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Zelby v. Warner, Mayoue, Bate & Nolen PC

The trial court did not err in granting summary judgment to a law firm, because the trial court's March 26, 2009 order granting defendant's request for oral argument contained the date, time and location for the summary judgment hearing.

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This case arises from a suit on account filed by the law firm of Warner, Mayoue, Bates & Nolen, P.C., “the Firm” against David A. Zelby for services and expenses incurred during the Firm’s representation of Zelby during a divorce action. The Firm filed a motion for summary judgment, and after a hearing on the motion, which Zelby failed to attend, the trial court granted the Firm’s motion. Zelby appeals. For the reasons that follow, we affirm. Zelby argues that the trial court erred in granting summary judgment to the Firm because the court failed to provide him sufficient notice of the hearing and denied him the ability to present evidence. We disagree.

On December 17, 2008, the Firm filed a motion for summary judgment in response to which Zelby filed a request for oral argument. The trial court entered an order on March 26, 2009, granting Zelby’s request for oral argument; the order contained the date, time, and location for the hearing. The March 26 order also clearly shows that Zelby’s attorney along with the Firm’s attorney were sent copies of the order. Thus, the face of the record at the time of the summary judgment hearing indicates that the court provided Zelby notice of the hearing, and the trial court, therefore, did not err in granting the motion for summary judgment based on Zelby’s failure to present evidence by the time of the hearing.1

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