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Civil Litigation Click here for the full text of this decision FACTS:This appeal arises from five separate suits filed by numerous plaintiffs against a voluminous number of defendants, involving allegations of contamination resulting from leakage from fuel storage tanks. Four of these five cases were consolidated. Only cause number C-4565-95-A was not consolidated; the plaintiffs in that case were Antonio G. Aguirre, Miriam M. Aguirre and Chevron. One of the defendants was Phillips Properties Inc., the appellee. Phillips Properties moved for summary judgment in the consolidated cases and in cause number C-4565-95-A, and said motions were granted. The subject of this appeal is the summary judgment granted in favor of Phillips Properties. This summary judgment was signed by the trial court on April 6, 2000, and dismissed all claims against Phillips Properties in each of the cases in which Phillips Properties was a defendant. Furthermore, it severed the dismissed claims into a separate case, which was assigned cause number C-4565-95-A-1. Thereafter, on May 4, 2000, Aguirre filed a motion for new trial in cause number C-4565-95-A-1, seeking to set aside the summary judgment in favor of Phillips Properties on the grounds that Aguirre did not receive notice of the submission date. On May 8, 2000, Aguirre filed responses to Diamond Shamrock’s and Mobil Oil’s motions for summary judgment which were still pending in cause numbers C-4597-92-E, C-4566-95-B, C-4568-95-D and C-4570-95-F. On June 19, 2000, the trial court denied Aguirre’s motion for new trial, stating that it had considered Aguirre’s response to the motion for summary judgment as timely filed. HOLDINGThe court reverses the trial court’s order granting summary judgment as to the appellant Aguirre and remands this cause for further proceedings. As to the appellant Chevron, the court dismisses its issues on appeal. Phillips Properties argues that the Supreme Court has apparently relaxed the absolute prohibition against the use of docket entries in some limited, although apparently undefined, circumstances. “A docket entry may supply facts in certain situations, but it cannot be used to contradict or prevail over a final judicial order.” N-S-W Corp. v. Snell, 561 S.W.2d 798 (Tex. 1977, orig. proceeding). However, N-S-W Corp. did not overrule cases holding that a docket entry forms no part of the record that may be considered but is merely a memorandum made for the trial court and clerk’s convenience. First Nat’l Bank v. Birnbaum, 826 S.W.2d 189 (Tex. App. — Austin 1992, no writ). Docket entries remain inherently unreliable because they lack the formality of orders and judgments. Here, there is no presumption of valid service of the hearing notice, nor does the record contain any evidence that appellants received notice of the hearing. Because Aguirre’s motion for new trial brought this issue to the trial court’s attention, and because this issue may be resolved by an examination of the record in this case, the court finds Aguirre’s motion for new trial sufficient to preserve this issue for appellate review. Furthermore, because there is nothing in the record to otherwise show that Aguirre received notice of the hearing, the court finds that Aguirre did not receive actual or constructive notice of the summary judgment hearing. Moreover, even if the court assumed Aguirre did receive notice of the summary judgment hearing, the record indicates two stay orders were entered by the trial court on Jan. 26, 2000, and Feb. 28, 2000. The February stay order stated that all pending motions pertaining to the Northern Plume parties were ordered deferred and not set for hearing until after conclusion of the Southern Plume trial. The court holds that said orders serve to negate any notice of the summary judgment submission date that Aguirre might have received. Phillips Properties argues that even if there had been a lack of notice, as Aguirre alleges, by considering the response to the motion for summary judgment and reconfirming its ruling, the trial court rendered any such error harmless. Martin v. Martin, Martin & Richards Inc., 989 S.W.2d 357 (Tex. 1998). In Martin, the Texas Supreme Court held that the district court erred in granting the defendant’s motion for summary judgment without notice. The court concluded however, that the “error was harmless . . . because the court fully considered Gary’s [petitioner] response and reconfirmed its ruling.” The court further noted that the district court’s actions did not prevent the petitioner from “presenting to the court a full response to defendant’s motion for summary judgment.” The appellant’s argument fails to recognize, however, that the record reflects no response to Phillips Properties’ motions for summary judgment was ever filed by Aguirre. The record further reflects that the trial court was never presented with any response to Phillips Properties’ motions for summary judgment. Aguirre did not file a response to the motions for summary judgment which were granted in favor of Phillips Properties. The only responses filed by Aguirre specifically note that they were made in response to the motions for summary judgment of Diamond Shamrock and Mobil Oil; however, no mention is made of the motions for summary judgment filed by Phillips Properties. More importantly, said response was never filed in cause number C-4565-95-A-1, the only cause in which Phillips Properties was still a party after the trial court’s severance order of April 6, 2000. As such, the trial court could not have considered any response by Aguirre in denying appellant’s motion for new trial. Therefore, the trial court had no opportunity to consider any response in reconfirming its ruling and erred in failing to provide a party with the requisite 21-day notice of a setting on a motion for summary judgment. In the present case, the failure to provide notice prevented Aguirre from presenting any response to defendant’s motion for summary judgment. Accordingly, this court holds the error was not rendered harmless. OPINION: Valdez, C.J.; en banc. Concurring and dissenting opinion by Yanez, J., joined by Hinojosa, J. Concurring opinion by Castillo, J.
 
 

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