Joe Costello v. Robert W. Johnson and Marcia G. Johnson

This is an appeal by Joe Costello from a summary judgment granted plaintiffs, Robert W. Johnson and Marcia Johnson. Costello contends that the judge erred in granting summary judgment because the record does not show that the notice requirements of TEX. R. CIV. P. 166-A were met. In this respect, he argues that, when his attorney of record withdrew after the opposing attorney had served upon him the motion for summary judgment, the Johnsons had the burden of showing receipt of notice of the motion and hearing by Costello. We hold that, when a party complies with TEX. R. CIV. P. 21a by a certificate of service upon opposing counsel, this raises a prima facie showing of notice. Additionally, since Costello filed a motion for new trial which neither set up a meritorious defense nor set forth reasons why Costello failed to respond to the motion or to reasonably explain why he did not do so, the trial court did not abuse its discretion in refusing to grant Costello a new trial. Accordingly, the judgment is affirmed.