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Ayele v. Jani-King of Houston, Inc.

Court of Appeals of Texas, First District

February 28, 2017

MESERET AYELE D/B/A MAE SOLUTIONS, LLC, Appellant
v.
JANI-KING OF HOUSTON, INC., Appellee

         On Appeal from the 55th District Court Harris County, Texas Trial Court Case No. 2015-17798

          Panel consists of Justices Keyes, Bland, and Lloyd.

          OPINION

          JANE BLAND JUSTICE.

         This is an appeal from a post-answer default summary judgment, granted after the trial court reset the submission date for consideration of the motion for summary judgment, but neither it nor the moving party sent notice of the new submission date. The non-movant moved for a new trial, submitting an affidavit that its failure to respond to the motion for summary judgment before the submission date was not the result of conscious indifference. The trial court denied the motion. On appeal, the non-movant contends that the trial court erred in denying its motion for new trial. We reverse and remand.

         BACKGROUND

         In October 2011, MAE Solutions, LLC and Jani-King of Houston, Inc. entered into a commercial cleaning franchise agreement, giving MAE the right to operate a Jani-King franchise. After nearly four years of poor business performance, MAE sued Jani-King for breach of contract, fraud, and negligent misrepresentation, among other grounds.

         Jani-King responded to the petition with a plea to the jurisdiction, asserting that MAE lacked standing. It set its jurisdictional plea for a hearing in early June 2015. Shortly before the hearing date, MAE amended its pleading to cure the standing problem. The hearing went forward, and the trial court denied the plea. On June 5th, Jani-King moved for an extension of time to file its answer. On June 17th, the trial court granted a 30-day extension, and Jani-King filed its answer on July 17th.

         On August 17th, Jani-King moved for summary judgment pursuant to Texas Rule of Civil Procedure 166a(c), and set the motion on the trial court's submission docket for September 7th.

         Three days after Jani-King filed its summary-judgment motion, MAE moved for a continuance of the summary judgment proceedings. MAE urged two grounds for its request. First, by way of informing the court that the parties were in the early stages of discovery, MAE pointed to the recently resolved jurisdictional plea, noting that it had propounded written discovery and intended to engage in further discovery. MAE asked for 120 additional days to allow for completion of discovery, a length of time that roughly corresponded to the amount of time remaining in the discovery period set forth in the trial court's docket control order. Second, MAE pointed out that its counsel, a solo practitioner, had designated the weeks of August 24th through August 28th and September 7th through September 11th in a vacation letter on file with the district clerk, as allowed by the Harris County local rules. MAE attached a copy of the clerk's office's record of counsel's vacation letter to the motion.[1]

         On September 10th, the trial court signed an order, in which it granted a continuance. In the order, the court interlineated a new setting for the summary-judgment motion, placing it on the court's submission docket 24 days later, on October 5th. After the submission date passed without a response from MAE, the trial court granted summary judgment on October 13th.

         On November 2nd, MAE's counsel received a post card from the clerk's office informing him that the trial court had granted summary judgment. After receipt of the post card, MAE moved to vacate the judgment and for new trial. In the verified motion, MAE's counsel explained that he did not receive notice of the trial court's reset of the motion for summary judgment for October 5th, and that after he received the November 2nd post card, he had his legal assistant check the district clerk's website and discovered for the first time that the motion had been set for submission on October 5th. MAE declared that its failure to respond to the motion for summary judgment was not intentional or due to conscious indifference but was due to an accident or mistake, that being a lack of notice of the submission date.

         The trial court denied MAE's motion for new trial and its subsequent motion for reconsideration.

         DISCUSSION

         A.Standard of ...


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