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Click here for the full text of this decision FACTS:In July 2000, Excamate, Ltd. entered into a written agreement with Capital whereby it would acquire equipment to conduct excavation at a local elementary school. The written agreement provided that Excamate would make monthly payments for 29 months. Shortly after delivery, Excamate notified Capital that the equipment was not working properly, and Capital made several attempts to repair the equipment. After four months, the malfunctions continued, and Excamate discontinued its monthly payments. Capital continued sending monthly invoices to Excamate and retained counsel. Samuel Lester, the general manager of Excamate, sent a letter to Capital’s attorney and negotiated on behalf of Excamate to have the equipment returned to Capital in exchange for return of all monies paid to Capital. Thereafter, Capital sued Excamate and Lester jointly and severally for breach of contract. Capital alleged Lester had held himself out as the general partner of Excamate and was therefore responsible for its debts. In its original petition, Capital asserted that Excamate had entered into an agreement to purchase the equipment. In defense, Excamate denied it was ever the company’s intent to purchase the equipment. Excamate stated its previous business dealings with Capital had been to lease equipment with the option to purchase. Lester denied ever holding himself out as the general partner of Excamate. On April 2, 2002, Capital mailed copies of its first motion for summary judgment to Lester, Excamate, and their attorney, Andrew Toscano. Toscano filed a response to the motion, along with Lester’s affidavit. In the affidavit, Lester described past business dealings between Excamate and Capital, detailed the nature of his management position with Excamate, and denied he had ever represented himself as the general partner of Excamate. Capital’s motion for summary judgment was denied. On Jan. 31, 2003, Toscano filed a motion to withdraw as Excamate’s counsel, which was granted at a hearing on Feb. 7, 2003. Toscano continued to represent Lester. On March 14, 2003, Capital filed its second motion for summary judgment before a different judge. The second motion was identical to the first, except it recited that both defendants were pro se. Capital mailed its second motion for summary judgment to Excamate and Lester, but failed to send notice of the motion or hearing to Lester’s attorney. Neither Excamate nor Lester filed a response to the summary judgment, and neither appeared at the April10, 2003, hearing. The trial court signed a judgment on April 10, 2003, awarding Capital $13,398.02 in damages, plus attorney’s fees and pre-and post-judgment interest. HOLDING:Reversed and remanded. The 13th Court of Appeals in Corpus Christi held that when a party is represented by counsel who has made an appearance, Texas Rules of Civil Procedure 8 and 21a require that all communications be sent to the party’s attorney. Morin v. Boecker, 122 S.W.3d 911, 914 (Tex. App. – Corpus Christi 2003, no pet.). The court reasoned that Rule 8 would be rendered meaningless, and its underlying policies subverted, if all communications could be served on parties rather than their attorneys. The court explained: “It would be unfair and contrary to the spirit of rule 8 to hold an attorney responsible for communications that he or she is not entitled to receive. It would also invite abuse by opposing counsel, especially when the party represented is illiterate or otherwise unfamiliar with the dispositive exigencies of civil litigation. It makes absolutely no sense, for example, that the party rather than the attorney receive notice of a hearing on a crucial, time-sensitive motion, such as a motion to transfer venue or a motion for summary judgment. Most likely, a party will not understand the importance of getting the information to his attorney promptly or will expect that his attorney received notice directly. Any delay could result in a severe disadvantage to the attorney and adversely affect counsel’s representation of the party.” The court agrees with this conclusion. Once Lester’s attorney made an appearance in the case, all communications from opposing counsel with respect to the suit should have been sent to him, including notice of the summary judgment motion and hearing. Failure to send notice violated Rules 8, 21a, and 166a(c) of the Texas Rules of Civil Procedure. It is apparent from the face of the record, the court finds, that Lester was represented by counsel on March 14, 2003, the date Capital filed its second motion for summary judgment. Lester’s attorney had previously made an appearance in the case and did not receive notice of the second summary judgment motion or hearing. This lack of notice was both injurious and prejudicial because Lester’s attorney could not file a response to Capital’s second motion for summary judgment. OPINION:Stone, J.; Lopez, C.J., Stone and Duncan, JJ.

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