Opinion
No. 05-20-00374-CV
03-24-2021
RHONDA HUGHES, Appellant v. MARY FRANCES HUGHES, INDIVIDUALLY AND AS ADMINISTRATRIX OF THE ESTATE OF RONALD W. HUGHES, SR., Appellee
On Appeal from the Probate Court No. 1 Dallas County, Texas
Trial Court Cause No. PR-16-01987-1
MEMORANDUM OPINION
Before Justices Partida-Kipness, Pedersen, III, and Goldstein
Opinion by Justice Partida-Kipness
In this appeal of a summary judgment order, appellant Rhonda Hughes complains the judgment should be reversed because appellee provided her only twelve-days' notice of the summary judgment hearing. Hughes waived error by failing to move for a continuance of the hearing or otherwise notify the trial court of the lack of notice at or before the hearing. Accordingly, we affirm the judgment.
BACKGROUND
Appellee filed her motion for summary judgment on January 7, 2020 and served Hughes the same day. The trial court set the hearing on the motion for January 28, 2020, at 3:00 p.m. Appellee filed a Notice of Hearing advising of the date and time of the hearing on January 16, 2020. The certificate of service on the Notice of Hearing states that appellee served the Notice of Hearing on Hughes on January 16, 2020 "via regular U.S. mail and/or the Court's e-file system." The trial court conducted the hearing as scheduled on January 28, 2020. The record and briefs are silent as to whether Hughes's counsel appeared at the hearing. The trial court signed and entered its order granting summary judgment for appellee on February 13, 2020. This appeal followed. In a single issue, Hughes asserts the judgment should be reversed and the case remanded because she did not receive a twenty-one-day notice of the hearing as required by Rule 166a(c).
ANALYSIS
Rule 166a(c) requires that both the motion for summary judgment and notice of the summary-judgment hearing be served on opposing counsel at least twenty-one days before the hearing date. TEX. R. CIV. P. 166a(c); Cardenas v. Bilfinger TEPSCO, Inc., 527 S.W.3d 391, 405 (Tex. App.—Houston [1st Dist.] 2017, no pet.). Hughes does not concede or deny that she received the Notice of Hearing before the hearing occurred. The Notice of Hearing, however, contains a certificate of service stating how and when appellee served Hughes with the Notice. A certificate by a party or an attorney of record is prima facie evidence of the fact of service. Miller v. Prosperity Bank, N.A., 239 S.W.3d 440, 442 (Tex. App.—Dallas 2007, no pet.); see Mathis v. Lockwood, 166 S.W.3d 743, 745 (Tex. 2005) ("notice properly sent pursuant to Rule 21a raises a presumption that notice was received."). The opposing party may rebut this presumption by offering proof that the notice or document was not received. Cliff v. Huggins, 724 S.W.2d 778, 780 (Tex. 1987).
Here, the record does not contain an offer of proof of non-receipt, and Hughes does not dispute on appeal that she received the Notice of Hearing. We, therefore, presume Hughes received notice of the hearing on January 16, 2020, as stated in the certificate of service. See Graham-Rutledge & Co., Inc. v. Nadia Corp., 281 S.W.3d 683, 691 (Tex. App.—Dallas 2009, no pet.); Costello v. Johnson, 680 S.W.2d 529 (Tex. App.—Dallas 1984, writ ref'd n.r.e.); Birdwell v. Texins Credit Union, 843 S.W.2d 246, 249 (Tex. App.—Texarkana 1992, no writ).
By serving the Notice of Hearing on January 16, 2020, appellee gave Hughes only twelve days' notice of the hearing. That notice did not comply with Rule 166a and was insufficient. We conclude, however, that Hughes waived her complaint of insufficient notice by failing to notify the trial court of her complaint and failing to request a continuance before the hearing.
Lack of the twenty-one-day notice of a summary judgment hearing is a non-jurisdictional defect that the nonmovant can waive. May v. Nacogdoches Mem'l Hosp., 61 S.W.3d 623, 626 (Tex. App.—Tyler 2001, no pet.). Where, as here, a party receives notice that is untimely under Rule 166a(c) but sufficient to enable the party to attend the summary judgment hearing, the party must file a motion for continuance or raise the complaint of late notice to the trial court in writing, supported by affidavit evidence, before or during the hearing. Envision Realty Grp., LLC v. Chen, No. 05-18-00613-CV, 2020 WL 1060698, at *3 (Tex. App.—Dallas Mar. 5, 2020, no pet.) (mem. op.); Nguyen v. Short, How, Frels & Heitz, P.C., 108 S.W.3d 558, 560 (Tex. App.—Dallas 2003, pet. denied); May, 61 S.W.3d at 626 (citing Rios v. Tex. Bank, 948 S.W.2d 30, 33 (Tex. App.—Houston [14th Dist.] 1997, no writ)). Although Hughes received notice of the hearing in time to object to the deficient notice or seek a continuance of the hearing, the appellate record contains no evidence that Hughes filed a motion for continuance, filed an affidavit in support of her allegation of deficient notice, or otherwise notified the trial court of her complaint before or during the summary judgment hearing. The error is, therefore, not preserved for our review. E.g., Nguyen, 108 S.W.3d at 560-61. We overrule Hughes's sole appellate issue.
CONCLUSION
Hughes waived her complaint of deficient service. Accordingly, we overrule Hughes's sole appellate issue and affirm the judgment.
/Robbie Partida-Kipness/
ROBBIE PARTIDA-KIPNESS
JUSTICE 200374F.P05
JUDGMENT
On Appeal from the Probate Court No. 1, Dallas County, Texas
Trial Court Cause No. PR-16-01987-1.
Opinion delivered by Justice Partida-Kipness. Justices Pedersen, III and Goldstein participating.
In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED.
It is ORDERED that appellee MARY FRANCES HUGHES, INDIVIDUALLY AND AS ADMINISTRATRIX OF THE ESTATE OF RONALD W. HUGHES, SR. recover her costs of this appeal from appellant RHONDA HUGHES. Judgment entered this 24th day of March, 2021.