Andrew Roberts and Mary Smith v. Eastlawn Memorial Park Cemetery ( 2006 )

                                      COURT OF APPEALS

                                       SECOND DISTRICT OF TEXAS

                                                   FORT WORTH

                                        NO. 2-05-289-CV  

ANDREW ROBERTS AND MARY SMITH                                 APPELLANTS

                                                   V.

EAST LAWN MEMORIAL PARK CEMETERY                                 APPELLEE

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             FROM THE 89TH DISTRICT COURT OF WICHITA COUNTY

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                                MEMORANDUM OPINION^[1]

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Andrew Roberts and Mary Smith appeal from a no-evidence summary judgment for East Lawn Memorial Park Cemetery.  In a single issue, appellants complain that the summary judgment is improper because the trial court first denied the motion for summary judgment and than granted it without further notice to them.  Appellants did not raise this complaint in the trial court; therefore, it is waived on appeal.^[2]  Accordingly, we overrule appellant=s issue and affirm the trial court=s judgment.

PER CURIAM

PANEL F:    CAYCE, C.J.; HOLMAN and GARDNER, JJ.

DELIVERED: April 20, 2006

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^[1]See Tex. R. App. P. 47.4.

^[2]Tex. R. App. P. 33.1(a); see H.S.M. Acquisitions, Inc. v. West, 917 S.W.2d 872, 877 (Tex. App.CCorpus Christi 1996, writ denied) (holding that appellant failed to preserve error by objecting in trial court to lack of notice before trial court reconsidered and reversed its prior ruling denying motion for summary judgment).  We also note that a trial court has discretion to grant summary judgment without notice after previously denying same, as long as the court retains jurisdiction over the case.  Id. at 876-77; see also Hunte v. Hinkley, 731 S.W.2d 570, 571 (Tex. App.CHouston [14th Dist.] 1987, writ ref=d n.r.e.).