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Clarent Energy Services Inc. v. Icon Bank of Texas, N.A.

Court of Appeals of Texas, First District

November 7, 2019

CLARENT ENERGY SERVICES INC. AND GRAHAM GILLIAM, Appellants
v.
ICON BANK OF TEXAS, N.A., Appellee

          On Appeal from the 11th District Court Harris County, Texas Trial Court Case No. 2017-55615.

          Panel consists of Justices Kelly, Hightower, and Countiss.

          MEMORANDUM OPINION

          Peter Kelly Justice.

         Appellants 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.

         In 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.

         We reverse and remand.

         Background

         Clarent 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 charges.

         Icon 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.

         On July 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 hearing.

         On July 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 27.

         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 Judgment occurred."

         The trial court granted Icon Bank's motion and awarded damages and attorneys' fees. Clarent and Gilliam appealed.

         Service of Motion for Summary Judgment ...


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