J. L. Forrester, Individually and as Operator of the Manziel Gas Unit No. 2 v. Oil. Con. Tech., Inc.

In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________ No. 06-01-00055-CV ______________________________ J. L. FORRESTER, INDIVIDUALLY AND AS OPERATOR OF THE MANZIEL GAS UNIT NO. 2, Appellant V. OIL CON. TECH, INC., Appellee On Appeal from the County Court Upshur County, Texas Trial Court No. 7499 Before Cornelius, C.J., Grant and Ross, JJ. Opinion by Justice Grant O P I N I O N J. L. Forrester, Individually and as Operator of the Manziel Gas Unit No. 2, appeals from a summary judgment obtained by Oil Con. Tech, Inc. in a suit based on a sworn account. Forrester contends on appeal that the county court erred by failing to grant his request for a new trial because the record shows that he did not receive notice of the date that a hearing would be conducted on the motion for summary judgment. The issue before this court is whether the failure to provide notice to a nonmovant of the hearing date on a motion for summary judgment constitutes reversible error. This issue has been addressed before, although not previously by this court. The procedural posture of this case matches that described in Mosser v. Plano Three Venture, 893 S.W.2d 8 (Tex. App.-Dallas 1994, no writ). As in this case, the nonmovant in a summary judgment proceeding contended that he had received no notice of the hearing on the motion. Mosser filed a motion for new trial, supported by affidavit, claiming the summary judgment must be reversed because he received no notice of the hearing. Mosser complained on appeal that the trial court erred in overruling his motion for new trial in which he claimed the summary judgment must be reversed because he received no notice of the hearing on the motion. The Dallas Court of Appeals reversed the judgment of the trial court. In doing so, the court used the following language: An elementary and fundamental requirement of due process in any proceeding that is to be accorded finality is notice reasonably calculated, under the circumstances, to apprise interested parties of the pendency of the action and afford them the opportunity to present their objections thereto. Peralta v. Heights Medical Ctr., Inc., 485 U.S. 80, 84, 108 S.Ct. 896, 99 L.Ed.2d 75, 81 (1988). The failure to give adequate notice violates the most rudimentary demands of due process of law. Mosser, 893 S.W.2d at 12. The court went on to quote the following from Peralta: As we observed in Armstrong v. Manzo, 380 U.S. [545, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965)], only "wip[ing] the slate clean . . . would have restored the petitioner to the position he would have occupied had due process of law been accorded to him in the first place." The Due Process Clause demands no less in this case. Peralta, 99 L.Ed.2d at 82. Mosser, 893 S.W.2d at 13. Mosser illustrates the fundamental right of a party to receive notice of the pendency of an action sufficient to afford him the opportunity to respond. (1) In this context, the scheduling of a summary judgment hearing is actually more significant than the occurrence of the hearing because the hearing date determines the deadline for any response to the motion-and oral testimony cannot be adduced at the hearing. Tex. R. Civ. P. 166a(c). In this case, Forrester stated categorically through affidavit that he did not have notice of any date of hearing on the summary judgment. This is supported by the record, because the attachment to Oil Con.'s Motion for Summary Judgment which would contain a date for the hearing is blank. Forrester did not appear at the summary judgment hearing, and he did not file or seek to late-file a response to the Motion for Summary Judgment. Further, Oil Con. did not file any response to Forrester's Motion for New Trial or make any effort to rebut his claim that he had no notice of the setting of a hearing date on the Motion for Summary Judgment. No hearing was held on the Motion for New Trial. Thus, the only evidence before this court is Forrester's affidavit attached to his Motion for New Trial. Determining whether to grant or deny a motion for new trial is a matter which falls within the sound discretion of the trial judge. Bank One, Texas, N.A. v. Moody, 830 S.W.2d 81, 85 (Tex. 1992); Strackbein v. Prewitt, 671 S.W.2d 37, 38 (Tex. 1984). Although the trial judge's decision will not be disturbed absent an abuse of discretion, Strackbein, 671 S.W.2d at 38, we treat the trial judge's application of law to the facts with less deference than we do the judge's findings of fact. Greiner v. Jameson, 865 S.W.2d 493, 498 (Tex. App.-Dallas 1993, writ denied). The trial judge does not have unbridled discretion to decide a motion for new trial, but instead must rely on guiding rules and principles in reaching his or her decision. Mosser, 893 S.W.2d at 10. Because the record establishes that Forrester had neither actual nor constructive notice of the summary judgment hearing, and in the absence of any appearance of waiver, we conclude that the trial court abused its discretion by failing to grant a new trial. We reverse the trial court's judgment and remand the case for further proceedings. Ben Z. Grant Justice Date Submitted: November 5, 2001 Date Decided: November 6, 2001 Do Not Publish 1. Reaching the same conclusion: Martin v. Martin, Martin & Richards, Inc., 991 S.W.2d 1, 14 (Tex. App-Fort Worth 1997), rev'd on other grounds, 989 S.W.2d 357 (Tex. 1998); Guinn v. Zarsky, 893 S.W.2d 13 (Tex. App.-Corpus Christi 1994, no writ) (agreeing with the reasoning, but distinguishing because the argument was waived below).