Texas litigators are generally familiar with the TRCP 166a requirement that a motion for summary judgment be served at least 21 days before the date specified for a hearing. But what notice is required when the hearing does not go forward on the originally noticed date?
If the nonmovant received the required 21-day notice before the original setting, then another full 21 days is not necessary. In this situation, the intermediate appellate courts have widely recognized that the movant is only obligated to provide reasonable notice of the rescheduled hearing. The issue becomes what is reasonable.
A number of appellate courts have concluded that reasonableness in this context means no less than seven days notice. The thinking is that Rule 166a allows nonmovants that much time to file summary-judgment evidence without leave of court, so they should receive at least that much notice of a re-setting.
This approach seems logical and fair, but the appellate courts have not followed it uniformly. In Hart v. State, the Third Court of Appeals held that three days notice was not unreasonable because the nonmovant, despite receiving the motion more than 75 days before the originally scheduled hearing and 45 days before the re-setting, nevertheless failed to file any response. See No. 03-02-00542-CV, 2003 WL 549273 (Tex. App.—Austin Feb. 27, 2003, no pet.) (mem. op.).
Is the seven-day reasonableness rule absolute? Some decisions treat it that way, but the law is not so certain. Until the Texas Supreme Court addresses this issue, summary-judgment movants should avoid re-setting hearings on less than seven days notice, and respondents should object to any rescheduling notice providing something less.