Stephen Patrick Black v. Amy Curtis, MTC Law Library Attendant

In The
Court of Appeals
Seventh District of Texas at Amarillo

No. 07-23-00261-CV

STEPHEN PATRICK BLACK, APPELLANT

V.

AMY CURTIS, MTC LAW LIBRARY ATTENDANT, APPELLEE

On Appeal from County Court
Lamb County, Texas
Trial Court No. CC-3442, Honorable James M. DeLoach, Presiding

July 8, 2024
MEMORANDUM OPINION
Before QUINN, C.J., and PARKER and YARBROUGH, JJ.

Appellant, Stephen Patrick Black, filed a negligence suit against Appellee, Amy

Curtis, Law Library Attendant for the Management and Training Corporation, for refusing

to print legal documents he allegedly needed for a court deadline. Both sides filed

traditional motions for summary judgment. The trial court granted Curtis’s motion and

denied Black’s motion. By his original and reply brief, Black presents four issues

challenging the trial court’s order as follows:
(1) Did Curtis owe him a legal duty, and if so, what type?

(2) Did Curtis breach that duty assumed by contract, and if so, how?

(3) Did Curtis’s breach of duty injure him, and if so, how?

(4) Did the trial court commit reversible error in granting Curtis’s motion
for summary judgment, when it failed to provide notice of a
submission hearing and allow him a timely opportunity to respond in
opposition pursuant to Rule 166a(c) of the Texas Rules of Civil
Procedure?

We reverse and remand.

BACKGROUND

Black has been committed in the Texas Civil Commitment Center (TCCC) in Lamb

County, Texas, since 2016, pursuant to the Sexually Violent Predators Act.1 Curtis is the

law library attendant for the Management and Training Corporation (MTC), a private

corporation which operates the TCCC. MTC establishes guidelines for providing

committed clients with law library access for preparation of legal materials as well as

recreational reading. Per its standard operating practices, clients may submit a request

for copies of original materials and unless indigent, clients are billed at a specified rate.

According to the record, on June 24, 2021, Black was in the law library and at

approximately 11:20 a.m., he submitted a request form for Curtis to print copies of a legal

document he needed for a court deadline. She refused to do so until she could verify his

indigent status. He “pleaded” with her for approximately five minutes to provide the copies

and she again refused.

1 TEX. HEALTH & SAFETY CODE ANN. §§ 841.001–.151.

2
In her affidavit, Curtis averred Black’s name was not included on the indigency list

on the day he requested the copies. On that same date at 11:28 a.m., she emailed the

person in charge of the indigency list and inquired about Black’s status.2 Curtis received

a response at 1:25 p.m. indicating a mistake had been made and to add Black to the

indigency list.

According to Black, Curtis filed a retaliatory incident report alleging he created a

disturbance in violation of law library policy. In the report, Curtis claimed she asked Black

to complete a form requesting copies which she would provide but he left “still ranting and

raving.” In response, Black filed a Step 1 Grievance Form disputing that he had caused

a disturbance. His grievance recited that security was not called to escort him from the

library and that video surveillance would support his version of events. Disciplinary action

resulting from the incident report required him to wear a GPS monitor for four months or

face a felony charge if he refused. He successfully appealed the incident report, and the

GPS monitor was removed.

Black sued Curtis for negligence in Justice Court but the case was resolved against

him on Curtis’s Motion for Summary Disposition. He appealed to County Court alleging

Curtis breached a duty owed to him which resulted in foreseeable injuries and cruel and

unusual punishment by requiring him to wear a GPS monitor for months, having to charge

it twice a day, and restricting commissary orders for thirty days. He sought monetary

damages for his alleged injuries.3

2 Black had been on the Indigency List previously, but Curtis did not have the ability to determine if

his status had changed.

3 His original claim was followed by three supplemental complaints.

3
Black filed his motion for summary judgment on January 24, 2023, and Curtis filed

her competing motion on March 24, 2023. Before the expiration of twenty-one days

required by Rule 166a(c) of the Texas Rules of Civil Procedure, the motions were

submitted without notice or a hearing. On April 10, 2023, the trial court granted Curtis’s

motion for summary judgment and denied Black’s motion. The trial court also ordered

that Black take nothing by his claims against Curtis and dismissed the case with

prejudice.4

APPLICABLE LAW

Pursuant to Rule 166a(c) of the Texas Rules of Civil Procedure, a summary

judgment motion and supporting affidavits shall be filed and served at least twenty-one

days before the time specified for hearing. TEX. R. CIV. P. 166a(c). Except on leave of

court, an adverse party has seven days prior to the day of the hearing to file and serve

opposing affidavits or a written response. Id. Notice of submission is mandatory and

essential and because summary judgment is a harsh remedy, the notice provisions of

Rule 166a(c) are strictly construed. Town Park Ctr., LLC v. City of Sealy, 639 S.W.3d

170, 183 (Tex. App.—Houston [1st Dist.] 2021, no pet.).

SUMMARY JUDGMENT STANDARD OF REVIEW

We review a grant of summary judgment de novo. Trial v. Dragon, 593 S.W.3d

313, 316–17 (Tex. 2019). When both parties move for summary judgment, each party

4 Black was not timely notified of the judgment entered against him. He successfully appealed the
trial court’s denial of his motion under Rule 306a of the Texas Rules of Civil Procedure to have the deadline
in which to file his notice of appeal reset. See Black v. Curtis, No. 07-23-00261-CV, 2024 Tex. App. LEXIS
1142, at *2–3 (Tex. App.—Amarillo Feb. 6, 2024, order).
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bears the burden of establishing that it is entitled to judgment as a matter of law. City of

Richardson v. Oncor Elec. Delivery Co., 539 S.W.3d 252, 259 (Tex. 2018); Garland v.

Dallas Morning News, 22 S.W.3d 351, 356 (Tex. 2000). When the trial court grants one

motion for summary judgment and denies the other the reviewing court considers the

summary judgment evidence presented by both sides, determines all questions

presented, and if the reviewing court determines that the trial court erred, renders the

judgment the trial court should have rendered. Seabright Ins. Co. v. Lopez, 465 S.W.3d

637, 641–42 (Tex. 2015). Neither party can prevail because of the failure of the other to

discharge its burden. Tigner v. First National Bank of Angleton, 153 Tex. 69, 264 S.W.2d

85, 87 (1954).

ANALYSIS

We begin our analysis with issue four as it is dispositive of this appeal. Black

asserts the trial court committed reversible error by failing to provide him with notice of

submission of the motions for summary judgment and in denying him the opportunity to

respond to Curtis’s motion.5 We agree.

Notice is “[a]n elementary and fundamental requirement of due process.” B. Gregg

Price, P.C. v. Series 1 – Virage Master LP, 661 S.W.3d 419, 422 (Tex. 2023) (quoting

Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 314, 70 S. Ct. 652, 94 L. Ed. 865

(1950)). Such notice must be “reasonably calculated under all the circumstances to

5 Black recited in his motion for summary judgment that he had no objection to the motion being

decided without a hearing; however, that is distinct from notice of submission of the motion which is
mandatory under Rule 166a(c). See Martin v. Martin, Martin & Richards, Inc., 989 S.W.2d 357, 359 (Tex.
1998) (declaring that an oral hearing on a motion for summary judgment is not mandatory but notice of
hearing or submission is required).
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apprise interested parties of the pendency of the action and afford them an opportunity to

present their objections.” Mullane, 339 U.S. at 314.

Our rules of civil procedure prescribe guidelines to ensure the parties receive

notice and a meaningful opportunity to be heard. B. Gregg Price, P.C., 661 S.W.3d at

423. A motion for summary judgment must be served on the opposing party at least

twenty-one days before the time specified for a hearing. TEX R. CIV. P. 166a(c). Notice

of a summary judgment hearing must inform the nonmovant of the exact date of hearing

or submission. Martin, 989 S.W.2d at 359. A trial court errs when it grants summary

judgment without notice of the hearing to the nonmovant. B. Gregg Price, P.C., 661

S.W.3d at 423 (holding that trial court’s unilateral action in moving a canceled hearing to

its submission docket without notice and the subsequent denial of a motion for new trial

was a denial of due process).

In the underlying case, the trial court signed an order granting Curtis’s motion for

summary judgment without notice of submission on April 10, 2023, seventeen days after

the motion was filed. Black did not file his response to Curtis’s motion until April 25, 2023,

unaware an order had already been signed.

Black was denied the opportunity to file his response per Rule 166a(c) until after

the trial court entered its order. Curtis attempts to justify the lack of notice of submission

by invoking the de novo standard of review applicable in appeals from summary

judgments. She reasons this Court will nevertheless consider all summary judgment

evidence submitted, including Black’s untimely response because it is part of the record.

We concur that when the trial court grants one motion for summary judgment and denies

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the other, the reviewing court may consider evidence presented by both sides. Lopez,

465 S.W.3d at 641–42. However, a reviewing court may only consider evidence that was

before the trial court when it rendered its judgment. In re A.W.P., 200 S.W.3d 242, 245

(Tex. App.—Dallas 2006, no pet.). Black’s response was not before the trial court when

it entered its order. Thus, this Court would not have been able to conduct a de novo

review of Black’s response due to no fault of his own.

De novo review in an appeal from a summary judgment conceives that the trial

court complied with procedural due process. In B. Gregg Price, P.C., 661 S.W.3d at 421,

a motion for new trial was filed complaining of the failure to receive an amended notice of

the hearing on the motion for summary judgment. In the underlying case, however, Black

had no opportunity to timely file a motion for new trial per Rule 329b(a) of the Texas Rules

of Civil Procedure as he did not receive notice of the trial court’s order until June 15, 2023,

more than thirty days after the order was signed. See Black, 2024 Tex. App. LEXIS 1142,

at *3. Thus, the error in failing to give notice of submission was compounded by the

failure to inform Black that an order had been entered on April 10, 2023, which resulted

in this Court resetting the appellate timetable. Id.

We conclude Black’s due process rights were violated when the trial court entered

the order in favor of Curtis without timely notice of submission. Thus, we do not reach a

de novo review of the trial court’s order. Issue four is sustained. Issues one, two, and

three are pretermitted.

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CONCLUSION

The trial court’s summary judgment is reversed, and the cause is remanded for

further proceedings in compliance with Rule 166a(c) of the Texas Rules of Civil

Procedure.6

Alex Yarbrough
Justice

6 Generally, this Court renders the judgment the trial court should have rendered when error is

presented in a review of competing motions for summary judgment. Lopez, 465 S.W.3d at 641-42. Here,
however, because Black was denied due process, we do not reach the merits of either motion.
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