dissenting.
I dissent.
It is uncontroverted that appellant did not receive any advance notice of the oral hearing date for appellee’s motion for summary judgment. Based on this fact, the trial court abused its discretion when it refused to set aside the summary judgment. See LeNotre v. Cohen, 979 S.W.2d 723, 726 (Tex.App.—Houston [14th Dist.] 1998, no pet.) (upon resetting of summary judgment hearing, reasonable notice to respondent at least seven days before the hearing is required); Rabie v. Sonitrol of Houston, Inc., 982 S.W.2d 194, 197 (Tex.App.—Houston [1st Dist.] 1998, no pet.) (uneontroverted evidence of non-receipt of notice rebuts presumption of notice under Tex.R. Crv. P. 21a); Birdwell v. Texins Credit Union, 843 S.W.2d 246, 250 (Tex.App.—Texarkana 1992, no writ) (respondent is entitled to at least seven days advance notice of a reset hearing date on a motion for summary judgment).
In the present case, the trial court specifically instructed the movant that an oral hearing on the motion for summary judgment was to be set, resulting in the resetting of the submission date to a date for an oral hearing. Appellant was entitled to be present for oral argument, and was entitled to notice at least seven days before the oral hearing. In the face of the uncontroverted evidence that appellant received no notice1 until the actual day of the hearing, I would reverse the judgment and remand.2
. I acknowledge that, under certain circumstances, a party may be deemed to have "constructive notice” even when there is no "actual notice." See Gonzales v. Surplus Ins. Servs., 863 S.W.2d 96, 102 (Tex.App.—Beaumont 1993, writ denied) (because respondent had engaged in repeated instances of selective acceptance and refusal of certified mail, evidencing a purposeful effort to avoid service, respondent was deemed to have constructive notice of the summary judgment hearing). In the present case, the respondent's attorney was on vacation and had duly filed a vacation letter with the court; there was no purposeful effort to avoid service.
. Because appellant was entitled to notice, and received no notice, a harm analysis under Tex. R.App. P. 44.1 is not necessaiy for a reversal. Adequate notice is a fundamental element of due process. However, I note that the summary judgment record in this case raises a fact issue about plaintiff's due diligence in obtaining service of citation, in my opinion. The original petition listed defendant's full address; the district clerk who prepared the citation was responsible for the "incomplete address” in the citation, not the plaintiff. When it became necessary for plaintiff to make another request for service of citation, the defendant had obviously moved; the new citation listed a different address, and the defendant was served at that new address. The record raises a fact issue. Therefore, if a harm analysis under TexR.App. P. 44.1 (a) is considered necessary, I would conclude the trial court’s error in this case probably caused the rendition of an improper judgment, and therefore is reversible.