Accurate Industries, Inc. v. Jerry Nelson D/B/A Maverick International Ltd

In The

Court of Appeals

Ninth District of Texas at Beaumont

________________

NO. 09-22-00271-CV
________________

ACCURATE INDUSTRIES, INC., Appellant

V.

JERRY NELSON d/b/a MAVERICK INTERNATIONAL LTD, Appellee
________________________________________________________________________

On Appeal from the 260th District Court
Orange County, Texas
Trial Cause No. D180130-C
________________________________________________________________________

MEMORANDUM OPINION

This is an appeal from a take-nothing summary judgment disposing of

Accurate Industries, Inc.’s breach of contract, quantum meruit and fraud claims

against Jerry Nelson. In eleven issues on appeal, Accurate argues it produced

evidence to support each of its claims, Nelson did not conclusively establish his

defenses, and Nelson did not disclose his defenses until it was too late for Accurate

to conduct discovery on those defenses. Because Accurate did not provide the trial

1
court evidence of each of the elements of its claims for breach of contract, quantum

meruit and fraud, we affirm.

Background

On March 29, 2018, Accurate filed suit against “Jerry Nelson, Individually

and d/b/a Maverick International, Ltd.” 1 Plaintiff’s Original Petition asserts Accurate

entered into a series of twenty-three contracts with Nelson under which Accurate

was to provide goods and services for which Nelson was obligated to pay. The

petition asserts Nelson did not pay Accurate, never had any intention to pay

Accurate, and is liable for breach of contract, quantum meruit and fraud. Nelson,

who was the only defendant at the time, did not file an answer until nearly four years

later. Instead, Maverick International, Ltd., which was not a defendant at the time,

filed an Original Answer on June 1, 2018, referring to itself as “Defendant” and

asserting it is “incorrectly named as ‘Jerry Nelson, Individually and d/b/a Maverick

International, Ltd.’” The Original Answer generally denies Accurate’s allegations

but does not assert any verified pleas or affirmative defenses.

Shortly after Maverick filed its answer, Accurate’s counsel faxed Maverick’s

counsel a Request for Disclosure directed to “Jerry Nelson, Individually and d/b/a

1Accurate’s pleadings and the style of the case in both the trial court and this

court abbreviate “Limited” as “Ltd” (without a period) whereas Nelson’s and
Maverick’s pleadings sometimes use “Ltd.” (with a period). We use, or do not use, a
period depending on the source material to which we refer.
2
Maverick International, LTD.” Although he had not yet appeared in the lawsuit,

Nelson served responses in which he identifies himself as “Jerry Nelson,

Individually and d/b/a Maverick International, Ltd., Defendants[,]” and indicates

that the names of the parties to the lawsuit are correctly stated in the style of the case,

that he is unaware of any other potential parties, that he will supplement his

responses if potential parties are discovered in the future, and that he generally

denies Accurate’s allegations.

More than three years later, on January 25, 2022, Nelson filed “Defendant

Jerry Nelson, Individually and d/b/a Maverick International, Ltd’s First Amended

Answer” in which Nelson generally denies Accurate’s allegations and asserts various

defenses, including verified pleas that he is an individual, that he is not liable in his

individual capacity, that he is not a proper party, that there is a defect in parties, that

he did not contract with or communicate with Accurate in his individual capacity,

that he has not done business under an assumed name, that Maverick International,

Ltd, is not his assumed name, that he did not execute any contract or writing on

which Accurate’s action is founded, that he is not a party to any contract with

Accurate and that any instrument upon which Accurate’s action is founded is without

consideration as to Nelson.

Approximately one week later, on February 3, 3022, Nelson filed a motion for

summary judgment asserting that after adequate time for discovery there is no

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evidence of each of the elements of Accurate’s claims for breach of contract,

quantum meruit and fraud. The motion also asserts that the summary judgment

evidence conclusively negates at least one essential element of each of Accurate’s

claims and conclusively establishes each of the defenses included in Nelson’s First

Amended Answer.

After a hearing on March 10, 2022, the trial court signed an order granting

Nelson’s motion. As discussed below, Accurate did not attend the hearing. On March

14, 2022, Accurate filed a First Amended Petition, repeating the same claims for

breach of contract, quantum meruit and fraud that were originally alleged in the

original petition, but this time against “Defendants” rather than “Defendant.”

Although the style of the case remains the same, the body of the amended petition

identifies two Defendants: Jerry Nelson (without the designation “individually and

d/b/a Maverick International, Ltd”), and Maverick International, Ltd. According to

the amended petition, “Defendant Maverick International, Ltd is an assumed name

of Jerry Nelson and is also purportedly a domestic limited partnership.”

On March 21, 2022, Accurate filed “Plaintiff’s Motion for Leave to Late File

Response, Motion to Reconsider, Motion for New Trial, and Response to

Defendant’s Motion for Summary Judgment” arguing it did not receive notice of the

hearing on Nelson’s motion for summary judgment and requesting the trial court to

reconsider its ruling in light of Accurate’s response. In its response, Accurate claims

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to have provided summary judgment evidence sufficient to raise a fact issue on each

element of each of its claims. It also argues Accurate did not have adequate time to

conduct discovery on Nelson’s newly-added defenses which, according to Accurate,

were not timely disclosed.

On April 7, 2022, the trial court held a hearing on Accurate’s motions,

withdrew its previous order, accepted Accurate’s response to Nelson’s motion for

summary judgment, and then proceeded to hear oral arguments on Nelson’s motion

for summary judgment. At the conclusion of the hearing, the trial court announced

it was granting summary judgment with respect to Accurate’s claims against Nelson

in his individual capacity and invited both sides to file briefing regarding whether it

is possible for an individual to do business as an entity.

After both sides submitted briefing, the trial court signed an order on June 7,

2022, granting summary judgment in favor of Nelson, individually, and d/b/a

Maverick International, Ltd. On July 19, 2022, the trial court signed an Order and

Final Judgment that Accurate take nothing from Nelson. The order severs all

disputes between Accurate and Nelson so that the judgment is final. Accurate then

filed this appeal.

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Analysis

Summary Judgment Standards

After there has been adequate time for discovery, a party may file a no-

evidence motion for summary judgment under Rule 166a(i) identifying at least one

element of a claim or defense upon which the other party has the burden of proof

and for which there is no evidence. Boerjan v. Rodriguez, 436 S.W.3d 307, 310 (Tex.

2014); Tex. R. Civ. P. 166a(i). The trial court must grant such a motion unless the

party with the burden of proof produces evidence sufficient to raise a fact issue with

respect to each challenged element. Boerjan, 436 S.W.3d at 310. Neither party may

use a no-evidence motion to resolve an issue upon which that party bears the burden

of proof. Tex. R. Civ. P. 166a(i). A party seeking a traditional summary judgment

under Rule 166a(c) may either conclusively negate at least one element of each of

the other party’s claims or conclusively establish each element of an affirmative

defense with respect to each of the other party’s claims. Frost Nat’l Bank v.

Fernandez, 315 S.W.3d 494, 508 (Tex. 2010); Tex. R. Civ. P. 166a(c).

Nelson filed a hybrid motion asserting traditional and no-evidence grounds.

See Tex. R. Civ. P. 166a(c), (i). Because the trial court did not specify the ground or

grounds upon which it granted summary judgment, we must affirm if any ground

finds merit. Mosaic Baybrook One, L.P. v. Simien, 674 S.W.3d 234, 252 (Tex. 2023).

We review the trial court’s grant of summary judgment de novo. Energen Res. Corp.

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v. Wallace, 642 S.W.3d 502, 509 (Tex. 2022). “[W]e review the evidence in the light

most favorable to the non-movant, disregarding all contrary evidence and

inferences.” King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003).

A no evidence point will be sustained when (a) there is a complete
absence of evidence of a vital fact, (b) the court is barred by rules of
law or of evidence from giving weight to the only evidence offered to
prove a vital fact, (c) the evidence offered to prove a vital fact is no
more than a mere scintilla, or (d) the evidence conclusively establishes
the opposite of the vital fact.

Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). If the

evidence is so weak that it merely creates a surmise or suspicion of the truth of a

vital fact, there is no more than a scintilla of evidence of the vital fact. King Ranch,

Inc., 118 S.W.3d at 751. More than a scintilla of evidence of a vital fact exists only

when the evidence rises to a level that would enable a reasonable, fair-minded person

to conclude the truth of the vital fact. Id. When a party asserts both traditional and

no-evidence grounds for summary judgments, we generally consider the no-

evidence grounds first, and we do so here. First United Pentecostal Church of

Beaumont v. Parker, 514 S.W.3d 214, 219 (Tex. 2017).

In its fourth issue, Accurate argues the trial court erred if it granted summary

judgment based on the no-evidence motion because Accurate produced more than a

scintilla of evidence to support each of the elements of its claims for breach of

contract, quantum meruit and fraud. We address each of these claims separately.

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Breach of Contract

Nelson’s motion for summary judgment alleges there is no evidence of a valid

contract between Accurate and Nelson. The existence of a valid contract is the first

element of a claim for breach of contract. USAA Tex. Lloyds Co. v. Menchaca, 545

S.W.3d 479, 501 n.21 (Tex. 2018). In its response, Accurate was required to provide

the trial court evidence sufficient to raise a fact issue regarding the existence of a

valid contract with Nelson. The summary judgment evidence produced by Accurate

includes the Affidavit of Virgil “Bo Jack” Davis who, after an introductory

paragraph, testified as follows:

On January 22, 2015, August 24, 2015, August 28, 2015, October 13,
2015, September 10, 2015, September 25, 2015, September 29, 2015,
October 8, 2015, October 15, 2015, October 16, 2015, October 16,
2015, October 26, 2015, November 12, 2015, November 13, 2015,
October 13, 2017, October 18, 2017, October 19, 2017, October 20,
2017, October 23, 2017, October 27, 2017, October 27, 2017, October
27, 2017, and December 11, 2017, Accurate Industries, Inc. and
Defendants entered into contracts by which Accurate Industries was
obligated to construct, provide, and modify certain goods and provide
certain services. Defendants were obligated by the contracts to pay
Accurate industries, Inc., the sums of $2,600.00, $400.00, $100.00,
$1,200.00, $1,400.00, $400.00, $500.00, $1,200.00, $4,000.00,
$4,155.00, $3,010.00, $450.00, $6,097.00, $900.00, $1,811.55,
$800.00, $1,500.00, $5,200.00, $450.00, $600.00, $600.00, $1,296.00,
$1,200.00, respectively, for each of the contracts.

Accurate Industries, Inc. fully performed its contractual obligations, but
Defendants have failed and refused to tender payment in the amounts
due, which has financially damaged Accurate Industries, Inc.

Each time a new contract was entered into, Defendants made assurances
to Accurate Industries, Inc. that Defendants would pay, but Defendants
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never had any intention of paying and intended, instead, to obtain the
products and services through deception and misrepresentation.

An affidavit submitted in opposition to a motion for summary judgment “shall

set forth such facts as would be admissible in evidence[.]” Tex. R. Civ. P. 166a(f).

“Affidavits consisting only of conclusions are insufficient to raise an issue of fact.”

Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984). Davis’s affidavit says

nothing about any of the underlying facts which may or may not support his

conclusion that “Accurate [] and Defendants entered into contracts” on the various

dates and for the various amounts listed in the affidavit. “It is well settled that the

naked and unsupported opinion or conclusion of a witness does not constitute

evidence of probative force and will not support a jury finding even when admitted

without objection.” Dall. R. & T. Co. v. Gossett, 294 S.W.2d 377, 380 (Tex. 1956).

Without “the necessary factual specificity,” the affidavit’s bare legal conclusion does

not constitute competent evidence of any contracts between Accurate and Nelson.

Brownlee, 665 S.W.2d at 112.

Accurate’s summary judgment response asserts the exchange of purchase

orders and invoices “proves that the parties entered into several contracts and

constitute[s] sufficient evidence of the existence of those contracts.” Although

Accurate’s petition and Davis’s affidavit each refer to twenty-three alleged contracts,

Accurate’s summary judgment evidence includes copies of only fifteen purchase

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orders from Maverick and fifteen corresponding invoices from Accurate. 2 Of these,

only thirteen have dates and dollar amounts that correspond to the dates and amounts

of the contracts identified in Davis’s affidavit and Accurate’s petition as allegedly

having been breached. 3 The words “Maverick” and “Maverick International, Ltd.”

appear in the “Ship to:” and “Bill To:” sections of each of Accurate’s invoices. None

of the invoices is directed to Nelson, nor does any invoice bear any person’s

signature.

Each of the purchase orders bears a “Maverick International, Ltd.” logo at the

top. In the lower right corner of each purchase order there is a person’s signature.

Despite Accurate’s assertions that the purchase orders do not contain any indication

that they were signed in a representative capacity, the record shows the signature on

each of the purchase orders is preceded by the preprinted word “BY.” Words such as

“by” or “per” are an indication the person signed in representative capacity, even in

the absence of the signer’s particular office or position. Fed. Deposit Ins. Corp. v. K-

D Leasing Co., 743 S.W.2d 774, 776 (Tex. App.—El Paso 1988, no writ); Smith v.

Town N. Bank, No. 05-11-00520-CV, 2012 Tex. App. LEXIS 9356, at *9 (Tex.

2Although referenced in Accurate’s summary judgment response, Purchase

Orders 12372, 123506, 123569, 123588, 123677, 137676, and 123674, are not
included in the record.
3Accurate’s First Amended Petition does not assert any claim based on

Purchase Order 109470 for $3200 nor Purchase Order 110718 for $250, and neither
of these contracts is referenced in Davis’s affidavit.
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App.—Dallas Nov. 13, 2012, pet. denied) (mem. op.) (“The use of the term ‘by’

indicates unambiguously that [the signers] were signing only as representatives[.]”).

But the question of whether the person who signed the purchase orders did so

in a representative capacity is secondary to the question whether it was Nelson who

signed them. Although a person’s signature on a contract is not always required, the

only evidence Accurate offered in support of its alleged contracts with Nelson

consists of Davis’s conclusory affidavit and the invoices and purchase orders

exchanged between Accurate and Maverick. Accurate’s summary judgment

response lists twenty-two purchase orders it claims were signed by Nelson, but nine

of those are either not included in the record or not mentioned in the petition. The

signatures on the other thirteen are illegible. No printed name appears below any of

the signatures. Without evidence that any of the signatures belongs to Nelson, neither

the purchase orders nor the invoices contain any references to Nelson. Viewing the

summary judgment evidence in the light most favorable to Accurate, there is no

evidence Nelson participated, in any capacity, in any of the transactions in question.

We conclude “there is a complete absence of evidence of a vital fact” – the existence

of a valid contract between Accurate and Nelson. Merrell Dow, 953 S.W.2d at 711.

Accurate argues in its sixth issue that Nelson bore the burden to disprove the

existence of a valid contract either by proving that he did not sign the purchase orders

or that he did so only in a representative capacity. We disagree. Nelson’s answer

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includes a verified denial that he executed any contracts or writings upon which

Accurate’s claims are founded. See Tex. R. Civ. P. 93(7). But a verified denial of the

execution of an instrument is not an affirmative defense. “When the defendant files

a verified denial, the burden is on the plaintiff to prove the defendant’s execution of

the document.” George P. Bane, Inc. v. Ballard, No. 05-19-01459-CV, 2021 Tex.

App. LEXIS 2176, at *11 (Tex. App.—Dallas Mar. 22, 2021, no pet.) (mem. op.).

Nelson’s answer also includes, “in the alternative[,]” a verified denial that

Nelson is liable in the capacity in which he is sued. See Tex. R. Civ. P. 93(2). We

acknowledge it is an affirmative defense for a party to allege that he signed a contract

in a representative capacity. See Seale v. Nichols, 505 S.W.2d 251, 254 (Tex. 1974).

But Nelson’s no-evidence motion does not depend on any such defense. Instead, it

asserts, “Accurate has failed to produce evidence showing the existence of valid

contract between Defendant Nelson and Accurate.” Because the existence of a valid

contract with Nelson is an element of Accurate’s breach of contract claim against

Nelson, the burden was on Accurate to produce some evidence of this vital fact.

“Rule 93 (2) does not require a party who is sued for breach of contract to allege in

a verified pleading that he is not a party to the contract. In a breach of contract action,

the plaintiff has the burden to prove that the defendant has obligated himself under

the contract; the defendant’s denial of this element does not constitute an affirmative

defense under Rule 93.” Miles v. Plumbing Servs. of Hous., Inc., 668 S.W.2d 509,

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512-13 (Tex. App.—Houston [14th Dist.] 1984, writ ref’d n.r.e.); see also John

Chezik Buick Co. v. Friendly Chevrolet Co., 749 S.W.2d 591, 593 (Tex. App.—

Dallas 1988, writ denied). That said, it is not necessary for us to decide whether

Nelson’s alternative plea under Rule 93(2) is an affirmative defense, because in the

absence of evidence Nelson signed any of the contracts in any capacity, we need not

reach the question of the propriety of the capacity in which Accurate seeks to hold

him liable. Because we conclude it was Accurate’s burden to produce evidence of a

valid contract with Nelson, we overrule Accurate’s sixth issue.

Quantum Meruit

“The elements of a quantum meruit claim include proof that: ‘1) valuable

services were rendered or materials furnished; 2) for the person sought to be charged;

3) which services and materials were accepted by the person sought to be charged,

used and enjoyed by him; 4) under such circumstances as reasonably notified the

person sought to be charged that the plaintiff in performing such services was

expecting to be paid by the person sought to be charged.’” Bashara v. Baptist Mem’l

Hosp. Sys., 685 S.W.2d 307, 310 (Tex. 1985) (quoting City of Ingleside v. Stewart,

554 S.W.2d 939 (Tex. Civ. App.—Corpus Christi 1977, writ ref’d n.r.e.)). Nelson’s

motion for summary judgment asserts there is no evidence with respect to each of

these elements. Accurate’s response does not address quantum meruit nor any of its

elements. Although Accurate was not required to marshal its evidence, it was

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required to “point out evidence that raises a fact issue on the challenged elements.”

Tex. R. Civ. P. 166a cmt.; see also Butler v. Deutsche Bank Nat’l Tr. Co., No. 09-20-

00137-CV, 2022 Tex. App. LEXIS 2810, at *11 (Tex. App.—Beaumont Apr. 28,

2022, no pet.) (mem. op.). Because Davis’s affidavit is conclusory and Nelson is not

mentioned in any of the invoices or purchase orders, Accurate’s summary judgment

evidence does not contain any indication Accurate provided valuable services or

materials to Nelson, nor that Nelson received or accepted any such services or

materials from Accurate. We conclude Accurate failed to carry its burden to provide

the trial court more than a scintilla of evidence to support its quantum meruit claim.

Fraud

In this context, “[t]he elements of common law fraud are: 1) that a material

representation was made; 2) it was false; 3) the speaker knew the representation was

false when he made it, or he made the representation recklessly without any

knowledge of its truth and as a positive assertion; 4) with the intention that it should

be acted upon by the party; 5) that the party acted in reliance upon it; and 6) thereby

suffered injury.” Southeast Tex. Homecare Specialists, Inc. v. Triangle Billing, Inc.,

43 S.W.3d 106, 110 (Tex. App.—Beaumont 2001, no pet.). Nelson’s motion for

summary judgment asserts there is no evidence with respect to each of these

elements.

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Davis’s affidavit asserts, “Each time a new contract was entered into,

Defendants made assurances to Accurate Industries, Inc. that Defendants would pay,

but Defendants never had any intention of paying and intended, instead, to obtain

the products and services through deception and misrepresentation.” Affidavits must

be based on personal knowledge. Tex. R. Civ. P. 166a(f). “[A] witness cannot testify

to the state of mind of another person.” Lehman v. Corpus Christi Nat’l Bank, 668

S.W.2d 687, 689 (Tex. 1984). “An affidavit showing no basis for personal knowledge

is legally insufficient.” Kerlin v. Arias, 274 S.W.3d 666, 668 (Tex. 2008). Davis’s

conclusory statements about Nelson’s state of mind do not constitute competent

evidence that Nelson knew any representation was false at the time the

representation was made nor that Nelson intended to deceive Accurate. See Ryland

Grp. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996). Accurate also did not provide the

trial court any evidence Accurate acted in reliance upon any representation made by

Nelson. We conclude Accurate failed to carry its burden to provide the trial court

more than a scintilla of evidence to support its claim for fraud.

Because Accurate did not provide competent summary judgment evidence of

each element of its claims for breach of contract, quantum meruit and fraud in

response to Nelson’s no-evidence motion for summary judgment, we overrule

Accurate’s fourth issue.

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Discovery Issues

In its first issue, Accurate asserts the trial court erred in granting summary

judgment because Nelson failed to timely disclose his defensive theories that there

was a defect in parties, that Maverick was a potential party, and that Nelson was not

liable in the capacity in which he was sued. Because Nelson’s October 1, 2018,

Response to Request for Disclosure did not include any of these defenses, and

because the response was never supplemented, Accurate argues Nelson’s summary

judgment cannot be upheld based on any of these defenses.

Upon learning that a disclosure response is incomplete or incorrect, a party is

required to supplement its response “unless the additional or corrective information

has been made known to the other parties in writing, on the record at a deposition or

through other discovery responses.” Tex. R. Civ. P. 194.4(a)(2). When a party fails

to comply with a discovery rule, Rule 193.6 prohibits a party from “introduc[ing] in

evidence the material or information that was not timely disclosed[.]” Id. 193.6(a).

While the rule results in automatic exclusion of undisclosed evidence, it does not

authorize the elimination of a party’s legal theories. Prescod v. Tkach, No. 02-21-

00162-CV, 2022 Tex. App. LEXIS 655, at *17 (Tex. App.—Fort Worth Jan. 27,

2022, no pet.) (“Rule 193.6 is generally geared towards the exclusion of evidence,

not entire legal theories.”). Notice of a party’s legal theories is generally derived

from the pleadings. Id. at *18. “The office of pleadings is to define the issues at

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trial.” Murray v. O & A Express, Inc., 630 S.W.2d 633, 636 (Tex. 1982). Maverick’s

Original Answer, filed in 2018, notified Accurate that Maverick claimed that the

correct name of the “Defendant” was “Maverick International, Ltd.,” and that it had

been “incorrectly named as ‘Jerry Nelson, individually and d/b/a Maverick

International, Ltd.’” During the April 7, 2022 hearing, Accurate’s counsel explained

to the trial judge that discovery had not been conducted on these issues because

Maverick’s answer was not verified and because Nelson’s disclosure responses did

not disclose those same defensive theories. To the extent the trial court’s granting of

Nelson’s motion for summary judgment impliedly overruled Accurate’s arguments

under Rule 193.6 that the evidence supporting Nelson’s defenses should be

automatically excluded, the trial court may have concluded either that Nelson did

not have a duty to supplement its disclosure responses or that Accurate was not

unfairly surprised by Nelson’s failure to supplement, and based on the record before

us, we cannot say the trial court abused its discretion. See Tex. R. Civ. P. 194.4(a)(2),

193.6(a)(2); see also Jackson v. Takara, 675 S.W.3d 1, 6 (Tex. 2023) (“A court of

appeals reviews a trial court’s decision under Rule 193.6(a) for abuse of

discretion.”). That said, we need not determine whether Nelson was required to

disclose any defense beyond the general denial mentioned in his disclosure response,

because the trial court’s summary judgment may be upheld based solely on the

absence of evidence of vital facts upon which Accurate bore the burden of proof,

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rather than on any defense Nelson allegedly failed to timely disclose. We overrule

Accurate’s first issue.

In its third issue, Accurate argues the trial court did not allow adequate time

for discovery on the defenses Nelson asserted in his January 25, 2022, First

Amended Original Answer. Accurate did not preserve this issue by filing either a

verified motion for continuance or an affidavit explaining the additional discovery

it claims was necessary. Tenneco Inc. v. Enter. Prods. Co., 925 S.W.2d 640, 647 (Tex.

1996); Mejia v. Mobiloil Fed. Credit Union, No. 09-21-00079-CV, 2023 Tex. App.

LEXIS 1883, at *18-19 (Tex. App.—Beaumont Mar. 23, 2023, no pet.) (mem. op.);

Tex. R. Civ. P. 166a(g), 251, 252. We overrule Accurate’s third issue.

Notice of Hearing

In its eleventh issue, Accurate argues the trial court erred in granting summary

judgment without providing proper notice of the April 7, 2022, hearing. In response,

Nelson asserts Accurate waived any complaint about untimely notice by

participating in the hearing without objecting. Nelson also argues any error was

harmless since the trial court granted Accurate’s request for leave to file a response

and did not sign an order granting summary judgment until two months after the

hearing.

Except on leave of court, Texas Rule of Civil Procedure 166a(c) requires at

least 21 days’ notice of the hearing on a motion for summary judgment. Tex. R. Civ.

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P. 166a(c); see Lewis v. Blake, 876 S.W.2d 314, 315 (Tex. 1994). “The purpose of

Rule 166a’s notice provision is to provide the nonmovant with an opportunity to

respond to the motion within the deadline that the rule prescribes for a response.”

Barrientos v. Barrientos, 675 S.W.3d 399, 405 (Tex. App.—Eastland 2023, pet.

denied). “The hearing date determines the time for response to the motion; without

notice of hearing, the respondent cannot know when the response is due.” Martin v.

Martin, Martin & Richards, Inc., 989 S.W.2d 357, 359 (Tex. 1998).

Nelson’s summary judgment motion was initially set for hearing on March 10,

2022. The trial court initially granted the motion on that date, but Accurate

subsequently filed a combined motion for leave, motion to reconsider, motion for

new trial, and response to motion for summary judgment, asserting it did not receive

notice. During the subsequent hearing on April 7, 2022, the trial court vacated its

summary judgment order and granted leave for Accurate to file its summary

judgment response which was already included within its motion for leave. When

the trial court immediately proceeded to rehear Nelson’s motion for summary

judgment, Accurate participated without objection. “The non-movant waives error

arising from late notice if he appears at the hearing without moving for a continuance

or objecting to the lack of notice in his response.” Hearn v. Bayer Corp., No. 09-01-

00079 CV, 2001 Tex. App. LEXIS 4360, at *2-3 (Tex. App.—Beaumont June 28,

2001, no pet.) (mem. op.). Moreover, “the twenty-one-day notice requirement set

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forth in Rule 166a(c) does not apply to a trial court’s reconsideration of its prior

ruling on a motion for summary judgment.” Note Inv. Grp., Inc. v. Assocs. First

Capital Corp., 476 S.W.3d 463, 494-95 (Tex. App.—Beaumont 2015, no pet.).

Accurate should not be heard to complain that the trial court reconsidered Nelson’s

motion for summary judgment at a hearing Accurate scheduled for the purpose of

asking the court to do just that.

Even if it were error for the trial court to hear Nelson’s motion for summary

judgment on April 7, and even if Accurate had preserved its complaint about lack of

notice, we agree with Nelson that any such error was harmless. In Martin, the trial

court, without notice to the plaintiff, granted the defendants’ motion for summary

judgment only four days after it had been filed. 989 S.W.2d at 358. Two days later,

the plaintiff filed a response, and eleven days later, the trial court issued an order

stating it had received and considered the response and that its prior ruling granting

the summary judgment remained correct. Id. The Texas Supreme Court held that the

trial court erred in granting the motion for summary judgment without notice to the

plaintiff but that “[t]he error was harmless, however, because the court fully

considered [the plaintiff’s] response and reconfirmed its ruling.” Id. at 359. Like the

plaintiff in Martin, Accurate “does not contend that the district court’s actions

prevented [Accurate] from presenting to the court a full response to [Nelson’s]

20
motion for summary judgment.” Id. We conclude any error based on lack of notice,

even if preserved, was harmless. We overrule Accurate’s eleventh issue.

Conclusion

Having upheld the summary judgment on no-evidence grounds, we need not

address issues two, five, seven, eight, nine and ten in which Accurate challenges

alternative grounds which may or may not have provided additional support for the

summary judgment. The trial court’s summary judgment is affirmed.

AFFIRMED.

KENT CHAMBERS
Justice

Submitted on March 20, 2024
Opinion Delivered January 16, 2025

Before Johnson, Wright and Chambers, JJ.

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