Elton Senegal D/B/A Elton's Construction v. Lance and Lisa Beloney ( 2022 )

IN THE
TENTH COURT OF APPEALS
No. 10-21-00058-CV
ELTON SENEGAL D/B/A ELTON'S CONSTRUCTION,
Appellant
v.
LANCE AND LISA BELONEY,
Appellees
From the 278th District Court
Walker County, Texas
Trial Court No. 2029771
MEMORANDUM OPINION
Elton Senegal, d/b/a Elton's Construction appeals from a judgment that granted a
motion for summary judgment filed by Lance and Lisa Beloney. Senegal complains that
the trial court abused its discretion by denying his motion for new trial because he did
not receive notice of the summary judgment hearing pursuant to Rule of Civil Procedure
166a(c). Because we find that Senegal did not timely preserve his complaint, we affirm
the judgment of the trial court.
The Beloneys filed a petition for a declaratory judgment pursuant to Chapter 53 of
the Property Code alleging that Senegal had not complied with the notice requirements
to properly impose a lien against their property and seeking a declaration that the lien
was void. In support, the Beloneys also filed a summary motion to remove the allegedly
invalid lien pursuant to Property Code Section 53.160. Senegal filed a response to the
summary motion but no hearing was conducted by the trial court on that motion. The
Beloneys filed a motion for summary judgment on December 23, 2020 but failed to attach
a certificate of service or notice of hearing to the motion. Counsel for the Beloneys filed
a supplement to the motion for summary judgment to attach a certificate of service on
January 6, 2021, but the certificate only included that the supplement rather than the
motion for summary judgment was served on December 23, 2020.
On January 5, 2021, Senegal's counsel filed an agreed motion to withdraw, signed
by Senegal, which was granted by the trial court that same day. The motion stated that a
motion for summary judgment had been filed but did not include a date set for the
hearing. On January 13, 2021, the trial court sent a notice of hearing to counsel for the
Beloneys and to Senegal that shows that the hearing on the motion for summary
judgment was set for January 25, 2021. Senegal did not file a response to the motion for
summary judgment and did not appear at the hearing on January 25, 2021. The trial court
granted the motion for summary judgment on January 25, 2021.
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New counsel for Senegal filed a motion to appear in February of 2021 and filed a
motion for new trial. The motion for new trial alleged that Senegal did not receive proper
notice of the hearing on the motion for summary judgment and attached an affidavit by
his new counsel which included his new counsel's version of what had taken place prior
to his involvement in the case, including conversations he had with the court coordinator
and an employee of the district clerk's office after the judgment was rendered. Exhibits
including the trial court's setting notice from January 13, 2021 and a docket sheet were
also attached to the motion for new trial. The motion did not include an affidavit from
Senegal.
The Beloneys filed a response to the motion for new trial, alleging that Senegal had
received timely notice of the motion for summary judgment as it was electronically filed
and served on Senegal's original counsel prior to his withdrawal, and was electronically
served again on his original counsel and to Senegal personally on December 28, 2020.
Further, the Beloneys allege that, after receiving a date and time for the hearing from the
trial court coordinator in accordance with the trial court's rules, a document entitled
"Confirmation of Hearing" showing that the hearing was to be held on January 25, 2021
was sent by email to Senegal's original counsel and to Senegal individually on December
29, 2020.
During the hearing on the motion for new trial, the trial court expressed his own
recollection of events without objection by either party. The trial court stated that the
Senegal v. Beloney Page 3
court sent the notice on January 13, 2021 by email and regular mail to Senegal in
accordance with its usual procedures. The trial court also stated that prior to the hearing
on January 25, 2021, Senegal called and spoke to an employee who works for the trial
court and indicated to the employee that he already knew about the setting on January
25. After hearing the arguments of counsel, the trial court denied the motion for new
trial.
Rule of Civil Procedure 166a(c) requires that both the motion for summary
judgment and notice of the summary judgment hearing be served on opposing counsel
or the opposing party at least 21 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.). The record establishes that Senegal had timely notice that the motion for
summary judgment had been filed. The issue is whether or not Senegal had notice of the
hearing more than 21 days before the hearing date.
However, even if Senegal did not have 21 days' notice of the hearing, the lack of
21 days' notice of a summary judgment hearing is a non-jurisdictional defect that the
nonmovant can waive. See May v. Nacogdoches Mem'l Hosp., 61 S.W.3d 623, 626 (Tex.
App.—Tyler 2001, no pet.). If the nonmovant receives notice that is untimely but
sufficient to enable the nonmovant to attend the summary judgment hearing, the
nonmovant must file a motion for continuance or raise the complaint of late notice in
writing before or at the summary judgment hearing. Nguyen v. Short, How, Frels & Heitz,
Senegal v. Beloney Page 4
P.C., 108 S.W.3d 558, 560 (Tex. App.—Dallas 2003, pet. denied); May, 61 S.W.3d at 626.
As it relates to this proceeding, it is only when the nonmovant is not given notice of the
summary judgment hearing that the nonmovant may preserve error in a post-trial
motion. May, 61 S.W.3d at 626-27. There is nothing in the record to show that Senegal
filed a motion for continuance or otherwise notified the trial court of his complaint before
or during the summary judgment hearing, even though the trial court determined that
he had knowledge of the date of the hearing prior to the hearing. The error is, therefore,
not preserved for our review. See, e.g., Nguyen, 108 S.W.3d at 560-61. We overrule
Senegal's sole appellate issue.
CONCLUSION
Having found no reversible error, we affirm the judgment of the trial court.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Johnson, and
Justice Smith
Affirmed
Opinion delivered and filed November 2, 2022
[CV06]
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