Opinion issued May 5 , 2015

In The 

## Court of Appeals For The 

## First District of Texas

———————————— NO S . 01
- 14
- 00409
- CV & 01
- 14
- 00412
- CV

——————————— WILLIAM READY , Appella nt V. ALPHA BUILDING CORPO RATION , Appell e e AND WILLIAM READY , Appella nt V. MICHAEL DO UGLAS , Appell e e
On Appeal from the 506th District Court Waller County, Texas Trial Court Ca se No s . 12
- 10
- 21659 & 12
- 10
- 21659
- B2 O P I N I O N William Ready appeals the trial court’s order grant ing summary judgment in favor of appellees Alpha Building Co rporation and Michael Douglas. In a single issue in each of the se related appeals, Ready argues that the trial court erred by granting the summary judgments without allowing him the opportunity to respond.
B ecause the submission notices stated merely that the summary

- judgment motions would be submitted “after” specified dates, Ready contends that he had no notice of the submission date s . W e conclude that the submission notices did not inform Ready of a date certain for submission of either motion, and there fore he had no notice of the date his responses were due. Accordingly, we reverse the trial court’s judgments as to both Alpha Building and Douglas and remand both cases to the trial court. Background Michael Douglas worked for Alpha Building, which subcon tracted a portion of a construction project to William Ready . During a final walkthrough, Douglas and Ready argued about whether the work was properly completed. Ready alleges that t his argument ended with Douglas punching him in the face , causing serious injury that required medical attention. Ready later sued Douglas and Alpha Building for assault and battery.3 Both defendants filed motions for summary judgment. On October 15, 2013, Alpha Building filed its traditional and no

- evidence motion for summary j udgment. The company argued that as a matter of law it could not be held responsible for Douglas’s intentional assaultive action. It also argued that Ready had no evidence that it negligently hired, retained, or supervised Douglas. The notice of submission stated that this motion had been set “for submission on the 11th day of November, 2013 , ” and it requested an oral hearing at the court’s convenience. Ready did not file a response to this motion, and the trial court g ranted it on November 15, 2013. Ready filed a motion for new trial in which he argued that the submission date of November 11 did not comply with the trial court’s “Submission Guidelines and Procedures,” which required a minimum of 30 days’ notice of setting
summary - judgment motions for submis sion. The trial court granted the motion for new trial. Meanwhile, on December 9, 2013, Douglas filed his traditional and no

evidence motion for summary judgment on the grounds that (1) Ready’s claim failed as a matter of law because his failure to designa te medical experts precluded a finding of damages and (2) there was no evidence of actual or exemplary damages. Douglas filed a notice of submission stating that his motion would be submitted “without a hearing after January 8, 2014.” Similarly, Alpha Buil ding filed a new notice of submission which stated that its traditional and no

- evidence4 motion for summary judgment would be submitted “without a hearing after February 7, 2014.” Ready di d not respond to either motion, and both motions were granted. Ready filed motions for new trial arguing that he had no notice of the submission dates for either motion due to the indefinite language in the notices and the court’s failure to inform him that it had set either motion for submission on a specific date. The tri al court denied the motions for new trial, and Ready appealed. Analysis Ready raises the same issue in each appeal, arguing that a notice of submission of a motion for summary judgment that states only a date “ after ” which it will be submitted does not com ply with the Texas Rule s of Civil Procedure

. See
T EX
. R. C IV
. P. 166a(c). He thus challenges the trial court’s rendition of summary judgment because the notices failed to specify a submission date, depriving him the opportunity to timely file a response. D ouglas’s notice stated that his motion would be submitted “after” January 8, 2014. Alpha Building’s notice stated that its motion would be submitted “after” February 7, 2014.
I. Preservation of e rror Douglas portrays this appellate issue as an “adequacy

- of

- n otice” challenge and argues that Ready waived it by failing to raise it with the trial court prior to the summary judgment. Alpha Building makes a similar argument, relying on5 Carpenter v. Cimarron Hydrocarbons , 98 S.W.3d 682 (Tex. 2002). In Carpenter , the plaintiff failed to timely respond to the defendants’ motion for summary judgment. 98 S.W.3d at 683. The plaintiff moved for a continuance of the
summary - judgment hearing and sought leave to file an untimely response. Id. The trial court denied both motio ns and granted summary judgment in favor of the defendants. Id. On appeal, the plaintiff argued that the summary judgment should be treated like a default judgment and should be reviewed under the equitable standard enunciated in Craddock v. Sunshine Bus L ines , 134 Tex. 388, 133 S.W.2d 124 (1939). In Craddock , the Supreme Court held that a trial court should set aside a default judgment when the defendant shows that (1) the failure to answer was not intentional or the result of conscious indifference, but t he result of an accident or mistake, (2) the motion for new trial sets up a meritorious defense, and (3) granting the motion for new trial will not cause undue delay or otherwise injure the plaintiff. Craddock , 133 S.W.3d at 126. This rule has been extende d to motions for new trial filed after post

- answer default judgments as well. Ivy v. Carrell , 407 S.W.2d 212,
214 (Tex. 1966). The plaintiff in Carpenter sought to extend the rule further and urged its application when the trial court grants a summary

- jud gment motion to which the nonmovant has not timely responded. Carpenter , 98 S.W.3d at 686. But in that6 case, the plaintiff had notice of the summary

- judgment hearing and had moved for a continuance and sought leave to file a late response. Id. at 684

– 85. T he Supreme Court explained that the Craddock standard was intended “to alleviate unduly harsh and unjust results at a point in time when the defaulting party has no other remedy available.” Id. at 686. The Court held that Craddock did not apply to the situ ation presented by Carpenter: i.e., the nonmovant had notice of the summary judgment hearing , failed to timely respond to the motion , and had an opportunity to seek relief under Rule 166a prior to the trial court’s rendition of summary judgment

. Id. Thus, in Carpenter , the plaintiff’s recourse was to seek appellate review of the trial court’s rulings under the usual abuse

- of

- discretion standard. Id. This court considered a similar situation in Viesca v. Andrews , No. 01

- 13

- 00659

- CV, 2014 WL 4260355 (Tex. App

. — Houston [1st Dist.] Aug. 28, 2014, no pet.) (mem. op

. ), in which the plaintiff moved for partial summary judgment based on deemed admissions. Viesca , 2014 WL 4260355, at *1. Her notice of submission showed that the motion was set for a premature hearing date

. Id. The defendants agreed that they received this notice. Id. However, the notice of submission of the motion for partial summary judgment was revised twice before the court ruled on the plaintiff’s motion. Id. at *2. The defendants contended that th ey did not receive the revised notices. Id. In its order granting partial summary judgment, the trial court specifically stated that the defendants did not respond to the motion for7 summary judgment or the plaintiff’s request that their unanswered requests for admissions be deemed. Id. After obtaining a favorable partial summary judgment, the plaintiff abandoned her remaining claims and moved for entry of final judgment

. Id. The defendants agreed that they received notice of the hearing on her motion for en try of final judgment. Id. They did not file a response, attend the hearing, request reconsideration of the motion for summary judgment, or move to withdraw the deemed admissions. Id. A month after the trial court granted final judgment in favor of the pla intiff, the defendants filed a motion for new trial, which the trial court denied. Id. A subsequent motion for new trial was denied by operation of law. Id. On appeal, the defendants argued that the judgment should be reversed due to the erroneous notice of hearing on the motion for summary judgment. Id. at *3. This court considered whether the defendants had an argument for withdrawing their deemed admissions and whether they had pursued it. Id. The defendants had notice of both the initial hearing on the summary judgment and the hearing on the motion for entry of judgment. Id. Yet they did not challenge the deemed admissions until after the trial court entered final judgment. Id. at * 5. This court concluded that, on thos e facts, the defendants waived the ir argument about the deemed admissions. Id.8 The court then considered the defendants’ argument about lack of proper notice of the hearing on the motion for summary judgment. Id. at *6. It held that the alleged error in the notice of hearing on the motion for partial summary judgment had been waived because the defendants had “ several opportunities to bring the allegation of error to the trial court’s attention before final judgment was entered, yet failed to do so.” Id.
In a sur

- reply brief, Douglas asser ts that Viesca controls the outcome in this case. Although Ready has focused his appellate challenge on the lack of notice of a date certain for the summary

- judgment hearing , Douglas contends that the issue is more properly understood as a challenge to ina dequate notice. He reasons that his notice which specified submission of his motion “after January 8,” effectively set the date of submission on January 8 and fixed a due date for Ready’s response. Thus, he contends that Ready’s failure to respond, move fo r a continuance, or seek clarification of the hearing date waived his complaint about notice. We disagree that Ready’s complaint is inadequate notice. The defendants in
Viesca were notified of a date certain of submission which did not afford them the ful l time for responding as provided by the Rules of Civil Procedure. Ready’s complaint is that he was not informed of a ny date certain for submission of the motion for summary judgment. Douglas suggests that Ready should have
preserve d his claim of error by raising the defective notice with the trial court. But9 implicit in Douglas’s suggestions about how Ready should have responded

— filing a response, moving for continuance, or seeking clarification o f the hearing date

— is the presumption that Ready should have take n all these steps prior to the court’s ruling on the motion for summary judgment. Ready’s contention is not that he had less than 21 days’ notice, but that he had no notice at all of the date of submission. The defendants in Viesca passed up several opportunities to raise their complaint with the trial court, but Ready did not. The summary judgments granted in this case were severed for the purpose o f enabling them to become final and appealable. Ready raised his complaints about lack of notice of a c ertain submission date in a motion for new trial that he filed promptly upon learning of the trial court’s ruling. W e conclude that his issues are preserved. See Viesca , 2014 WL 4260355, at * 6. II. Adequacy of notice As to the merits of the appeals, Ready argu es that the notices of submission were too indefinite to comply with Rule 166a. Because they merely stated that the motions would be submitted “after” a certain date, Ready contends that they gave him no indication of the actual date of submission, and wit hout a date certain he was unable to calculate due dates for his responses. Thus Ready challenges the trial court’s orders granting the motions for summary judgment, which we review de10 novo. See Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding , 289 S .W.3d 844, 848 (Tex. 2009). The notice provisions associated with summary

- judgment procedure under Rule 166a are strictly construed. See, e.g. , Nexen Inc. v. Gulf Interstate Eng’g Co. , 224 S.W.3d 412, 423 n.14 (Tex. App.

— Houston [1st Dist.] 2006, no pet.); Moore v. Univ. of Houston

- Clear Lake , 165 S.W.3d 97, 100 n.4 (Tex. App.

— Houston [14th Dist.] 2005, no pet.); Chadderdon v. Blaschke , 988 S.W.2d 387, 388 (Tex. App.

— Houston [1st Dist.] 1999, no pet.). Notice of hearing for submission of a
summary - judgment motion is mandatory and essential to due process. Se e T EX
. R. C IV
. P. 166a(c); Martin v. Martin, Martin & Richards, Inc. , 989 S.W.2d 357, 359 (Tex. 1998); Rorie v. Goodwin , 171 S.W.3d 579, 583 (Tex. App.

— Tyler 2005, no pet.); Clemons v. Denson , 981 S.W.2d 941, 944 (Tex. App.

— Houston [1st Dist.] 1998, pet. denied). “Except on leave of 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.” T EX
. R. C IV
. P. 166a(c). Similarly, except with the trial court’s permission, the nonmovant must file and serve its written response and opposing affidavits “not later than seven days prior to the day of hearing.” Id. Rule 166a is designed to ensure that the nonmovant has some minimum notice of the time of hearing. See Lewis v. Blake , 876 S.W.2d 314, 315 (Tex.11 1994). Because the hearing date determines the time for response to the motion, without notice of the date of the hearing, the nonmovant cannot know whe n the response is due. See Martin , 989 S.W.2d at 359; Rorie , 171 S.W.3d at 583. “The failure to give notice of the submission date for a motion for summary judgment constitutes error.” Aguirre v. Phillips Props., Inc. , 111 S.W.3d 328, 332 (Tex. App.

— Corpus Christi 2003, pet. denied) (citing Martin , 989 S.W.2d at 359). Both Douglas and Alpha Building take the position that each notice specified a date for submission of each respective motion. Douglas argues that because his notice stated that submission wou ld be “after January 8, 2014,” Ready knew that January 9 was the “first day the trial court could rule by submission.” Alpha Building argues that because its notice stated that the motion would be submitted “after February 7, 2014,” Ready should have const rued the notice to specify February 7 as the date of submission

. Alpha Building contends that the date of submission was “clearly” “at the earliest February 7, 2014.” We do not agree that this is a proper method to provide the necessary notice of a submiss ion date

. Neither submission notice informed Ready of the date of submission, and as such, neither permitted him to determine when his response is due. The appellees’ interpretation of Rule 166a inverts the rule’s timing mechanism. Reflecting the reality that the submission of a summary

- judgment motion is often continued to12 allow further discovery to facilitate a response, the deadline to file a response hinges on the submission date . Th e nonmovant is not required to respond until 7 days before submission, and it may utilize all of the intervening time to prepare the response. The appellees’ interpretation deprives nonmovants of the full measure of time permitted under the rule for the preparation of a response by forcing the filing of a response in the fac e of an uncertain actual submission date. A similar circumstance was presented in Rorie v. Goodwin , 171 S.W.3d 579 (Tex. App.

— Tyler 2005, pet. denied)

. T he defendant filed a motion for summary judgment on August 7, which stated that the “date of submission ” was also August 7, and that the court would “consider” the motion “by way of a hearing on or after September 6, 2003. ” Rorie , 171 S.W.3d at 582. Rorie did not respond, and the trial court granted summary judgment on September 15. Id. Rorie moved for a ne w trial, arguing that the motion did not comply with Rule 166a because it did not “state a specific date of submission or hearing.” Id. The trial court denied the motion for new trial, and Rorie appealed. Id. The court of appeals explained that the “indefi nite language” in the motion did not inform Rorie “of a specific submission or hearing date.” Id. at 584. Therefore, no deadline for Rorie’s response was ever established. Id. Accordingly, the trial court’s summary judgment did not comply with Rule 166a. S ee id. In addition, the court of appeals held that because the record showed that Rorie was not provided the required notice, he was13 not obligated to present a meritorious defense in order to show his entitlement to a new trial. Id. (citing Lopez v. Lopez , 757 S.W.2d 721, 723 (Tex. 1988)). Here, neither the notice from Douglas nor the notice from Alpha Building stated a specific submission or hearing date. Both notices stated that the motion would be submitted “ after ” a date certain, but that indefinite lan guage did not inform Ready of a specific submission date or establish a deadline for his response. Therefore, we conclude that the trial court’s summary judgment did not comply with Rule 166a(c). See Rorie , 171 S.W.3d at 584. We hold that the court erred b y granting summary judgment in favor of Douglas and Alpha Building. We sustain Rea dy’s sole issue in each appeal. Conclusion We reverse the summary judgments of the trial court as to Douglas and Alpha Building, and we remand these cases to the trial court for further proceedings.

Michael Massengale Justice Panel consists of Justices Keyes, Bland, and Massengale.