Andrew Roberts and Mary Smith v. Eastlawn Memorial Park Cemetery

• Court: Court of Appeals of Texas
• Decided: April 20, 2006
• Docket: 02-05-00289-CV
• Status: Published

Opinion

ROBERTS V. EASTLAWN

COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 2-05-289-CV

ANDREW ROBERTS AND MARY SMITH APPELLANTS

V.

EAST LAWN MEMORIAL PARK CEMETERY APPELLEE

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FROM THE 89TH DISTRICT COURT OF WICHITA COUNTY

MEMORANDUM OPINION ^{(footnote: 1)}

Andrew Roberts and Mary Smith appeal from a no-evidence summary judgment for East Lawn Memorial Park Cemetery.  In a single issue, appellants complain that the summary judgment is improper because the trial court first denied the motion for summary judgment and than granted it without further notice to them.  Appellants did not raise this complaint in the trial court; therefore, it is waived on appeal. ^{(footnote: 2)}  Accordingly, we overrule appellant’s issue and affirm the trial court’s judgment.

PER CURIAM

PANEL F: CAYCE, C.J.; HOLMAN and GARDNER, JJ.

DELIVERED:  April 20, 2006

FOOTNOTES

1:

See Tex. R. App. P. 47.4.

2:

Tex. R. App. P. 33.1(a); see H.S.M. Acquisitions, Inc. v. West, 917 S.W.2d 872, 877 (Tex. App.—Corpus Christi 1996, writ denied) (holding that appellant failed to preserve error by objecting in trial court to lack of notice before trial court reconsidered and reversed its prior ruling denying motion for summary judgment).  We also note that a trial court has discretion to grant summary judgment without notice after previously denying same, as long as the court retains jurisdiction over the case.   Id. at 876-77; see also Hunte v. Hinkley, 731 S.W.2d 570, 571 (Tex. App.—Houston [14th Dist.] 1987, writ ref’d n.r.e.).