Opinion issued January 7, 2014

In The 

## Court of Appeals For The 

## First District of Texas

————————————

NO. 01
- 12
- 01163
- CV

——————————— FEROZE ABDULLAH , Appellant V. AMREIT SPF SHADOW CR EEK, LP , Appellee
On Appeal from the 23rd District Court Brazoria Count y, Texas Trial Court Ca se No. 67163

MEMORANDUM OPINION Appellee Amreit SPF Shadow Creek, LP sued appellant Feroze Abdullah for breach of a commercial real estate lease. Both parties moved for summary judgment. The trial court entered judgment in favor of Amreit

. Abdullah’s subsequent motion for new trial was denied. In a single appellate issue, Abdullah2 claims that the trial court erred in entering judgment in favor of Amreit and in d enying his motion for new trial. H e contends that he did not receive not ice of Amreit’s motion for summary judgment at least twenty

- one days prior to the hearing as required by the Texas Rules of Civil Procedure. See T EX
. R. C IV
. P. 166 a(c). Because error was not preserved in the trial court, w e affirm. Background Amreit and A bdullah entered into a lease of commercial premises. Amreit sued Abdullah for breach of contract to recover money owed under the lease agreement. Abdullah mov ed for partial summary judgment, and a hearing on the motion was scheduled for September 11, 2012. On August 13, 2012, Amreit responded and filed its own motion for summary judgment. The hearing on
Amr e i t’s motion was also scheduled for September 11, 2012. Amreit mailed a copy of the motion and its response to Abdullah by certified mail and regular mai l on August 9, 2012

. The letter carrier attempted to deliver the c ertified envelope on August 11 and left a notice of attempted delivery. The certified article was never claimed and was eventually returned to Amreit. On September 5, Amr e i t mailed further c opies of its motion and response to Abdullah by both certified and regular mail. Abdullah received this second piece of certified mai l on September 7.3 Abdullah appeared at the September 11 hearing and argued the merits of his case. The court denied Abdulla h’s motion for summary judgment and granted Amreit’s, entering judgment in its favor on September 18. Abdulla h filed a motion for new trial , which the trial court denied. Abdullah next filed a motion for reconsideration of the order denying new trial

. The trial court had not ruled on this motion when, two days later, Abdullah filed a notice of appeal. Analysis In his sole appellate issue, Abdullah argues that he did not receive notice of Amreit’s motion for summary judgment at least twenty

- one days prior to the hearing thereon as required by the Texas Rules of Civil Procedure. See T EX
. R. C IV
. P. 166 a(c). “An allegation that a party received less notice than required by statute does not present a jurisdictional question, and, therefore, may not be raised for the first time on appeal.” White v. Wah , 789 S.W.2d 312, 319 (Tex. App.

— Houston [1st Dist.] 1990, no writ) (citing Davis v. Davis , 734 S.W.2d 707, 712 (Tex. App.

— Houston [1st Dist.] 1987, writ ref’d n.r.e.)) ; see also Delta (Del.) Petroleum & Energy Corp. v. Hous. Fishing Tools Co. , 670 S.W.2d 295, 296 (Tex. App.

— Houston [1st Dist.] 1983, no writ) (“Although an appellant’s contention that he was given no notice of a summary judgment hearing would place in question the4 court’s jurisdiction to hear the motio n, an allegation that a party received less notice than required by statute does not present a jurisdictional question . . . .”). “[B]oth the reasons for the summary judgment and the objections to it must be in writing and before the trial judge at the hea ring.” City of Houston v. Clear Creek Basin Auth. , 589 S.W.2d 671, 677 (Tex. 1979). “If an appellant receives notice, appears at the summary judgment hearing, and does not file an affidavit as required by Rule 166a(f), he waives the 21

– day notice requirem ent.” White , 789 S.W.2d at 319 (citing Hudenburg v. Neff , 643 S.W.2d 517, 518 (Tex. App.

— Houston [14th Dist.] 1982, writ ref’ d n.r.e.) ) ; see also Hatler v. Moore Wallace N. Am., Inc. , No. 01

- 07

- 00181

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

— Houston [1st Dist.] Feb. 4, 2010, no pet.) (mem. op.) (“ To preserve error, a nonmovant, who receives notice that is untimely but sufficient to enable the nonmovant to attend the summary judgment hearing, must file a motion for continuance or raise the late

notice complaint i n writing, supported by affidavit evidence. ”). “A nonmovant may not preserve a complaint that he received late notice in a post

- trial motion.” Hatler , 2010 WL 375807, at *2. Abdullah received actual notice of Amreit’s motion for summary judgment four days before the hearing. He appeared at the hearing and did not object in writing to the tardy notification or file a motion for continuance . Theref ore, he5 waived any challenge for lack of timely notice. See id. ; White , 789 S.W.2d at 319.
For this reason, Abdul lah’s issue is overruled Conclusion We affirm the judgment of the trial court

.

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