Opinion
No. 10-05-00018-CV
Opinion delivered and filed February 1, 2006.
Appeal fromthe 43rd District Court, Parker County, Texas, Trial Court No. 45,350.
Affirmed.
Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA.
MEMORANDUM OPINION
Appellant Henry Martin Rutledge brings this appeal contesting the trial court's granting of summary judgment in favor of Appellee Nancy Miller.
We will reverse the judgment of the trial court.
BACKGROUND
On September 30, 2003, Rutledge filed a Petition for Post Divorce Division of Property. Miller filed a Motion for Summary Judgment based on limitations. A hearing was held on the motion on August 30, 2004. After hearing argument, the trial court deferred its ruling and invited amended motions. The next day, Rutledge filed a letter brief and offered argument on judicial estoppel, which had been argued without objection at the hearing. On September 23, 2004, Miller filed an Amended Motion for Summary Judgment on limitations, waiver, and judicial estoppel. On September 27, 2004, the trial court granted summary judgment on Miller's affirmative defenses of limitations and waiver. On September 28, 2004, Rutledge filed his response to Miller's amended motion.
Rutledge presents three issues for review. In his first issue, Rutledge argues the trial court erroneously granted summary judgment on limitations and waiver based on the August 30, 2004 hearing. In his second issue, Rutledge argues the trial court erroneously granted summary judgment without a hearing on the Amended Motion. Finally, Rutledge argues the trial court erroneously granted summary judgment against the great weight and preponderance of the evidence.
SUMMARY JUDGMENT PROCEDURE
Summary judgment is a harsh remedy and the notice requirements in this rule must be strictly construed. Bryant v. Winn-Dixie Stores, Inc., 786 S.W.2d 547, 548 (Tex.App.-Fort Worth 1990, writ denied). Therefore, proper notice to the non-movant of the summary judgment hearing is a prerequisite to summary judgment. Lester v. Capital Indus., Inc., 153 S.W.3d 93, 95 (Tex.App.-San Antonio 2004, no pet.). Rule 166a(c) provides that the motion and any supporting affidavits shall be filed and served at least twenty-one days before the time specified for hearing. TEX. R. CIV. P. 166a(c). We find that Rutledge did not receive the proper notice and the trial court entered judgment in error. We sustain Rutledge's first issue.
The trial court has discretion to dispense with an oral hearing. Adamo v. State Farm Lloyds Co., 853 S.W.2d 673, 677 (Tex.App.-Houston [14th Dist.]), writ ref'd, 864 S.W.2d 491 (Tex. 1993) (per curiam).
CONCLUSION
Having sustained Rutledge's first issue, we reverse the judgment and remand to the trial court for further proceedings.
CONCURRING OPINION
Please review Appellant's issues. As summarized by the majority, they are as follows:
The full text of Rutledge's issues are:
The trial court erroneously granted summary judgment citing the affirmative defenses of limitations and waiver from the only hearing on the Motion on August 30, 2004.
The trial court erroneously granted summary judgment after an amendment to the first motion for summary judgment without a hearing on the amended motion.
The trial court erroneously granted summary judgment to the Appellee when the great weight and preponderance of the evidence opposed that finding.
Rutledge presents three issues for review. In his first issue, Rutledge argues the trial court erroneously granted summary judgment on limitations and waiver based on the August 30, 2004 hearing. In his second issue, Rutledge argues the trial court erroneously granted summary judgment without a hearing on the Amended Motion. Finally, Rutledge argues the trial court erroneously granted summary judgment against the great weight and preponderance of the evidence.
Please take note of the basis upon which the majority is reversing the trial court. As stated by the majority, they "find that Rutledge did not receive the proper notice and the trial court entered judgment in error. We sustain Rutledge's first issue." The majority does not address the remaining issues.
Please note that Appellant's complaint in the first issue about the judgment on limitations does not in any way raise or rely upon the issue of proper notice. The majority has wholly failed to address the propriety of the trial court's judgment on one of the grounds upon which it was expressly based — limitations. TEX. R. APP. P. 47.1.
LIMITATIONS DEFENSE
It is undisputed that Miller asserted the limitations defense in her Original Answer, First Amended Original Answer, and her Second Amended Original Answer, all of which were filed long before her Motion for Summary Judgment. Likewise, it is undisputed that her Motion for Summary Judgment was based upon her limitations defense. One thing that is a bit unusual about the trial court's judgment in this case is that it specifically states the grounds upon which it is based. One of the grounds specifically mentioned is limitations. There is no complaint by Rutledge that he did not receive proper notice as to this ground.
At the original hearing on the divorce, Rutledge appeared and testified there was no community property other than personalty. The summary judgment evidence included the divorce decree reciting this as a finding of the trial court. ("The Court finds that no community property other than personal effects has been accumulated by the parties.") The summary judgment evidence included the deed which was from Shane Rutledge (a son) to Nancy Rutledge (now Miller) dated April 11, 1997.
Rutledge now wants to attack the finding in the prior judgment and/or the deed. Rutledge did not bring this suit until September 30, 2003, over six years after the deed and over five years after the Agreed Final Decree of Divorce was rendered on September 8, 1998.
The majority errs in failing to review the propriety of the judgment on the basis of the affirmative defense of limitations.
Nevertheless, the majority stumbles upon the proper judgment. Clendenin v. Krock, 527 S.W.2d 471 (Tex.Civ.App.-San Antonio 1975, no writ); Thompson v. Thompson, 500 S.W.2d 203 (Tex.Civ.App.-Dallas 1973, no writ); Harkness v. McQueen, 207 S.W.2d 676 (Tex.Civ.App.-Galveston 1947, no writ). See TEX. FAM. CODE ANN. § 9.201 et seq. (Vernon 1998).
I concur only in the judgment.