Opinion
No. 05-04-00900-CV
Opinion Filed February 1, 2005.
On Appeal from the 296th Judicial District Court, Collin County, Texas, Trial Court Cause No. 296-240-03.
Reverse and Remand.
Before Justices MORRIS, WHITTINGTON, and O'NEILL.
MEMORANDUM OPINION
This is a restricted appeal. Louise Shih and David Wang (hereinafter collectively Shih) filed this appeal attacking the trial court's grant of summary judgment and award of $80,972.36 to Wen-Jiang Mei f/k/a Momentum Group, Inc. In six issues, Shih contends the trial court erred in granting Mei's motion for summary judgment because (1) Shih did not receive notice of the summary judgment hearing or that a summary judgment had been filed, and (2) Shih neither received notice of the hearing on the motion to withdraw as counsel nor a copy of that motion. Because we agree that it was error for Shih not to receive notice of the summary judgment hearing, we reverse the judgment of the trial court and remand for further proceedings.
Background
Shih, along with Anthony Han and ABF Choices, Inc. d/b/a Cha Pavilion Tea Cuisine, brought suit on January 31, 2003 against Wen-Jiang Mei f/k/a Momentum Group, Inc. for several causes of action, including: breach of contract, breach of warranty, unjust enrichment, common law and statutory fraud, conversion, civil theft, accounting, trespass and injury to property, declaratory judgment that a lien is unenforceable and invalid, and damages for filing a fraudulent lien. The original petition alleged Mei failed to complete a contract to remodel the Cha Pavilion Tea Cuisine restaurant. Mei filed an answer denying every allegation. Mei then filed a counter-petition seeking $80,972.36 as payment for performance under the contract.
On August 1, 2003, David A. Tamisiea, the attorney who filed Shih's original petition, moved to withdraw as counsel. On August 15, 2003, the trial court granted the motion and ordered Tamisiea withdrawn as counsel of record for Shih, Han, and ABF Choices. On November 24, 2003, Mei filed a motion for summary judgment and sought foreclosure on the filed mechanic's lien. On January 6, 2004, the trial court granted Mei's motion for summary judgment and ordered Shih, Han, and ABF Choices to pay $80,972.36, plus interest and costs. On July 2, 2004, Shih filed a restricted notice of appeal.
Standards of Review
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 neither participated in the hearing that resulted in the judgment nor filed a timely post-judgment motion or request for findings of fact and conclusions of law, and (4) the error complained of must be apparent from the face of the record. Tex.R.App.P. 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 face of the record in a restricted appeal consists of the papers on file with the court when it rendered judgment. Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex. 2004). It is undisputed that Shih complied with the first three elements of a restricted appeal.
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.). The failure to give notice violates the most rudimentary demands of due process of law. Mosser, 893 S.W.2d at 11.
Discussion
In this case, Mei filed the summary judgment motion on November 24, 2003. The certificate of service avers the document was served "by and through the attorney of record, via facsimile 214-706-4242 and First Class Mail, this 25th day of November, 2003." The certificate of service and the fiat setting the hearing for January 6, 2004 are contained on the same page. The record shows the facsimile number in the motion belongs to Tamisiea, the attorney who filed Shih's original petition. On August 15, 2003, over three months before Mei filed the motion for summary judgment, the trial court had ordered Tamisiea withdrawn as counsel. Therefore, Tamisiea was not the attorney of record for Shih at the time the motion for summary judgment was filed.
Mei asks this Court to consider two supplemental clerk's records that contain documents filed in the trial court on July 19, 2004 which Mei claims shows Shih received constructive notice of the motion for summary judgment hearing. Mei asks this Court to conclude that an appellate record can be supplemented in a restricted appeal when the court would otherwise be misled and when the supplemental record is reliable on its face. We decline to so conclude. It is well settled that evidence not before the trial court prior to final judgment may not be considered in a restricted appeal. See Alexander, 134 S.W.3d at 848. 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.
Because the record before the trial court at the time summary judgment was entered does not show Shih received actual or constructive notice of the hearing, we reverse the judgment of the trial court and remand for further proceedings. Our disposition of Shih's first issue obviates any need to discuss the remaining issues. Tex.R.App.P. 47.1.