Williams v. Carpentier

OPINION

BURGESS, Justice.

This is a summary judgment case. Appellant and appellee were sued on a note. Both filed general denials. Appellee later filed a cross-action against appellant claiming she had paid the note and sought contribution for half of the monies paid. Appellant filed a general denial to this cross-action. On April 12, 1988, appellee filed a motion for summary judgment. The trial court signed an order setting the motion for hearing on May 16, 1988. On May 16, appellee filed an amended motion for summary judgment and an order was signed by the court coordinator/administrator setting the hearing for June 6, 1988. On May 20, appellant filed a response to the motion for summary judgment. This response contended appellee had agreed to assume all the liability of the note. On June 15, appellant filed an amended answer asserting the affirmative defense of assumption. On July 27, a judgment was signed (although it bears a file mark of July 14) noting that “On June 6 ... [appellee] submitted a motion for summary judgment_” Appellant appears pro se urging three points of error. We consider point of error number three and find it dispositive.

This point urges error by the trial court in not conducting a hearing. Appel-lee agrees in his brief that no hearing was held, but the motion was determined “by submission.” TEX.R.CIV.P. 166a governs summary judgments. Section (c) of the rule specifically calls for a hearing. There are specific deadlines imposed around the hearing date. For example, the motion and

any supporting affidavits must be filed twenty-one days prior to the hearing. Any responses must be filed no later than seven days prior to the hearing. When appellee filed her amended motion on May 16, no hearing could be held on that motion until June 7, 1988. See Williams v. City of Angleton, 724 S.W.2d 414 (Tex.App.—Houston [1st Dist.] 1987, writ ref’d n.r.e.) for an excellent, and we believe, correct analysis of the relationship between TEX. R.CIV.P. 4 and the time requirements of rule 166a. Thus, if June 6 were to be considered the “hearing” date, appellee was deprived of his full fourteen days to respond. Without a hearing being held on a specified day, there is uncertainty created concerning notice, the appropriateness and/or timeliness of pleadings and responses. Because summary judgment is a harsh remedy, rule 166a must be strictly construed. Williams, 724 S.W.2d at 417. For a litigant to be entitled to the benefits of the summary judgment rule, he must have complied with all its terms. Tobin v. Garcia, 159 Tex. 58, 316 S.W.2d 396, 400 (1958). Appellee admits there was no hearing held on the amended motion for summary judgment. The failure to conduct a hearing on a specified day was error.1

We reverse the granting of the summary judgment.

REVERSED AND REMANDED.

. This does not mean the parties could not agree to waive attendance at a full oral hearing once the hearing was set outside the specified time limits. It would be prudent to have this agreement in writing and reflected in the judgment.