CLARENT ENERGY SERVICES INC. AND GRAHAM GILLIAM, Appellants
ICON BANK OF TEXAS, N.A., Appellee
Appeal from the 11th District Court Harris County, Texas
Trial Court Case No. 2017-55615.
consists of Justices Kelly, Hightower, and Countiss.
Clarent Energy Services Inc. and Graham Gilliam appeal the
trial court's grant of summary judgment in favor of
appellee Icon Bank of Texas, N.A., on its claims for payment
under two promissory notes.
three issues, Clarent and Gilliam contend that the trial
court erred by granting summary judgment because (1) they did
not receive service of the motion and submission notice 21
days in advance of the hearing, (2) Clarent sought a
continuance when Icon Bank filed an "improper"
submission notice one day before the hearing, and (3) the
summary judgment motion relied on disputed material facts.
reverse and remand.
executed two promissory notes, promising to repay Icon Bank
for a loan it used to buy four "BBL PCI Acid
Tanks." Gilliam personally guaranteed Clarent's
repayment of the notes. Clarent and Gilliam allegedly failed
to repay $51, 565.76 under the first note, resulting in
roughly $2, 000.00 in additional accrued interest and late
charges when Icon Bank filed this suit. Clarent and Gilliam
also allegedly failed to repay $52, 058.88 under the second
note, accruing another $2, 000.00 in unpaid interest and late
Bank moved for summary judgment on its claims under the two
notes. The certificate of service, signed by Icon Bank's
attorney of record, asserted that the motion was sent to
Clarent and Gilliam on July 5, 2018, at "the email set
forth in their answer." Icon Bank maintains that it
served a notice of oral hearing on the motion on July 5,
setting the hearing for July 30, which included certificate
of service showing that it was served by email. Icon Bank
contends that the motion and notice were served by an email
from its attorney's assistant.
23, Gilliam contacted the assistant to determine whether an
email he received from her email address on July 9 was
intentional or spam. That same day, Clarent and Gilliam
discovered for the first time that Icon Bank had filed the
summary-judgment motion and set it for oral hearing. Clarent
and Gilliam filed a motion for continuance, asserting that
they did not receive service of the motion and notice of
27, Icon Bank filed an amended notice of submission, which
indicated that the summary-judgment motion would be submitted
without an oral hearing on July 31. This notice included a
certificate of service, signed by Icon Bank's attorney of
record, asserting that he served the notice by email on July
30, Clarent and Gilliam responded to the summary-judgment
motion and filed an affidavit made by Gilliam. In it, he
averred: "I confirm and attest that the improper notice
and failed eservice delivery by Plaintiffs Motion for Summary
trial court granted Icon Bank's motion and awarded
damages and attorneys' fees. Clarent and Gilliam
of Motion for Summary Judgment ...