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Robert Hardie Tibaut Bowman and Powers L. Bowman v. Molly Bowman Stephens
Case Number: 01-21-00317-CV
Judge: Sarah Beth Landau
Court of Appeals For The First District of Texas
On appeal from e 261st District Court1
Travis County, Texas
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April Elizabeth Lucas
Don H. Magee
Houston, Texas – Real Estate lawyer represented Appellants with challenging a judgment to force a partition by sale of lake property.
This appeal is from the second stage of a partition proceeding. In the first
stage, this Court affirmed the trial court’s judgment that a partition in kind was
feasible and that Stephens held an equitable right to a portion of the lake property
where a family home and dock were located. See Bowman v. Stephens, 569 S.W.3d
210, 224–31 (Tex. App.—Houston [1st Dist.] 2018, no pet.). In the second stage,
the assigned commissioners proposed dividing the property into three lots of equal
value while granting to Stephens the area on which the house and boat dock were
located. The commissioners submitted their report with the proposed division to
the trial court. The Bowman brothers objected to the report and requested a jury
trial on the property division.
Stephens filed a no-evidence summary-judgment motion, challenging each
objection made by the Bowman brothers to the commissioners’ report. The trial
court’s assistant sent all counsel an email on December 1, 2020 with a subject line
of “RE: D-1-GN-13-000636, setting, Defendant Molly Bowman Stephens
No-Evidence MSJ.” The email stated:
The Court will determine Defendant’s No-Evidence Motion for
Summary Judgment by written submission. All motion responses and
replies must be filed in compliance with the requirements of the Texas
Rules of Civil Procedure and provided to this Court by December 22,
2020. The Motion will remain under advisement pending a ruling
from the Court.
The Bowman brothers objected. They described the email as instructing
them “to respond in accordance with the Rules by December 22nd, 2020, a scant
three weeks later,” and asked for additional time. They said their expert would
need 60 additional days. Their objection mostly referred to December 22 as the
understood response date, but they also referred to December 22 as the submission
date. Stephens responded to their objection. She asked the trial court to deny the
objection and allow the submission of her no-evidence motion “as scheduled.”
On December 22, Stephens filed a brief in support of her no-evidence
motion. In it, she stated that her motion should be granted because the Bowman
brothers had filed no response. Two hours later, the Bowman brothers filed a
response with two affidavits attached.
Later that evening, Stephens objected to the Bowman brothers’ response,
arguing that it was untimely and unaccompanied by a motion for leave to file late.
She also objected to the affidavits as conclusory, based on hearsay, and otherwise
The next day, “[o]ut of an abundance of caution,” the Bowman brothers
moved for leave, asserting they understood the December 22 date in the court’s
email to be a filing deadline, not a submission date. A few days later, Stephens
responded, arguing that the motion for leave was defective because it failed to
show that the request would not result in further delay, costs, and prejudice.
The Bowman brothers responded with a letter from their counsel reaffirming
their understanding that December 22 was the deadline to respond, not a
submission date. This filing led to yet another response from Stephens, on
December 28, requesting that the Bowman brothers’ motion for leave be denied.
In early January, the trial court issued a letter ruling that granted Stephens’s
no-evidence motion and discussed the wording for a final judgment in her favor,
including that the Bowman brothers’ motion for leave would be denied. The
Bowman brothers objected that the trial court had not properly informed the parties
of the submission date for the no-evidence motion and argued that the notice
failure violated their due process rights. Stephens responded, again asserting that
the Bowman brothers’ original objection admitted knowledge that December 22
was a submission date.
Two weeks later, in mid-January, a final judgment was entered. It stated that
“[o]n December 22, 2020,” the trial court “took under submission and considered
Defendant’s No-Evidence Motion for Summary Judgment, together with all
responses and replies thereto, as well as the filings in this case.” The judgment
included multiple rulings, some of which are contradictory. The judgment:
• denied the Bowman brothers’ motion for leave to late-file a response
to Stephens’s no-evidence motion for summary judgment;
• sustained some of Stephens’s objections to the affidavits attached to
the Bowman brothers’ response and overruled other objections;
• granted Stephens’s no-evidence motion “in light of” the Bowman
brothers’ “failure to timely come forward with admissible
summary[-]judgment evidence” supporting their objections to the
• overruled the Bowman brothers’ objections to the commissioners’
report, the subject of Stephens’s no-evidence motion;
• adopted the commissioners’ report; and
• ordered that the property be divided per the commissioners’ report,
with specific explanations given as to which sibling was awarded
It is unclear why the trial court ruled on Stephens’s objections to the Bowman
brothers’ summary-judgment evidence considering the trial court denied the
Bowman brothers’ leave to late-file their evidence and granted Stephens’s
no-evidence motion “in light of” their failure to timely file evidence.
The Bowman brothers moved for a new trial, arguing, among other things,
that they were denied due process because the inadequate notice of the submission
prevented them from knowing when their summary-judgment response was due.
Their motion was denied by operation of law. They appealed.
The Bowman brothers made 13 objections to the commissioners’ report
recommending how the lake property should be partitioned in kind. Stephens
specially excepted to those objections. The trial court granted three of Stephens’s
special exceptions and, as a result, struck three objections. On appeal, the Bowman
brothers challenge the trial court’s ruling on the special exceptions.
Special exceptions are a vehicle to challenge a defective pleading, including
an obscurity or generality in a pleading allegation. TEX. R. CIV. P. 91. If a trial
court sustains a special exception and the defect is curable, the trial court must
allow the pleader an opportunity to amend. Parker v. Barefield, 206 S.W.3d 119,
120 (Tex. 2006); see Friesenhahn v. Ryan, 960 S.W.2d 656, 658 (Tex. 1998). If
the trial court does not provide the opportunity to amend, the aggrieved party must
prove that the opportunity to replead was requested and denied to preserve the
error for review. Parker, 206 S.W.3d at 120 (citing TEX. R. APP. P. 33.1(a)).
The Bowman brothers do not identify anywhere in the record where they
requested and were denied the opportunity to replead. We need not search a record
for evidence of preservation. See TEX. R. APP. P. 38.1(i) (appellant’s brief must
contain “appropriate citations to the record”). This issue is waived by failure to
adequately brief it. See id.; see also Walker v. Davison, No. 01-18-00431-CV,
2019 WL 922184, at *2 (Tex. App.—Houston [1st Dist.] Feb. 26, 2019, no pet.)
(mem. op.) (“Adequate briefing [requires] proper citation to the record,” and “[i]f
record references are not made . . . the brief fails”). Even without briefing waiver,
because there is no indication that the Bowman brothers preserved this issue for
appeal, we must conclude it is waived. See Parker, 206 S.W.3d at 120; see also
TEX. R. APP. P. 33.1(a).
Throughout this second phase of the partition proceeding, the Bowman
brothers argued to the trial court and on appeal that the lack of clear notice of the
submission date for Stephens’s no-evidence motion for summary judgment
violated their due process rights. They presented their due process objection to the
trial court with their motion for leave to late-file their response, in their objections
to the submission of the motion, and in their motion for new trial. They also argue
a denial of due process in their appellate brief.
The Fourteenth Amendment to the United States Constitution protects
against deprivation of life, liberty, or property by the State “without due process of
law.” U.S. CONST. amend. XIV, § 1. Once a party has made an appearance in a
case, he is entitled, as a matter of due process, to notice of a dispositive hearing or
submission. See Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 84 (1988); LBL
Oil Co. v. Int’l Power Servs., Inc., 777 S.W.2d 390, 390–91 (Tex. 1989) (per
curiam). Failure to give proper notice of a submission violates “the most
rudimentary demands of due process of law.” Peralta, 485 U.S. at 84 (quoting
Armstrong v. Manzo, 380 U.S. 545, 550 (1965)).
Due process requires notice that is “reasonably calculated, under the
circumstances, to apprise interested parties of the pendency of the action and afford
them the opportunity to present their objections.” Id. (quoting Mullane v. Cent.
Hanover Bank & Tr. Co., 339 U.S. 306, 314 (1950)); see Cunningham v. Parkdale
Bank, 660 S.W.2d 810, 813 (Tex. 1983).
Due process also requires notice be given “at a meaningful time and in a
meaningful manner” that would enable the party to be bound by the court’s
judgment an opportunity to be heard. Peralta, 485 U.S. at 86; Lawrence v. Bailey,
No. 01-19-00799-CV, 2021 WL 2424935, at *9 (Tex. App.—Houston [1st Dist.]
June 15, 2021, no pet.) (mem. op.). A judgment entered without notice is
constitutionally infirm. Peralta, 485 U.S. at 84.
Thus, proper notice to a nonmovant of a summary-judgment submission is a
prerequisite to summary judgment. Rorie v. Goodwin, 171 S.W.3d 579, 583 (Tex.
App.—Tyler 2005, no pet.) The trial court must give notice of the submission date
because this date determines when the nonmovant’s response is due. Id.; see also
TEX. R. CIV. P. 166a(d). “Without notice of hearing or submission date, the
nonmovant cannot know when the response is due.” Rorie, 171 S.W.3d at 583.
Due to the harshness of summary judgment, reviewing courts strictly
construe summary-judgment procedure against the movant. Id. This Court and
others have reversed summary judgments because a nonmovant was not given
adequate notice of the submission date. See Lawrence, 2021 WL 2424935, at *10;
In re Office of Att’y Gen. of Tex., No. 13-20-00133-CV, 2020 WL 1951544, at *5
(Tex. App.—Corpus Christi Apr. 23, 2020, orig. proceeding) (mem. op.) (trial
court violated due process by granting father’s motion to release child-support lien
without a hearing and without giving State notice that trial court intended to rule
on motion); In re Guardianship of Guerrero, 496 S.W.3d 288, 292 (Tex. App.—
San Antonio 2016, no pet.) (husband was denied due process when he did not
receive notice of hearing at which wife’s daughter was appointed wife’s permanent
guardian); Garcia v. Escobar, No. 13-13-00268-CV, 2014 WL 1514288, at *3
(Tex. App.—Corpus Christi Apr. 15, 2014, pet. denied) (mem. op.) (“Absence of
actual or constructive notice of the submission of a summary judgment motion
violates a party’s due process rights under the Fourteenth Amendment to the
United States Constitution.”); Campbell v. Stucki, 220 S.W.3d 562, 570 (Tex.
App.—Tyler 2007, no pet.) (trial court violated due process, even though appellant
received notice of hearing on motion to release funds after garnishment, because
trial court granted motion before hearing date and cancelled hearing); see also
Peralta, 485 U.S. at 86–87 (holding harm analysis is not required when party was
“deprived of property in a manner contrary to the most basic tenets of due
process”); Tex. Integrated Conveyor Sys., Inc. v. Innovative Conveyor Concepts,
Inc., 300 S.W.3d 348, 364 (Tex. App.—Dallas 2009, pet. denied) (holding harm
analysis is not needed for due process violation of failure of notice).
Here, the court assistant’s email was confusing. It did not specify a
particular date as a “submission date.” Instead, it told the parties that their
responses and replies to the summary-judgment motion “must be filed in
compliance with” the rules and “provided to this Court by December 22, 2020.”
Stephens asserts her brothers should have discerned that December 22 was
intended to be a submission date. But due process requires more than providing a
pathway for a party to piece together when a court might consider a motion
submitted; it requires notice of a “specific submission or hearing date,” a date
certain on which the motion will be heard or considered by submission. See BP
Auto. LP v. RML Waxahachie Dodge, LLC, 517 S.W.3d 186, 211 (Tex. App.—
Texarkana 2017, no pet.) (“date certain”); Rorie, 171 S.W.3d at 584 (“specific
submission or hearing date”); see also Peralta, 485 U.S. at 84 (requiring notice
“reasonably calculated” to “afford [parties] the opportunity to present their
The ambiguous language in the email could equally be read to state a
deadline to respond to the motion, which is how the Bowman brothers understood
it. The Bowman brothers told the trial court that their understanding of the email
caused them to respond on December 22. Nonetheless, the trial court denied them
leave to late-file their response and then entered a no-evidence summary judgment
against them. Due process cannot support such a result.
Stephens argues that reversal is improper because the Bowman brothers’
motion for leave was deficient. Motions for leave must establish good cause for the
late filing by showing both that the failure to timely respond resulted from an
accident or mistake (versus intentional or the result of conscious indifference) and
that allowing the late response will not cause undue delay or otherwise injure the
summary-judgment movant. Carpenter v. Cimarron Hydrocarbons Corp., 98
S.W.3d 682, 686–87 (Tex. 2002). Stephens notes that the Bowman brothers’
motion for leave addressed the accidental nature of their late filing but did not
discuss the delay or injury the late filing may have caused. But our holding is not
that the trial court erred in denying the motion for leave.
Thus, the trial court denied the Bowman brothers due process by failing to
provide them adequate notice of the submission date so that they would know their
response deadline. The Bowman brothers repeatedly objected that they were
denied due process, apart from their arguments on why leave for late filing should
have been granted. Any defect in their motion for leave does not invalidate their
repeated due process objections made in other contexts, including in their motion
for new trial.
We conclude that the Bowman brothers’ due process rights were violated
because the trial court granted the no-evidence motion for summary judgment for
Stephens without giving them adequate notice of the submission date
Outcome: We reverse the trial court’s judgment and remand for additional proceedings.