
Opinion issued May 5, 2015
                                    [pic]

                                   In The

                              Court of Appeals

                                   For The

                           First District of Texas


                                ------------


                    NOS. 01-14-00409-CV & 01-14-00412-CV


                                 -----------

                          William Ready, Appellant

                                     V.

                    Alpha Building Corporation, Appellee

                                     AND

                          William Ready, Appellant

                                     V.

                          Michael Douglas, Appellee


                   On Appeal from the 506th District Court
                            Waller County, Texas
              Trial Court Case Nos. 12-10-21659 & 12-10-21659-B



                                O P I N I O N

      William  Ready  appeals  the  trial  court's  order  granting  summary
judgment in favor  of  appellees  Alpha  Building  Corporation  and  Michael
Douglas. In a single issue in each of these related  appeals,  Ready  argues
that the trial  court  erred  by  granting  the  summary  judgments  without
allowing him the opportunity to  respond.  Because  the  submission  notices
stated merely that the summary-judgment motions would be  submitted  "after"
specified dates, Ready contends that he had  no  notice  of  the  submission
dates. We conclude that the submission notices did not  inform  Ready  of  a
date certain for submission of  either  motion,  and  therefore  he  had  no
notice of the date his responses  were  due.  Accordingly,  we  reverse  the
trial court's judgments as to both Alpha Building  and  Douglas  and  remand
both cases to the trial court.
                                 Background
      Michael Douglas worked  for  Alpha  Building,  which  subcontracted  a
portion  of  a  construction  project  to  William  Ready.  During  a  final
walkthrough, Douglas and Ready argued about whether the  work  was  properly
completed. Ready alleges that this argument ended with Douglas punching  him
in the face, causing serious injury that required medical  attention.  Ready
later sued Douglas and Alpha Building for assault and battery.
      Both defendants filed motions for summary  judgment.  On  October  15,
2013, Alpha Building  filed  its  traditional  and  no-evidence  motion  for
summary judgment. The company argued that as a matter of law  it  could  not
be held responsible for Douglas's intentional  assaultive  action.  It  also
argued that Ready had no evidence that it negligently  hired,  retained,  or
supervised Douglas. The notice of submission stated  that  this  motion  had
been set "for submission  on  the  11th  day  of  November,  2013,"  and  it
requested an oral hearing at the court's convenience. Ready did not  file  a
response to this motion, and the trial court  granted  it  on  November  15,
2013.
      Ready filed a motion for  new  trial  in  which  he  argued  that  the
submission date of November  11  did  not  comply  with  the  trial  court's
"Submission Guidelines and Procedures,"  which  required  a  minimum  of  30
days' notice of setting summary-judgment motions for submission.  The  trial
court granted the motion for new trial.
      Meanwhile, on December 9, 2013, Douglas filed his traditional and  no-
evidence motion for summary judgment on the grounds that (1)  Ready's  claim
failed as a matter of law because his failure to designate  medical  experts
precluded a finding of damages and (2) there was no evidence  of  actual  or
exemplary damages. Douglas filed a notice of  submission  stating  that  his
motion would be  submitted  "without  a  hearing  after  January  8,  2014."
Similarly, Alpha Building filed a new  notice  of  submission  which  stated
that its traditional and no-evidence motion for summary  judgment  would  be
submitted "without a hearing after February 7, 2014." Ready did not  respond
to either motion, and both motions were granted.
      Ready filed motions for new trial arguing that he had no notice of the
submission dates for either motion due to the  indefinite  language  in  the
notices and the court's failure to inform him that it had set either  motion
for submission on a specific date. The trial court denied  the  motions  for
new trial, and Ready appealed.
                                  Analysis
      Ready raises the same issue in each appeal, arguing that a  notice  of
submission of a motion for summary judgment that states only a date  "after"
which it will be submitted does not comply with the  Texas  Rules  of  Civil
Procedure. See Tex. R.  Civ.  P.  166a(c).  He  thus  challenges  the  trial
court's rendition of summary judgment because the notices failed to  specify
a submission date, depriving him the opportunity to timely file a  response.
Douglas's notice stated that his motion would be submitted  "after"  January
8, 2014. Alpha Building's notice stated that its motion would  be  submitted
"after" February 7, 2014.
   I. Preservation of error
      Douglas portrays  this  appellate  issue  as  an  "adequacy-of-notice"
challenge and argues that Ready waived it by failing to raise  it  with  the
trial court prior to the summary judgment. Alpha Building  makes  a  similar
argument, relying on Carpenter  v.  Cimarron  Hydrocarbons,  98  S.W.3d  682
(Tex. 2002). In Carpenter, the plaintiff failed to  timely  respond  to  the
defendants' motion for summary judgment. 98 S.W.3d  at  683.  The  plaintiff
moved for a continuance of the summary-judgment hearing and sought leave  to
file an untimely response. Id. The  trial  court  denied  both  motions  and
granted summary judgment in favor of the defendants. Id.
      On appeal, the plaintiff argued that the summary  judgment  should  be
treated like a default judgment and should be reviewed under  the  equitable
standard enunciated in Craddock v. Sunshine Bus Lines,  134  Tex.  388,  133
S.W.2d 124 (1939). In Craddock, the Supreme Court held that  a  trial  court
should set aside a default judgment when the defendant shows  that  (1)  the
failure  to  answer  was  not  intentional  or  the  result   of   conscious
indifference, but the result of an accident or mistake, (2) the  motion  for
new trial sets up a meritorious defense, and (3)  granting  the  motion  for
new trial will not cause undue delay  or  otherwise  injure  the  plaintiff.
Craddock, 133 S.W.3d at 126. This rule has been extended to motions for  new
trial filed after post-answer default judgments as  well.  Ivy  v.  Carrell,
407 S.W.2d 212, 214 (Tex. 1966).
      The plaintiff in Carpenter sought to extend the rule further and urged
its application when the trial court grants  a  summary-judgment  motion  to
which the nonmovant has not timely responded. Carpenter, 98 S.W.3d  at  686.
But in that case, the plaintiff had notice of the  summary-judgment  hearing
and had moved for a continuance and sought leave to file  a  late  response.
Id. at 684-85. The Supreme Court explained that the  Craddock  standard  was
intended "to alleviate unduly harsh and unjust results at a  point  in  time
when the defaulting party has no other remedy available." Id.  at  686.  The
Court held that Craddock  did  not  apply  to  the  situation  presented  by
Carpenter: i.e., the nonmovant had notice of the  summary-judgment  hearing,
failed to timely respond to the motion,  and  had  an  opportunity  to  seek
relief under Rule 166a prior to  the  trial  court's  rendition  of  summary
judgment. Id. Thus, in Carpenter,  the  plaintiff's  recourse  was  to  seek
appellate review of the trial court's  rulings  under  the  usual  abuse-of-
discretion standard. Id.
      This court considered a similar situation in Viesca v. Andrews, No. 01-
13-00659-CV, 2014 WL 4260355 (Tex. App.-Houston [1st Dist.] Aug.  28,  2014,
no pet.) (mem. op.), in  which  the  plaintiff  moved  for  partial  summary
judgment based on deemed admissions. Viesca, 2014 WL  4260355,  at  *1.  Her
notice of submission showed that the motion was set for a premature  hearing
date. Id.  The  defendants  agreed  that  they  received  this  notice.  Id.
However, the  notice  of  submission  of  the  motion  for  partial  summary
judgment was revised  twice  before  the  court  ruled  on  the  plaintiff's
motion. Id. at *2. The defendants contended that they did  not  receive  the
revised notices. Id. In its order granting  partial  summary  judgment,  the
trial court specifically stated that the defendants did not respond  to  the
motion  for  summary  judgment  or  the  plaintiff's  request   that   their
unanswered requests for admissions be deemed. Id.
      After obtaining a favorable partial summary  judgment,  the  plaintiff
abandoned her remaining claims and moved for entry of  final  judgment.  Id.
The defendants agreed that they  received  notice  of  the  hearing  on  her
motion for entry of final judgment.  Id.  They  did  not  file  a  response,
attend the hearing,  request  reconsideration  of  the  motion  for  summary
judgment, or move to withdraw the deemed admissions. Id. A month  after  the
trial  court  granted  final  judgment  in  favor  of  the  plaintiff,   the
defendants filed a motion for new trial, which the trial court  denied.  Id.
A subsequent motion for new trial was denied by operation of law. Id.
      On appeal, the defendants argued that the judgment should be  reversed
due to the erroneous notice of hearing on the motion for  summary  judgment.
Id. at *3. This court considered whether the defendants had an argument  for
withdrawing their deemed admissions and whether they  had  pursued  it.  Id.
The defendants had notice  of  both  the  initial  hearing  on  the  summary
judgment and the hearing on the motion for entry of judgment. Id.  Yet  they
did not challenge the deemed admissions until after the trial court  entered
final judgment. Id. at * 5. This court concluded that, on those  facts,  the
defendants waived their argument about the deemed admissions. Id.
      The court then considered  the  defendants'  argument  about  lack  of
proper notice of the hearing on the motion for summary judgment. Id. at  *6.
It held that the alleged error in the notice of hearing on  the  motion  for
partial  summary  judgment  had  been  waived  because  the  defendants  had
"several opportunities to  bring  the  allegation  of  error  to  the  trial
court's attention before final judgment was entered, yet failed to  do  so."
Id.
      In a sur-reply brief, Douglas asserts that Viesca controls the outcome
in this case. Although Ready has focused  his  appellate  challenge  on  the
lack of notice of a date certain for the summary-judgment  hearing,  Douglas
contends that the issue is  more  properly  understood  as  a  challenge  to
inadequate notice. He reasons that his notice which specified submission  of
his motion "after January 8," effectively set  the  date  of  submission  on
January 8 and fixed a due date for Ready's response. Thus, he contends  that
Ready's failure to respond, move for a continuance,  or  seek  clarification
of the hearing date waived his complaint about notice.
      We  disagree  that  Ready's  complaint  is  inadequate   notice.   The
defendants in Viesca were notified of a date  certain  of  submission  which
did not afford them the full time for responding as provided  by  the  Rules
of Civil Procedure. Ready's complaint is that he was  not  informed  of  any
date certain for submission of the  motion  for  summary  judgment.  Douglas
suggests that Ready should have preserved his claim of error by raising  the
defective  notice  with  the  trial  court.  But   implicit   in   Douglas's
suggestions about how Ready should have responded-filing a response,  moving
for continuance,  or  seeking  clarification  of  the  hearing  date-is  the
presumption that Ready should have  taken  all  these  steps  prior  to  the
court's ruling on the motion for summary judgment.
      Ready's contention is not that he had less than 21 days'  notice,  but
that he had no notice at all of the date of submission.  The  defendants  in
Viesca passed up several opportunities to raise  their  complaint  with  the
trial court, but Ready did not. The summary judgments granted in  this  case
were  severed  for  the  purpose  of  enabling  them  to  become  final  and
appealable. Ready raised his complaints about lack of notice  of  a  certain
submission date in a motion for  new  trial  that  he  filed  promptly  upon
learning of the trial court's  ruling.  We  conclude  that  his  issues  are
preserved. See Viesca, 2014 WL 4260355, at *6.
  II. Adequacy of notice
      As to the merits of the appeals, Ready  argues  that  the  notices  of
submission were too indefinite  to  comply  with  Rule  166a.  Because  they
merely stated that the motions would be submitted "after"  a  certain  date,
Ready contends that they gave him  no  indication  of  the  actual  date  of
submission, and without a date certain he was unable to calculate due  dates
for his responses. Thus Ready challenges the trial court's  orders  granting
the motions for  summary  judgment,  which  we  review  de  novo.  See  Mann
Frankfort Stein & Lipp Advisors, Inc.  v.  Fielding,  289  S.W.3d  844,  848
(Tex. 2009).
      The notice provisions associated with summary-judgment procedure under
Rule 166a are strictly construed. See, e.g., Nexen Inc. v.  Gulf  Interstate
Eng'g Co., 224 S.W.3d 412, 423 n.14 (Tex. App.-Houston [1st Dist.] 2006,  no
pet.); Moore v. Univ. of Houston-Clear Lake, 165 S.W.3d 97,  100  n.4  (Tex.
App.-Houston [14th Dist.]  2005,  no  pet.);  Chadderdon  v.  Blaschke,  988
S.W.2d 387, 388 (Tex. App.-Houston [1st Dist.] 1999,  no  pet.).  Notice  of
hearing for  submission  of  a  summary-judgment  motion  is  mandatory  and
essential to due process. See Tex. R. Civ. P.  166a(c);  Martin  v.  Martin,
Martin & Richards, Inc., 989 S.W.2d 357, 359 (Tex. 1998); Rorie v.  Goodwin,
171 S.W.3d 579, 583 (Tex. App.-Tyler 2005, no pet.); Clemons v. Denson,  981
S.W.2d 941, 944 (Tex. App.-Houston [1st Dist.] 1998, pet.  denied).  "Except
on leave of 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." Tex. R. Civ. P. 166a(c).  Similarly,
except with the trial court's permission, the nonmovant must file and  serve
its written response and opposing affidavits  "not  later  than  seven  days
prior to the day of hearing." Id.
      Rule 166a is designed to ensure that the nonmovant  has  some  minimum
notice of the time of hearing. See Lewis  v.  Blake,  876  S.W.2d  314,  315
(Tex. 1994). Because the hearing date determines the time  for  response  to
the motion, without notice of the date of the hearing, the nonmovant  cannot
know when the response is due. See Martin, 989 S.W.2d  at  359;  Rorie,  171
S.W.3d at 583. "The failure to give notice of  the  submission  date  for  a
motion for summary judgment constitutes error." Aguirre v. Phillips  Props.,
Inc., 111 S.W.3d 328, 332  (Tex.  App.-Corpus  Christi  2003,  pet.  denied)
(citing Martin, 989 S.W.2d at 359).
      Both Douglas and Alpha Building take the  position  that  each  notice
specified a date for submission of each respective  motion.  Douglas  argues
that because his notice stated that submission would be  "after  January  8,
2014," Ready knew that January 9 was the "first day the  trial  court  could
rule by submission." Alpha Building argues that because  its  notice  stated
that the motion would be submitted "after February 7,  2014,"  Ready  should
have construed the notice to specify February 7 as the date  of  submission.
Alpha Building contends that the date of submission was  "clearly"  "at  the
earliest February 7, 2014." We do not agree that this is a proper method  to
provide the necessary notice of a submission date.
      Neither submission notice informed Ready of the  date  of  submission,
and as such, neither permitted him to determine when his  response  is  due.
The appellees'  interpretation  of  Rule  166a  inverts  the  rule's  timing
mechanism. Reflecting the reality that the submission of a  summary-judgment
motion is often  continued  to  allow  further  discovery  to  facilitate  a
response, the deadline to file a response hinges  on  the  submission  date.
The nonmovant is not required to respond until  7  days  before  submission,
and it may utilize all of the intervening time to prepare the response.  The
appellees' interpretation deprives nonmovants of the full  measure  of  time
permitted under the rule for the preparation of a response  by  forcing  the
filing of a response in the face of an uncertain actual submission date.
      A similar circumstance was presented in Rorie v. Goodwin,  171  S.W.3d
579 (Tex. App.-Tyler 2005, pet. denied). The defendant filed  a  motion  for
summary judgment on August 7, which stated that  the  "date  of  submission"
was also August 7, and that the court would "consider" the  motion  "by  way
of a hearing on or after September 6,  2003."  Rorie,  171  S.W.3d  at  582.
Rorie did not respond, and the  trial  court  granted  summary  judgment  on
September 15. Id. Rorie moved for a new trial, arguing that the  motion  did
not comply with Rule 166a because it did  not  "state  a  specific  date  of
submission or hearing." Id. The  trial  court  denied  the  motion  for  new
trial, and Rorie appealed. Id. The  court  of  appeals  explained  that  the
"indefinite language" in the motion did not  inform  Rorie  "of  a  specific
submission or hearing date." Id. at 584. Therefore, no deadline for  Rorie's
response was ever established. Id. Accordingly, the  trial  court's  summary
judgment did not comply with Rule 166a. See id. In addition,  the  court  of
appeals held that because the record showed that Rorie was not provided  the
required notice, he was not obligated to present a  meritorious  defense  in
order to show his entitlement to a new trial. Id. (citing  Lopez  v.  Lopez,
757 S.W.2d 721, 723 (Tex. 1988)).
      Here, neither the notice  from  Douglas  nor  the  notice  from  Alpha
Building stated a specific submission or hearing date. Both  notices  stated
that the motion  would  be  submitted  "after"  a  date  certain,  but  that
indefinite language did not inform Ready of a specific  submission  date  or
establish a deadline for his  response.  Therefore,  we  conclude  that  the
trial court's summary judgment did not comply with Rule 166a(c). See  Rorie,
171 S.W.3d at 584.  We  hold  that  the  court  erred  by  granting  summary
judgment in favor of Douglas and Alpha Building.
      We sustain Ready's sole issue in each appeal.
                                 Conclusion
      We reverse the summary judgments of the trial court as to Douglas  and
Alpha Building, and we remand these cases to the  trial  court  for  further
proceedings.


                                        Michael Massengale
                                        Justice

Panel consists of Justices Keyes, Bland, and Massengale.

