# Diana D. Olien v. University of Texas of the Permian Basin > Texas Court of Appeals, 8th District (El Paso) ยท February 20, 2003 URL: https://www.frixlaw.com/law-library/cases/2900931 ## Case - **Court:** Texas Court of Appeals, 8th District (El Paso) - **Decided:** February 20, 2003 - **Precedential status:** Published - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2900931 ## Opinion text COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS ) DIANA D. OLIEN, ) No. 08-02-00300-CV ) Appellant, ) Appeal from ) v. ) 358th District Court ) THE UNIVERSITY OF TEXAS OF THE ) of Ector County, Texas PERMIAN BASIN, ) ) (TC# D-109,425) Appellee. ) MEMORANDUM OPINION Diana Olien filed this action against the University of Texas of the Permian Basin (UTPB) alleging that the school discriminated against her because of her gender. The trial court granted summary judgment in favor of UTPB. Appellant filed a motion to vacate or alternatively a motion for new trial claiming that she did not receive notice of the hearing. Both motions were overruled by the trial court. Finding an abuse of discretion, we reverse and remand. FACTUAL SUMMARY Diana Olien, a professor at UTPB, filed suit alleging that the school was sexually discriminatory in their hiring and promotional practices. UTPB filed a motion for summary judgment on February 1, 2002. On February 22, the trial court signed an order setting the motion for hearing on March 27. On February 26, a copy of the notice of hearing was sent by United States mail to James Eccles, counsel for UTPB, at the office of the Attorney General in Austin. Olien was represented by Allen Stroder, who maintains his office in Odessa. It is undisputed that the clerk did not mail the notice of hearing to Stroder's office. Instead, the clerk placed another copy of the notice in Stroder's personal notice folder at the clerk's office at the Ector County Courthouse. A copy of the order granting summary judgment was placed in counsel's folder on April 5, 2002. In her sole point of error, Olien argues that the trial court erred in failing to grant a new trial since neither she nor her attorney received notice of the hearing. We review the trial court's denial of a motion for new trial under an abuse of discretion standard. Strackbein v. Prewitt , 671 S.W.2d 37, 38 (Tex. 1984). An abuse of discretion occurs when the trial court acts without reference to any guiding rules or principles. Morrow v. H.E.B., Inc. , 714 S.W.2d 297, 298 (Tex. 1986). A trial court must set aside a default judgment when the movant satisfies the requirements articulated in Craddock v. Sunshine Bus Lines Inc. , 134 Tex. 388 , 133 S.W.2d 124 (1939). Director, State Employees Workers' Compensation Division v. Evans , 889 S.W.2d 266, 268 (Tex. 1994); Texas Sting, Ltd., v. R.B. Foods, Inc. , 82 S.W.3d 644, 650 (Tex.App.--San Antonio 2002, pet. denied). Here, Olien must demonstrate that: (1) her failure to appear was not intentional or the result of conscious indifference; (2) she has a meritorious defense; and (3) the granting of a new trial will not operate to cause delay or injury to UTPB. Evans , 889 S.W.2d at 268 . Importantly, when a party receives no notice of a trial setting, she satisfies the first prong of Craddock and need not meet the remaining two. Lopez v. Lopez , 757 S.W.2d 721, 723 (Tex. 1988); Texas Sting, Ltd. , 82 S.W.3d at 650 . To require otherwise would violate her federal due process rights under the Fourteenth Amendment. Peralta v. Heights Medical Center, Inc ., 485 U.S. 80 , 108 S.Ct. 896 , 99 L.Ed.2d 75 (1988). The historical trend in default judgment cases is toward the liberal granting of new trials. Texas Sting, Ltd. , 82 S.W.3d at 650 ; see Miller v. Miller , 903 S.W.2d 45, 47 (Tex.App.--Tyler 1995, no writ). Where the elements of Craddock are satisfied, it is an abuse of discretion for the trial court to deny a motion for new trial. Evans , 889 S.W.2d at 268 ; Texas Sting, Ltd. , 82 S.W.3d at 650 . More recently, the Texas Supreme Court has determined that Craddock is inapplicable to a motion for new trial after summary judgment is granted on a motion to which the nonmovant failed to timely respond despite notice of the hearing and an opportunity to seek a continuance or obtain permission to file a late response. Carpenter v. Cimarron Hydrocarbons Corporation , No. 01-0002, 2002 WL 31933985, at *3 (Tex. Dec. 31, 2002). Such is not the case here. According to Stroder's testimony, he did not become aware of the hearing until after the trial court had already granted summary judgment. Several days after the judgment was rendered, he went to the courthouse, checked his folder, and for the first time found the notice of the hearing on the motion for summary judgment and the signed judgment by the court granting summary judgment. Stroder claimed that he receives misfiled papers in the folder fairly frequently, and tries to return them to the proper stack as often as he can. UTPB counters that Stroder received constructive notice when the clerk placed the notice of the hearing in his personal folder. Rule 166a requires that the motion and any supporting affidavits shall be filed and served at least twenty-one days before the time specified for hearing. Tex.R.Civ.P. 166a(c). Rule 21a requires every notice, pleading, plea, and motion, except as otherwise expressly provided, to be served by delivering a copy to the party to be served, or the party's duly authorized agent or attorney of record, as the case may be, either in person or by agent or by courier receipted delivery or by certified or registered mail, to the party's last known address, or by telephonic document transfer to the recipient's current telecopier number, or by such other manner as the court in its discretion may direct. Tex.R.Civ.P. 21a. Rule 21a applies to the notice required by Rule 166a for a hearing on a motion for summary judgment. Lewis v. Blake , 876 S.W.2d 314 (Tex. 1994). By affidavit, a deputy district clerk testified that on February 22, 2002, the court signed the order setting the hearing for March 27, 2002. She mailed a copy to UTPB's attorney at his Austin office. Olien's copy was not mailed to Olien's counsel but was instead put in his personal notice folder. Although the affidavit reveals that this is a usual and customary practice in Ector County, there is nothing in the record to establish that either the council of judges has adopted the practice by local rule pursuant to Rule 3a or that the trial court below directed the procedure in this particular case. See Tex.R.Civ.P. 3a. Absent that evidence, notice was not delivered in compliance with the rules. The failure to provide notice deprives the litigant of the right to be heard, constitutes a denial of due process and is grounds for reversal. Hubert v. Illinois State Assistance Commission , 867 S.W.2d 160, 163 (Tex.App.--Houston [14th Dist.] 1993, no writ); see also LBL Oil Co. v. International Power Serv. , Inc., 777 S.W.2d 390, 390-91 (Tex. 1989). Because the trial court abused its discretion by not setting aside the default judgment, we sustain the sole point of error and reverse and remand the cause to the trial court. February 20, 2003 ANN CRAWFORD McCLURE, Justice Before Panel No. 1 Larsen, McClure, and Chew, JJ. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2900931. Public record. Not legal advice.