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Henderson v. Blalock

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

August 3, 2017

JOE HENDERSON, Appellant,
v.
MARILYN KAY BLALOCK, Appellee.

         On appeal from the 149th District Court of Brazoria County, Texas.

          Before Chief Justice Valdez and Justices Longoria and Hinojosa.

          MEMORANDUM OPINION

          ROGELIO VALDEZ Chief Justice.

         Appellant Joe Henderson appeals the trial court's orders granting appellee Marilyn Kay Blalock's motions for summary judgment in appellate cause numbers 13-16-00175-CV and 13-16-00176-CV. We affirm the trial court's order in appellate cause number 13-16-00175-CV, and we reverse and remand in appellate cause number 13-16-00176-CV.[1]

         I. Background[2]

         In 2010, appellant sued appellee alleging that he adversely possessed certain property located in Rosharon, Texas (hereinafter, the Rosharon address). The trial court dismissed the lawsuit for want of prosecution after the case had remained on the court's docket for over three years with almost no activity. Appellant filed a motion to reinstate the lawsuit, which the trial court denied. Appellant then appealed the trial court's decision to the Fourteenth Court of Appeals, but the appeal was unsuccessful. See Henderson v. Blalock, 465 S.W.3d 318, 321-24 (Tex. App.-Houston [14th Dist.] 2015, no pet.) (affirming the trial court's orders dismissing appellant's lawsuit for want of prosecution and denying his motion to reinstate).

         In 2014, appellant: (1) refiled the original lawsuit; and (2) filed a bill of review seeking to reinstate the original lawsuit that had been dismissed for want of prosecution. Appellant, now proceeding pro se, filed a notice of appearance in which he identified an address in Houston as his residence and mailing address (hereinafter, the Houston address).

         Appellee, also proceeding pro se, filed separate motions for summary judgment seeking to dismiss the refiled lawsuit and the bill of review, respectively. Appellee certified to the trial court in each motion that the motion was served on appellant "via certified mail, return receipt requested" to the Rosharon address.

         Appellant did not file a response to appellee's motions. Thereafter, the trial court granted both motions and ordered that appellant take nothing on his claims in the refiled lawsuit and the bill of review.[3] Appellant filed timely notices of appeal, and these appeals followed.[4]

         II. Discussion

         A. Order Dismissing the Refiled Lawsuit-Appellate Cause Number 13-16-00176-CV

         By his first issue, appellant contends that the trial court erred in dismissing the refiled lawsuit because he never received notice that appellee had filed the motion for summary judgment.

         1. Applicable Law

         "Proper notice to the non-movant of the summary judgment hearing is a prerequisite to summary judgment." Rozsa v. Jenkinson, 754 S.W.2d 507, 509 (Tex. App.-San Antonio 1988, no writ) (citing Gulf Refining Co. v. A.F.G. Management 34 Ltd., 605 S.W.2d 346, 349 (Tex. Civ. App.-Houston [14th Dist.] 1980, writ ref'd n.r.e.)). The right to summary judgment exists only in compliance with the Texas Rules of Civil Procedure. Id. The summary judgment movant must comply with all the requirements for proper service before being entitled to summary judgment. Id. (citing Tobin v. Garcia, 159 Tex. 58, 316 S.W.2d 396, 400 (1958)). Because summary judgment is a harsh remedy, a reviewing court ...


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