Opinion issued June 10, 2014




                                      In The

                              Court of Appeals
                                     For The

                          First District of Texas
                           ————————————
                              NO. 01-13-00588-CV
                           ———————————
        STEVE MERRITT AND HEATHER MERRITT, Appellants
                                         V.
LAKE CONROE HEIGHTS PROPERTY OWNERS ASSOCIATION, INC.,
                       Appellee



                   On Appeal from the 359th District Court
                        Montgomery County, Texas 1
                    Trial Court Case No. 12-07-07193-CV



1
     The Texas Supreme Court transferred this appeal from the Court of Appeals for
     the Ninth District of Texas to this Court pursuant to its docket equalization
     powers. See TEX. GOV’T CODE ANN. § 73.001 (West 2013) (“The supreme court
     may order cases transferred from one court of appeals to another at any time that,
     in the opinion of the supreme court, there is good cause for the transfer.”).
                        MEMORANDUM OPINION

       Steve and Heather Merritt seek reversal of the trial court’s grant of summary

judgment in favor of Lake Conroe Heights Property Owners Association, Inc. (the

Association) and the denial of their motion for new trial.

       The Association sued the Merritts seeking damages and an order enjoining

the Merritts from using their property for short-term rentals in violation of certain

deed restrictions. The Association moved for summary judgment on its breach of

deed restriction claim, noticed the motion for submission without oral argument on

March 20, 2013, and mailed copies of the motion and notice to the Merritts’s

counsel by certified mail/return receipt requested on February 22, 2013. The

Merritts’s counsel did not receive the certified mail until March 13, 2013—one

week prior to the submission date. The motion was not filed with the court until the

following day, March 14, 2013.

       The Association’s motion for summary judgment was granted on March 20,

2013. The Merritts’s timely motion for new trial was overruled by operation of

law.

       The Merritts argue that the trial court’s summary judgment in favor of the

Association was error because they did not receive twenty-one days’ notice of the

motion’s submission pursuant to Rule 166a.           See TEX. R. CIV. P. 166a(c)

(governing summary judgment motions and providing that, “[e]xcept on leave of


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court, with notice to opposing counsel, the motion and any supporting affidavits

shall be filed and served at least twenty-one days before the time specified for

hearing”); see also Martin v. Martin, Martin & Richards, Inc., 989 S.W.2d 357,

359 (Tex. 1998) (per curiam) (stating that under Rule 166a “[n]otice of hearing or

submission of a summary judgment motion . . . is required” because “[t]he hearing

date determines the time for response to the motion” and “without notice of

hearing, the respondent cannot know when the response is due.”). The Association

concedes this point and asks this Court to reverse the trial court’s judgment and

remand the case for further proceedings. Because both parties are asking this

Court to reverse and remand for further proceedings, we will oblige.




                                            Jim Sharp
                                            Justice

Panel consists of Justices Keyes, Sharp, and Huddle.




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