judgment because whether they painted their fence without the Association's approval is a genuine issue of material fact that should be decided by a jury.
To obtain a traditional summary judgment, a party moving for summary judgment must show that no genuine issue of material fact exists and that the party is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). In reviewing the grant of a summary judgment, we must indulge every reasonable inference and resolve any doubts in favor of the nonmovant. Johnson, 891 S.W.2d at 644; Nixon, 690 S.W.2d at 549.
Under Rule 166a(i), a party may move for a no-evidence summary judgment on the ground that there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. Tex. R. Civ. P. 166a(i). We review a no-evidence summary judgment de novo by construing the record in the light most favorable to the nonmovant and disregarding all contrary evidence and inferences. Merrill Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997); Reynosa v. Huff, 21 S.W.3d 510, 512 (Tex.App.-San Antonio 2000, no pet.). A no-evidence summary judgment is improperly granted when the respondent brings forth more than a scintilla of probative evidence that raises a genuine issue of material fact. Tex. R. Civ. P. 166a(i); Gomez v. Tri City Cmty. Hosp., Ltd., 4 S.W.3d 281, 283 (Tex.App.-San Antonio 1999, no pet.).
Here, the Nazimuddins rely on a section contained in the Association's "Dedication of Restrictions" that provides the following: where the Architectural Control Committee fails to act on a request for approval within thirty days after receipt, "approval will not be required and the related covenants set out herein shall be deemed to have been fully satisfied." Therefore, the Nazimuddins contend that because the Association did not act on their request within thirty days, the Association's approval was not required, and the related covenants are deemed to have been fully satisfied. In their motion for summary judgment, the Association argues that they never received the Nazimuddins's request for approval to paint their fence and, therefore, were not required to act on the request. As evidence, the Association attached the affidavit of Steve Durham, President of Investment Management Company, corporate representative for the Association, and custodian of the records of the Association. In his affidavit, he affirms that the Association's policy is to keep all homeowner applications and that the Association's files do not contain any applications from the Nazimuddins during the pertinent period of time relating to the Architectural Control Committee. The Association also attached an affidavit of Nancy Haunstein who was a member of the Association's Architectural Control Committee at the pertinent time. Her affidavit affirms that she did not receive an application from the Nazimuddins during that period of time. Additionally, the Association attached an affidavit of Burt Raborn, the Association's President. His affidavit affirms that he did not receive an application from the Nazimuddins during the pertinent time period. Both Nancy Haunstein's and Burt Raborn's affidavits indicate that they have received and signed for certified mail from the Nazimuddins, but that the mail did not relate to Architectural Control Committee applications. The Association also attached a portion of Mr. Nazimuddin's deposition testimony. In his deposition, Mr. Nazimuddin testified that he sent copies of his application for approval to alter the fence not only to Ms. Haustein and Mr. Rayburn but also to Mr. Culbertson, the Association's vice president. Nazimuddin sent them certified, but they were returned. He also sent them by regular mail; those were not returned. Although he did not have documentary proof that the copies of his application were received, he did produce a United States Postal Service document entitled "Track/Confirm — Intranet Item Inquiry" for Item Number 7001 1140 0001 1654 9150. This item was signed by Nancy Haunstein, but there is no competent summary judgment evidence indicating what was contained in that item.
The Nazimuddins emphasize that although the Association may have attempted to rebut the receipt of the application by Ms. Haustein's and Mr. Rayburn's affidavits, the Association did not rebut Mr. Nazimuddin's testimony that he also sent a copy of the application to Mr. Culbertson. In fact, there is no summary judgment evidence, nor is there any argument presented by the Association, with regard to Mr. Culbertson and whether or not he received a copy of the Nazimuddins's application. When a letter, properly addressed and postage prepaid, is mailed, there exists a presumption that the notice was duly received by the addressee. Thomas v. Ray, 889 S.W.2d 237, 238 (Tex. 1994). This presumption may be rebutted by an offer of proof of nonreceipt. Id. In the absence of any proof to the contrary, the presumption has the force of a rule of law. Id. Mr. Nazimuddin testified that he mailed a copy of his application to Mr. Culbertson; the Association has failed to rebut the presumption that it was received. Thus, a fact issue exists as to whether the Association received notice of the Nazimuddins's application to alter their fence. Summary judgment, therefore, should not have been granted. We sustain the Nazimuddins's third issue.
Having sustained the Nazimuddins's third issue, we need not reach their other issues.
Conclusion
Because there is a genuine issue of material fact, we reverse the trial court's order granting summary judgment and remand this cause to the trial court for further proceedings consistent with this memorandum opinion.