Aguirre v. Phillips Properties, Inc.

111 S.W.3d 328, 2003 Tex. App. LEXIS 6786, 2003 WL 21805498

• Court: Court of Appeals of Texas
• Decided: August 7, 2003
• Docket: 13-00-426-CV
• Status: Published

Opinions

OPINION ON MOTION FOR REHEARING

Opinion by

Chief Justice VALDEZ.

Appellant Antonio Aguirre² filed a motion for rehearing en banc, arguing that this Court made a dispositive error of fact concerning the proceedings in the trial court, in our disposition of issue one. Upon review of the record, we grant Aguirre’s motion for rehearing, withdraw our prior opinion, and substitute the following opinion.

Facts and Procedural History

This appeal arises from five separate lawsuits³ filed by numerous plaintiffs against a voluminous number of defendants, involving allegations of contamination resulting from leakage from fuel storage tanks. Four of these five cases were consolidated. Only cause number C-4565-95-A was not consolidated; the plaintiffs in that case were Antonio G. Aguirre, Miriam M. Aguirre, and Chevron.⁴ One of the defendants was Phillips Properties, Inc.,⁵ the appellee. Phillips Properties moved for summary judgment in both the consolidated cases and in cause number C-4565-95-A, and said motions were granted.

The subject of this appeal is the summary judgment granted in favor of Phillips Properties. This summary judgment was signed by the trial court on April 6, 2000, and dismissed all claims against Phillips Properties in each of the cases in which Phillips Properties was a defendant. Furthermore, it severed the dismissed claims into a separate case, which was assigned cause number C-4565-95-A-1. Thereafter, on May 4, 2000, Aguirre filed a motion for new trial in cause number C-4565-95A-l, seeking to set aside the summary judgment in favor of Phillips Properties on the grounds that Aguirre did not receive notice of the submission date. On May 8, 2000, Aguirre filed responses to Diamond Shamrock’s and Mobil Oil’s motions for summary judgment which were still pending in cause numbers C-4597-92-E, C-4566-95-B, C-4568-95-D, and C-4570-95F. On June 19, 2000, the trial court denied Aguirre’s motion for new trial, stating that it had considered Aguirre’s response to the motion for summary judgment as timely filed.

Analysis

Appellants’ sole issue in the motion for rehearing argues that this Court was “misled to make a dispositive error of fact about the proceedings in the trial court.” Appellants argue that this Court mistakenly held that any error in failing to provide notice of the summary judgment was cured when the plaintiffs/appellants late filed a response. They assert that this is error because “there was never any such response.”

A trial court must give notice of the submission date for a motion for summary judgment, because this date determines the date the nonmovant’s response is due. Martin v. Martin, Martin & Richards, Inc., 989 S.W.2d 357, 359 (Tex.1998); Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 684-85 (Tex.2002). The failure to give notice of the submission date for a motion for summary judgment constitutes error; but, such error is rendered harmless when the trial court considers the nonmovant’s response and reconfirms its ruling. Martin, 989 S.W.2d at 359. 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). Rule 21a of the Texas Rules of Civil Procedure provides:

Service by mail shall be complete upon deposit of the paper, enclosed in a postpaid, properly addressed wrapper, in a post office or official depository under the care and custody of the United States Postal Service.... A certificate by a party or an attorney of record, or the return of an officer, or the affidavit of any person showing service of a notice shall be prima facie evidence of the fact of service. Nothing herein shall preclude any party from offering proof that the notice or instrument was not received ....

Tex.R. Civ. P. 21a. Under rule 21a, if notice of the hearing is properly addressed and mailed, postage prepaid, a presumption arises that the notice was properly received by the addressee. Cliff v. Huggins, 724 S.W.2d 778, 780 (Tex.1987); Mosser, 893 S.W.2d at 11. The certificate of service of the party or attorney is the basis for the presumption. Cliff, 724 S.W.2d at 780. The presumption may be rebutted by an offer of proof of nonreceipt. Id.

In this case, Phillips Properties filed two motions for summary judgment, one entitled “Defendant Phillip’sfsic] Properties, Inc. Motion for Summary Judgment as to all Plaintiffs,” and another entitled “Defendant Phillip’s[sic] Properties, Inc. Motion for Summary Judgment (No Evidence) as to Plaintiff Antonio Aguirre.” The motion for summary judgment as to all plaintiffs did not contain a certificate of service. The rule 21a certificate of service accompanying the motion for summary judgment (no evidence) as to plaintiff Antonio Aguirre stated:

A true and correct copy of the above and foregoing has been served on January — , 2000, to the following: Law Office of Reynaldo Ortiz, 801 Nolana, Suite 202, McAllen, Texas 78504[;] Law Office of Richard G. Roth, 134 East Price Road, Brownsville, Texas 78520Q] CORCOR-AN & MCLAIN, L.L.P., 100 South Bicentennial, McAllen, Texas 78501.

Immediately preceding the certificate of service was the motion for summary judgment (no evidence) as to plaintiff Antonio Aguirre, and a proposed final summary judgment. Although the certificate indicates the motion itself and the proposed order granting the motion were served on counsel for Aguirre, it does not indicate Aguirre was ever notified of the date and time of the hearing. The motions for summary judgment are likewise silent with respect to a date and time for the hearing. Aguirre asserts that appellants never received notice of the hearing scheduled on Phillips Properties’ summary judgment motions.

At a minimum, notice of a summary judgment hearing under rule 21a requires that (1) the opposing party be advised that the motion has in fact been set for hearing, and (2) the date and time of the hearing be included in the fiat. See Tex.R. Civ. P. 21a; Tex.R. Crv. P. 166a. Because the record does not contain a certificate of service stating that Phillips Properties mailed notice of the scheduled hearing to Aguirre, we conclude there is no presumption of notice in the present case. Because there is nothing in the record to otherwise show that Aguirre received notice of the hearing, we find that Aguirre did not receive actual or constructive notice of the summary judgment hearing.

The dissent concedes that “the January 26 order setting submission date does not include a certificate of service ...” It argues however, that “the docket sheet reflects that copies of the order mailed to all parties on January 27, 2000.”

In the present case, what the docket sheet reflects are two identical but separate entries, one dated January 27, 2000, and the other February 2, 2000, which state “copies mailed to all parties.” The docket entries do not specify what was mailed. Even if we were to assume that the docket entries refer to the orders setting hearing on the motions for summary judgment, we do not consider the docket entries a part of the record.

A docket entry forms no part of the record which may be considered; it is a memorandum made for the trial court and clerk’s convenience. Energo Int’l Corp. v. Modern Indus. Heating, Inc., 722 S.W.2d 149, 151 & 151 n. 2 (Tex.App.-Dallas 1986, no writ); Azopardi v. Hollebeke, 428 S.W.2d 167, 168 (Tex.Civ.App.-Waco 1968, no writ); Restelle v. Williford, 364 S.W.2d 444, 445 (Tex.Civ.App.-Beaumont 1963, writ refd n.r.e.). Consequently, there is no indication in the record that appellants received notice of the hearing on the motions for summary judgment.

Phillips Properties argues that the supreme court has apparently relaxed the absolute prohibition against the use of docket entries in some limited, although apparently undefined, circumstances. “A docket entry may supply facts in certain situations, but it cannot be used to contradict or prevail over a final judicial order.” N-S-W Corp. v. Snell, 561 S.W.2d 798, 799 (Tex.1977, orig.proceeding) (citations omitted). However, N-S-W Corp. did not overrule cases holding that a docket entry forms no part of the record that may be considered but is merely a memorandum made for the trial court and clerk’s convenience. First Nat’l Bank v. Birnbaum, 826 S.W.2d 189,191 (Tex.App.-Austin 1992, no writ). Docket entries remain inherently unreliable because they lack the formality of orders and judgments. Energo, 722 S.W.2d at 151 n. 2.

As for waiver, the dissent relies on Smith v. Mike Carlson Motor Co., 918 S.W.2d 669, 672 (Tex.App.-Fort Worth 1996, no writ), to argue that appellants waived this issue because of their failure to file a sworn motion for new trial. However, the dissent misreads the holding in Smith. The Smith court held that a party must file a motion for new trial to bring to the trial court’s attention that his failure to respond to a summary judgment was based on a lack of notice. Id. Such a motion also preserves the complaint for appellate review. Tex.R.App. P. 33.1; Smith, 918 S.W.2d at 672. The court then went on to hold that because the record included a certificate of service, a presumption of valid service was created. Smith, 918 S.W.2d at 672. With no facts in the record to support his allegations of lack of notice, the court held that Smith failed to overcome the presumption of valid service. Id. at 673. In the present case, we have no presumption of valid service of the hearing notice, nor does the record contain any evidence that appellants received notice of the hearing. Because Aguirre’s motion for new trial brought this issue to the trial court’s attention, and because this issue may be resolved by an examination of the record in this case, we find Aguirre’s motion for new trial sufficient to preserve this issue for appellate review. Tex.R.App. P. 33.1(a). Furthermore, because there is nothing in the record to otherwise show that Aguirre received notice of the hearing, we find that Aguirre did not receive actual or constructive notice of the summary judgment hearing.

Moreover, even if we were to assume Aguirre did receive notice of the summary judgment hearing, the record indicates two stay orders were entered by the trial court on January 26, 2000, and February 28, 2000. The February stay order stated that all pending motions pertaining to the Northern Plume parties were ordered deferred and not set for hearing -until after conclusion of the Southern Plume trial.⁶ We hold that said orders serve to negate any notice of the summary judgment submission date that Aguirre might have received.

Phillips Properties argues that even if there had been a lack of notice, as Aguirre alleges, by considering the response to the motion for summary judgment and reconfirming its ruling, the trial court rendered any such error harmless. Martin, 989 S.W.2d at 359.

In Martin, the Texas Supreme Court held that the district court erred in granting the defendant’s motion for summary judgment without notice. The court concluded however, that the “error was harmless ... because the court fully considered Gary’s [petitioner] response and reconfirmed its ruling.” Martin, 989 S.W.2d at 359. The court further noted that the district court’s actions did not prevent the petitioner from “presenting to the court a full response to defendant’s motion for summary judgment.” Id.

Appellant’s argument fails to recognize, however, that the record reflects no response to Phillips Properties’ motions for summary judgment was ever filed by Aguirre. The record further reflects that the trial court was never presented with any response to Phillips Properties’ motions for summary judgment. Aguirre did not file a response to the motions for summary judgment which were granted in favor of Phillips Properties. The only responses filed by Aguirre specifically note that they were made in response to the motions for summary judgment of Diamond Shamrock and Mobil Oil; however, no mention is made of the motions for summary judgment filed by Phillips Properties. More importantly, said response was never filed in cause number C-4565-95-A-l, the only cause in which Phillips Properties was still a party after the trial court’s severance order of April 6, 2000. As such, the trial court could not have considered any response by Aguirre in denying appellant’s motion for new trial. Therefore, the trial court had no opportunity to consider any response in reconfirming its ruling and erred in failing to provide a party with the requisite 21-day notice of a setting on a motion for summary judgment.

In the present case, the failure to provide notice prevented Aguirre from presenting any response to defendant’s motion for summary judgment. Accordingly, this Court holds the error was not rendered harmless. We therefore sustain appellant Aguirre’s issue one. Because of our disposition in issue one we need not address Aguirre’s remaining issues. Tex. R.App. P. 47.1.

Chevron

As for appellant Chevron, we dismiss its issues on appeal due to lack of standing. Standing is a component of subject matter jurisdiction and cannot be waived. Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 445-46 (Tex.1993). As a general rule of Texas law, to have standing a plaintiff must demonstrate an interest in a conflict distinct from that of the general public, such that the defendant’s actions have caused the plaintiff some particular injury. See Hunt v. Bass, 664 S.W.2d 323, 324 (Tex.1984). A party must show that its interest has been prejudiced before it has standing to appeal. Gorman v. Gorman, 966 S.W.2d 858, 864 (Tex.App.-Houston [1st Dist.] 1998, pet. denied). Appellant bears the burden of making a prima facie showing of prejudice. Id. An appealing party may not complain of errors that do not affect its rights. Buckholts Indep. Sch. Dist. v. Glaser, 632 S.W.2d 146, 150 (Tex.1982).

Chevron failed to demonstrate that its interests were prejudiced by the granting of the summary judgment. At the time summary judgment was granted, Chevron and the appellee had no cross-claims filed against each other. As a result, Chevron is not liable as a result of the summary judgment. Accordingly, we hold Chevron has no standing to challenge the judgment in favor of Phillips Properties. See Gorman, 966 S.W.2d at 865-66 (no standing found for appealing defendant because summary judgment granted did not assign liability to appealing defendant). Because Chevron lacks standing to appeal the summary judgment, we do not address the issues raised in its brief.

We therefore reverse the trial court’s order granting summary judgment as to appellant Aguirre and remand this cause for further proceedings. As to appellant Chevron, we dismiss its issues on appeal.

Concurring and Dissenting opinion by Justice YÁÑEZ joined by Justice HINOJOSA. Concurring opinion by Justice CASTILLO.

2 . Reference to appellant Aguirre in this appeal includes appellants Antonio G. Aguirre, Miriam M. Aguirre, Eva Reyna-Ayala, Eva America Ayala, Omar O. Cavazos, Yvette Ca-vazos, Ramiro Cavazos, individually and d/b/a/ Centro Musical, Dario Garcia, Lauren-tina Garcia, Juanita E. Garza, Servando Guerra, S & H Jerrypat, Inc., d/b/a McAllen Grocery, Genaro Hernandez, Sr., Genaro Hernandez, Jr., Valley Modem Plumbing & Hardware Inc., Margarita E. Hernandez, Hernandez Modem Enterprises, Inc., Narciso J. Jacobo, Mario Jacobo, Enrique Molina, Maricela Molina, Molina’s Mexican Goods & Bakery, Inc., Ruben B. Molina, Jr., Ofelia Molina, Alejandro Rodriguez, Olivia Rodriguez, Valley Pride Food Distributors, Inc., Emilio G. Rodriquez, Sr., individually and as Independent administrator of the Estate of Maria Olivia Rodriguez, Martin R. Lopez, Antonio S. Lopez, Jose Luis Martinez, Maria Elena Martinez, individually and d/b/a Martinez Laundromat, Ofelia Briseno, Pablo Salinas-Garza, Rene Sanchez, individually and d/b/a Rene’s Garage, Jose Salinas, Jr., Maria de la Luz Salinas, Jose R. Flores, Elida R. Flores, Alejandro Rodriquez, Maria Carmen Rodriguez, Lucio Jimenez, Guadalupe R. Jimenez, individually and d/b/a Jimenez Welding Shop, Arturo Ballesteros, Sr., Maria Balleste-ros, Dora Alonzo, and First National Bank, f/k/a First National Bank-Edinburg.

3 . The trial court cause numbers are C-4570-95-F, C-4597-92-E, C-4566-95-B, C-4565-95-A, and C-4568-95-D.

4 . Reference to appellant Chevron includes Chevron U.S.A., Inc., Ultramar Diamond Shamrock Corp., Canadian Oxy Production Co., American Exploration Co., Louis Dreyfus Natural Gas Corp., Faulconer Energy Joint Venture-1988, Faulconer Energy Corp., Vernon E. Faulconer, Inc., Brownies Oil Co., and Spurgeon Brown.

5 . Phillips Properties was also named as a •defendant in cause numbers C-4597-92-E, C-4566-95-B, and C-4570-95-F.

6 . The cases are characterized as being the "northern plume” and "southern plume,” in reference to two areas of alleged contamination. The southern plume cases were severed into cause number 4597-92-1-E. This appeal involves a summary judgment granted in the northern plume trial cases, which were severed into cause number 4597-92-E.