FBFK Attorneys Obtain Reversal of $14 Million Judgment

By J.W. Beverly, Attorney/Shareholder

If ever faced with a summary judgment loss in the trial court, FBFK can help guide you and your business through what can be complicated legal and procedural issues on appeal. FBFK attorneys, J.W. Beverly, Dana Campbell and Alex Campbell recently secured an appellate win for their clients in a decision from the Eastland Court of Appeals, which turned on particular, and sometimes overlooked, requirements of summary judgment procedure.


The underlying case involved a complicated real estate development dispute with multiple parties and claims. The opposing party filed a motion for summary judgment and set it for hearing. FBFK’s clients (acting pro se at the time) did not file a timely response, but the hearing was passed by the opposing party due to a bankruptcy filing. Several months later, following dismissal of the bankruptcy, that party filed another notice of hearing asking the court to either determine the pending summary judgment motion by submission at that time or set the motion for oral hearing.
At the hearing, the trial court proceeded to decide the motion for summary judgment, granting judgment against FBFK’s clients and assessing over $14 million in damages. FBFK filed an appeal for the clients, arguing that the trial court violated the rules of procedure and principles of due process by deciding the motion for summary judgment without proper and timely notice of hearing or submission, and by not allowing FBFK’s clients an opportunity to respond to the summary judgment motion. Despite having passed the initial hearing date, the opposing party argued on appeal that once it had noticed the summary judgment motion for hearing, the date for a response was permanently fixed, FBFK’s clients could not timely respond and the trial court could rule on the summary judgment motion at any time without further notice.
The Eastland court decided the appeal in favor of FBFK’s clients – holding the second notice of hearing was insufficient to advise the clients that the trial court was actually deciding the motion for summary judgment on the noticed date, and that even if the notice was sufficient, it was not timely and did not allow FBFK’s client the required opportunity to respond.
The Court held that once a hearing on a summary judgment motion is passed, the deadline to respond set forth in the rules starts anew when a new notice of hearing or submission is timely served.
The published opinion resolved some important questions about Texas summary judgment procedure. Consequently, the Eastland court reversed the summary judgment entered against FBFK’s clients – knocking out the multimillion dollar damage award  and remanding the case for trial on the merits.  The case is PDG, Inc. v. Abilene Village, LLC; No. 11-21-00274-CV, 2023 WL 3511149  (Tex.App.–Eastland 2023).