Elton Senegal D/B/A Elton's Construction v. Lance and Lisa Beloney

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-21-00058-CV

ELTON SENEGAL D/B/A ELTON'S CONSTRUCTION, Appellant v.

LANCE AND LISA BELONEY, Appellees

From the 278th District Court Walker County, Texas Trial Court No. 2029771

MEMORANDUM OPINION

Elton Senegal, d/b/a Elton's Construction appeals from a judgment that granted a

motion for summary judgment filed by Lance and Lisa Beloney. Senegal complains that

the trial court abused its discretion by denying his motion for new trial because he did

not receive notice of the summary judgment hearing pursuant to Rule of Civil Procedure

166a(c). Because we find that Senegal did not timely preserve his complaint, we affirm

the judgment of the trial court. The Beloneys filed a petition for a declaratory judgment pursuant to Chapter 53 of

the Property Code alleging that Senegal had not complied with the notice requirements

to properly impose a lien against their property and seeking a declaration that the lien

was void. In support, the Beloneys also filed a summary motion to remove the allegedly

invalid lien pursuant to Property Code Section 53.160. Senegal filed a response to the

summary motion but no hearing was conducted by the trial court on that motion. The

Beloneys filed a motion for summary judgment on December 23, 2020 but failed to attach

a certificate of service or notice of hearing to the motion. Counsel for the Beloneys filed

a supplement to the motion for summary judgment to attach a certificate of service on

January 6, 2021, but the certificate only included that the supplement rather than the

motion for summary judgment was served on December 23, 2020.

On January 5, 2021, Senegal's counsel filed an agreed motion to withdraw, signed

by Senegal, which was granted by the trial court that same day. The motion stated that a

motion for summary judgment had been filed but did not include a date set for the

hearing. On January 13, 2021, the trial court sent a notice of hearing to counsel for the

Beloneys and to Senegal that shows that the hearing on the motion for summary

judgment was set for January 25, 2021. Senegal did not file a response to the motion for

summary judgment and did not appear at the hearing on January 25, 2021. The trial court

granted the motion for summary judgment on January 25, 2021.

Senegal v. Beloney Page 2 New counsel for Senegal filed a motion to appear in February of 2021 and filed a

motion for new trial. The motion for new trial alleged that Senegal did not receive proper

notice of the hearing on the motion for summary judgment and attached an affidavit by

his new counsel which included his new counsel's version of what had taken place prior

to his involvement in the case, including conversations he had with the court coordinator

and an employee of the district clerk's office after the judgment was rendered. Exhibits

including the trial court's setting notice from January 13, 2021 and a docket sheet were

also attached to the motion for new trial. The motion did not include an affidavit from

Senegal.

The Beloneys filed a response to the motion for new trial, alleging that Senegal had

received timely notice of the motion for summary judgment as it was electronically filed

and served on Senegal's original counsel prior to his withdrawal, and was electronically

served again on his original counsel and to Senegal personally on December 28, 2020.

Further, the Beloneys allege that, after receiving a date and time for the hearing from the

trial court coordinator in accordance with the trial court's rules, a document entitled

"Confirmation of Hearing" showing that the hearing was to be held on January 25, 2021

was sent by email to Senegal's original counsel and to Senegal individually on December

29, 2020.

During the hearing on the motion for new trial, the trial court expressed his own

recollection of events without objection by either party. The trial court stated that the

Senegal v. Beloney Page 3 court sent the notice on January 13, 2021 by email and regular mail to Senegal in

accordance with its usual procedures. The trial court also stated that prior to the hearing

on January 25, 2021, Senegal called and spoke to an employee who works for the trial

court and indicated to the employee that he already knew about the setting on January

25. After hearing the arguments of counsel, the trial court denied the motion for new

trial.

Rule of Civil Procedure 166a(c) requires that both the motion for summary

judgment and notice of the summary judgment hearing be served on opposing counsel

or the opposing party at least 21 days before the hearing date. TEX. R. CIV. P. 166a(c);

Cardenas v. Bilfinger TEPSCO, Inc., 527 S.W.3d 391, 405 (Tex. App.—Houston [1st Dist.]

2017, no pet.). The record establishes that Senegal had timely notice that the motion for

summary judgment had been filed. The issue is whether or not Senegal had notice of the

hearing more than 21 days before the hearing date.

However, even if Senegal did not have 21 days' notice of the hearing, the lack of

21 days' notice of a summary judgment hearing is a non-jurisdictional defect that the

nonmovant can waive. See May v. Nacogdoches Mem'l Hosp., 61 S.W.3d 623, 626 (Tex.

App.—Tyler 2001, no pet.). If the nonmovant receives notice that is untimely but

sufficient to enable the nonmovant to attend the summary judgment hearing, the

nonmovant must file a motion for continuance or raise the complaint of late notice in

writing before or at the summary judgment hearing. Nguyen v. Short, How, Frels & Heitz,

Senegal v. Beloney Page 4 P.C., 108 S.W.3d 558, 560 (Tex. App.—Dallas 2003, pet. denied); May, 61 S.W.3d at 626.

As it relates to this proceeding, it is only when the nonmovant is not given notice of the

summary judgment hearing that the nonmovant may preserve error in a post-trial

motion. May, 61 S.W.3d at 626-27. There is nothing in the record to show that Senegal

filed a motion for continuance or otherwise notified the trial court of his complaint before

or during the summary judgment hearing, even though the trial court determined that

he had knowledge of the date of the hearing prior to the hearing. The error is, therefore,

not preserved for our review. See, e.g., Nguyen, 108 S.W.3d at 560-61. We overrule

Senegal's sole appellate issue.

CONCLUSION

Having found no reversible error, we affirm the judgment of the trial court.

TOM GRAY Chief Justice Before Chief Justice Gray, Justice Johnson, and Justice Smith Affirmed Opinion delivered and filed November 2, 2022 [CV06]

Senegal v. Beloney Page 5