Rasak BabJide v. Citibank (South Dakota) N.A.

Opinion

Affirmed and Memorandum Opinion filed December 21, 2004

Affirmed and Memorandum Opinion filed December 21, 2004.

In The

Fourteenth Court of Appeals

_______________

NO. 14-04-00064-CV

RASAK BABAJIDE, Appellant

V.

CITIBANK (SOUTH DAKOTA), N.A., Appellee

_______________________________________________________

On Appeal from the County Civil Court at Law No. 3

Harris County, Texas

Trial Court Cause No. 798,135

M E M O R A N D U M   O P I N I O N

Appellee, Citibank (South Dakota), N.A., sued Appellant, Rasak Babajide, to recover past due credit card charges.  Citibank filed a motion for summary judgment.  The trial court granted the motion and entered a final summary judgment that Citibank recover $9,601.67 plus post-judgment interest and attorneys= fees.  Babajide appeals on the ground that she did not receive notice of the hearing on the motion for summary judgment.  Because Babajide failed to preserve her complaint for appellate review, we issue this memorandum opinion and affirm.

A summary judgment movant must give the nonmovant at least twenty-one days notice of the summary judgment hearing.  Tex. R. Civ. P. 166a(c).  However, lack of notice of a summary judgment hearing is not a jurisdictional defect.  See French v. Brown, 424 S.W.2d 893, 894B95 (Tex. 1967).  Rather, lack of notice is a procedural defect that may be corrected by the trial court in response to a timely filed motion for new trial or by an appellate court if the trial court overrules the motion for new trial.  See id. at 894.  Therefore, a nonmovant must file a motion for new trial to preserve a complaint that she did not receive notice of a summary judgment hearing.  See id.; Smith v. Mike Carlson Motor Co., 918 S.W.2d 669, 672 (Tex. App.CFort Worth 1996, no writ) (citing Lee v. Braeburn Valley West Civic Ass=n, 786 S.W.2d 262, 263 (Tex. 1990); Tex. R. App. P. 33.1; see also Tanksley v. CitiCapital Commercial Corp., 145 S.W.3d 760, 764 (Tex. App.CDallas 2004, no pet. h.); Rios v. Texas Bank, 948 S.W.2d 30, 33 (Tex. App.CHouston [14th Dist.] 1997, no pet.); Coleman v. SB Communications, Inc., No. 04-99-008890-CV, 2000 WL 1060378, at *1 (Tex. App.CSan Antonio July 19, 2000, no pet.) (not designated for publication).^[1]

The record does not reflect that Babajide timely filed a motion for new trial.  She did file a Arequest for reinstatement@ in which she asked the trial court to Areinstate@ the case because the summary judgment was rendered Ain absentia,@ and she did not receive notice of Aany proceedings involving this case.@  Even if we construe this pleading as a motion for new trial, it was not timely because it was filed more than thirty days after the final summary judgment was signed.  See Tex. R. Civ. P. 329b(a) (providing that motion for new trial must be filed within thirty days after judgment is signed).^[2]  Therefore, Babajide has failed to preserve error on her notice complaint, and we may not address her complaint for the first time on appeal.^[3]

Accordingly, Babajide=s sole issue is overruled, and the trial court=s judgment is affirmed.

/s/        Charles W. Seymore

Justice

Judgment rendered and Memorandum Opinion filed December 21, 2004.

Panel consists of Chief Justice Hedges and Justices Fowler and Seymore.

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^[1]  In contrast, a party is not required to file a motion for new trial to preserve a complaint on the substantive grounds on which a summary judgment has been granted.  Smith, 918 S.W.2d at 672; Tex. R. Civ. P. 324.

^[2] Further, there is no affidavit or other evidence attached to the motion for reinstatement to prove lack of notice.  See Rios, 948 S.W.2d at 33, n.4 (stating that a nonmovant asserting lack of notice in a post-trial motion must present evidence); Smith, 918 S.W.2d at 672 (recognizing that motion for new trial with no supporting affidavit is mere assertion regarding lack of notice and is defective).

^[3]  We note that the record does not reflect whether Babajide was properly served with notice of the hearing.  The record contains the motion for summary judgment but does not contain the notice of hearing although the court=s docket sheet shows that a notice was filed.  However, in her brief, Babajide asserts that the notice was served at a Anon-existing@ address, and Citibank has not filed a brief disputing that assertion.  Nonetheless, in order to preserve her complaint, Babajide was required to present evidence that she did not receive notice via a timely post-judgment motion.  See Rios, 948 S.W.2d at 33, n.4; Smith, 918 S.W.2d at 672.