Tammy Vacek v. United Rentals (North America), Inc.

• Court: Court of Appeals of Texas
• Decided: June 25, 2024
• Docket: 07-23-00345-CV
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-23-00345-CV

TAMMY VACEK, APPELLANT

V.

UNITED RENTALS (NORTH AMERICA), INC., APPELLEE

On Appeal from the 155th District Court Fayette County, Texas Trial Court No. 2021V-286, Honorable Jeff R. Steinhauser, Presiding

June 25, 2024 MEMORANDUM OPINION Before QUINN, C.J., and PARKER and DOSS, JJ.

This appeal arises from a motion for traditional summary judgment granted in a bill

of review proceeding. Appellant, Tammy Vacek, challenges the summary judgment

rendered against her by the trial court in favor of Appellee United Rentals (North America),

Inc. Concluding United Rentals failed to meet its burden for obtaining a summary

judgment by traditional motion, we reverse the judgment of the trial court and remand the

case for further proceedings. Background

In 2019, United sued Champs Sitework Incorporated, alleging unpaid debt in the

amount of nearly $75,000. United also sued Vacek as guarantor of that debt. In October

2019, Vacek, proceeding pro se, electronically filed an answer asserting a general denial,

and reported the email address tammy@champs-inc.com. In April 2020, United filed a

motion for traditional summary judgment on the guaranty against Vacek.1 The trial court

granted United’s motion and rendered judgment against Vacek.

In November 2021, after United began post-judgment collection efforts, Vacek

petitioned for a bill of review, contending she did not receive notice of (1) submission on

United’s motion or (2) the adverse judgment against her until the end of March 2021. In

June 2023, United moved for summary judgment on traditional grounds.2 Specifically,

the motion purported to “attach” Exhibits A and B, which United contended would prove

Vacek had been served via electronic mail with the motion for summary judgment and the

motion’s hearing date.3 However, United failed to attach any exhibits.

One week before the court’s consideration of United’s motion, Vacek filed a

response, pointing out that United had failed to attach its exhibits to the motion. Vacek

1 The certificate of service attached to United’s motion provided that Vacek was served with a copy

of the motion “by e-service or by regular mail and certified mail, return receipt requested . . . .” The record does not reflect whether Vacek was served with notice of submission on the motion or notice of the judgment pursuant to Texas Rule of Civil Procedure 306a. 2 Unlike a party proceeding on no-evidence grounds, the motion specifically argued, “BECAUSE

VACEK RECEIVED NOTICE OF THE MOTION, IT WAS HER FAULT SHE DID NOT PRESENT HER DEFENSES.” (all caps in original). This argument necessarily depends on United’s ability to prove that Vacek received notice. Our review is limited to the issues expressly presented to the trial court. See Rhone- Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999). 3 United also argued “in light of” these exhibits it could prove “someone opened those communications [thus] there is no conclusion by VACEK’s own fault or negligence is the cause of her failure to respond to the underlying motion for summary judgment.” (italics added).

2 alternatively argued that United’s alleged proof (that someone opened the

communications) failed to satisfy the movant’s summary judgment burden. United filed a

reply the next day, arguing the motion should be granted “in light of Ex. A and B” – but still

did not attach any evidence. The district court granted United’s motion on August 30,

2023.

Analysis

A plaintiff to a bill of review must ordinarily plead and prove (1) a meritorious

defense to the underlying cause of action, (2) which the plaintiff was prevented from

making by the fraud, accident or wrongful act of the opposing party or official mistake,

and (3) unmixed with any fault or negligence on their own part. WWLC Inv., L.P. v. Miraki,

624 S.W.3d 796, 799 (Tex. 2021) (per curiam) (citing Caldwell v. Barnes, 154 S.W.3d 93,

96 (Tex. 2004) (per curiam)). United’s motion for summary judgment attacked the third

element. We agree with Vacek that the trial court’s grant of United’s traditional motion for

summary judgment was in error because United’s evidence was inconclusive.

Our review of a trial court’s summary judgment is de novo. City of Richardson v.

Oncor Elec. Delivery Co. LLC, 539 S.W.3d 252, 258 (Tex. 2018) (citing Provident Life &

Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003)). When a party moves for

summary judgment on traditional grounds, it possesses the burden to “show that no

genuine issue of material fact exists and that it is entitled to judgment as a matter of law.”

Cmty. Health Sys. Pro. Servs. Corp. v. Hansen, 525 S.W.3d 671, 681 (Tex. 2017) (citing

TEX. R. CIV. P. 166a(c); Provident Life, 128 S.W.3d at 216). We look to the record to

determine whether such evidence on file at the time of the hearing establishes that United,

3 as movant, is entitled to judgment as a matter of law. Lance v. Robinson, 543 S.W.3d

723, 732 (Tex. 2018); MBank Brenham, N.A. v. Barrera, 721 S.W.2d 840, 842 (Tex. 1986).

Vacek possesses no burden to respond or present evidence until United establishes its

defense with conclusive evidence. State v. Ninety Thousand Two Hundred Thirty-Five

Dollars & No Cents in U.S. Currency ($90,235), 390 S.W.3d 289, 292 (Tex. 2013).

In this bill of review, one of Vacek’s alleged reasons for failing to respond to

United’s 2020 motion for summary judgment (in the collection case) is that she did not

receive notice of the “submission” date for responding. In Texas state courts, a non-

movant’s deadline for responding to a motion for summary judgment depends on the trial

court’s announced date of hearing or submission. Martin v. Martin, Martin & Richards,

Inc., 989 S.W.2d 357, 359 (Tex. 1998) (“The hearing date determines the time for

response to the motion; without notice of hearing, the respondent cannot know when the

response is due.”). United sought to rebut Vacek’s allegation by presenting evidence,

purportedly attached as exhibits A and B, to prove she had, in fact, received notice.

However, United failed to attach the exhibits; it did not supplement the evidence even

after Vacek called the problem to United’s attention. Moreover, the entirety of the record

before this Court contains no other document from which the trial court could conclude

that Vacek possessed notice of the court’s submission date.

Moreover, even if such exhibits say what United purports them to say, we would

hold that the trial court’s grant of summary judgment was in error. The precise argument

advanced by United – that “someone” opened an email addressed to Vacek – does not

conclusively show that Vacek had notice of the hearing. Our standards for summary

judgment review require that when we review the evidence we “indulg[e] every

4 reasonable inference and resolv[e] any doubts in the nonmovant’s favor.” Mosaic

Baybrook One, L.P. v. Simien, 674 S.W.3d 234, 252 (Tex. 2023). We conclude United

failed to conclusively show that Vacek’s failure to respond to the 2020 summary judgment

was due to her own fault or negligence. Vacek’s second issue is sustained.

It is unnecessary to address Vacek’s remaining issues on appeal. For example,

her first issue – pertaining to the propriety of the collection judgment – is not before this

Court, nor was her fourth issue requesting sanctions for actions alleged to have occurred

in the trial court.4 TEX. R. APP. P. 33.1(a). Vacek’s third issue is unnecessary in light of

our disposition of her second. TEX. R. APP. P. 47.1.

Conclusion

Having sustained Vacek’s second issue, we reverse the trial court’s summary

judgment and remand the case for further proceedings.

Lawrence M. Doss Justice

4 Vacek’s fourth issue complains about United’s allegedly “groundless actions in the Original Suit

and its groundless activities in the bill of review proceeding requiring this appeal[.]”