Steve Merritt and Heather Merritt v. Lake Conroe Heights Property Owners Association, Inc. ( 2014 )

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
2
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.
3