Negrini v. Beale, 822 S.W.2d 822 (Tex. App. 1992). · Go Syfert
Negrini v. Beale, 822 S.W.2d 822 (Tex. App. 1992). Cases Citing This Book View Copy Cite
“a party waives challenge to summary judgment without receiving 21 days' notice, where the party received notice of the hearing, appeared at it, filed no controverting affidavit, and did not ask for a continuance”
34 citation events (25 in the last 25 years) across 1 distinct court.
Strongest positive: Scarlett Yarborough v. Vitrola Bar, Inc., Pete Mitchell, and Vera Mitchell (texapp, 2019-10-15)
Treatment trajectory · 1994 → 2026 · click a year to view as-of
1994 2010 2026
Top citers, strongest first. 27 distinct citers. How cited ↗
examined Cited as authority (verbatim quote) Scarlett Yarborough v. Vitrola Bar, Inc., Pete Mitchell, and Vera Mitchell (2×) also: Cited as authority (rule)
Tex. App. · 2019 · quote attribution · 1 verbatim quote · confidence high
a party waives challenge to summary judgment without receiving 21 days' notice, where the party received notice of the hearing, appeared at it, filed no controverting affidavit, and did not ask for a continuance
discussed Cited as authority (rule) John Emmanuel D/B/A First Americo Auto Sale & Repair v. Abigail Izoukumor
Tex. App. · 2020 · confidence medium
Finally, Izoukumor was awarded 3 See also Fertic v. Spencer, 247 S.W.3d at 248 & n.4 (Tex. App.—El Paso 2007, pet. denied); May v. Nacogdoches Mem’l Hosp., 61 S.W.3d 623, 626 (Tex. App.—Tyler 2001, no pet.) (concluding that nonmovant waived notice issue when she participated in hearing, but failed to object in writing prior to hearing); Negrini v. Beale, 822 S.W.2d 822, 823 (Tex. App.— Houston [14th Dist.] 1992, no writ) (stating that nonmovant waived complaint concerning 21-day notice requirement when nonmovant received notice of hearing, appeared at hearing, filed no controverting af…
discussed Cited as authority (rule) John Emmanuel D/B/A First Americo Auto Sale & Repair v. Abigail Izoukumor
Tex. App. · 2020 · confidence medium
Finally, Izoukumor was awarded 3 See also Fertic v. Spencer, 247 S.W.3d at 248 & n.4 (Tex. App.—El Paso 2007, pet. denied); May v. Nacogdoches Mem’l Hosp., 61 S.W.3d 623, 626 (Tex. App.—Tyler 2001, no pet.) (concluding that nonmovant waived notice issue when she participated in hearing, but failed to object in writing prior to hearing); Negrini v. Beale, 822 S.W.2d 822, 823 (Tex. App.— Houston [14th Dist.] 1992, no writ) (stating that nonmovant waived complaint concerning 21-day notice requirement when nonmovant received notice of hearing, appeared at hearing, filed no controverting af…
discussed Cited as authority (rule) Samuel Keith Fertic v. Joe A. Spencer
Tex. App. · 2007 · confidence medium
Therefore, his complaint is not preserved for our review. (4) See Nguyen v. Short, How, Frels & Heitz , 108 S.W.3d 558, 560 (Tex.App.--Dallas 2003, pet. denied)(complaint waived where party had prior notice of hearing, but failed to object to untimely notice before submission to the trial court); Negrini v. Beale , 822 S.W.2d 822, 823 (Tex.App.--Houston [14th Dist.] 1992, no writ)(party waives the twenty-one day requirement "where the party received notice of the hearing, appeared at it, filed no controverting affidavit, and did not ask for a continuance.").
discussed Cited as authority (rule) Fertic v. Spencer
Tex. App. · 2007 · confidence medium
Therefore, his complaint is not preserved for our review. 4 See Nguyen v. Short, How, Frels & Heitz, 108 S.W.3d 558, 560 (Tex.App.-Dallas 2003, pet. denied)(complaint waived where party had prior notice of hearing, but failed to object to untimely notice before submission to the trial court); Negrini v. Beale, 822 S.W.2d 822, 823 (Tex.App.-Houston [14th Dist.] 1992, no writ)(party waives the twenty-one day requirement “where the party received notice of the hearing, appeared at it, filed no controverting affidavit, and did not ask for a continuance.”).
discussed Cited as authority (rule) Manning v. North
Tex. App. · 2002 · confidence medium
When a party participates in a hearing without notifying the court of any complaint, that party has waived its right to object to a lack of notice and may not raise the question for the first time on appeal. *715 Wyatt v. Furr’s Supermarkets, Inc., 908 S.W.2d 266, 270 (Tex.App.-El Paso 1995, writ denied); Negrini v. Beale, 822 S.W.2d 822, 823-24 (Tex.App.-Houston [14th Dist.] 1992, no writ).
cited Cited as authority (rule) Joyce Manning and Dan Manning v. Ronald J. North M.D.
Tex. App. · 2002 · confidence medium
Wyatt v. Furr's Supermarkets, Inc., 908 S.W.2d 266, 270 (Tex. App.--El Paso 1995, writ denied); Negrini v. Beale , 822 S.W.2d 822, 823-24 (Tex.App.--Houston [14 th Dist.] 1992, no writ).
cited Cited as authority (rule) Joyce Manning and Dan Manning v. Ronald J. North M.D.
Tex. App. · 2002 · confidence medium
Wyatt v. Furr’s Supermarkets, Inc., 908 S.W.2d 266, 270 (Tex. App.--El Paso 1995, writ denied); Negrini v. Beale , 822 S.W.2d 822, 823-24 (Tex.App.--Houston [14 th Dist.] 1992, no writ).
cited Cited as authority (rule) Joyce Manning and Dan Manning v. Ronald J. North M.D.
Tex. App. · 2002 · confidence medium
Wyatt v. Furr’s Supermarkets, Inc., 908 S.W.2d 266, 270 (Tex. App.--El Paso 1995, writ denied); Negrini v. Beale, 822 S.W.2d 822, 823-24 (Tex.App.-- Houston [14th Dist.] 1992, no writ).
cited Cited as authority (rule) Joyce M. Spivey and Eddie W. Spivey v. State of Texas, by and Through Texas Tech University
Tex. App. · 2002 · confidence medium
Wyatt v. Furr's Supermarkets, Inc., 908 S.W.2d 266, 270 (Tex. App.--El Paso 1995, writ denied); Negrini v. Beale , 822 S.W.2d 822, 823-24 (Tex.App.--Houston [14 th Dist.] 1992, no writ).
discussed Cited as authority (rule) Walker v. Gonzales County Sheriff's Department
Tex. App. · 2001 · confidence medium
Union City Body, 911 S.W.2d at 201 ; Jones v. Jones, 888 S.W.2d 858, 859 (Tex.App. — Houston [1st Dist.] 1994, writ denied); Negrini v. Beale, 822 S.W.2d 822, 823 (Tex.App. — Houston [14th Dist.] 1992, no writ).
discussed Cited as authority (rule) Walker, Freddie Lee v. the Gonzales County Sheriff's Department, D.J. Brzozowski, Sheriff
Tex. App. · 2000 · confidence medium
Union City Body , 911 S.W.2d at 201 ; Jones v. Jones , 888 S.W.2d 858, 859 (Tex. App.--Houston [1st Dist.] 1994, writ denied); Negrini v. Beale , 822 S.W.2d 822, 823 (Tex. App.--Houston [14th Dist.] 1992, no writ).
discussed Cited as authority (rule) Hall v. Lone Star Gas Co.
Tex. App. · 1997 · confidence medium
See Smith v. Mike Carlson Motor Co., 918 S.W.2d 669, 672 (Tex.App.—Fort Worth 1996, no writ) (party should bring lack of notice of summary judgment motion and hearing to court’s attention after summary judgment has been granted to preserve complaint for appellate review); Negrini v. Beale, 822 S.W.2d 822, 824 (Tex.App.—Houston [14th Dist.] 1992, no writ) (participant in hearing on motion who failed to apprise trial court of complaint before, during or after summary judgment hearing waived any objection to improper notice and cannot raise it for first time on appeal).
discussed Cited as authority (rule) Tom Hall v. Lone Star Gas Company
Tex. App. · 1997 · confidence medium
See Smith v. Mike Carlson Motor Co. , 918 S.W.2d 669, 672 (Tex. App.--Fort Worth 1996, no writ) (party should bring lack of notice of summary judgment motion and hearing to court's attention after summary judgment has been granted to preserve complaint for appellate review); Negrini v. Beale , 822 S.W.2d 822, 824 (Tex. App.--Houston [14th Dist.] 1992, no writ) (participant in hearing on motion who failed to apprise trial court of complaint before, during or after summary judgment hearing waived any objection to improper notice and cannot raise it for first time on appeal).
discussed Cited as authority (rule) Rios v. Texas Bank
Tex. App. · 1997 · confidence medium
This is distinguishable from the situation before us where the docket entry does not contradict the final judgment, but in fact supports it. 3 .This court has previously held that a non-mov-ant waived a complaint of late notice by not complaining of this in the trial court "before, during, or after the summary judgment hearing.” Negrini v. Beale, 822 S.W.2d 822, 824 (Tex.App.-Houston [14th Dist.] 1992, no writ).
discussed Cited as authority (rule) Union City Body Co., Inc. v. Ramirez (2×)
Tex. App. · 1995 · confidence medium
See Jones v. Jones, 888 S.W.2d 858, 859 (Tex.App.—Houston [1st Dist.] 1994, writ denied); Negrini v. Beale, 822 S.W.2d 822, 823 (Tex.App.—Houston [14th Dist.] 1992, no writ).
cited Cited as authority (rule) Wyatt v. Furr's Supermarkets, Inc.
Tex. App. · 1995 · confidence medium
Negrini v. Beale, 822 S.W.2d 822, 823-24 (Tex.App. — Houston [14th Dist.] 1992, no writ).
cited Cited as authority (rule) Longoria v. United Blood Services
Tex. App. · 1995 · confidence medium
See Lewis v. Blake, 876 S.W.2d 314, 316 (Tex.1994); Negrini v. Beale, 822 S.W.2d 822, 823 (Tex.App.—Houston [14th Dist.] 1992, no writ); Tex.R.Civ.P. 166a(c).
cited Cited as authority (rule) Stephens v. Turtle Creek Apartments, Ltd.
Tex. App. · 1994 · confidence medium
Negrini v. Beale, 822 S.W.2d 822, 823-24 (Tex.App.—Houston [14th Dist.] 1992, no writ).
discussed Cited "see" Clark v. Bres
Tex. App. · 2007 · signal: see · confidence high
See Negrini v. Beale, 822 S.W.2d 822, 823-24 (Tex.App.-Houston [14th Dist.] 1992, no writ) (holding a party waived any error that may have existed in summary judgment notice where the party received notice of the hearing, appeared at it, and did not ask for a continuance).
discussed Cited "see" Jeffrey L. Bell v. Citibank (South Dakota) N.A.
Tex. App. · 2006 · signal: see · confidence high
However, Bell failed to preserve this issue for our review and, even if the issue had been preserved, the record contains prima facie evidence that Bell was served more than twenty-four days before the hearing. (3) In order to preserve error on a claim of deficient notice, Bell was required to "file a motion for continuance or raise the complaint of late notice in writing, supported by affidavit evidence, and raise the issue before the trial court during the summary judgment hearing." Nguyen v. Short, How, Frels & Heitz, P.C. , 108 S.W.3d 558, 560 (Tex. App.--Dallas 2003, pet. denied); see Neg…
discussed Cited "see" John Clark III, Individually and D/B/A Celtic Constructors and Betty Stovall (KIT) Clark v. Tom Bres and Jan Bres A/K/A Jon Holzinger
Tex. App. · 2006 · signal: see · confidence high
See Negrini v. Beale , 822 S.W.2d 822 , 823 B 24 (Tex. App. C Houston [14th Dist.] 1992, no writ) (holding a party waived any error that may have existed in summary judgment notice where the party received notice of the hearing, appeared at it, and did not ask for a continuance).
cited Cited "see" Rodolfo Zolezzi Thomas and Maria Rita Guerra De Zolezzi v. Arrendadora Internacional, S.A. De C v.
Tex. App. · 2004 · signal: see · confidence high
See Negrini v. Beale , 822 S.W.2d 822, 823-24 (Tex. App.–Houston [14th Dist.] 1992, no writ) ("Appellants failed to file a motion for continuance under Tex. R.
cited Cited "see" Thomas J. Henry and the Law Offices of Thomas J. Henry v. Robert Low, D. O., and Stephen Smith, M. D.
Tex. App. · 2004 · signal: see · confidence high
See Negrini v. Beale, 822 S.W.2d 822, 824 (Tex. App.–Houston [14th Dist.] 1992, no writ) (summary-judgment hearing).
examined Cited "see" Henry v. Low (4×)
Tex. App. · 2004 · signal: see · confidence high
See Negrini v. Beale, 822 S.W.2d 822, 824 (Tex.App.-Houston [14th Dist.] 1992, no writ) (summary-judgment hearing).
discussed Cited "see" Althea Nanette Jordan v. State of Texas
Tex. App. · 2002 · signal: see · confidence high
However, Bell failed to preserve this issue for our review and, even if the issue had been preserved, the record contains prima facie evidence that Bell was served more than twenty-four days before the hearing. (3) In order to preserve error on a claim of deficient notice, Bell was required to "file a motion for continuance or raise the complaint of late notice in writing, supported by affidavit evidence, and raise the issue before the trial court during the summary judgment hearing." Nguyen v. Short, How, Frels & Heitz, P.C. , 108 S.W.3d 558, 560 (Tex. App.--Dallas 2003, pet. denied); see Neg…
cited Cited "see" Carla Cummings v. Lloyd Gillespie
Tex. App. · 2002 · signal: see · confidence high
See Negrini v. Beale , 822 S.W.2d 822, 823 (Tex. App.- Houston [14th Dist.] 1992, no writ).
Retrieving the full opinion text from the archive…
J.L. NEGRINI and Helen Negrini, Appellants,
v.
David F. BEALE, Appellee
C14-90-00105-CV.
Court of Appeals of Texas.
Feb 6, 1992.
822 S.W.2d 822
1992 Tex. App. LEXIS 319
1992 WL 17872
Gerson D. Bloom, Galveston, for appellants., David F. Beale, Houston, for appellee.
Junell, Robertson, Draughn.
Cited by 30 opinions  |  Published

OPINION

DRAUGHN, Justice.

This is an appeal from a summary judgment holding that appellee, David F. Beale, was entitled to collect legal fees for services rendered to appellants. In two points of error, appellants contend that the trial court erred in granting summary judgment because the motion for summary judgment was not served properly or timely pursuant to Texas Rules of Civil Procedure. We affirm.

Appellee represented appellants on various legal matters from May, 1983, through[*823] January, 1986. When the balance due on past legal services reached approximately $27,000.00, appellee informed appellants he would withdraw as their attorney unless acceptable payment arrangements were devised for past and future fees. On July 15, 1985, J.L. Negrini signed a monthly fee agreement and a promissory note for $27,-000.00 to be paid in monthly installments beginning July 20, 1985, and terminating after August 20, 1986. Appellants made no payments after November, 1985. Ap-pellee subsequently filed suit on March 12, 1986. On November 13, 1989, appellee filed a Motion for Summary Judgment and Notice of Hearing for December 4, 1989. On the same day, appellee served appellants with the Motion for Summary Judgment and Notice of Hearing at 1721-61st Street, Galveston, Texas. Appellants filed their First Amended Answer on December 4, 1989. The court granted the summary judgment on December 15, 1989, and rendered judgment for appellee for $27,885.00 plus attorney’s fees of $1,650.00 and interest. This court denied appellants’ untimely motion for leave to file the “Statement of Facts” on March 29, 1990.

In two points of error, appellants claim the trial court erred in granting appellee’s summary judgment because the motion was not served properly or timely in compliance with Texas Rules of Civil Procedure 21a and 166a(c). Appellants allege the notice was deficient because service was not delivered personally and was delivered to an incorrect address. They contend the motion was found stuffed in their door at 1721-61st St., Galveston, Texas, on an unknown date which may have been on or about November 13, 1989, the date specified in the certificate of service. Additionally, appellants argue that the summary judgment was improper because they did not receive the requisite twenty-one days notice of the hearing date.

In the summary judgment context, Texas Rules of Civil Procedure 166a(c) requires “except on leave of court, with notice to opposing counsel, the motion and any supporting affidavits shall be filed and served at least twenty-one days before the time specified for hearing.” Tex.R.Civ.P. 166a(c). However, a party waives challenge to summary judgment without receiving 21 days notice, where the party received notice of the hearing, appeared at it, filed no controverting affidavit, and did not ask for a continuance. Such is this case here and appellant has waived any error on the issue. Manhattan Const. Co. v. Hood Lanco, Inc. 762 S.W.2d 617, 619 (Tex.App.—Houston [14th Dist.] 1988, writ denied); Hudenburg v. Neff, 643 S.W.2d 517 (Tex.App.—Houston [14th Dist.] 1982, writ ref. n.r.e.), cert. denied, 464 U.S. 937, 104 S.Ct. 348, 78 L.Ed.2d 313 (1984). Appellant seeks to raise the issue for the first time on appeal. The supreme court, however, has carefully pointed out that Rule 166a(c) prohibits such an attempt:

“Responding to the criticism that a non-movant could “lay behind the log” in the trial court and urge deficiencies for the first time on appeal, the new section (c) specifically prohibits this tactic by clearly requiring:
... Issues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal.”

City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 677 (Tex.1979); Tex.R.Civ.P. 166a(c). An 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. Davis v. Davis, 734 S.W.2d 707, 712 (Tex.App.—Houston [1st Dist.] 1987, writ ref’d n.r.e.).

In the present case, appellants do not complain they had no notice of the Motion for Summary Judgment or the Hearing on the Motion for Summary Judgment which would have presented a question of the trial court’s jurisdiction to hear the motion. Indeed, they appeared at the summary judgment hearing on December 4,1989, but they filed no response to the motion nor any written pleadings directing the court’s attention to any defects in the time or manner of service of the motion. They were also present on December 15, 1989, when appellee’s summary judgment motion[*824] was granted. Appellants failed to file a motion for continuance under Tex.R.Civ.P. 166a(g), or any other motion seeking additional time in which to respond to appel-lee’s motion. Since they participated in the hearing on the motion and failed to apprise the trial court of their complaint before, during, or after the summary judgment hearing, they have waived any objection as to improper or untimely notice, and cannot now raise it for the first time on appeal under Tex.R.Civ.P. 166a(c).

The trial court’s judgment is affirmed.