James Treat v. Caron Muntzel

• Court: Court of Appeals of Texas
• Decided: July 28, 2005
• Docket: 13-04-00216-CV
• Status: Published

Opinion

                              NUMBER 13-04-216-CV

                         COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG

JAMES TREAT,                                                                              Appellant,

                                                             v.                               

CARON MUNTZEL,                                                                         Appellee.

On appeal from the County Court at Law No. 2

of Nueces County, Texas.

                               MEMORANDUM OPINION

                          Before Justices Yañez, Castillo, and Garza

                            Memorandum Opinion by Justice Garza                      

This is a restricted appeal.  See Tex. R. App. P. 26.1(c), 30.  Appellant, James Treat, challenges a summary judgment granted in favor of appellee, claiming that he did not receive proper or timely notice of the summary judgment hearing.  We affirm the judgment of the trial court. 

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, either in person or through counsel, did not participate at trial; 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) (per curiam); Carmona v. Bunzl Distrib., 76 S.W.3d 566, 568 (Tex. App.BCorpus Christi 2002, no pet.).  The face of the record, for purposes of a restricted appeal review, consists of all the papers on file in the appeal.  Norman Communications, 955 S.W.2d at 270.  The requirements for a restricted appeal should be liberally construed in favor of the right to appeal.  Stubbs v. Stubbs, 685 S.W.2d 643, 645 (Tex. 1985).  The first three requirements are uncontested.  We therefore address whether error is apparent from the face of the record.

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.  See Tex. R. Civ. P. 166a(c); see also Aguirre v. Phillips Props., Inc., 111 S.W.3d 328, 332 (Tex. App.BCorpus Christi 2003, pet. denied).  Lack of notice to the nonmovant of the summary judgment hearing violates the nonmovant=s due process rights.  Smith v. Mike Carlson Motor Co., 918 S.W.2d 669, 672 (Tex. App.BFort Worth 1996, no writ).  A certificate by a party or an attorney of record is prima facie evidence of the fact of service.  Id.; Tex. R. Civ. P. 21a.  The presumption of service may be rebutted by an offer of proof of nonservice.  See Cliff v. Huggins, 724 S.W.2d 778, 780 (Tex. 1987). 

On appeal, appellant argues that the trial court erred in rendering judgment for appellee because there is no evidence in the record that he was properly served with appellee=s motion for summary judgment or that he was timely provided notice of the hearing on that motion.  As evidence that he did not receive proper or timely notice, appellant points to the certificate of service which does not state the method of service.  Appellant argues, without citing to authority, that this Aobvious discrepancy@ is an error on the face of the record that requires reversal of the trial court=s judgment.  This argument is without merit because there is no requirement that the certificate of service detail the method of service used.  See Tex. R. Civ. P. 21a (providing methods of service); see also Smith, 918 S.W.2d at 673.

The record reflects that the summary judgment motion was file-stamped on October 15, 2003, and appellee=s counsel=s certificate of service states that notice was served at appellant=s address 7202 Sandpiper, Corpus Christi, Texas, 78412, on October 10, 2003.  The motion for summary judgment contains a notice of hearing with a handwritten date of November 5, 2003 at 2:15 p.m., in the County Court at Law, Number 2, Nueces County, Texas.^[1]  Appellant points out that the certificate of service indicates a service date five days prior to the date the motion for summary judgment was filed.  He argues that given the discrepancy between the reported date of service and the date of filing, there is no way to determine what date and time of hearing was in the notice that was allegedly served on him.  Appellee suggests that the handwritten notation of the date and time of the hearing may have been added to the document after service was completed; however, he has not presented any evidence in support of this contention and any error pertaining to this contention is not apparent on the face of the record.  While it is clear from the record that appellee accomplished service prior to the date the motion was file-stamped by the clerk=s office, the motion nonetheless provided adequate and accurate notice of the hearing.^[2]

            Appellant further argues that the absence of a signature on the notice of hearing is a discrepancy that suggests error by the trial court.  Appellant cites no authority and we have found none in support of the proposition that the absence of the judge=s signature from a notice setting a hearing under rule 166a(c) invalidates the notice.  To the contrary, our Court has previously held that the absence of a judge=s signature on a notice setting hearing, does not, standing alone, invalidate the notice.  West v. Maint. Tool & Supply Co., 89 S.W.3d 96, 102 (Tex. App.BCorpus Christi 2002, no pet.) (citing Goode v. Avis Rent-A-Car, 832 S.W.2d 202, 204 (Tex. App.BHouston [1st Dist.] 1992, writ denied) (holding that an unsigned order setting a hearing date on a motion for summary judgment was sufficient to provide notice of the hearing)).

Appellant has failed to rebut the presumption of valid service created by the certificate of service on the motion for summary judgment.  Accordingly, we affirm the judgment of the trial court.

_______________________

DORI CONTRERAS GARZA,

Justice

Memorandum Opinion delivered and

filed this the 28th day of July, 2005.

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^[1] On November 5, 2003, the trial court heard appellee=s argument for summary judgment and granted it in favor of appellee.  Appellant, who was a pro se defendant, was not present at the hearing. 

^[2] We cannot discount the possibility that the motion for summary judgment and notice of hearing were mailed on October 10, 2003, to both the appellant and the court, a method of service permitted by rule 21a.  See Tex. R. Civ. P. 21a.  This would explain the Adiscrepancy@ between the date on the certificate of service and the file stamp.