Tanksley v. CitiCapital Commercial Corp.

The certificate of service contains reference only to certified mail, which appellees acknowledge was returned undelivered. Statements by counsel to the trial court, at the hearing for the motion for summary judgment, that the notices were also sent by regular mail does not meet the requirement of Texas Rule of Civil Procedure 21a.

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Click here for the full text of this decision FACTS:CitiCapital Commercial Corp. sued Tracy Tanksley and Anthony Montgomery for conversion, after the two sequestered a truck and trailer Tanksley purchased with the help of a CitiCapital loan. Montgomery was later non-suited, and Tanksley later filed his answer and asserted counter- and cross-claims against three attorneys. CitiCapital moved for traditional summary judgment. It and the attorneys together filed a motion for a no evidence summary judgment. Copies of the motion for summary judgment and the notice of the hearing were sent to Tanksley by certified mail, return receipt requested, and by regular mail to the address used by Tanksley on his pleadings, but the mail went unclaimed. Tanksley did not appear at the summary judgment hearing, and the trial court granted CitiCapital a judgment of nearly $36,000. The attorneys were awarded attorneys’ fees, and Tanksley was ordered to take nothing. Tanksley timely filed a verified motion for continuance, or, in the alternative, a motion for a new trial, a notice of fraud upon the court, and a motion for findings of fact and conclusions of law. HOLDING:Reversed and remanded. The court refers to the rules that set out the requisite amount of notice a non-movant for summary judgment should get, as well as the methods for service of motions. In this instance, the summary judgment motion contains a “Fiat” that states that Tanksley was served by return-receipt mail, to an address on West Wheatland. The fiat does not include the date or time of the hearing on the motion for summary judgment. The record, however, also contains a court-stamped notice of hearing. The certificate of service was also said to have been sent to the West Wheatland address under return-receipt conditions. At the hearing, the lawyers admitted that a return receipt had not been secured from Tanksley, and that the post office’s Internet tracking system indicated that the notice had been returned to sender. The attorneys also admitted that, though notices regularly say they are sent by return-receipt mail, they were actually often sent by regular mail. Noting, too, that Tanksley preserved error by filing his verified motion for new trial, the court finds that the record does not reflect that Tanksley received the required notice. OPINION:Lang, J.; FitzGerald, Richter and Lang, JJ.

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