EFRAIN CAMPOS v. CINTAS CORPORATION--Appeal from County Court at Law No 4 of Hidalgo County

 NUMBER 13-04-365-CV

 COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

EFRAIN CAMPOS, Appellant,

v.

CINTAS CORPORATION, Appellee.

On appeal from the County Court

at Law No. 4 of Hidalgo County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Hinojosa and Ya ez

Memorandum Opinion by Justice Ya ez

Appellant, Efrain Campos, appeals the trial court=s orders granting summary judgment in favor of appellee, Cintas Corporation.[1] In a single issue, appellant contends the trial court erred in granting summary judgment because Cintas did not provide him with twenty-one days= written notice of the hearings on the motions as required by rule 166a(c).[2] We affirm.

Background

Cintas sued Campos for breach of a service agreement relating to the lease of work uniforms for Campos=s auto repair business. Campos answered and filed a counter-claim for breach of contract. Cintas filed a traditional motion for summary judgment on its breach-of-contract claims, and on November 14, 2003, the trial court granted an interlocutory summary judgment in its favor. Cintas subsequently filed a traditional and no-evidence motion for summary judgment as to Campos=s counter-claim; on April 16, 2004, the court granted summary judgment in Cintas=s favor. Campos challenges both orders, contending that as to both of the summary judgment hearings, Cintas did not provide him with the required twenty-one days= notice. Cintas contends that Campos appeared at both hearings, thereby waiving any objection to lack of notice.[3]

On the morning of the final hearing on Cintas=s motion for summary judgment, April 14, 2004, Campos filed a motion for summary judgment, a motion to compel, and a AMotion for Leave to File Motion Out of Time.@[4]

Standard of Review and Applicable Law

Campos contends that Cintas did not serve him with proper notice of either of the two summary judgment hearings. The rules governing proper notice are rules of civil procedure 166a(c) and 21a.

Rule 166a requires that a party serve notice of a summary judgment hearing on opposing counsel at least twenty one days before the hearing date.[5] Lack of notice to the nonmovant of the summary judgment hearing violates the nonmovant's due process rights.[6] Rule 21a provides that every notice, pleading, plea, and motion, except as otherwise expressly provided, may be served by delivering a copy to the party to be served, or the party=s agent or attorney of record, either in person, by agent, by courier receipted delivery, or by certified or registered mail, to the party=s last known address.[7] Rule 21a is applicable to the notice requirement of rule 166a for a hearing on a motion for summary judgment.[8] A certificate by a party or an attorney of record is prima facie evidence of the fact of service.[9] The presumption of service may be rebutted by an offer of proof of nonservice.[10]

The Texas Supreme Court has held that a trial court must give notice of the submission date for a motion for summary judgment, because this date determines the date the nonmovant's response is due.[11] Failure to give notice of the submission date for a motion for summary judgment constitutes error.[12] However, the trial court renders such error harmless when the court considers the nonmovant's response and reconfirms its ruling.[13] Lack of twenty-one days' notice of a summary judgment hearing is a nonjurisdictional defect that the nonmovant can waive.[14] When late notice is raised for the first time in a motion for new trial, harm must be shown.[15] It is only when a party is not given notice of the summary judgment hearing, or a party is deprived of its right to seek leave to file additional affidavits or other written response that it may preserve error in a post trial motion.[16]

Analysis

Cintas=s first motion for summary judgment was filed on October 6, 2003, and hearing was set for November 12, 2003, over twenty-one days after service. The clerk=s record reflects that Campos=s counsel received the motion via certified mail on October 8, 2003. The record contains an order setting hearing signed by the judge on October 8, 2003; however, the order does not include a certificate of service. Campos does not offer any evidence that notice was not received.

Cintas=s second motion, which responded to Campos=s counterclaim, was filed on February 11, 2004. The hearing was set for 11:00 a.m. on April 14, 2004. The clerk=s record reflects that Campos=s counsel received a copy of the motion via certified mail on February 11, 2004. The record contains an order setting hearing signed by the judge on February 26, 2004, over twenty-one days before the hearing; the order does not include a certificate of service. Cintas contends that notice for both orders setting the hearing dates were sent by the trial court.

Here, because neither of the orders setting hearing date includes a certificate of service, there is no presumption of service.[17] Nonetheless, in order to be entitled to reversal, Campos was required to show that he was harmed by the absence of notice.[18]

Campos filed a motion for new trial, in which he asserted that as to each of Cintas=s motions for summary judgment, ACintas did not serve [him] with 21 days notice of the hearing as required by law.@ (emphasis added). Nowhere in his motion for new trial does Campos assert that he did not receive notice of the hearing as required by law. Moreover, Campos=s motion for new trial simply asserts, without explanation, that A[t]he errors of the court are harmful to Campos.@ Campos did not make any arguments either in his motion for new trial or his brief that show how he was harmed by his inability to file a response to Cintas=s motions. We conclude Campos failed to show he was harmed by the absence of notice.[19]

We overrule Campos=s sole issue and affirm the trial court=s judgment.

_______________________

LINDA REYNA YA EZ,

Justice

Memorandum Opinion delivered and

filed this the 22nd day of August, 2005.

[1] The trial court granted summary judgment in Cintas=s favor on November 14, 2003. It subsequently granted summary judgment in Cintas=s favor on Campos=s counterclaim on April 16, 2004. Campos challenges both orders.

[2] See Tex. R. Civ. P. 166a(c).

[3] Campos does not controvert or address Cintas=s assertion that he appeared at both hearings. No reporter=s record is included in the record before us. We are unable to consider any statements in Cintas=s brief that are outside the record and unsupported by any evidence. See Perry v. S.N., 973 S.W.2d 301, 303 (Tex. 1998).

[4] The record does not reflect that the trial court granted leave to file the documents. We cannot, therefore, consider Campos=s motion as a response to Cintas=s motion. See Waddy v. Houston, 834 S.W.2d 97, 101 (Tex. App.BHouston [1st Dist.] 1992, writ denied) (holding where record reflects trial court did not grant leave to file late response, there is a presumption that trial court did not consider response and appellate court may not consider it).

[5] See Tex. R. Civ. P. 166a(c); see also Aguirre v. Phillips Props., Inc., 111 S.W.3d 328, 332 (Tex. App.BCorpus Christi 2003, pet. denied).

[6] Smith v. Mike Carlson Motor Co., 918 S.W.2d 669, 672 (Tex. App.BFort Worth 1996, no writ).

[7] Tex. R. Civ. P. 21a; see Aguirre, 111 S.W.3d at 332.

[8] Lewis v. Blake, 876 S.W.2d 314, 315 (Tex. 1994).

[9] See Tex. R. Civ. P. 21a; Smith, 918 S.W.2d at 672.

[10] Cliff v. Huggins, 724 S.W.2d 778, 780 (Tex. 1987).

[11] Martin v. Martin, Martin & Richards, Inc., 989 S.W.2d 357, 359 (Tex. 1998).

[12] Id.

[13] Id.

[14] Id.; May v. Nacogdoches Mem'l Hosp., 61 S.W.3d 623, 626 (Tex. App.BTyler 2001, no pet.).

[15] Martin, 989 S.W.2d at 359; Milam v. Nat=l Ins. Crime Bureau, 989 S.W.2d 126, 129 (Tex. App.BSan Antonio 1999, no pet.).

[16] May, 61 S.W.3d at 626.

[17] Aguirre, 111 S.W.3d at 334.

[18] Martin, 989 S.W.2d at 359; Milam, 989 S.W.2d at 129.

[19] Martin, 989 S.W.2d at 359; Milam, 989 S.W.2d at 129.