Opinion
No. 14-08-00627-CV
Opinion filed May 19, 2009.
On Appeal from County Court at Law No. 1 Smith County, Texas, Trial Court Cause No. 53,525.
Panel consists of Justices FROST, BROWN, and BOYCE.
MEMORANDUM OPINION
This appeal is from a summary judgment in favor of the plaintiff in a breach-of-contract action. In four issues, appellant/defendant claims the trial court abused its discretion in failing to grant a new trial and erred in granting summary judgment for appellee/plaintiff. We reverse and remand.
I. BACKGROUND
Appellee/plaintiff East Texas Medical Center Health Care Associates ("ETMC") sued appellant/defendant Samuel J. Harden, M.D. for breach of contract. Harden filed a pro se general denial. ETMC filed a traditional motion for summary judgment. In this motion's certificate of service, ETMC stated that it served the motion on Harden at an address different from his last known address, contained in Harden's answer. Harden did not respond to the motion and the trial court granted summary judgment.
Harden timely filed a motion for new trial claiming summary judgment was improper because he never received ETMC's motion for summary judgment or notice of hearing. In his affidavit in support of the motion Harden avers:
A summary judgment against me was signed by the Court on March 7, 2008. I did not know that a Motion for Summary Judgment had been filed until after the summary judgment had been granted.
. . . I never received a copy of Plaintiff's Motion for Summary Judgment. In addition, I never received notice of a hearing on Plaintiff's Motion for Summary Judgment or a notice of submission. Had I received a copy of Plaintiff's Motion for Summary Judgment, I would have filed a response. My failure to file a response to Plaintiff's Motion for Summary Judgment was not intentional nor the result of conscious indifference. Since I never received a copy of the Motion for Summary Judgment or a notice of hearing or submission, I did not have an opportunity to respond, ask for a continuance or obtain permission to file a late response.
In response to Harden's motion for new trial, ETMC did not present any sworn testimony. However, ETMC did present unsworn copies of two envelopes that its attorney said had been sent by certified mail, return receipt requested. The first envelope gave no indication why it was returned. The second envelope appears to have been sent to the address shown in Harden's answer. The second envelope was stamped "unclaimed;" however, ETMC did not attach a certified-mail-receipt card or any other proof that the envelope was sent by certified mail with prepaid postage. ETMC claimed Harden was "dodging service." The trial court denied Harden's motion for new trial.
Harden filed a reply to ETMC's response, apparently unaware the trial court already had denied his motion for new trial. He then filed a motion for reconsideration with a supplemental affidavit in which he asserted the first envelope was sent to an address at which he had not lived since March 2005. Regarding the second envelope, Harden testified that, during the two-week period during which ETMC's counsel claimed the post office was trying to deliver the second envelope, Harden was in California with his wife and family. In the affidavit, Harden testified that, because he and his family were in California during this period, he never received notice that there was any letter for him to claim.
II. ISSUES AND ANALYSIS
In his first appellate issue, Harden argues the trial court abused its discretion by not granting a new trial based on his proof that he never received notice of the motion for summary judgment or the submission of that motion. ETMC did not file an appellate brief.
ETMC advised this court by letter, that it agreed to granting Harden a new trial.
We review a trial court's denial of a motion for new trial for abuse of discretion. Dir., State Employees Workers' Comp. Div. v. Evans, 889 S.W.2d 266, 268 (Tex. 1994). An abuse of discretion occurs when a court acts in an arbitrary or unreasonable manner, or without reference to guiding rules and principles. Downer v. Aquamarine Operators, 701 S.W.2d 238, 241-42 (Tex. 1985). A trial court's discretion, however, is "not unbridled." Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex. 1939). If the movant's allegations are uncontroverted and meet the test of the Craddock requirements, the court is compelled to grant the motion. State Farm Life Ins. Co. v. Mosharaf, 794 S.W.2d 578, 582 (Tex.App.-Houston [1st.Dist.] 1990, writ denied). Craddock applies when a summary-judgment non-movant does not receive notice of the submission of the summary-judgment motion until after the submission date. See Carpenter v. Cimmarron Hydrocarbons Corp., 98 S.W.3d 682, 686 (Tex. 2002) (holding that Craddock does not apply in cases in which summary judgment is granted against party who received notice at or before the submission or oral hearing on the motion but declining to address whether Craddock applies when a summary-judgment non-movant does not receive notice of the submission of the summary-judgment motion until after the submission date); Rorie v. Goodwin, 171 S.W.3d 579, 584 (Tex.App.-Tyler 2005, no pet.) (applying Craddock in summary-judgment context). Under Craddock, the judgment should be set aside when the defendant shows (1) his failure to reply to the motion for summary judgment was not intentional or the result of conscious indifference but was due to an accident or mistake; (2) he had a meritorious defense; and (3) a new trial would cause no delay or injury to the plaintiff. See Craddock, 133 S.W.2d at 126.
This appeal was transferred to the Fourteenth Court of Appeals from the Twelfth Court of Appeals. Because this appeal is governed by precedent from the Twelfth Court of Appeals, to the extent that court's precedent differs from this court's precedent, we cite this case from the Twelfth Court of Appeals, though we are not stating that the precedent of these two appellate courts differs on this point. See TEX. R. APP. P. 41.3.
As to the first requirement, the record reflects there was no evidence before the trial court to controvert Harden's sworn affidavit that he never received notice of the submission date for the summary-judgment motion. ETMC's response does not prove that it properly served the notice of submission and the summary judgment motion on Harden. Though ETMC attached two envelopes, the first envelope was not sent to Harden's "last known address." See TEX. R. CIV. P. 21a. As to the second envelope, ETMC did not present any proof that this envelope was served by delivering it to Harden (1) in person, (2) by agent, (3) by courier-receipted delivery, or (4) by certified or registered mail with prepaid postage. See TEX. R. CIV. P. 21a; Ashworth v. Brzoska, 274 S.W.3d 324, 330 (Tex.App. 2008, no pet.). Although ETMC argued that Harden was "dodging service," it offered no evidence in support of its claim. We conclude Harden satisfied Craddock's first element.
Once Harden established by his uncontroverted affidavits he had not received the required notice, he was relieved from further responsibility of complying with the Craddock requirements. See Rabie v. Sonitrol of Houston, Inc., 982 S.W.2d 194, 197-98 (Tex. AppC Houston [1st Dist.] 1998, no pet.). Accordingly, we sustain Harden's first issue. Because none of Harden's remaining issues would afford greater relief if sustained, we do not address them.
III. CONCLUSION
We hold the trial court abused its discretion in failing to grant Harden a new trial and in failing to set aside the summary judgment. Accordingly, we reverse the judgment of the trial court and remand for further proceedings consistent with this opinion.