### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03

- 19

- 00142

- CV

Lickety Split Express , Inc., Appellant

v. Lyndee Solutions, Inc., Appellee

FROM THE COUNTY COUR T OF FAYETTE COUNTY NO. 3734, THE HONORA BLE EDWARD F. JANECK A, JUDGE PRESIDIN G

M E M O R A N D U M O P I N I O N

This is an appeal from a summary judgment ren dered by the Fayette County
Cour t in a suit on a sworn account filed by appellee, Lyndee S olutions, Inc. against a pp ellant Lickety S pl it Express, Inc. We will rev erse the j u dgment.

A fter suit was filed, then

- counsel for Lickety Split filed a general denial. Thereafter, Lyndee filed a motion for summary judgment. The hearing on the motion for

summary judgment was set for December 5, 2018

. About a week before th e schedule d hearing, Lickety Split retained new counsel , who only learned of the setting for the hearing when he called the clerk ’ s office. C ounsel then telephoned counsel for Lyndee , who a greed to cont inue the hearing. Counsel notified the court
coordinat or of th e ag reement and was told that the hearing would be passed. Lickety Split filed the agree d motion for continuance and a motion for leave to file a response to the summary

judgment motion on December 5. However, the trial court had already signed the summa r y2 judgment affording Lyndee ’ s requested relief on Decembe r 4 , before the time of the scheduled hearing. Lickety Split first received notice of the December 4 judgment on January 9 , 2 0 1 9 , when counsel telephoned the court to determine th e status of the ag reed motion for continuance. 1 Lickety Split filed a motion for new trial on January 9, wh ich the trial court
denied on January 30

. Lickety Split maintains in this Court that the trial cour t erred in ren dering summary judgme n t before th e schedu led hearin g da te. We agree. When a hearing on a motion for summary judgment has been scheduled , and the
trial cou rt grants the motion before the scheduled hearing, th e court vi o late s the non

- moving
part y ’ s pr ocedural due process right t o b e hear d. Texas Integrat ed Conveyor System s, Inc. v.
Innovative Conv e y er Concepts, In c. , 300 S.W.3d 348, 363

– 64 (Tex. App.

— Dallas 2009, pet

. denied ); s ee Campbell v. Stucki , 220 S.W.3d 563, 570 ( Tex. App.

— Tyler 2007, no pet.);

T imothy Patton, Sum mary Judgment s in Texas § 2 .01 [ 4] [ a ] ( Lex i s Nexis 3rd ed. 2018). The judgment is reversed and the cause remanded.

__________________________________________ Bob E. Shannon, Justice
Before Justices Triana, Smith, and Shannon*

Rever sed and Remanded
Filed: February 1 4 , 2020
* Before Bob E. Shannon, Chief Justi c e (retired), Third Cou rt of Appeals, sitting by assignment. See Tex. Gov ’ t Code § 74.003(b).

1 The trial court conducted a Rule 306a hearing , concluding that Lickety Split or its attorney first ei ther received notice of the fina l judgment signed Decembe r 4 , 2018 , or acquired actual knowledge of the s ign ing on January 9, 2019, a time more than twenty days after the f inal judgment was signed. Accordingly, the motion for new trial was timely filed, see Tex. R

. Civ. P. 306a(4) , and th is Court has jurisdiction to entertain the ap pe al.