February 18, 2015
No. 03-13-00318-CV
IN THE
THIRD COURT OF APPEALS
at Austin, Texas
JUAN A. MARTIN-DE-NICOLAS
Appellant
V.
REX JONES
Appellee.
Appealed from the County Court at Law No. 2 of
Travis County, Texas
Cause No. C-l-CV-12-008738
APPELLANT'S MOTION FOR EN BANC RECONSIDERATION
Filed by:
Juan A. Martin-de-Nicolas
Appellant, Pro Se FL318:::]
5604 Woodview Ave.
Austin, TX 78756 \r
Tel. 512-565-1498
APPELLANT'S MOTION FOR EN BANC RECONSIDERATION Pagel of 19
TO THE HONORABLE MEMBERS OF THE THIRD COURT OF APPEALS:
Appellant asks the Court to grant this motion to reconsider the case en banc.
A) INTRODUCTION
On 28 August 2014, a three-judge panel of this Third Court of Appeals
issued the opinion and judgment in this case affirming the lower court's order. The
panel consisted of Chief Justice Jones, and Justices Pemberton and Rose.
On 26 January 2015, Justices Pemberton and Rose denied appellant's timely
filed motion for rehearing . Chief Justice Jones did not participate.
B) SUMMARY
The primary issue in this restricted appeal is denial ofdue process.1
Specifically, appellee failed to serve appellant a "notice-of-hearing" for the hearing
on appellee's summary judgment motion which ultimately disposed of the case.
This omission is against the Rules of Civil Procedure (see TRCP 21a & TRCP
166a).
This court's Memorandum Opinion "resolved" the lack of notice issue stated
above by holding that a statement made by appellee's counsel during said
summary judgment hearing provided "some evidence" that appellant had been
1 Denial of due process as expressed in Appellant's first issue submitted for review in his
Appellant's Brief (see Appellant's Brief page 6). Issue #1: Can a case be dismissed during a
hearing for a motion for dismissal where the non-movant was not notified of the reset hearing
date?
APPELLANTS MOTION FOR EN BANC RECONSIDERATION Page 2 of 19
notified. Appellant has categorically denied that he was notified in any way,
shape, or form of the reset hearing date for that hearing.
The panel's resolution of this due process issue is at odds with past opinions
from the Supreme Court of the United States, the Supreme Court of Texas, and
even previous opinions from this Third Court of Appeals.
The primary issue in this case—due process—is of such vital importance to
the jurisprudence of the State of Texas that resolution of this issue by the Court en
banc is necessary. See Tex. R. App. P. 41.2(c), 49.7.
C) STATEMENT OF FACTS
The following facts are evident on the face-of-the-record and are repeated
here to guide this court in its review of this motion for en banc reconsideration.
1) This case originated in Justice court and was appealed to County Court.
2) On 30 August 2012 county court sent out its first notification to the parties
of having received the appeals bond. See Exhibit A (copy of Court Docket,
CR: 217-218), arrow #1.
3) On 17 September 2012, appellee filed a motion for summary judgment for
lack ofjurisdiction. See Exhibit A, arrow #2.
4) On 11 October 2012 appellee filed a notice-of-hearing with a setting date of
25 October 2012. See Exhibit A, arrow #3.
5) On 15 October 2012 appellee apparently faxed a docket call for the 25
October hearing. It is entered in the docket as filed on 16 October 2012. See
Exhibit A, arrow #4.
2 rr: 4—MR. BEGA: "Previously set on October 25,h and reset today at the request ofthe
plaintiff."
APPELLANTS MOTION FOR EN BANC RECONSIDERATION Page 3 of 19
6) On 14 November 2012 (i.e. not 25 October), county court holds a hearing
for the summary motion stated in #3 above, grants appellee's motion, and
signs an order of dismissal with prejudice. See Exhibit A, arrow #5.
7) The court reporter's record included in this appeal (RR: 2) notes that
appellant was not present at this hearing nor represented by counsel. See
Exhibit A, arrow #6.
D) ARGUMENTS & AUTHORITIES
Summary of the Argument
Because of the severity and finality of a summary judgment dismissal order,
a movant must expressly inform the adverse partv of the exact settina date of such
hearing in order to allow the adverse party sufficient time in which to craft his
response to such motion and be heard bv the court. Period. There is no
circumventing this basic tenant of due process. The case law cited in this motion
for en banc reconsideration is equally emphatic about due process be-ng the sine
qua non ofjustice.
En Banc Reconsideration
This Court has the authority to grant this motion and submit the case to the full
court, sitting en banc (see TRAP 41.2(c), 49.7). A submission to the full court
sitting en banc is appropriate when:
1) its necessary to secure or maintain uniformity of court decisions, or when
2) extraordinary circumstances require en banc consideration (see TRAP
41.2(c)).
APPELLANT'S MOTION FOR EN BANC RECONSIDERATION Page 4 of 19
Texas Rules of Civil Procedure
The following Texas Rules of Civil Procedure (TRCPs) control the proper
implementation of due process in this appeal:
• TRCP 21—Filing & Serving Pleadings & Motions
• TRCP 21 a—Methods of Service
• TRCP 166a—Summary Judgment.
Appellant has categorically stated that he did not receive actual or constructive
notice of the hearing date for appellee's summary judgment motion. The facts
evident on the face-of-the-record corroborate this assertion. The following
discussion will examine what the rules require and what the record reveals.
TRCP 21 requires a movant to submit motions and the notice-of-hearing
thereof, to the court and to adverse parties in writing, and for the clerk to note them
on the docket.
The record in this case reveals that the hearing held in 14 November 2012 that
disposed of the case was not preceded by the required written notice-of-hearing nor
was there any valid notice noted on the docket. The notice-of-hearing that appears
on the face-of-the-record (filed 11 October for a 25 October setting) never took
place—it never happened! That hearing was canceled, not by agreement of the
parties as stated in the Memorandum Opinion, but by an officer of the county
court.
APPELLANTS MOTION FOR EN BANC RECONSIDERATION Page 5 of 19
These irrefutable facts should have been sufficient for this court to reverse the
summary judgment order issued by the county court on 14 November. Similar
irrefutable facts were sufficient for the courts in the following case law to reverse
faulty judgments.
TRCP 21a requires a movant to certify compliance with the rules in writing,
over signature, and on the filed instrument. It also allows the non-movant to offer
the court proof that the notice or instrument was not received. Such proof may be
offered in the form of an affidavit that accompanies the non-movant's response to a
summary judgment motion. This rule underscores the importance of allowing the
non-movant an opportunity to be heard by the court who hears the motion for
dismissal.
TRCP 166a(c) increases the three-day minimum filing deadline of TRCP 21 to
twenty-one days when it states that "the motion and any supporting affidavits shall
be filed and served at least twenty-one days before the time specified for hearing."
Appellant is of the opinion that the notice-of-hearing is subject to the same twenty-
one day requirement although this is not plainly stated in the rule. Appellant's
opinion is based on the language of TRCP 21 which states that "an application to
the court for an order and notice of any hearing thereon, [...] shall be served on all
parties not less than three days before the time specified for the hearing [...]. In
other words, the motion and the hearing have the same three-day minimum time
APPELLANT'S MOTION FOR EN BANC RECONSIDERATION Page 6 of 19
limit for service. No other construction of TRCP 21 is reasonable. It follows then
that since TRCP 166a(c) enlarges the minimum notice time to file the motion from
three days to twenty-one days, it also enlarges the minimum notice time to file the
notice-of-hearing.
Implicit in rule 166a(c) is the assumption that, at the very least, the adverse
party has fourteen days in which to craft and serve his or her response—21 days
notice for the motion less seven days deadline for the response to the motion. A
reasonable person would argue that the respondent should know with certainty
when the fourteen-day time period begins and ends. The courts in the following
case law have so ruled.
This court should also note that the notice-of-hearing which appears on the
face-of-the-record was not filed 21 days in advance of the requested setting date as
required by Rule 166a(c). That notice-of-hearing was filed 11 October and the
setting was for 25 October (only 14 days in advance, not 21 days in advance).
The record, and this analysis, reveal that the notice-of-hearing on the face-of-
the-record is invalid and inconsequential because it does not state the actual date of
the hearing that disposed of the case and it was not filed so as to give appellant
sufficient time to craft his response and be heard by the court.
Note that this appeal does not rely exclusively on interpreting TRCP 166a(c) as
stated above—that is, requiring both the motion and the notice-of-hearing to be
APPELLANTS MOTION FOR EN BANC RECONSIDERATION Page 7 of 19
filed 21-days prior to the hearing because any reasonable interpretation of the rules
also require for the notice-of-hearing to state the exact date of the hearing and
maybe even the exact "time specified for the hearing." See TRCP 21 & TRCP
166a(c). As stated, the defective notice-of-hearing that appears on the face-of-the-
record does not state the correct setting date of the dispositive hearing.
At the risk of repeating myself, there is no evidence on the face-of-the-record
of any notice-of-hearing being timely filed and giving proper notice of a 14
November 2012 hearing date. As such, this court should grant this motion for en
banc reconsideration, and reverse the order of the county court issued 14
November 2012.
About Assertions Made in the Memorandum Opinion
Summary Judgment Motion Not Decided On the Merits
The trial court (county court) appears to have granted appellee's motion for
summaryjudgment not base on the merits as asserted in the Memorandum
Opinion, but because appellant failed to appear at the hearing and failed to file his
response to the summary judgment motion. As documented by the court reporter's
record, that hearing probably lasted one minute or less; hardly enough time to give
a summary judgment motion the serious consideration it required. The hearing on
14 November 2012 proved that the critics of the summary judgment proceedings in
the years before its implementation (1940's-1950's) were right when they objected
APPELLANTS MOTION FOR EN BANC RECONSIDERATION Page 8 of 19
to enacting the proposed summary judgment proceedings because it would likely
lead, they argued, to "snap judgments." A summary judgment proceeding which
lasts a minute or less is certainly a good example of "snap judgment."
Oral Testimony During Summary Judgment Hearing is Inadmissible Evidence
As stated in the Summary (page 2) this court's Memorandum Opinion
"resolved" the lack of notice issue, and therefore the due process issue, by holding
that a statement made by appellee's counsel during the summary judgment hearing
provided "some evidence" that appellant had been notified. Appellant would like
to note that the Rules of Civil Procedure require much more than "some evidence"
of notification of the hearing setting. They require highly reliable, credible, and
admissible evidence, on the face-of-the-record. TRCP 166a(c) states that "no oral
testimony shall be received at the hearing." The statement made by Mr. Bega
during the 14 November hearing was barred oral testimony, in addition to being
hearsay testimony. As such, the testimony was inadmissible as evidence and the
Memorandum Opinion should not rely on it to deny appellant a reversal of a
deficient order of dismissal by county court.
3 The History of Texas Civil Procedure. Professor William V. Dorsaneo, III; BAYLOR LAW
REVIEW [Vol. 65:3] page 729-730.
APPELLANTS MOTION FOR EN BANC RECONSIDERATION Page 9 of 19
Conflicting Court Opinions
Regarding the standards of review, this court's Memorandum Opinion is
contrary to opinions of the Texas Supreme Court, other sister Courts of Appeals,
and even opinions from this Third Court of Appeals. See:
• Alexander v. Lynda's Boutique, 134 SW 3d 845-Tex: Supreme Court
2004
• Forrester v. Ginn, 282 SW 3d 513 - Tex: Court of Appeals 2008
• Cox v. Cox, 298 SW 3d 726 - Tex: Court of Appeals, 3rd Dist. 2009
This courts Memorandum of Opinion appears to require that two standards of
review be met in this appeal. First it requires that the standards of review for a
restricted appeal be met (see TRAP 26.1(c) and TRAP 30); then it requires that the
reversible errors standard of review be met in order to prevail—or to obtain
reversal (see TRAP 44.1).
In Alexander v. Lynda's Boutique the Texas Supreme Court stated that to
prevail in a restricted appeal, the appellant must establish what amounts to only the
standards of TRAP 26.1(c) and TRAP 30, in other words:
1) that it filed notice of the restricted appeal within six months alter the
judgment was signed,
2) it was a party to the underlying lawsuit,
3) it did not participate in the hearing that resulted in the judgment complained
of and did not timely file any post judgment motions or requests for
findings of fact and conclusions of law, and
4) error is apparent of the face-of-the-record.
APPELLANTS MOTION FOR EN BANC RECONSIDERATION Page 10 of 19
There has been disagreement in the courts regarding element (4)—that is,
when considering if the error is apparent on the face-of-the-record. Some courts
have ruled that court clerks are under no affirmative obligation to note certain
actions in the docket when the rules only state that "the clerk shall" do this or that
without also stating that "the clerk shall" do this or that AND "note such action in
the docket." Courts have ruled that obligations such as the notice requirements in
TRCP 306a(3)—Notice of Judgment, are an example of such non-affirmative
obligations because the clerk has no express duty to note that action on the docket.
This is why this appellant chose not to include that error, which is also present in
his case, for review to this court in this motion for en banc reconsideration.
However, TRCP 21 does place an affirmative duty on the clerk to record the filing
of motions and notice-of-hearing on the docket. Therefore, appellant has proved
that it has met the requirements of the standard of review for restricted appeals as
set forth in Alexander v. Lynda's Boutique by the Texas Supreme Court and he is
entitled to prevail in this appeal.
The standards of review set fort in Alexander were also set forth by the Court
ofAppeals ofTexas—Houston (14th Dist.) in its Forrester v. Ginn opinion and by
this Third Court of Appeals—Austin in its Cox v. Cox opinion.
APPELLANTS MOTION FOR EN BANC RECONSIDERATION Page 11 of 19
Regarding due process, this court's Memorandum Opinion is contrary to
opinions of:
1) The Supreme Court of the United States:
• Peralta v. Heights Medical Center, Inc., 485 US 80 - Supreme Court
1988.
2) The Supreme Court of Texas:
• LBL Oil Co. v. International Power Services, Inc., Ill S W 2d 390 -
Tex: Supreme Court 1989, Inc.
• Lopez v. Lopez, 757 SW 2d 721 - Tex: Supreme Court 1988
3) This Texas Third Court of Appeals:
• Myers v. County of Williamson, Tex: Court of Appeals, 3rd Dist. 2011.
The cases underlying these opinions are not identical to the case in this appeal.
No two cases are ever "identical." However, the underlying principles of due
process that permeate this appeal and those that permeated the cited case law are
sufficiently similar to create concern that due process in this appeal is in jeopardy.
In Peralta v. Heights Medical Center, Peralta (defendant) was sued for the
costs of medical services rendered to one of his employees, debt which Peralta had
guaranteed and did not deny. However, the record showed that Peralta was not
timely served the citation for the lawsuit. Peralta did not make an appearance or
file an answer to the lawsuit. The court entered a subsequent default judgment for
Heights Medical Center. Peralta initiated a bill of review proceeding which was
derailed by a the granting of a summary judgment motion which claimed Peralta
APPELLANTS MOTION FOR EN BANC RECONSIDERATION Page 12 of 19
had not met the three elements of the Craddock test. The Court of Appeals
affirmed the necessity to meet the Craddock test and the Texas Supreme Court
denied Peralta's writ of error review citing "No Reversible Error." However, the
United States Supreme Court found the holdings of the Texas courts "problematic"
and after reviewing the issues ruled in favor of Peralta, and the opinion states:
[...] a judgment entered without notice or service is
constitutionally infirm. An elementary and fundamental
requirement of due process in any proceeding which is to be
accorded finality is notice reasonably calculated, under the
circumstances, to apprise interested parties of the pendency of
the action and afford them the opportunity to present their
objections. [...] Failure to give notice violates the most
rudimentary demands of due process of law [...].
LBL Oil Co. v. International Power Services, is a post-appearance default
judgment case decided by the Texas Supreme Court. The Supreme Court reversed
the judgment of the court of appeals and remanded the cause to trial because:
• the record showed that no notice was given to LBL Oil (defendant) of the
hearing on the motion dispositive of the case, and
• the appeals court decision conflicted with Peralta v. Heights Medical
Center.
The LBL Oil opinion stated that:
Once a defendant has made an appearance in a cause, he is
entitled to notice of the trial setting as a matter of due process
under the Fourteenth Amendment to the federal constitution as
set forth in Peralta [...] The record here establishes that [LBL
Oil] had no actual or constructive notice of the hearing on the
motion for default judgment, which effectively was his trial
setting since it was dispositive of the case.
APPELLANTS MOTION FOR EN BANC RECONSIDERATION Page 13 of 19
In Lopez v. Lopez, Guadalupe Lopez (defendant) was not notified of a trial
setting and consequently did not appear. Citing the Supreme Court's Peralta
opinion, the Texas Supreme Court ruled that the absence of notice of a trial setting
violates the defendant's due process rights under the Fourteenth Amendment to the
federal constitution and reversed the judgment of the court of appeals and
remanded the cause to the trial court for a new trial. This case cites Peralta.
The Myers v. County of Williamson case was decided by this Texas Third
Court of Appeals. The Myers case cites Peralta as precedent. In Myers, although
the central issue appears to be whether Carl Myers (defendant) engaged in
selective acceptance or refusal of certified mail relating to the case, and whether he
had met the Craddock requirements, the issue of proper notice is also present. Carl
Myers was sued by several political subdivisions to collect property taxes owed.
Myers timely filed an answer to the suit. Plaintiffs set the case for trial. Myers did
not appear at trial. Upon review, the record showed that although Myers received a
notice of attempted delivery of certified mail prior to trial, the actual delivery of
the certified mail which contained the notice of the trial setting was not received
until after the trial. In addition, the notice of trial lacked a certificate of service. In
the Myers opinion, this court stated that:
A party who proves lack of notice of a trial setting satisfies the
first Craddock element because one cannot show intent or
conscious indifference with regard to a trial of which one is
unaware. [...] A defendant who has been denied due process
APPELLANTS MOTION FOR EN BANC RECONSIDERATION Page 14 of 19
through lack of notice of a trial setting is entitled to a new trial
without further showing.
The due process requirements, central to the cases mentioned above, apply
equally to protect the rights of defendants and plaintiffs.
E) CONCLUSION
In the case at hand, the face-of-the-record contains no evidence that appellee
afforded appellant either actual or constructive notice of the hearing of 14
November 2012. Appellee's notice-of-hearing with attached certificate of service,
and his faxed docket call, stipulate a hearing setting of 25 October 2012 which did
not happen as it was canceled by the court and no additional notice-of-hearing was
given or appear on the record.
Appellant has proved that it has met the requirements of the standard of review
for restricted appeals as set forth in Alexander v. Lynda's Boutique by the Texas
Supreme Court and he is entitled to prevail in this appeal
This lack of notice of a trial (or hearing) setting constitutes denial of due
process which is a protected right by the Fourteenth Amendment to the federal
constitution. As stated in Myers, a defendant (or plaintiff) who has been denied due
process through lack of notice of a trial (or hearing) setting is entitled to a new trial
without further showing.
Due process is the sine qua non ofjustice.
APPELLANTS MOTION FOR EN BANC RECONSIDERATION Page 15 of 19
F) PRAYER
WHEREFORE, PREMISES CONSIDERED, Appellant respectfully
requests that this Appeals Court grant Appellant's Motion for En Banc
Reconsideration, and after reviewing the facts and arguments presented in
Appellant's motion, and based on its own sua sponte review of the issues:
a) reverse Travis County Court at Law's Order of Dismissal with Prejudice for
Lack of Jurisdiction issued 14 November 2012, and
b) either grant Appellant a new trial in county court or grant the JNOV
reversing the judgment ofjustice court, and
c) grant Appellant any other relief which he may be entitled to in justice or in
equity.
Respectfully submitted,
luan A. Martin-de-Nicolas
Appellant Pro Se
5604 Woodview Ave.
Austin, TX 78756
Tel. 512-565-1498
APPELLANTS MOTION FOR EN BANC RECONSIDERATION Page 16 of 19
CERTIFICATE OF COMPLIANCE
I certify that this document was produced on a computer using Microsoft
Word 2003 and contains 3,584 words, as determined by the computer software's
word-count function, excluding the sections of the document listed in the Texas
Rules of Appellate Procedure 9.4(i)( 1).
By:
luan A. Martin-de-Nicolas
Appellant Pro Se
5604 Woodview Ave.
Austin, TX 78756
Tel. 512-565-1498
Email: juanmden@yahoo.com
CERTIFICATE OF SERVICE
This Certificate of Service is to certify that on this IT day of February
2015, a copy of this Appellant's Motion for Rehearing was served on all counsel of
record representing Appellee Rex Jones, via Certified United States Postal Service
mail, RRR# ^fZ^GO *0DOZ' 1^3'35?Q at their address ofrecord.
By:
ijdan A. Martin-de-Nicolas
Appellant Pro Se
5604 Woodview Ave.
Austin, TX 78756
Tel. 512-565-1498
Email: juanmden@yahoo.com
APPELLANTS MOTION FOR EN BANC RECONSIDERATION Page 17 of 19
APPENDIX—A: Court Docket
C C TIME: 123727 PM
^- TRWISCOUNTY.STATEOFTEXAS -
P.O. BOX 148325 DATE: Jim 26.2013
AUSTIN,TEXAS 78714-0328 PAGE 1
C-1-CV-12-008738
MARTIN-DE-NICOLASVJONES
PARTY:
^fISJ^S^ CWCOUMTYCOURTATlAWfl
FIUNQ DATE; .08404012.
STATUS: DO DISPOSED
CASE TYPE: CJP CVJ PAPPEAL
DATE CASE ENTERED: 08404012 W CVJPAPPEAL
EVENT CATEOORY:
PERIOD: TO
DATE PARTY EVENT RECEIPT* AMOUNT
08404012 PL1 ASMXVJPAPPEAL FIUNO $222.00
Cmtt*NmtCin andAsmmMUm - AnoMmnt Evmt
08404012 PM 0ROCVCASH BOND ORDERED $333.00
08404012 OPN:CVJP APPEAL RLEDPRO8E
08404012 .PL1 IS&CVNTCOFAPPEALANDCOSTS
08404012 DF1 n&CVMONEYONDEPOSrrLTR
08404012 PL1 PMTSVCASH BOND PAYMENT C 02382 $433jO0
RsoetwdOft MARTINDENKOi
MWWTRAV18COJP2BONDACCOU NT
0048-2012 PL1 PLD.CVCERTMAJLRTNRECRECT)
8IONEDW1AI2
00-174012 DF1 MOTCV DISMISS.
VOTREJUDJCE FOR LACKOFJURISDICTION flgt^Hggl
00-184012 PL1 PMTCVJPAPPEAL FIUNO • C 02889 $-222.00
. *" • RaMhwtCt MARTINDENICOL
10-114012 NT&CV HEARING
10-18-2012 PLDSVFAX DOCKET CALL
11-064012 PLOXV SCOTT OCR COMPLETED
11-144012