John Emmanuel D/B/A First Americo Auto Sale & Repair v. Abigail Izoukumor

Affirmed and Majority and Concurring Opinions filed October 15, 2020.
In The
Fourteenth Court of Appeals
NO. 14-19-00361-CV
NO. 14-19-00362-CV
JOHN EMMANUEL D/B/A FIRST AMERICO AUTO SALE & REPAIR,
Appellant
V.
ABIGAIL IZOUKUMOR, Appellee
On Appeal from the 98th District Court
Travis County, Texas
Trial Court Cause Nos. D-1-GN-18-007239 & D-1-GN-17-006205
CONCURRING OPINION
Appellant John Emmanuel d/b/a First Americo Auto Sale & Repair
challenges the trial court’s judgment in the suit appellee Abigail Izoukumor filed
against him. In that litigation, Izoukumor asserted violations of the Texas
Deceptive Trade Practices-Consumer Protection Act (“DTPA”),1 breach of
1
Tex. Bus. & Com. Code Ann. §§ 17.41-.63.
contract, and other claims.
Izoukumor filed a motion on April 13, 2018, seeking partial summary
judgment on her claims for DTPA violations and breach of contract, and she filed a
notice that an oral hearing on the motion would take place on May 15, 2018.
Emmanuel did not file a response to the summary-judgment motion. The trial
court held a hearing on the motion on May 15, 2018, and two weeks later signed an
order granting Izoukumor’s motion.
Emmanuel filed a “Motion to Reopen/New Trial,” the substance of which
was a motion for new trial.2 In his motion, Emmanuel asserted that he did not
receive Izoukumor’s summary-judgment motion until after the trial court granted
the motion. Emmanuel asserted that if he had received the motion or if he had
been served with the motion, he would have had an opportunity to file a summary-
judgment response. Emmanuel asked the trial court to set aside its summary-
judgment order and to order a new trial. Emmanuel did not submit any evidence
supporting his contention that he had not received or been served with the
summary-judgment motion before the trial court granted the motion.
In response to Emmanuel’s motion, Izoukumor submitted evidence that on
April 13, 2018, she served Emmanuel with her summary-judgment motion. The
trial court denied Emmanuel’s motion for new trial.
Under his first issue on appeal, Emmanuel asserts that the trial court erred in
denying his motion for new trial because Izoukumor did not serve her summary-
judgment motion on Emmanuel and Emmanuel only learned of the motion after the
trial court granted it. Though Emmanuel does not mention the notice of hearing on
the motion, presumably he claims Izoukumor did not serve the notice of hearing on
2
This court gives effect to the substance of the motion rather than the motion’s title or form. See
State Bar of Tex. v. Heard, 603 S.W.2d 829, 833 (Tex. 1980).
2
him either, because if she had, Emmanuel would have learned of the summary-
judgment motion before the trial court granted it. Emmanuel does not assert on
appeal that he had some notice of the summary-judgment hearing, so that he was
able to attend the summary-judgment hearing, but less notice than Texas Rule of
Civil Procedure 166a requires.3
Under the Fourteenth Court of Appeals’s error-preservation precedent, a
party may preserve error in a post-judgment motion for new trial as to a complaint
that the party received no notice of the summary-judgment motion or the hearing,
because a party in this posture lacks the ability to attend the summary-judgment
hearing.4 On the other hand, if a party complains it received notice that was
untimely but sufficient to enable the party to attend the summary-judgment
hearing, to preserve error the party must file a motion for continuance or raise the
complaint of late notice in writing, supported by affidavit evidence, and put before
the trial court during the summary-judgment hearing.5 Under his first issue,
Emmanuel asserts the former complaint rather than the latter. Thus, Emmanuel
preserved error by his motion for new trial.6 Though Emanuel preserved this
complaint in the trial court, Emmanuel had the burden of proving his allegation
that Izoukumor did not serve her summary-judgment motion on Emmanuel and
that Emmanuel only learned of the motion after the trial court granted it. Because
3
See Tex. R. Civ. P. 166a.
4
See Garrick v. Autoliv ASP, Inc., No. 14-17-00818-CV, 2018 WL 3385159, at *2–3 (Tex.
App.—Houston [14th Dist.] Jul. 12, 2018, pet. denied) (mem. op.); Modelist v. Deutsche Bank
Nat. Trust Co., No. 14-10-00249-CV, 2011 WL 3717010, at *2 (Tex. App.—Houston [14th
Dist.] Aug. 25, 2011, no pet.) (mem. op.); Rios v. Tex. Bank, 948 S.W.2d 30, 33 (Tex. App.—
Houston [14th Dist.] 1997, no pet.).
5
See Garrick, 2018 WL 3385159, at *2–3; Rios, 948 S.W.2d at 33.
6
See Garrick, 2018 WL 3385159, at *2–3; Modelist, 2011 WL 3717010, at *2; Rios, 948
S.W.2d at 33.
3
Emmanuel submitted no proof of this allegation, the trial court did not abuse its
discretion in denying Emmanuel’s request for a new trial based on this allegation.7
The majority construes Emmanuel’s complaint as limited to an alleged lack
of service of the summary-judgment motion; the majority does not view Emmanuel
as complaining of a lack of notice of the summary-judgment hearing.8 Rather than
incorrectly characterize Emmanuel’s first issue and dispose of it based on a failure
to preserve error, this court should overrule it based on Emmanuel’s failure to
provide evidence that Izoukumor did not serve her summary-judgment motion on
Emmanuel and that Emmanuel only learned of the motion after the trial court
granted it.9
/s/ Kem Thompson Frost
Chief Justice
Panel consists of Chief Justice Frost and Justices Jewell and Spain (Spain, J.,
majority).
7
See Modelist, 2011 WL 3717010, at *2.
8
See ante at 3–5.
9
See Modelist, 2011 WL 3717010, at *2.
4