Noemi O. Casillas v. Pecos County Community Action Agency

cv5-299.dd.casillas TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-95-00299-CV Noemi O. Casillas, Appellant v. Pecos County Community Action Agency, Appellee FROM THE DISTRICT COURT OF TRAVIS COUNTY, 53RD JUDICIAL DISTRICT NO. 462,498, HONORABLE MARY PEARL WILLIAMS, JUDGE PRESIDING PER CURIAM Noemi D. Casillas appeals the grant of a take-nothing summary judgment favoring Pecos County Community Action Agency defeating her suit under the whistleblower act. She challenges the procedure by which the court reconsidered an earlier denial of the motion for summary judgment. We will affirm the judgment. Pecos prevailed on reconsideration of a second motion for summary judgment. The second motion followed this Court's reversal of the trial court's grant of Pecos's first motion for summary judgment. See Casillas v. Pecos County Community Action Agency, 792 S.W.2d 203 (Tex. App.--Austin 1990, writ denied). The trial court originally denied the second motion for summary judgment in June 1994 after a hearing before Judge B.F. Coker with proper notice and argument. Jury trial was set for March 13, 1995. On that day, before voir dire, Judge Mary Pearl Williams conducted an unscheduled rehearing of the second motion for summary judgment; Casillas objected that she had no notice that the denial of the summary judgment motion would be reconsidered. Casillas also objected repeatedly to the court allowing attorney David Brooks to "testify." Brooks, who was not Pecos's designated attorney but its designated expert witness on the coverage of the whistleblower act, spoke at the hearing on the issue of whether Pecos was a governmental entity subject to the act. The court granted the motion for summary judgment at the hearing, but delayed signing the judgment for fifteen days to give Casillas time to file summary judgment proof against the motion. Casillas filed no more proof or motions. The judgment was signed on March 28, 1995. On appeal, Casillas challenges the procedure the court followed in granting the summary judgment. She contends that the court erred by holding the reconsideration hearing without notice and by allowing Brooks to testify. She does not challenge the merits of the judgment. The court was not required to give notice that it would reconsider the motion, though the better practice would be to give notice if possible. Courts have the power to reconsider denials and to grant motions for summary judgment. Hunte v. Hinkley, 731 S.W.2d 570, 571 (Tex. App.--Houston [14th Dist.] 1987, writ ref'd n.r.e.). Nothing in the rules requires the court to give notice of the rehearing of interlocutory denials of motions for summary judgment. We find no inequity demanding imputation of a notice requirement in this case. The parties undisputedly had timely notice of the original hearing under Texas Rule of Civil Procedure 166a(c). Casillas had the chance before the original hearing in June 1994 to file evidence and cite authority for the court's consideration. Further, the court, though not required to do so, gave the plaintiff fifteen days after the second hearing of the motion to file additional evidence before signing the judgment; the plaintiff filed nothing during that period nor during the period during which she could have moved for reconsideration or new trial. We find no reversible error. We overrule point one. Neither do we find reversible error asserted against the court's decision to let Brooks speak at the hearing about the inapplicability of the whistleblower act to Pecos--the issue for which he was Pecos's designated expert. Casillas contends, rightly, that oral testimony is not allowed at summary judgment hearings. See Tex. R. Civ. P. 166a(c). Contrary to Casillas's assertion, Brooks did not testify at the hearing. He was not sworn, he was not examined, and he was not cross-examined. The court asked him questions, but the court asked questions of all the lawyers present. He was not a witness at the hearing, but an advocate. We find no basis to consider his statements as impermissible testimony. (1) We overrule point two. Having overruled both points of error, we affirm the judgment. Before Chief Justice Carroll, Justices Jones and B. A. Smith Affirmed Filed: December 6, 1995 Do Not Publish 1. Brooks may have jeopardized his ability to testify at a trial in this case; since the case was resolved on summary judgment, that issue is not before us. SPAN STYLE="font-family: CG Times">PER CURIAM Noemi D. Casillas appeals the grant of a take-nothing summary judgment favoring Pecos County Community Action Agency defeating her suit under the whistleblower act. She challenges the procedure by which the court reconsidered an earlier denial of the motion for summary judgment. We will affirm the judgment. Pecos prevailed on reconsideration of a second motion for summary judgment. The second motion followed this Court's reversal of the trial court's grant of Pecos's first motion for summary judgment. See Casillas v. Pecos County Community Action Agency, 792 S.W.2d 203 (Tex. App.--Austin 1990, writ denied). The trial court originally denied the second motion for summary judgment in June 1994 after a hearing before Judge B.F. Coker with proper notice and argument. Jury trial was set for March 13, 1995. On that day, before voir dire, Judge Mary Pearl Williams conducted an unscheduled rehearing of the second motion for summary judgment; Casillas objected that she had no notice that the denial of the summary judgment motion would be reconsidered. Casillas also objected repeatedly to the court allowing attorney David Brooks to "testify." Brooks, who was not Pecos's designated attorney but its designated expert witness on the coverage of the whistleblower act, spoke at the hearing on the issue of whether Pecos was a governmental entity subject to the act. The court granted the motion for summary judgment at the hearing, but delayed signing the judgment for fifteen days to give Casillas time to file summary judgment proof against the motion. Casillas filed no more proof or motions. The judgment was signed on March 28, 1995. On appeal, Casillas challenges the procedure the court followed in granting the summary judgment. She contends that the court erred by holding the reconsideration hearing without notice and by allowing Brooks to testify. She does not challenge the merits of the judgment. The court was not required to give notice that it would reconsider the motion, though the better practice would be to give notice if possible. Courts have the power to reconsider denials and to grant motions for summary judgment. Hunte v. Hinkley, 731 S.W.2d 570, 571 (Tex. App.--Houston [14th Dist.] 1987, writ ref'd n.r.e.). Nothing in the rules requires the court to give notice of the rehearing of interlocutory denials of motions for summary judgment. We find no inequity demanding imputation of a notice requirement in this case. The parties undisputedly had timely notice of the original hearing under Texas Rule of Civil Procedure 166a(c). Casillas had the chance before the original hearing in June 1994 to file evidence and cite authority for the court's consideration. Further, the court, though not required to do so, gave the plaintiff fifteen days after the second hearing of the motion to file additional evidence before signing the judgment; the plaintiff filed nothing during that period nor during the period during which she cou