Conducting Summary Judgment Hearing Without Notice to Non-Movant
TEX. R. CIV. P. 21 provides, in pertinent part, as follows:
"An application to the court for an order and notice of any hearing thereon, not presented during a hearing or trial, shall be served upon all other parties not less than three days before the time specified for the hearing unless otherwise provided by these rules or shortened by the court."
The Supreme Court has noted that any exceptions filed by the movant in a summary judgment action to the non-movant's response "must be filed and served not less than three days prior to the hearing." See McConnell v. Southside Indep. School Dist., 858 S.W.2d 337, 343 n.7 (Tex. 1993).
In Martin v. Martin, Martin & Richards, Inc., 989 S.W.2d 357 (Tex. 1998) the Supreme Court found the trial court's error in conducting the summary judgment hearing without notice to the non-movant harmless, because the non-movant had filed a written response to the motion for summary judgment and the trial court "fully considered non-movant's response and reconfirmed its ruling." Id. at 359.
Nevertheless, the Supreme Court further noted the following:
"Non-movant does not contend that the district court's actions prevented non-movant from presenting to the court a full response to defendants' motion for summary judgment." Id.
Yet this is virtually what took place in the instant case when appellant's trial counsel was not present to object to the untimely presentation and consideration of the appellees' objection and motion to strike, and was, therefore, unable to provide response or argument in opposition.