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concluding that, although the appellant filed a summary judgment response and a motion to defer a summary judgment hearing, "those documents were filed . . . long after the trial court had granted [the summary judgment] motion" and therefore the record did not indicate that the appellant had "filed a timely summary judgment response or any post-judgment motions or requests that amount to participation in the decision-making event"
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NO. 09-12-00051-CV
09-06-2012
DAVID A. MEADOWS, Appellant v. FIA CARD SERVICES, N.A., Appellee
On Appeal from the 1st District Court
Jasper County, Texas
Trial Cause No. 31174
MEMORANDUM OPINION
FIA Card Services, N.A. ("FIA") sued David A. Meadows for breach of contract. In his answer, Meadows asserted defenses and a counterclaim. On July 29, 2011, the trial court granted FIA's traditional and no-evidence motion for summary judgment. According to Meadows, he discovered the judgment in November. In four issues, Meadows argues that he has satisfied the requirements for a restricted appeal from the summary judgment. We reverse the trial court's judgment and remand the cause for further proceedings.
In a restricted appeal, an appellant must show that: (1) he timely filed a notice of restricted appeal; (2) he was a party to the underlying lawsuit; (3) he did not participate, either in person or through counsel, in a hearing that resulted in the judgment complained of, nor timely filed a postjudgment motion or request for findings of fact and conclusions of law; and (4) error is apparent on the face of the record. Tex. R. App. P. 30; Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex. 2004). Meadows was a party to the underlying lawsuit, and he timely filed his notice of restricted appeal within six months of the trial court's judgment. See Tex. R. App. P. 26.1(c).
The nature and extent of participation depends on whether the appellant participated in "the decision-making event" that resulted in a judgment adjudicating the appellant's rights. Texaco, Inc. v. Cent. Power & Light Co., 925 S.W.2d 586, 589 (Tex. 1996). In this case, the trial court's summary judgment ruling constitutes the relevant decision-making event because it resulted in the adjudication of the parties' rights and led to the complained-of judgment. See Tex. R. App. P. 30; see also Texaco, 925 S.W.2d at 589. Meadows filed a summary judgment response and a motion to defer a summary judgment hearing, but those documents were filed in November, long after the trial court had granted FIA's motion. Accordingly, the record does not indicate that Meadows filed a timely summary judgment response or any post-judgment motions or requests that amount to participation in the decision-making event. See Texaco, 925 S.W.2d at 589 (A party who participated in all steps of a summary judgment proceeding except the hearing on the motion has participated in the actual trial that determined the parties' rights.); see also Lake v. McCoy, 188 S.W.3d 376, 378 (Tex. App.—Dallas 2006, no pet.) (Appellant participated in the decision-making event by filing a timely response to appellee's summary judgment motion.).
As discussed above, our review is limited to errors apparent on the face of the record. Ginn v. Forrester, 282 S.W.3d 430, 431 (Tex. 2009). Error that is merely inferred will not suffice. Id. In issues one and two, Meadows contends that error is apparent on the face of the record because the trial court ruled on FIA's summary judgment motion prematurely and without notice to Meadows.
FIA served Meadows's counsel with a copy of its summary judgment motion via facsimile transmission on July 6, 2011. Except on leave of court and notice to opposing counsel, a summary judgment motion served via facsimile transmission must be filed and served at least twenty-four days before the time specified for hearing or submission. Tex. R. Civ. P. 21a; Tex. R. Civ. P. 166a(c). The phrase "at least" in Rule 166a(c) means that no fewer than twenty-four days must intervene between the day the motion is faxed and the day of hearing or submission. Lewis v. Blake, 876 S.W.2d 314, 315 (Tex. 1994). Thus, August 1 was the earliest date on which the trial court could properly rule on the motion, given that the twenty-fourth day fell on a Saturday. See Tex R. Civ. P. 4; see also Tex. R. Civ. P. 21a; Tex. R. Civ. P. 166a(c). The trial court, however, granted FIA's summary judgment motion on July 29.
The record is silent regarding the setting of a hearing or submission date, contains no document advising Meadows of such a date, and contains no document showing that FIA sought the trial court's permission to shorten the twenty-four-day interval. Nevertheless, silence is insufficient to demonstrate that error is apparent on the face of the record. Ginn, 282 S.W.3d at 433. The face of the record does demonstrate, however, that the trial court ruled on the summary judgment motion before the twenty-four day interval had expired. The purpose of this interval is to allow the nonmovant a full opportunity to respond on the merits. Stephens v. Turtle Creek Apartments, Ltd., 875 S.W.2d 25, 26 (Tex. App.—Houston [14th Dist.] 1994, no pet.). It is apparent on the face of the record that the trial court failed to give Meadows a full opportunity to respond to FIA's summary judgment motion before the trial court ruled on the motion. Accordingly, we sustain Meadows's first and second issues and need not address his remaining issues. See Tex. R. App. P. 47.1. We reverse the trial court's judgment and remand the cause for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
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STEVE McKEITHEN
Chief Justice
Before McKeithen, C.J., Gaultney and Kreger, JJ.