Chandler v. Escobar, 6986
| Decision Date | 13 August 1980 |
| Docket Number | No. 6986,6986 |
| Citation | 604 S.W.2d 524 |
| Parties | Richard L. CHANDLER, d/b/a Skyline Plumbing and Hardware, Plaintiff in Error, v. Carlos R. and Arturo S. ESCOBAR, d/b/a All Temp Insulation Company, Defendants in Error. |
| Court | Texas Court of Appeals |
Richard Chandler appeals by petition for writ of error to review a summary judgment entered against him in a case where he was the Defendant. The Plaintiffs are Carlos R. and Arturo S. Escobar, doing business as All Temp Insulation Company, and they recovered the summary judgment in the amount of $7,700.00, together with reasonable attorney's fees for representation in the trial and appellate courts. We have heretofore overruled the Defendants in Error's motion to dismiss for the reasons now given, and we reverse and remand.
This suit was filed against Chandler as a breach of contract whereby the Plaintiffs agreed to and did perform the installation of all pipe and exterior duct installation on a school project. Plaintiffs alleged that the Defendant promised to pay them the sum of $7,700.00 and that the Defendant defaulted in the payment. After the Defendant had answered, the Plaintiffs filed motion for summary judgment, to which was attached an affidavit by one of the Plaintiffs, together with a copy of a signed purchase order executed by the Defendant's purchasing agent. The motion for summary judgment was filed October 8, 1979. The Judge's order appears in the file setting the hearing on the motion for November 2, 1979. The summary judgment recites that it was heard on October 8, 1979, after the Defendant had been properly notified of the hearing. No recitation is made in the judgment that the Defendant either appeared or participated in any way at the hearing on the motion wherein the summary judgment was granted. The Defendant filed an opposition to the Plaintiffs' motion for summary judgment on October 26, 1979, but after the summary judgment was heard. The summary judgment appears to have been signed on January 9, 1980, and entered of record on January 10, 1980.
The Defendants in Error's motion to dismiss is on the ground that the Plaintiff in Error participated in the summary judgment proceeding in the trial Court, and that the appellate jurisdiction is defeated because of that participation and because of Article 2249a, Tex.Rev.Civ.Stat.Ann. We find no participation by the Plaintiff in Error in the summary judgment hearing which was held on October 8, 1979. This differs, then, from the participations before the Courts in Thacker v. Thacker, 496 S.W.2d 201 (Tex.Civ.App.-Amarillo 1973, writ dism'd), and in Burton v. Home Indemnity Company, 531 S.W.2d 665 (Tex.Civ.App.-El Paso 1975, writ ref'd n.r.e.). In this case, Chandler, the non-movant, did not file his contest to the motion for summary judgment until more than two weeks after the hearing on the motion for summary judgment. The late filed opposition to the motion for summary judgment could...
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