concurring and dissenting.
I concur with the majority’s analysis of good faith, but disagree with its holding concerning “reasonable diligence.” First the majority does not seem to analyze the diligence issue under the proper standard of review. Because this is an appeal of an order denying summary judgment, all the evidence favorable to the nonmovant must taken as true and we must make all reasonable inferences in his favor. See KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex.1999) (emphasis added). Stated otherwise, appellant must establish his entitlement to summary judgment as a matter of law and eliminate every material fact issue. See Nixon v. Mr. Property Management Co. 690 S.W.2d 546, 548 (Tex.1985).
Appellee established for summary judgment purposes he did not receive notice. Tex.R. Crv. P. 647 requires that officer making the levy “shall give the defendant ... written notice of such sale, either in person or by mail.” According to the summary judgment proof, this did not occur. The reasonable diligence standard must be measured against the requirement of the rule, what a reasonable and prudent officer would do, and of course due process.
Presumably the deputy was executing in his own precinct. Given his obligation, and “pressure” to proceed without delay, the deputy was explicitly authorized to hand deliver a notice. However the fact that one of the notices sent by the officer was returned without being opened and the second notice produced no green card, there is at least an inference that the officer may not have acted with reasonable diligence. This is corroborated by the claim no notice was received. Taken in the light most favorable to the non-mov-ant, I do not see how we can hold in this instance “reasonable diligence” has been established as a matter of law.
The two authorities cited by the majority are not summary judgment cases. Both Kuo Kung Ko andIntertex, Inc. involved cases tried to the court without a jury and without findings of fact. Our court found sufficient evidence in both cases to support implied findings of fact. This case is not a sufficiency review and neither case stands for the implied proposition that the deputy’s conduct there was “reasonably diligent” as a matter of law. At best, both Kuo Kung Ko and Intertex, Inc. merely confirm legal or factual sufficiency.
I would hold that “reasonable diligence” is ordinarily as question of fact. When the officer’s proof of notice is equivocal and *451the non-movant says he received no notice, the fact finder should make that determination. I would affirm the denial of the summary judgment by the trial court.