Opinion
No. 05-04-01552-CV
Opinion Filed July 27, 2005.
On Appeal from the 160th Judicial District Court, Dallas County, Texas, Trial Court Cause No. 03-07058-H.
Affirm.
Before Justices O'NEILL, RICHTER and FRANCIS.
MEMORANDUM OPINION
Ronald and Sheryll Allday sued State Farm Lloyds, an insurance company, and Jason Divin, one of its agents, (hereafter State Farm) regarding the denial of their insurance claim for structural and cosmetic damage to their home. The trial court granted State Farm's two motions for summary judgment and ordered the Alldays take nothing by their suit. After their motion for new trial was denied, the Alldays filed a notice of appeal. On appeal, the Alldays argue the notice for the August 11, 2004 summary judgment hearing was defective. We affirm the trial court's judgment.
I. Factual Background
State Farm filed two motions for summary judgment: the April 9, 2004 motion for summary judgment as to limitations and the May 18, 2004 motion for summary judgment on plaintiffs' fraud and civil conspiracy claims. Each motion contained a certificate of service. Thereafter, State Farm's counsel served Alldays' counsel with two letter notices regarding the hearings for summary judgment. The letter notices were dated July 13, 2004 and were identical, but for the date of the hearing. The letter notice regarding the summary judgment motion on plaintiffs' fraud and civil conspiracy claims stated the hearing was set for August 10, 2004 at 9:00 a.m. The letter notice regarding the summary judgment motion as to limitations stated that the hearing was set for August 11, 2004 at 9:00 a.m. Each letter notice named the case style and case number and the trial court. Each letter indicated it was sent to Alldays' counsel via facsimile and regular mail and was sent to the court via regular mail. Each letter was printed on the letterhead of State Farm's counsel and was signed by State Farm's counsel.
All parties were represented at the August 10, 2004 hearing on the motion for summary judgment on the fraud and civil conspiracy claims. After the trial judge announced his ruling he stated he would see the parties the next day. At that time, Alldays' counsel, Mr. Boyd, indicated that he preferred the court to hear the motion for summary judgment as to limitations, set for August 11, 2004, right then. The record before this Court indicates that the following exchange took place between the court, Alldays' counsel, Mr. Boyd and State Farm's counsel, Mr. De Diego.
THE COURT: Fine, then we'll see you tomorrow morning.
MR. BOYD: It's the same issue, I think you can probably rule on it right now.
MR. DE DIEGO: Are you waiving notice for doing it today?
MR. BOYD: It's the exact same issue.
MR. DE DIEGO: It is the same issue as far as notice is concerned, but there is the additional issue of the limitations that applies to the causes of action that were put back into the case after the amendment of the pleadings deadlines had past.
THE COURT: Did you file summary judgment, or what did you file?
MR. DE DIEGO: We filed a motion for summary judgment based on limitations on all of the extra contractual causes of action except for, you know, a couple.
THE COURT: Let me just ask this, Mr. Boyd. What do you want to do?
MR. BOYD: I would rather have it right now because it's the same issue.
THE COURT: So you agree to the hearing now?
MR. BOYD: I agree to that.
Thereafter, the trial court granted State Farm's motions for summary judgments and dismissed all of the Alldays' claims. The Alldays filed a motion for new trial wherein they admitted that "on the 13th day of July, 2004, Plaintiffs' counsel was served by facsimile the Defendants' letter advising Plaintiffs that Defendants' Motion for Summary Judgment had presumably been set on August 11, 2004." The motion for new trial was denied. On appeal, the Alldays only assert that the letter notice of the August 11, 2004 hearing was defective.
Sole Issue on Appeal
The Alldays admit they received the July 13, 2004 letter notice of the August 11, 2004 hearing. The Alldays do not raise a violation of their due process rights under the Fourteenth Amendment. Rather their sole issue on appeal is that the letter notice did not "strictly comply" with civil procedure rules 21 and 21a.
Lack of sufficient notice in a summary judgment proceeding is not a jurisdictional defect. Nguyen v. Short, How, Frels Heitz, P.C., 108 S.W.3d 558, 560 (Tex.App.-Dallas 2003, pet. denied). Here Alldays' counsel admits that he received notice, was present at the hearing and agreed to hear the second motion for summary judgment the day before it was set to be heard. Alldays' sole issue on appeal regarding a defect in the form of the notice is without merit and was waived by counsel when he agreed to hear the motion on August 10, 2004.
Conclusion
We resolve Alldays' sole issue against them. We affirm the trial court's judgment.