JD Shelton Enterprises LLC v. AGL Constructors ( 2019 )

Affirmed and Opinion Filed June 17, 2019.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-18-00765-CV
JD SHELTON ENTERPRISES LLC, Appellant
V.
AGL CONSTRUCTORS, Appellee
On Appeal from the 192nd Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-15-00188
MEMORANDUM OPINION
Before Justices Bridges, Brown, and Nowell
Opinion by Justice Nowell
This is an appeal from the denial of a motion for continuance of a summary judgment
hearing and a motion for new trial. Appellant argues the trial court abused its discretion because
appellant did not receive twenty-one days’ notice of the summary judgment hearing. We
conclude appellant failed to preserve its complaint regarding the motion for continuance because
the record does not show the motion was brought to the attention of the trial court. Appellant’s
complaint regarding the motion for new trial is not preserved for appeal because the motion
required the taking of evidence, but was denied by operation of law. TEX. R. APP. P. 33.1(b).
We affirm the trial court’s judgment.
BACKGROUND
JD Shelton Enterprises, LLC (JD Enterprises) sued AGL Constructors for breach of
contract, promissory estoppel, and fraud arising out of a contract allowing AGL to access and
use a portion of JD Enterprises’s property while AGL was performing construction on Highway
I-35. AGL filed a traditional and no-evidence motion for summary judgment on April 6, 2018,
serving the document electronically. TEX. R. CIV. P. 21a(a)(1). On April 11, 2018, AGL filed
and served a notice that the hearing on the motion for summary judgment was set for May 17,
2018. Both the motion for summary judgment and the notice of hearing contained certificates of
service indicating JD Enterprises’s attorney was served in accordance with Rule 21a.
The day before the hearing, the trial court faxed a notice to the parties that the hearing
would be rescheduled. Later that day the court sent another notice stating the hearing would be
by submission on the May 17, 2018, and to disregard the earlier notice. JD Enterprises then filed
an unverified motion to extend time for response to the motion for summary judgment. JD
Enterprises’s attorney asserted he did not receive the motion for summary judgment or notice of
the hearing and first learned of the hearing when he received the notices from the court earlier
that day. He requested the court to postpone submission of the motion for summary judgment
until JD Enterprises had twenty-one days’ notice of the hearing.
AGL filed a verified response to the motion to extend time the same day. AGL argued
that the motion for summary judgment and notice of hearing were served electronically under
Rule 21a. AGL’s attorney asserted he informed JD Enterprises’s attorney in 2017 that the
attorney was not on the electronic service list. However, after October 19, 2017, AGL’s attorney
no longer received a warning message that documents could not be delivered. The response also
stated that JD Enterprises electronically filed and served documents after October 19, 2017.
AGL’s attorney assumed the problem with electronic service was resolved.
The trial court signed an order granting the motion for summary judgment on May 18,
2018. There is no signed order on appellant’s motion to extend time. AGL nonsuited its
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counterclaim and the trial court rendered final judgment on May 22, 2018. On June 14, 2018, JD
Enterprises again filed the motion to extend time for response to the motion for summary
judgment. Attached to this document was a motion for reconsideration and motion for new trial
signed and verified by JD Enterprises’s trial attorney. The motion for new trial asserted that JD
Enterprises did not receive twenty-one days’ notice of the summary judgment hearing. The
motion was not set for hearing and was overruled by operation of law. TEX. R. CIV. P. 329b(c).
DISCUSSION
JD Enterprises complains about the denial of the motion to extend time filed before the
hearing and the denial of its motion for new trial. However, the record does not show that either
of these complaints were preserved for review. See TEX. R. APP. P. 33.1(a), (b).
As a prerequisite to complaining on appeal about the denial of a motion for continuance,
the record must show that the motion was brought to the trial court’s attention and the trial court
denied the motion or the trial court refused to rule and the complaining party objected to the
refusal. TEX. R. APP. P. 33.1(a); Gonerway v. Corr. Corp. of Am., 442 S.W.3d 443, 446 (Tex.
App.—Dallas 2013, no pet.) (appellant failed to inform the trial court of her motion for
continuance or obtain a ruling on it; therefore, she failed to preserve her issue); Quintana v.
CrossFit Dallas, L.L.C., 347 S.W.3d 445, 449 (Tex. App.—Dallas 2011, no pet.) (same); Bryant
v. Jeter, 341 S.W.3d 447, 451 (Tex. App.—Dallas 2011, no pet.) (same); Hightower v. Baylor
Univ. Med. Ctr., 251 S.W.3d 218, 224 (Tex. App.—Dallas 2008, pet. struck) (trial court’s failure
to grant continuance was not properly before appellate court when record failed to show trial
court ruled on the motion). The mere filing of a motion does not show that it was presented to
the trial court. Admal v. Ventures Tr. 2013 I-H-R, No. 05-16-00912-CV, 2018 WL 1755486, at
*2 (Tex. App.—Dallas Apr. 12, 2018, no pet.) (mem. op.). “A court is not required to consider a
motion that is not called to its attention.” In Interest of T.J.S., 05-15-00138-CV, 2016 WL
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4131959, at *5 (Tex. App.—Dallas Aug. 2, 2016, no pet.) (quoting Risner v. McDonald’s Corp.,
18 S.W.3d 903, 909 (Tex. App.—Beaumont 2000, pet. denied)).
Although JD Enterprises filed the motion to extend time before the trial court heard the
motion for summary judgment, there is no indication in the record that JD Enterprises set the
motion for hearing or otherwise brought it to the trial court’s attention. Nor does the record
show the trial court ruled on the motion to extend time. Thus, JD Enterprises’s complaint
regarding the motion to extend time is not preserved for review. TEX. R. APP. P. 33.1(a).
Regarding JD Enterprises’s motion for new trial, there was no hearing on the motion and
it was overruled by operation of law. TEX. R. CIV. P. 329b(c). The overruling of a motion for
trial by operation of law preserves error for appeal “unless taking evidence was necessary to
properly present the complaint in the trial court.” TEX. R. APP. P. 33.1(b) (emphasis added). JD
Enterprises’s claim that it did not timely receive notice of the summary judgment motion and
hearing required evidence, but no evidence was taken in this case. Under Rule 33.1(b), “if a
movant seeks a new trial on a ground on which evidence must be heard by the trial court, the
movant must obtain a hearing on its new-trial motion to preserve error.” Tyhan, Inc. v. Cintas
Corp. No. 2, No. 01-18-00027-CV, 2018 WL 5539419, at *1–2 (Tex. App.—Houston [1st Dist.]
Oct. 30, 2018, no pet.) (mem. op.); see also Felt v. Comerica Bank, 401 S.W.3d 802, 807–08
(Tex. App.—Houston [14th Dist.] 2013, no pet.); Fluty v. Simmons Co., 835 S.W.2d 664, 667–
68 (Tex. App.—Dallas 1992, no writ) (no abuse of discretion shown where motion for new trial
following default judgment was overruled by operation of law); Shamrock Roofing Supply, Inc.
v. Mercantile Nat. Bank at Dallas, 703 S.W.2d 356, 358 (Tex. App.—Dallas 1985, no writ).
Because the motion for new trial required the taking of evidence and was overruled by operation
of law, we conclude JD Enterprises failed to preserve error, if any, regarding the overruling of its
motion for new trial. TEX. R. APP. P. 33.1(b).
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CONCLUSION
JD Enterprises’s complaints on appeal are not preserved for review. We overrule JD
Enterprises’s issue and affirm the trial court’s judgment.
/Erin A. Nowell/
ERIN A. NOWELL
JUSTICE
180765F.P05
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
JD SHELTON ENTERPRISES LLC, On Appeal from the 192nd Judicial District
Appellant Court, Dallas County, Texas
Trial Court Cause No. DC-15-00188.
No. 05-18-00765-CV V. Opinion delivered by Justice Nowell.
Justices Bridges and Brown participating.
AGL CONSTRUCTORS, Appellee
In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
It is ORDERED that appellee AGL CONSTRUCTORS recover its costs of this appeal
from appellant JD SHELTON ENTERPRISES LLC.
Judgment entered this 17th day of June, 2019.
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