Disqualification Requires Notice and Evidentiary Hearing

Posted on November 18, 2008 by Byron Henry

The Corpus Christi Court of Appeals recently held that a respondent is entitled to notice and an evidentiary hearing before having its counsel disqualified.  First, the court determined it had jurisdiction to issue a writ of mandamus against a presiding judge of a administrative judicial district because the judge was acting in the capacity of a district judge when he heard the oral motion to disqualify.  Second, the court determined that a party is entitled to notice and hearing prior to disqualification.  The court stated:

While we agee that the alleged disqualifiying conflict is significant, if the disqualifyig status is proved, we disagee that one party's bare allegation of the conflict is sufficient to establish disqualification as a matter of law when the opposing party is seeking to enforce its right to an evidentiary hearing on the constitutionally protected right to counsel of the party's choosing.

The court of appeals' opinion in In Re Lopez can be found at this link.

 

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Notice Defect Precludes Summary Judgment

Posted on November 13, 2008 by David Oliveros

In Shaw v. Radionic Industries, Inc., the plaintiff moved for summary judgment against the pro se defendant on a claim for a suit on a sworn account. The court set a hearing for the motion on April 2, 2007. Later, the plaintiff sent a transmittal letter dated March 22, 2007 to the defendant to inform him of the hearing. The letter did not contain a certificate of service.

Did the defendant receive proper notice?

The trial court did grant the summary judgment, but the Dallas Court of Appeals later overturned the judgment in a restricted appeal. Because summary judgment is such a harsh remedy, the court scrutinized the record and discovered that the plaintiff was dilatory in sending the notice of hearing letter.  As a result, the defendant only received 11 days notice of the hearing.  But Tex. R. Civ. P. 166a(c) requires that the non-movant receive notice 21 days before the hearing. So the court reversed the summary judgment and remanded the case back to the trial court for further proceedings.

Because the untimely notice was sufficient to overturn the judgment, the court did not reach the other complaints regarding service. One involved the lack of a certificate of service in the letter. Incidentally, if a party sends notice of a hearing by way of a transmittal letter as oppposed to a completed fiat, notice may be defective unless the letter contains a certificate of service.  See Tex. R. Civ. P. 21a.

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