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Mantell v. Testa8/17/2000
Mark Mantell and Pam Mantell, individually and as next friends of Michelle Mantell, Cory Mantell and Kelly Mantell, appellants, appeal from a summary judgment granted in favor of their former trial attorneys, Michael Testa, Testa & Testa, Charles C. Orsburn and Damon R. Capps, appellees. After reviewing the record and finding no error, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Appellants, as plaintiffs, were represented by appellees in a medical malpractice case, the trial of which culminated in a "take nothing" judgment against appellants. Believing they had lost the case due to negligence on the part of their attorneys, appellants brought a legal malpractice action against appellees in late 1995. In 1996, Capps filed for summary judgment, followed by similar motions in 1997 from Testa, Testa & Testa and Orsburn. Appellants filed responses in opposition on both a pro se basis and later through retained counsel. Appellees gave notice that the motions for summary judgment would be heard on January 9, 1998, and appellants' responses were on file by January 2, 1998.
For reasons not clear from the record, the trial court did not hold a hearing on January 9, 1998. On January 14, 1998, and January 19, 1998, appellees notified appellants that the hearing on the merits was being reset to January 30, 1998. The appellants did not file any objections to the resetting or request any continuances or file any additional responses. On January 30, 1998, appellants' counsel failed to appear at the summary judgment hearing, and the trial court granted the motions, dismissing appellants' claims against appellees. Appellants' counsel filed a motion for rehearing alleging the trial court had erred in granting summary judgment without allowing a full twenty-one days' notice of the hearing, but appellants did not attack the summary judgments on their merits. The trial court denied the motion for rehearing.
ISSUES
Appellants raise two points of error on appeal. By their first point, appellants complain the trial court erred in not setting aside the summary judgments for good cause , as their attorney had been unavoidably detained and was not present at the hearing. Under their second point, appellants allege the trial court erred in holding the hearing without the required twenty- one days' notice. Appellants do not attack the merits of the summary judgments on appeal.
Summary Judgment Hearing
Appellants' first point of error is without support in either the law or the facts. There is nothing in the record to substantiate appellants' claim that their attorney was unavoidably detained the morning of the hearing. While appellants have attached affidavits of their attorney and his secretary to their appellate brief, attesting that their efforts to obtain a signed controverting summary judgment affidavit the morning of the hearing made them unavoidably late for the hearing, these affidavits do not appear in the record. Therefore, we may not consider them as evidence on appeal. See Zodiac Corporation v. General Electric Credit Corp., 566 S.W.2d 341 (Tex. Civ. App.--Tyler 1978, no writ).
Moreover, appellants did not raise the argument they now present under the first point of error in their motion for rehearing in the court below. Although appellants allege in their brief that this argument was made orally to the trial court at the hearing on the motion for rehearing, no transcript of the hearing is in the record. Regardless, the trial court did not err by hearing the summary judgment motions in the absence of appellants' counsel. A summary judgment is to be considered on the written motions and responses on file with t
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