Affirmed and Memorandum Opinion filed August 11, 2009.
In The
Fourteenth Court of Appeals
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NO. 14-07-00886-CV
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JOSEPH MONK, Appellant
v.
WESTGATE HOMEOWNERS= ASSOCIATION, INC., Appellee
On Appeal from the 270th District Court
Harris County, Texas
Trial Court Cause No. 2006-24909
M E M O R A N D U M O P I N I O N
This appeal arises out of a summary judgment entered in favor of appellee, Westgate Homeowners= Association, Inc. (AWestgate@). Appellant, Joseph Monk, argues the trial court erred in granting Westgate=s motion for summary judgment and overruling Monk=s motion for new trial. We affirm.
Background
On April 20, 2006, Westgate brought suit against Monk and his ex-wife, Lisa Pomberg, to foreclose on the lien securing unpaid annual maintenance assessments Monk and Pomberg allegedly owed on real property in the Westgate subdivision. Westgate moved for summary judgment on May 25, 2007 and a hearing was held on June 15, 2007. Monk did not respond to the motion and the trial court granted summary judgment for Westgate, awarding $3,351.78 in damages, $3,510.00 in attorney=s fees and court costs, and post-judgment interest.
Monk timely filed a verified motion for new trial asserting summary judgment was improper because he did not receive Westgate=s motion or notice of the hearing until after the hearing.[1] Westgate did not file a response to Monk=s motion for new trial. The motion was overruled by operation of law. See Tex. R. Civ. P. 329b(c). Monk now asserts the trial court erred when it failed to grant his motion for new trial because he did not receive notice of the motion for summary judgment or hearing, and further contends that the judgment is void because Monk=s debts were allegedly discharged in bankruptcy. Westgate did not file a response brief.[2]
Analysis
Motion for Summary Judgment
First, Monk contends the trial court improperly granted summary judgment in favor of Westgate. The standard for reviewing a traditional motion for summary judgment is whether the successful movant at the trial level carried its burden of showing that there is no genuine issue of material fact and that judgment should be granted as a matter of law. KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex.1999). A plaintiff who moves for summary judgment must prove it is entitled to judgment as a matter of law on each element of the cause of action. Fry v. Comm'n for Lawyer Discipline, 979 S.W.2d 331, 334 (Tex. App.CHouston [14th Dist.] 1998, pet. denied). If the movant=s motion and summary-judgment evidence facially establish the movant=s right to judgment as a matter of law, the burden shifts to the nonmovant to raise a genuine issue of material fact sufficient to defeat summary judgment. M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000); Castillo v. Westwood Furniture, Inc., 25 S.W.3d 858, 860 (Tex. App.CHouston [14th Dist.] 2000, no pet.). Under this traditional standard, we must take as true all evidence favorable to the nonmovant and must make all reasonable inferences in the nonmovant=s favor. See Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.1997). A trial court may only consider pleadings and evidence on file at the time of the summary judgment hearing. See Tex. R. Civ. P. 166a(c); Leinen v. Buffington=s Bayou City Servs.Co., 824 S.W.2d 682, 685 (Tex. App.CHouston [14th Dist.] 1992, no writ). In this case, the court had only Westgate=s original petition and motion for summary judgment, Monk=s original answer, and Pomberg=s original answer and response to the motion for summary judgment to consider when it granted the motion.
Westgate=s summary-judgment evidence demonstrated that Monk and Pomberg owned property in the Westgate subdivision. The evidence further established that the property was subject to an annual maintenance assessment for common expenses of the subdivision secured by a continuing assessment lien on the property. Westgate also demonstrated that attorney=s fees, interest, and costs associated with the collection of assessments were secured by the lien on the property. Finally, Westgate attached the affidavit of Trinh Baserabescu, the property supervisor for Vanmor Properties, Inc., the managing agent for Westgate. The affidavit provided that $3,351.78 in delinquent annual maintenance assessments plus interest was owed on the property owned by Monk and Pomberg.
Once Westgate established that it was entitled to summary judgment against Monk and Pomberg, it became their burden, as nonmovants, to raise a genuine issue of material fact sufficient to defeat summary judgment. See M.D. Anderson Hosp. & Tumor Inst., 28 S.W.3d at 23. In response to Westgate=s motion for summary judgment, Pomberg argued that the delinquent assessments accrued following her divorce from Monk. She attached their final divorce decree to show that Monk received Pomberg=s interest in the property when they divorced in 2002. The court held that Pomberg raised a genuine issue of material fact regarding her ownership of the property and denied summary judgment as to her.[3] However, the court granted summary judgment against Monk because he failed to respond to the motion and did not raise a fact issue to prevent summary judgment.
On appeal, Monk contends that he did not receive service of Westgate=s motion for summary judgment or timely notice of the hearing.[4] In his brief, he claims Westgate=s motion for summary judgment did not include a certificate of service. However, the record includes a certificate of service following Westgate=s motion for summary judgment and notice of hearing. Therefore, at the time the trial court granted the motion for summary judgment, nothing in the pleadings or evidence suggested that Monk had not received service of the motion or timely notice of the hearing. Given the state of the record before it, the trial court did not err in rendering summary judgment for Westgate. Appellant=s first issue is overruled.
Motion for New Trial
Monk also contends the trial court erred in allowing his motion for new trial to be overruled by operation of law. The decision whether to grant or deny a motion for new trial is within the trial court=s discretion. Balias v. Balias, Inc., 748 S.W.2d 253, 257 (Tex. App.CHouston [14th Dist.] 1988, writ denied). When a trial court has denied a motion for new trial, its ruling may be overturned only upon a showing of a clear abuse of discretion. See Cliff v. Huggins, 724 S.W.2d 778, 778 (Tex. 1987); Vickery v. Tex. Carpet Co., 792 S.W.2d 759, 761 (Tex. App.CHouston [14th Dist.] 1990, writ denied). The test for abuse of that discretion is whether the trial court acted arbitrarily or without reference to guiding legal principles. Cire v. Cummings, 134 S.W.3d 835, 838B39 (Tex. 2004). This standard also applies when, as here, the motion for new trial is overruled by operation of law. See Awoniyi v. McWilliams, 261 S.W.3d 162, 165 (Tex. App.CHouston [14th Dist.] 2008, no pet.) (citing Bank One v. Moody, 830 S.W.2d 81, 81, 85 (Tex.1992)). In any proceeding that is to be accorded finality, due process requires that interested parties receive notice reasonably calculated, under the circumstances, to apprise them of the pendency of the action and afford them the opportunity to present their objections. Dispensa v. Univ. State Bank, 987 S.W.2d 923, 926 (Tex. App.CHouston [14th Dist.] 1999, no pet.) (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314B15 (1950)). Failure to give adequate notice violates the demands of due process. See Jimenez v. Transwestern Prop. Co., 999 S.W.2d 125, 128 (Tex. App.CHouston [14th Dist.] 1999, no pet.). Except on leave of court, a motion for summary judgment must be filed and served 21 days before the time specified for the hearing, and 24 days if it is served by mail or facsimile. See Tex. R. Civ. P. 21a, 166a(c); Lewis v. Blake, 876 S.W.2d 314, 316 (Tex. 1994).
Improper service of a motion for summary judgment is a procedural defect that may be corrected by the trial court in response to a timely motion for new trial or by an appellate court if the trial court overrules the motion. French v. Brown, 424 S.W.2d 893, 894 (Tex. 1967). In order for Monk to notify the trial court that he did not respond or appear at the summary judgment hearing because he did not receive timely notice of it, he was required to file a motion for new trial. See Lee v. Braeburn Valley West Civic Ass=n, 786 S.W.2d 262, 263 (Tex. 1990). However, when the complaint is raised in a motion for new trial, the movant must request a hearing, present evidence, and obtain a ruling. See Rios v. Tex. Bank, 948 S.W.2d 30, 33 n.4 (Tex. App.CHouston [14th Dist.] 1997, no pet.). There is no abuse of discretion when the movant fails to call his motion to the attention of the trial court through the request of a hearing, and instead allows it to be overruled by operation of law. McGuire v. Comm=n for Lawyer Discipline, No. 14-01-00920-CV, 2003 WL 359289, at *1 (Tex. App.CHouston [14th Dist.] 2003, pet. denied) (mem. op., not designated for publication) (quoting Shamrock Roofing Supply, Inc. v. Mercantile Nat=l Bank, 703 S.W.2d 356, 357B58 (Tex. App.CDallas 1985, no writ)).
Nothing in the record indicates that Monk attempted to obtain a hearing on his motion. Because he failed to request a hearing on the motion for new trial, we conclude that the trial court did not abuse its discretion when it allowed the motion to be overruled by operation of law. See id. Appellant=s second issue is overruled.
Discharge in Bankruptcy
In the final issue presented on appeal, Monk claims the trial court=s judgment is void because the debt he owed to Westgate was discharged in bankruptcy. However, discharge in bankruptcy is an affirmative defense that must be pleaded. See Tex. R. Civ. P. 94; Sparks v. Booth, 232 S.W.3d 853, 871 (Tex. App.CDallas 2007, no pet.). An affirmative defense that is not pleaded or proved, and on which findings are not obtained, is waived and cannot be preserved by raising the affirmative defense for the first time in a motion for new trial. Hamm v. Millennium Income Fund, L.L.C., 178 S.W.3d 256, 268 (Tex. App.CHouston [1st Dist.] 2005, pet. denied).
Here, discharge in bankruptcy was not raised or even hinted-at by the pleadings. Instead, the affirmative defense was not presented to the trial court until Monk=s motion for new trial, which did not preserve the issue for our review. See id. Thus, we overrule Monk=s final issue.
Conclusion
Finding no error in the appellate record, we affirm.
/s/ Frank C. Price
Senior Justice
Panel consists of Justices Yates and Guzman, and Senior Justice Price.*
[1] AA motion for new trial, if filed, shall be filed prior to or within thirty days after the judgment or other order complained of is signed.@ Tex. R. Civ. P. 329b(a). Here, the trial judge signed the interlocutory summary judgment on June 25, 2007. Monk filed his motion for new trial within 30 days of the summary judgment on July 2, 2007.
[2] Westgate=s brief was due to be filed on April 14, 2008. No brief was filed, and we sent a late-brief notice on April 22, 2008. However, Westgate still did not file a brief.
[3] On July 19, 2007, the trial court granted Westgate=s motion for partial nonsuit with regard to Pomberg.
[4] Monk also argues that the court erred in granting summary judgment because (1) the trial court=s finding that there was a genuine issue of material fact with regard to Pomberg=s ownership of the property precluded summary judgment against Monk, and (2) the amount of delinquent annual maintenance charges established by the summary judgment evidence differed from the amount in the proof of claim Westgate filed in bankruptcy court. Because these arguments were not raised in the trial court in opposition to the summary judgment motion, we do not consider them on appeal. See Madeksho v. Abraham, Watkins, Nichols & Friend, 57 S.W.3d 448, 453 (Tex. App.CHouston [14th Dist.] 2001, pet. denied) (citing City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 676 (Tex. 1979)).
* Senior Justice Frank C. Price sitting by assignment.