Opinion
No. 04-15-00718-CV
05-18-2016
STRUCTURAL INSULATED PANELS TEXAS, LP and Mattam Enterprises, L.L.C., Appellants v. Steven M. CHAPMAN and Cynthia C. Chapman, Appellees
MEMORANDUM OPINION
From the 198th Judicial District Court, Kerr County, Texas
Trial Court No. 14209B
Honorable M. Rex Emerson, Judge Presiding Opinion by: Luz Elena D. Chapa, Justice Sitting: Sandee Bryan Marion, Chief Justice Marialyn Barnard, Justice Luz Elena D. Chapa, Justice AFFIRMED; MOTION TO DISMISS DENIED
Structural Insulated Panels Texas, LP, and Mattam Enterprises, L.L.C. appeal the trial court's summary judgment in favor of Steven and Cynthia Chapman. Appellants argue the trial court erred by denying their motion for continuance because they lacked sufficient notice of the filing of the Chapman's no-evidence motion for summary judgment and the hearing on the motion. The Chapmans have filed a motion to dismiss this appeal as frivolous. We affirm the trial court's judgment and deny the Chapmans' motion to dismiss.
BACKGROUND
Appellants sued the Chapmans to recover damages for defamation and other causes of action. The Chapmans generally denied appellants' allegations, and trial was set for September 1, 2015, with a pre-trial hearing scheduled for August 26, 2015. On August 4, 2015, the Chapmans electronically filed a no-evidence motion for summary judgment. The motion did not contain a certificate of service. On August 5, 2015, the trial court set a hearing on the Chapmans' motion for August 26, 2015. The appellate record contains an August 5, 2015 email from a deputy clerk of the trial court to appellants' counsel stating the order setting the hearing was attached.
Appellants timely filed a response to the no-evidence motion, opposing affidavits, and other documents. Appellants' counsel also filed a verified motion for continuance on August 25, 2015, swearing appellants received insufficient notice of the Chapmans' no-evidence motion and of the hearing. Appellants argued they were prejudiced because, although they filed a timely response, they lacked enough time to prepare a sufficient response.
At the pre-trial hearing, the trial court considered appellants' motion for continuance first and then heard arguments on the Chapmans' no-evidence motion. Appellants' counsel stated he received the Chapmans' no-evidence motion via email on August 4, 2015, the day the Chapmans' electronically filed their motion, but argued this was not a proper method of service under Rule 21a. The Chapmans' counsel stated that his assistant had emailed appellants' counsel the no-evidence motion on August 4, 2015. Appellants' counsel argued he did not receive notice of the hearing date until August 6, 2015. However, the trial court took judicial notice of the court's file, and found the court clerk notified appellants' counsel of the date and time of the hearing by email on August 5, 2015. The trial court made findings in open court that appellants' counsel "received a copy of the motion 22 days prior to trial and notice from the Court's clerk 21 days prior to today's setting." The trial court thereafter rendered summary judgment, and appellants now appeal.
MOTION FOR CONTINUANCE
Appellants argue the trial court erred by denying their motion for continuance because they did not receive sufficient notice of the Chapmans' no-evidence motion and of the hearing. We review the denial of a motion for continuance for an abuse of discretion. See Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986). In deciding whether a trial court has abused its discretion, we do not substitute our judgment for the trial court's judgment but decide only "whether the trial court's action was arbitrary and unreasonable." Yowell v. Piper Aircraft Corp., 703 S.W.2d 630, 635 (Tex. 1986). We will not reverse the ruling unless the record clearly shows a disregard of a party's rights. Id. Texas Rule of Civil Procedure 166a requires the movant to file and serve a motion for summary judgment at least twenty one days before the time specified for the hearing. TEX. R. CIV. P. 166a.
Appellants argue the Chapmans failed to timely serve the no-evidence motion because Rule 4 of the Texas Rules of Civil Procedure extends Rule 166a's twenty-one-day period by three days when the motion is not delivered personally. However, the three day extension applies only when "the notice or paper is served . . . by mail." See TEX. R. CIV. P. 21a(c). Here, the trial court found appellants were served by email on August 4, 2015, twenty two days before the hearing. At the hearing, the Chapmans' counsel stated the motion was indeed emailed on August 4, 2015, and appellants' counsel acknowledged the motion was received by email on August 4, 2015. A copy of the email was also presented to the trial court at the hearing. Because the record shows the Chapmans served their no-evidence motion for summary judgment via email, and not by mail, Rule 166a's prescribed twenty-one-day period is not extended by three additional days. See id.
Appellants also argue the Chapmans did not serve appellants "by any of the methods provided for in Rule 21a nor was there any certificate of service attached to the . . . motion." The version of Rule 21a in effect at the time the suit was filed provided that when a document is filed electronically, as was the Chapmans' motion, the document may be served electronically and sent to counsel's email address. See TEX. R. CIV. P. 21a(a)(1), (2) (effective January 1, 2014). The record shows appellants' counsel received a copy of the motion at his email address. See id. Furthermore, "[t]he purpose of a certificate of service is to prove that the documents to which the certificate relates were actually served on the party." Strobel v. Marlow, 341 S.W.3d 470, 477 (Tex. App.—Dallas 2011, no pet.). Appellants' counsel stated at the hearing he received a copy of the no-evidence motion at his email address on August 4, 2015. Thus, a certificate of service was unnecessary to prove that the Chapmans' no-evidence motion was actually served on appellants. See id.
Appellants also contend the only evidence showing they had notice of the hearing was a blank, proposed order that was attached to the motion, which was insufficient, and an email from the trial court on August 6, which was too late. However, the record contains an August 5, 2015 email from Christine McEntrye (a deputy clerk of the trial court) to appellants' counsel. The email states, "Please find the attached order setting. As per your request, I am sending via email." The trial court took judicial notice of the email and found that appellants received the notice of the hearing twenty-one days before the hearing, and that finding is supported by the record.
The only basis for appellants' motion for continuance was that appellants lacked sufficient notice of the Chapmans' motion and of the hearing. Because the record supports the trial court's findings that the Chapmans' motion and order setting hearing was filed twenty one days before the hearing and appellants received timely notice of both, the trial court did not abuse its discretion by denying appellants' motion for continuance. See Villegas, 711 S.W.2d at 626.
MOTION TO DISMISS
The Chapmans filed a motion to dismiss this appeal as frivolous and requested attorney's fees under Texas Rule of Civil Procedure 45. TEX. R. APP. P. 45. Rule 45 authorizes this court to award a prevailing party just damages if we determine that an appeal is frivolous after considering the record, briefs, and other papers filed in this court. Gard v. Bandera Cty. Appraisal Dist., 293 S.W.3d 613, 619 (Tex. App.—San Antonio 2009, no pet.). We grant sanctions under Rule 45 only after careful deliberation and in truly egregious circumstances. Id. Although we disagree with appellants, we conclude after careful deliberation that this appeal does not present truly egregious circumstances warranting sanctions under Rule 45. See id. We deny the Chapmans' motion to dismiss. However, we award the Chapmans their costs of this appeal. See TEX. R. APP. P. 43.4.
CONCLUSION
We affirm the trial court's judgment.
Luz Elena D. Chapa, Justice