Jones v. Jones

• Decision Date: 15 September 1994
• Docket Number: No. 01-93-00214-CV,01-93-00214-CV
• Citation: 888 S.W.2d 858
• Parties: Marilyn JONES, Appellant, v. William Ward JONES, Executor of the Estate of Royce M. Jones, Deceased, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 858

888 S.W.2d 858

Marilyn JONES, Appellant, v. William Ward JONES, Executor of the Estate of Royce M.

Jones, Deceased, Appellee.

No. 01-93-00214-CV.

Court of Appeals of Texas,

Houston (1st Dist.).

Sept. 15, 1994.

Rehearing Overruled Oct. 20, 1994.

Dwane L. Todd, Houston, for appellant.

M. Susan Hardie, Azalea Aleman, Houston, for appellee.

Before ANDELL, DUGGAN and HUTSON-DUNN, JJ.

ORDER ON MOTION FOR LEAVE TO FILE POST-SUBMISSION BRIEF

ANDELL, Justice.

This appeal arises from a summary judgment granted in a bill of review proceeding. The plaintiff/appellant is Marilyn Jones (Marilyn). The defendant/appellee is William Ward Jones (the Estate), executor of the estate of Royce M. Jones, deceased.

We heard oral argument on October 12, 1993. Today, September 15, 1994, we have affirmed the judgment in a separate opinion, 888 S.W.2d 849.

On August 23, 1994, Marilyn filed a "motion requesting leave to file post-submission supplemental letter brief based upon recent Texas Supreme Court case." In her motion, Marilyn asks that we allow her to file a letter brief "directed solely to the timing of the summary judgment hearing...." She contends that the recent Supreme Court of Texas case of Lewis v. Blake, 876 S.W.2d 314 (Tex.1994), ¹ is relevant to this appeal because of its holding on page 316 regarding the timing of summary judgment hearings. Along with her motion, she has filed the brief which she has requested leave to file. The brief brings what Marilyn has called "new point of error number four," which raises this argument and relies on Lewis.

Lewis holds that a "hearing on a motion for summary judgment may be set as early as the 21st day after the motion is served, or on the 24th day if the motion is served by mail." 876 S.W.2d at 316. Marilyn contends that, under Lewis, the hearing on the Estate's motion for summary judgment was held one day too soon. We do not decide this question, however, because the circumstances under which Marilyn has filed her motion lead us to deny it.

Texas Rule of Appellate Procedure 74(o), entitled "Amendment or Supplementation [of Briefs]," states that "[b]riefs may be amended or supplemented at any time when justice requires upon such reasonable terms as the court may prescribe...." We do not find that "justice requires" us to grant Marilyn leave to file a supplemental brief that raises a new point of error based on Lewis.

Marilyn did not object to the hearing date in the trial court. She failed to file a response to the Estate's motion for summary judgment seven days prior to the date of the hearing. She filed a response on the date of the hearing; even in this untimely response, however, she did not complain about the date of the hearing being too early under the law. At the hearing, she filed a motion for continuance, asking that the hearing be postponed for at least 15 days. Nor, however, in her motion for continuance did Marilyn complain about the hearing being too early under the law. ² Marilyn also filed two motions for new trial. In these motions, too, she failed to complain about the hearing being too early under the law.

Under these circumstances, Marilyn has waived any argument that she received less notice than required for the hearing on the Estate's motion for summary judgment. See White v. Wah, 789 S.W.2d 312, 319 (Tex.App.--Houston [1st Dist.] 1990, no writ) (where appellant complained of receiving less notice than required by statute for appellees' motions for summary judgment, but did not object to lack of statutory notice, either prior to the hearing on the motions for summary judgment, at the hearing on the motions for summary judgment, or in his motion for new trial, we held appellant waived his right to complain of lack of proper notice). We also held in White, and reiterate now, that "[a]n allegation that a party received less notice than required by statute does not present a jurisdictional question, and, therefore, may not be raised for the first time on appeal." Id.

Marilyn has waived her complaint regarding allegedly improper notice, and thus it would be pointless for us to allow her to brief it. She would not be entitled to any relief on the complaint because of the waiver.

Marilyn argues, however, that:

The law in this Court of Appeals before the decision in Lewis v. Blake [ ] was directly to the contrary [of the law set out in Lewis ]. Cronen v. City of Pasadena, 835 S.W.2d 206, 208-209 (Tex.App.--Houston [1st Dist.] 1992, no writ). Any argument that Marilyn Jones waived her right to assert this new point of error is incorrect since until the case of Lewis v. Blake [ ], even this Court would have ruled against her based upon its previous decision.

This argument misses the point. Error regarding the receipt of less notice than required for a hearing on a motion for summary judgment is preserved in the trial court. White, 789 S.W.2d at 319. At the time Marilyn had the opportunity to preserve error, and thus secure the right to make her complaint on appeal, Marilyn did not know which court of appeals would hear any appeal emerging from her case.

Furthermore, at the time the Estate filed its motion for summary judgment, authority existed that supported Marilyn's argument: the case of Hammonds v. Thomas, 770 S.W.2d 1 (Tex.App.--Texarkana 1989, no writ). In Lewis, the Supreme Court of Texas wrote: "Thus, hearing on a motion for summary judgment may be set as early as the 21st day after the motion is served, or the 24th day if the motion is served by mail. One court of appeals has correctly reached this same conclusion." 876 S.W.2d at 316. The court then cited Hammonds. Id. ³

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