Opinion issued November 7, 2019

In The 

## Court of Appeals For The 

## First District of Texas

—— — ————————— NO. 01 - 18 - 00854 - CV

——————————— CLARENT ENERGY SERVICES INC. AND G RAHAM GIL LIAM , Appella nt s V. ICON BANK OF TEXAS, N.A. , Appell e e On Appeal from the 11t h District Court Harris County, Texas Trial Court Ca se No. 2017 - 55615

MEM OR A NDUM OPINION Appellants Clarent Energy Services Inc. and Gra ham Gilliam appeal the trial
court ’ s grant of summary judgment in favor of app ellee Icon Bank of Texas, N.A. ,
on its c laims for payment under two prom issory no tes.2

In t hree issue s, Clar ent and Gilliam contend that the tria l court erred by granting summary judgment because (1) they did not receive ser vice of the motion and submissi on notice 21 days in advance of the hearin g , (2) Clarent sought a continuan ce when Icon Bank filed an “ imprope r ” submission notice one day before th e hearing , and (3) the summary judgment motion relied on disputed material facts. We reverse and remand

. Background Clare nt execut e d two p romissory no tes , promising to repay Icon Bank for a loan it used to buy four “ BBL PCI Acid Tanks. ” Gilliam personally guarantee d Clarent ’ s repayment of the notes. Clarent and Gilliam allegedly fai led to repay $51,565.76 under the first note, resulting in roughly $2,00 0.00 in additional

ac crued interest and late charges when Icon Bank filed this suit

. Clarent and Gil liam also allegedly f

ailed to repay $52,058.88 under the second note, accruing another $2 ,000. 00 in unpaid interest and late charges

. Icon Bank moved for su mmar y judgment on its claims under the two not es. The c ertificate of s ervice , signed by Icon Bank ’ s attor ney of record, assert ed t hat the moti on was sent to Claren t and Gilliam on July 5, 2018 , at “ t h e email s et forth i n their answer . ” Icon Bank maint ains that it served a n otice of o ral h earing on the motion on July 5 , sett ing the hearing for July 30 , w hich included c ertificate of3

s ervice showing that it was served by email

. I con Bank contends that the motion and notic e were served by an email from its atto rney ’ s assistant. On July 23 , Gilliam contacted the assistant to determine whether an email he received from her email address on July 9 was intentional or spam. That same day, Clarent and Gill iam discovered for the first time that Icon Bank had filed the summary - judgment motion and set it for oral hearing. Clarent an d Gilliam filed a moti on for continuance , asserting that the y did not rec eive service of the motion and notice of hearing. On July 27, Icon Ban k filed a n amended n otice of s ubmission, which in dicated that the summary - judgment motion w oul d be su bmitted without an oral hearing on July 31

. This notice included a c ertificate of s ervice , s ign ed by Icon Bank ’ s attorney of record, asserting that he serv ed the notice by email on July 27

. On July 30, Cl arent and Gilliam responded to the summary - judgment moti on and fil ed an affi davit made by Gilliam. In i t, he averred : “ I confirm and a ttest that the improper notice and failed eservice delivery by Plaintiff ’ s Motion for Summary Judgment occ urred. ” The tria l court granted Icon Bank ’ s motion and awarded damage s and attorneys ’ fee s. Clarent and Gilliam appe aled.4

S ervice of Motion for Sum mar y Judgment and Notice of Hea ring In the ir first issue, Clarent and Gillia m contend that the trial court erred by granting Icon Bank summary judgme nt because the motion and notice of hearing were not served 21 days in advance. We review a trial co urt ’ s summary judgment de novo. Valence Operating Co. v. Dorsett , 164 S.W.3d 656, 661 (Tex. 2005)

. In conducting our review, we tak e as tr

ue all evi dence favorable to the nonmovant, and we indul ge every reasonable infer e nce and resolve any doubts in the nonmovant ’ s favor. Id.

“ Notice of hea ri ng for submission of a summary

- judgment motio n is mandat ory and essential to due process. ” Rea dy v. Alpha B ld g . Corp. , 46 7 S .W.3d 580, 584 (Tex. App.

— Houston [1st Dist.] 2015, no pet. ). The summary - judgment movant must serve the motion along with any supporting affidavits on the opposing party at lea st 21 day s before the time specified for hearing. see T EX . R. C IV . P. 166a(c). “Because summary judgment is such a harsh remedy, the notice provisions of Rule 166a(c) must be strictly construed.” Viesca v. Andrews , No. 01

- 1 3

- 00659

- C V, 2014 WL 4260355, at * 5 (Tex. App.

— Houston [1st Dist.] Aug. 28, 2014, n o pet. ) (mem. op.) ; Chadder don v. Blaschke , 988 S.W.2d 387, 388 (Tex. App.

— Houston [1st Dist.] 1999, no pet. ). “ A nonmovant who complains of less than twenty

- one days ’ notice of a summary judgment hearing bu t admits to knowing of the hearing date before it occurs waives its defense of insufficient5

notice if he fails to bring the defect to the trial court ’ s atten tion at or before the erroneously scheduled hearing or submission date. ” Schie d v. Merritt , No. 01

- 1 5

- 00466

- CV, 201 6 WL 3751 619, at *4 (Te x. App.

— Ho uston [1st Dist.] July 12, 201 6, no pet. ) (mem. op.). “ A non

- movant may preserve a complaint of untimely notice through a motion for continuance or in its response to the summary judgment motion. ” Viesca , 20 14 WL 4260355, at *6

. “ To preserve error for a

co mplaint regarding late notice of a summary j udgment hearing, a nonmovant who receives notice that is untimely but sufficient to enable the nonmovant to attend the hearing must move for continuance or raise t he late

- notice complaint in writing. ” B ig H Const r., I

n c. v. Hensley , No. 01

- 10

- 00 379

- CV, 2011 WL 1233594, at *2 & n.1 (Tex. App.

— H ouston [1 st Dist.] Mar. 31, 2011, no pet. ) (mem. op.) ; see Viesca , 2014 WL 4260355, at *6

. The nonmovant ’ s evidence may rebut the pre sumption of proper notice and receipt und er Rule of Civil Procedur e 21a. See Chavez v. Chavez , No. 01

- 13

- 00727

- CV, 2014 WL 5343231, at * 3 (Tex. App.

— Houston [1st Dist.] O ct. 1, 2014, no pet.) (mem. op.) (citin g T EX . R. C IV . P. 21a )

. Icon Bank ’ s mot ion for summary judgment included a c ertificate o f s ervice , sig ned by it s attorney of record, asserting t hat the attorney sent the motion to Claren t and Gilliam on July 5 , 2018 , at “ t h e email set forth i n their answer . ” Icon Bank ’ s initial N otice of Oral H earing also included a c ertificate of s ervice , si gned b y Icon Ba nk ’ s attorney of record, asserting that he served it by email on July 5,6

2018. The amended submission notice , which s e t the date for hearing by submission on July 31 , included a c ertificate of s ervice , s ign ed by Icon Bank ’ s at torney of recor d, asserting that he served the notice by email on July 27, 2018. These certificates of service are prima facie evidence of service by email. See In re E.A. , 287 S.W.3d 1, 5 (Tex. 2009) (certificate of servi ce is prima facie proof of service, which can be re butted by proof of nonreceipt); Tex. R. C iv. P. 21a (a)(2) (service by email)

. In response, Cl arent and Gilliam prese n ted writte n objection s and evidenc e that t hey did not receive any email service of the m otion or notices

. I nstead, they only learned of t he motion and he aring date on July 23

— eight days before the July 31 hearing

- by

- submission date

. In his affidavit filed wit h the trial court , G illiam aver red , “ I confirm and attest that the improper notice an d failed eservice delivery by Plaintiff ’ s Motion for Summary Judgment occ urred. ” I n the motion for continuance, Clarent and Gilliam objec ted to insufficient notice of the hearing:

“ Plaintiff [e]m ails were not timely delivered or filtered a s junk mail. ” Cla rent and Gilliam represent that they filed the mo tion for con tinuance the same day they lea rned of the motion and hearing date , July 23

. They also presented evidence that the assistant ’ s email address

— the one from which the email servic es were purpo rtedly sent

— was compromised and sent Gilliam spam e mail that the assistant did no t intend to send

. Viewed in the light most favorable to Clarent and Gilliam ,7

their evidence and written objections support an rational inference that , becau se of

a malfunction with t he assistant ’ s email account , they rec eived no mo re than eight days ’ notice of the Ju ly 31 hearing

. See Chavez , 2014 WL 5343231, at * 3 ; Viesca , 2014 W L 4260355, at *6 ; B ig H Constr. , 2011 WL 1233594, at *2 & n.1

. Eight days ’ notice is insuffici ent. See T EX . R. C IV . P. 166a(c)

. Ico n Bank responds with thr ee argument s, but none are persuasive . First, it argues that we must disregard C larent and Gilliam ’ s summary - judgment response because it w as filed less than seven days befor e the July 31 hearing

- by

- submissi on date. Our analysis does not rely on the conten t of the summary

- judgment response. A l though Gilliam ’ s affidavit was fi led less than seven days before the hearing, they

were only required to file it at o r before the hearing

. See Schied , 2016 WL 3751619, a t *4 ; Hatler v. Moore Wallace N. Am. , Inc. , No. 0 1

- 07

- 00181

- CV, 2010 WL 375807, at *2 (Tex. App.

— H ouston [1st Dist.] Feb. 4, 2010, n o pet.) (me m. op.) ; Rios v. T

ex. Ba nk , 948 S .W.2d 30, 33 (Tex. App.

— Hous ton [14th Dist.] 1997, no pet. )

. They did so. Secon d, Icon Bank argues that Clarent and Gilliam ’ s ev idence of receipt of the spam email suggests that the assistant ’ s email was w orking properly on Ju ly 5 , when the certificates of ser vice indicate that the motion and notices of hearing were served

. Vi ewing t he record in the light most f avorable to them , Cl arent and Gil liam present ed evidence and a written obj ecti on asserting that July 23 was the8

earliest they received notice of the motion and hearing. G i lliam averred : “ I con fir m and attest t hat the improper n otice and failed eservi ce delivery by Plaintiff ’ s Motion for Summary Judgment occ urred. ” T he motion fo r continuance includes a similar assertio n: “ Plaintiff [e]mails were not timely delivered or filtered a s jun k mail. ” Viewed in the light most favorable to the nonmovants, their evidence demonstrates that Clarent and Gilliam discovered the motio n and n otices no earlier than Jul y 23 and without any service by Icon Bank. T h i rd, Icon Bank argues that we must disregard the motion for continuance because the tria l court never ruled on it , it was unsw orn , and it lacked an affid avit. No ruling on the motion for continuance was requ ired : a party preserve s a complaint that he receiv ed inadequate notice by fi ling an affidavit or a writt en objection

. See Big H Constr. , 2011 WL 12 33594 , at *2 & n.1 ; Hatler , 2010 WL 375 807, at *2

. T h e motion for continuance wa s a written objection. For these reasons, we sustain C larent and Gil liam ’ s first issue. Because neither o f their remaining issues wou ld afford greater relief than a r evers al and remand, we do not need to address the m . See T EX . R. A PP . P. 47.1; Big H Constr. , 2011 WL 12 33594 , at *2

.9 Conclusion We rever se the t ria l court ’ s summar y judgment and remand the case to the trial court.

Pete r Kelly Justice Panel consists of Justices Kelly, Hightower , and Count iss

.