Affirmed and Memorandum Opinion filed June 10, 2014.




                                      In The

                    Fourteenth Court of Appeals

                              NO. 14-12-01159-CV

     KATRINA BURNETT AND FREDERICK BURNETT, Appellants
                                        V.
     CARNES FUNERAL HOME, INC. AND CREMATE TEXAS, INC.,
                        Appellees

                    On Appeal from the 55th District Court
                            Harris County, Texas
                      Trial Court Cause No. 2011-10488

                 MEMORANDUM                     OPINION
      Appellants Katrina Burnett and Frederick Burnett appeal from the trial
court’s dismissal of their lawsuit against appellees Carnes Funeral Home, Inc. and
Cremate Texas, Inc. for want of prosecution.        In their appeal, the Burnetts
challenge not only the trial court’s dismissal order, but also the granting of a
motion for partial summary judgment and the striking of their expert witnesses. In
response, appellees contend the Burnetts’ appeal is frivolous and ask this court to
assess sanctions against the Burnetts as a result. While we overrule the Burnetts’
issue on appeal and affirm the trial court’s challenged orders, we conclude that the
Burnetts’ appeal is not objectively frivolous and deny appellees’ request for
sanctions.

                                     BACKGROUND

       Fred Wood was the Burnetts’ father.             The Houston Fire Department
discovered an unresponsive Mr. Wood, who had multiple open bed sores, lying in
a bed in his own waste.1 Mr. Wood was taken to the hospital where he died the
next day. The hospital social worker informed the Burnetts that if she referred
their father to Harris County for indigent burial, his remains would be cremated.
The Burnetts were unaware of their father’s burial wishes and they had made no
arrangements themselves for his burial. The Burnetts told the social worker to go
forward with the referral to Harris County. Appellees cremated Mr. Wood soon
thereafter.

       The procedural history of this case is crucial to understand the issues raised
on appeal, so we recite it in some detail. In 2009, the Burnetts sued appellees for
their handling of Mr. Wood’s corpse. The Burnetts alleged causes of action for
negligence, gross negligence, breach of contract, breach of fiduciary duty,
intentional infliction of emotional distress, and malice. Appellees eventually filed
a traditional and no-evidence motion for partial summary judgment on all of the
Burnetts’ causes of action except negligence. The Burnetts voluntarily non-suited
their lawsuit before the hearing on the motion occurred.

       Asserting the same causes of action, the Burnetts re-filed their lawsuit

       1
         Due to the nature of the Burnetts’ appeal, we include only the background facts
necessary to understand the arguments raised in the appeal and to apprise the parties of the
Court’s decision and the reasons for that decision.

                                             2
against appellees in 2011. Appellees once again filed a traditional and no-evidence
motion for partial summary judgment (the Motion) on all of the Burnetts’ causes of
action except negligence. Appellees set their Motion for submission on August 15,
2011. The Burnetts’ response and any summary judgment evidence they wished to
submit for the trial court’s consideration were due no later than August 8. The
Burnetts did not file a summary judgment response or a motion seeking a
continuance of the submission of appellees’ Motion. On August 9, however, the
Burnetts did file a request for an oral hearing on appellees’ Motion “as soon as
possible.” The trial court did not grant the request for an oral hearing.

      On September 9, the trial court signed an order granting appellees’ Motion,
thereby dismissing the Burnetts’ gross negligence, breach of contract, breach of
fiduciary duty, and intentional infliction of emotional distress causes of action as
well as their claims for mental anguish and exemplary damages. In granting
appellees’ Motion, the trial court observed that the Burnetts filed no response other
than a request for an oral hearing.

      On February 15, 2012, the trial court set the remainder of the Burnetts’ case
for trial during the two-week period beginning April 9, 2012. The parties were
then notified that the case was set for trial on April 12, 2012.

      On April 11, 2012, more than seven months after the trial court had granted
appellees’ Motion and on the eve of trial, the Burnetts filed a motion to vacate the
partial summary judgment. Included in the motion to vacate was a request that the
trial court “deem the expert witness designation filed in the [non-suited] 2009
Action as applicable” to the 2011 case. It was in this motion to vacate that the
Burnetts first informed the trial court that their attorney had filed a motion to
continue the submission of appellees’ Motion but had inadvertently filed under the



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cause number for the non-suited 2009 lawsuit.2 The Burnetts also informed the
trial court that their attorney had filed a vacation letter allegedly covering the
period from August 8 through August 19, 2011. The Burnetts argued that pursuant
to Rule 11.1 of the Rules of the Civil Trial Division for Harris County, this
vacation letter protected their attorney from having to engage in any pretrial
proceedings during the referenced time period, including filing a summary
judgment response. They also argued the vacation letter prohibited the submission
of appellees’ Motion during that time period. In response to the motion to vacate,
the trial court continued the April 12, 2012 trial setting, but kept the case on the
same two-week docket.

          The next day, the Burnetts filed an unverified motion for continuance of the
trial that included a request for the entry of a new docket control order establishing
new deadlines for discovery, including the designation of expert witnesses. On
April 18, 2012, the trial court signed an order denying both the Burnetts’ motion to
vacate the partial summary judgment and their request to use the expert witness
designation filed in the non-suited 2009 lawsuit. The trial court also ordered that
the trial would be reset “as soon as possible.” A few days later, the trial court
signed an order resetting the trial to the two-week docket beginning on June 4,
2012. The trial court also ordered that all previous pre-trial deadlines remained in
effect.

          On May 25, 2012, the Burnetts filed a motion to reconsider the partial
summary judgment granted by the trial court. For the first time, the Burnetts
included a substantive response to appellees’ Motion that had been filed nearly a
year before. While this motion to reconsider was still pending, the trial court reset

          2
        This motion for continuance that was allegedly filed in the non-suited 2009 lawsuit does
not appear in the appellate record.

                                               4
the trial to the two-week docket commencing October 29, 2012. The trial court
also ordered the parties to appear for docket call on October 22, 2012. On July 9,
2012, the trial court denied the Burnetts’ motion to reconsider and also struck their
late-filed summary judgment response. The trial court also awarded $500 in
attorneys’ fees to appellees as sanctions.

      The Burnetts did not appear at the October 22 docket call. Days later, the
trial court dismissed the Burnetts’ case for want of prosecution. The Burnetts
timely filed a “Motion to Reinstate and for New Trial” and a supplement to that
motion. Regarding their absence from the docket call, the Burnetts stated, without
further explanation, that their attorney was “unavoidably detained elsewhere.” The
Burnetts set their motion to reinstate for an oral hearing on December 17, 2012.
The Burnetts did not appear at the scheduled oral hearing. The trial court denied
the Burnetts’ motion to reinstate and this appeal followed.

                                      ANALYSIS

      The Burnetts bring a single issue on appeal challenging the trial court’s
various orders. Because the Burnetts’ make multiple arguments within that single
issue, we construe each argument as a separate issue on appeal.

I.    The trial court did not err when it granted appellees’ motion for partial
      summary judgment.
      The Burnetts initially argue the trial court erred when it granted appellees’
Motion because there were genuine issues of material fact. We disagree.

      A.     Standard of review

      We review the trial court’s grant of summary judgment de novo. Ferguson
v. Bldg. Materials Corp. of Am., 295 S.W.3d 642, 644 (Tex. 2009) (per curiam).
When a party moves for summary judgment on both traditional and no-evidence


                                             5
grounds, we first address the no-evidence grounds.          See Ford Motor Co. v.
Ridgway, 135 S.W.3d 598, 600 (Tex. 2004) (when the non-movant fails to produce
legally sufficient evidence to meet its burden as to the no-evidence motion, there is
no need to analyze whether the movant satisfied its burden under the traditional
motion).

      In a no-evidence motion for summary judgment, the movant must
specifically state the elements as to which there is no evidence.         Walker v.
Thomasson Lumber Co., 203 S.W.3d 470, 473–74 (Tex. App.—Houston [14th
Dist.] 2006, no pet.). The trial court must grant the motion unless the non-movant
files a response producing summary judgment evidence raising a genuine issue of
material fact on each of the challenged elements. Tex. R. Civ. P. 166a(i); see San
Saba Energy, L.P. v. Crawford, 171 S.W.3d 323, 328 (Tex. App.—Houston [14th
Dist.] 2005, no pet.) (“A no-evidence summary judgment must be granted if the
party opposing the motion does not respond with competent summary judgment
evidence that raises a genuine issue of material fact.”).

      B.     Because the Burnetts did not timely file a response to the Motion,
             the trial court did not err when it granted the Motion.
      On July 21, 2011, appellees filed their Motion seeking the dismissal of most
of the Burnetts’ causes of action on both traditional and no-evidence grounds. The
Motion identified the elements of the Burnetts’ claims as to which appellees
contended there was no evidence. The Motion was set for submission on August
15, 2011, so the Burnetts had until August 8 to file a response. See Tex. R. Civ. P.
166a(c) (“Except on leave of court, the [non-movant], not later than seven days
prior to the date of the [submission] may file and serve opposing affidavits or other
written response.”).

      It is uncontested that the Burnetts did not file a response to the Motion by

                                           6
the deadline. Nor did they seek leave to file a late response or file a motion for
continuance.3     The Burnetts’ “failure to respond is fatal to [their] ability to
successfully assert on appeal that the trial court erred in granting the [no-evidence
motion for summary judgment].” Transcon. Ins. Co. v. Briggs Equip. Trust, 321
S.W.3d 685, 692 (Tex. App.—Houston [14th Dist.] 2010, no pet.). Because no
response raising a genuine issue of material fact was filed on or before the August
8 deadline, the trial court was required to grant appellees’ Motion. See Tex. R.
Civ. P. 166a(i); Transcon. Ins. Co., 321 S.W.3d at 692. Therefore, we hold the
trial court did not err when it granted appellees’ Motion.

II.    The trial court did not abuse its discretion when it refused to vacate the
       partial summary judgment.
       In their next issue, the Burnetts contend the trial court abused its discretion
when it denied their motion to vacate the partial summary judgment.

       A.     Standard of review

       After a trial court grants a summary judgment motion, it is generally under
no obligation to consider further motions on the issues adjudicated by the summary
judgment. Macy v. Waste Mgmt., Inc., 294 S.W.3d 638, 651 (Tex. App.—Houston
[1st Dist.] 2009, pet. denied). The standard of review for the denial of a motion to
reconsider a prior summary judgment is whether the trial court abused its
discretion. Id.

       B.     The trial court did not reschedule the submission date of
              appellees’ Motion.
       The Burnetts initially contend the trial court erred by rescheduling the
submission date of appellees’ Motion without notifying the parties. Given that
       3
        Appellants claim to have inadvertently filed a motion for continuance in the non-suited
2009 lawsuit. But the alleged motion for continuance is not contained in the appellate record, so
we do not consider it. See Tex. R. App. P. 34.1.
                                               7
they lacked notice of the purported new submission date, the Burnetts assert that
the order granting partial summary judgment based on that Motion must be
vacated, and the trial court abused its discretion by failing to do so. Because we
conclude the trial court did not reschedule the submission date, we disagree.

      In support of their argument that the trial court abused its discretion, the
Burnetts rely completely on the undisputed fact that the trial court waited three
weeks after the submission date to rule on appellees’ Motion. The Burnetts do not
point to anything in the record, however, establishing that the trial court
rescheduled the submission date from August 15, 2011. In addition, they do not
cite any legal authority for the proposition that not ruling on a motion for summary
judgment on the actual day it was submitted and instead granting the motion on a
later date constitutes a rescheduling of the submission date, requiring the court to
provide notice of a new submission date to the parties. Finally, the Burnetts do not
dispute that they had proper notice of the original submission date for appellees’
Motion.

      We conclude the trial court did not reschedule the submission date for
appellees’ Motion, and therefore committed no error when it granted the Motion
three weeks after the submission date. See Owen Elec. Supply, Inc. v. Brite Day
Const., Inc., 821 S.W.2d 283, 288 (Tex. App.—Houston [1st Dist.] 1991, writ
denied) (“The fact that the final summary judgment was granted a number of
months after the original submission date does not constitute error when, as here,
all parties had proper notice of the original submission date.”). We also conclude
the trial court did not abuse its discretion when it refused to vacate the partial
summary judgment on this basis. We overrule this issue on appeal.




                                         8
III.   The trial court did not abuse its discretion when it refused to vacate the
       partial summary judgment based on trial counsel’s vacation letter.
       The Burnetts begin their next issue by asserting their attorney had a vacation
letter on file with the Harris County District Clerk covering August 15, 2011, the
submission date for appellees’ Motion.4 The Burnetts go on to argue that the
vacation letter protected their attorney from having to file a response to appellees’
Motion and prohibited the trial court from submitting the Motion on August 15.5
They contend the trial court erred when it failed “to grant the continuance from the
submission [of appellees’ Motion on] August 15, 2011 based on the vacation letter
filed by [the Burnetts’] counsel.”        They also assert the trial court abused its
discretion when it refused to vacate the partial summary judgment on this basis.

       The Burnetts admit that they did not file a motion for continuance in the
2011 case asking the trial court to postpone the submission of appellees’ Motion.
Although they filed such a motion in the non-suited 2009 case, the record does not
reflect that the motion or the vacation letter were timely brought to the trial court’s
attention. We therefore hold they have not established that the trial court erred
when it granted appellees’ Motion or that it abused its discretion when it denied
their motion to vacate the partial summary judgment based on the vacation letter.
See Risner v. McDonald’s Corp., 18 S.W.3d 903, 909 (Tex. App.—Beaumont
2000, pet. denied) (refusing to conclude that trial court erred when it allegedly
denied party’s motion for continuance because record did not indicate that motion
was ever brought to its attention or that it ruled on the motion if it was);

       4
         Rule 11.1 of the Rules of the Harris County Civil District Courts provides that “an
attorney may designate . . . four weeks of vacation during a calendar year as vacation, during
which that attorney will not be assigned to trial or required to engage in any pretrial
proceedings.”
       5
         Because it is not necessary to the disposition of this appeal, we express no opinion
regarding the Burnetts’ assertions about the effect of the vacation letter.

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Greenstein, Logan & Co. v. Burgess Mktg., Inc., 744 S.W.2d 170, 179 (Tex.
App.—Waco 1987, writ denied) (“A court is not required to consider a motion that
is not called to its attention.”). Moreover, the trial court was within its discretion
to deny the Burnetts’ motion to vacate given that it did not include a substantive
response addressing appellees’ grounds for summary judgment. We therefore
overrule this issue.

IV.   The trial court did not abuse its discretion when it refused to reinstate
      the Burnetts’ lawsuit after it had been dismissed for want of
      prosecution.
      In their fourth issue, the Burnetts contend the trial court abused its discretion
when it refused to reinstate their lawsuit after it had been dismissed for want of
prosecution. The Burnetts assert the trial court should have granted reinstatement
because it did not provide notice of its intent to dismiss their case for want of
prosecution. Because the Burnetts failed to raise this argument in their motion to
reinstate, we conclude they have failed to preserve this argument for appellate
review. In addition, any lack of notice was cured because the Burnetts received
notice their lawsuit had been dismissed in time to file a motion to reinstate, and
they had an opportunity to be heard on that motion.

      A.     Standard of review
      When reviewing a trial court’s denial of a motion to reinstate, we apply an
abuse of discretion standard. Keough v. Cyrus USA, Inc., 204 S.W.3d 1, 3 (Tex.
App.—Houston [14th Dist.] 2006, pet. denied). A trial court abuses its discretion
when it acts in an arbitrary and unreasonable manner, or when it acts without
reference to any guiding principles. Id. (citing Beaumont Bank, N.A. v. Buller, 806
S.W.2d 223, 226 (Tex. 1991)).




                                          10
      B.     Trial courts must give parties notice of the intent to dismiss for
             want of prosecution, but any notice error was not preserved and
             in any event was cured.
      Both the Texas Rules of Civil Procedure and due process require a trial court
to provide a litigant with notice and an opportunity to be heard before the court
dismisses that litigant’s case. Tex. R. Civ. P. 165a; Keough, 204 S.W.3d at 5.
Failure to provide adequate notice of the trial court’s intent to dismiss for want of
prosecution violates due process because it deprives the party of its right to be
heard by the court. Jimenez v. Transwestern Prop. Co., 999 S.W.2d 125, 128 (Tex.
App.—Houston [14th Dist.] 1999, no pet.). Any error resulting from the lack of
notice can be cured, however, if a party receives notice of the dismissal order with
sufficient time to file a motion to reinstate, and the party has an opportunity to be
heard in connection with that motion. See id. at 128–29; Keough, 204 S.W.3d at 5.

      In this case, the parties were ordered to appear for docket call on October 22,
2012, and the case was set for trial on October 29. Neither the Burnetts nor their
attorney appeared for docket call.       As a result, the trial court dismissed the
Burnetts’ case for “failing to appear and show cause for the case to be retained . . .
.” The Burnetts argue on appeal that the trial court abused its discretion when it
denied their Motion to Reinstate and for New Trial because they were not provided
notice of the trial court’s intent to dismiss their claims for want of prosecution.

      After receiving notice of the actual dismissal order, the Burnetts timely filed
their motion to reinstate. In this motion, the Burnetts did not assert as a ground
for reinstatement that the trial court failed to provide them notice of its intent to
dismiss their case for want of prosecution. Even when they filed a supplemental
motion for reinstatement, the Burnetts still did not include lack of notice as a basis
to reinstate their lawsuit. Because the Burnetts had the opportunity to bring lack of
notice as a basis to reinstate their case to the trial court’s attention but did not do
                                          11
so, we conclude they failed to preserve this argument for appellate review. See
Tex. R. App. P. 33.1(a)(1)(A); Keough, 204 S.W.3d at 5.

       Even if the Burnetts had preserved their notice argument, they cannot show
that the trial court abused its discretion by refusing to reinstate their suit. The
Burnetts do not dispute that they received notice of the actual dismissal order.
Upon receiving that notice, the Burnetts filed a Motion to Reinstate and for New
Trial and scheduled an oral hearing on the motion. Therefore, even if the trial
court failed to provide the Burnetts with notice of its intent to dismiss their case for
want of prosecution, any error was cured when they received notice of the actual
dismissal order in time to a file a motion to reinstate with an opportunity to be
heard at a time when the trial court retained full control over the judgment.
Jimenez, 999 S.W.2d at 128–29; Keough, 204 S.W.3d at 5–6; see Harris County v.
Miller, 576 S.W.2d 808, 810 (Tex. 1979) (holding that either notice of the trial
court’s intent to dismiss or notice of the actual order of dismissal is sufficient
notice under due process requirements). Accordingly, we overrule the Burnetts’
issue based on their contention that the trial court abused its discretion when it
denied their Motion to Reinstate and for New Trial.6

V.     Appellees have not established that they are entitled to an award of just
       damages as sanctions.
       Texas Rule of Appellate Procedure 45 allows a court of appeals to award
“just damages” as a sanction if it objectively determines, after examining the
record, briefs, and other papers filed in an appeal, that the appeal is frivolous. See
Tex. R. App. P. 45; Glassman v. Goodfriend, 347 S.W.3d 772, 782 (Tex. App.—

       6
          Because we have overruled the Burnetts’ issues challenging the trial court’s partial
summary judgment and the trial court’s dismissal of their remaining cause of action based on
failure to prosecute, we need not address their issue on appeal challenging the trial court’s
striking of their expert witnesses. See Tex. R. App. P. 47.1.

                                             12
Houston [14th Dist.] 2011, pet. denied) (en banc). When deciding whether an
appeal is objectively frivolous, we review the record from the viewpoint of the
advocate and decide whether the advocate had a reasonable basis to believe the
case could be reversed on appeal. Glassman, 347 S.W.3d at 782. In addition, Rule
45 does not require that a court award sanctions after every frivolous appeal;
rather, the imposition of sanctions is a discretionary decision exercised with
prudence and caution and only after careful deliberation. Id.

      Although the Burnetts were not successful in their appeal, they did raise
substantive issues directed at the trial court’s actions that were supported by legal
authority and citations to the record. See Tex. R. App. P. 38.1. Therefore, we
conclude that the Burnetts’ appeal is not so objectively frivolous that just damages
should be imposed as sanctions under Rule 45. See Tex. R. App. P. 45.

                                   CONCLUSION

      Having overruled each argument raised in the Burnetts’ appeal, we affirm
the trial court’s partial summary judgment and the order dismissing the Burnetts’
case for want of prosecution. We deny appellees’ motion for sanctions.




                                       /s/    J. Brett Busby
                                              Justice



Panel consists of Justices McCally, Busby, and Wise.




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