Tanya E. Dowell v. Theken Spine, L.L.C ( 2009 )

Affirmed and Memorandum Opinion filed June 2, 2009

Affirmed and Memorandum Opinion filed June 2, 2009.

In The

Fourteenth Court of Appeals

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NO. 14-07-00887-CV

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TANYA E. DOWELL, Appellant

V.

THEKEN SPINE, LLC, Appellee

On Appeal from the 129th District Court

Harris County, Texas

Trial Court Cause No. 2006-43938

M E M O R A N D U M   O P I N I O N

Appellant Tanya E. Dowell appeals the trial court=s grant of summary judgment in favor of appellee Theken Spine, LLC.  In two issues, Dowell contends that because Theken did not give her proper notice of its motion for summary judgment, the trial court erred in granting summary judgment in Theken=s favor and in denying Dowell=s motion for new trial.  We affirm.

Dowell brought suit against Theken for products liability and negligence, claiming that a surgical screw in Theken=s product failed, causing her injury.  On June 26, 2007, Theken filed a no‑evidence motion for summary judgment based on Dowell=s failure to timely designate an expert witness.  Theken also filed a notice of hearing, stating that a hearing on the motion was set for July 23, 2007.  Certificates of service were attached to the motion and notice.  Dowell did not appear at the hearing on the motion.  On July 23, the trial court granted the summary judgment in favor of Theken, noting in its order that Dowell had not filed a response.

Dowell=s counsel purportedly learned of the motion and hearing through a voice message from the trial judge stating Theken=s motion would be granted.  Dowell then raised the issue of lack of notice with the trial court. On July 27, Theken filed a ANotice of Filing Affidavit Regarding Service of No‑Evidence Motion for Summary Judgment,@ which included the affidavit of Vivian L. Scarborough, who attended the summary judgment hearing on Theken=s behalf.  Scarborough=s affidavit states that she sent the motion and notice of hearing to Dowell=s counsel=s address of record via certified mail, return receipt requested, pursuant to Texas Rule of Civil Procedure 21a.  Scarborough=s affidavit further states that when no response was received from Dowell seven days before the hearing, she verified that the package was not retrieved after the post office attempted delivery at Dowell=s counsel=s office and that notice was left there that mail needed to be picked up.  Scarborough attached a ATrack & Confirm@ document to her affidavit showing that delivery was unsuccessfully attempted on June 27, and a postal notice was left.

Scarborough further stated that at the hearing on the motion for summary judgment, she Arepresented to the [trial] [c]ourt that [she] did not anticipate a response from [Dowell] since [Scarborough] had been able to confirm through the U.S. Postal Service that [Dowell=s counsel] had not claimed the certified mail@ containing the motion and hearing. According to Scarborough, the trial judge telephoned Dowell=s counsel and left her a message regarding the motion.  Scarborough then showed the trial judge a copy of the ATrack & Confirm@ document to support Theken=s position that Dowell had not claimed the certified mail containing the motion and notice.  The day after the trial court granted summary judgment in Theken=s favor, the envelope containing the motion and notice of hearing was returned to Scarborough Aunclaimed.@

Dowell filed a motion for new trial, asserting that she never received Aservice@ of the motion and notice of hearing.  Attached to her motion were, among other things, the ATrack & Confirm@ document and the envelope marked Aunclaimed.@  The trial court held a hearing on Dowell=s motion, but no reporter=s record was taken.  The trial court denied Dowell=s motion, and this appeal followed.

In her first issue, Dowell argues that the trial court erred in granting Theken=s motion for summary judgment because she did not receive proper notice of the motion and hearing.^[1]  The law prefers that cases be resolved on their merits wherever possible, rather than by default.  Ashworth v. Brzoska, 274 S.W.3d 324, 329 (Tex. App.CHouston [14th Dist.] 2008, no pet.).  Because summary judgment is a harsh remedy, we must strictly construe the notice requirements of Texas Rule of Civil Procedure 166a.  See Etheredge v. Hidden Valley Airpark Assoc., 169 S.W.3d 378, 383 (Tex. App.CFort Worth 2005, pet. denied).  The movant must comply with all the requirements of Rule 166a before being entitled to summary judgment.  Id.  The Texas Rules of Civil Procedure require motions for summary judgment and notices of hearings to be served on all parties of record.  See Tex. R. Civ. P. 21, 166a(c).  Proper notice to the nonmovant of the summary judgment hearing is a prerequisite to summary judgment.  See Etheredge, 169 S.W.3d at 383.  Failure to give notice violates the non‑movant=s due process rights.  See Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 84B85 (1988); Lopez v. Lopez, 757 S.W.2d 721, 723 (Tex. 1988).

A document may be served on a party by sending a copy via certified mail to the party=s last known address.  Tex. R. Civ. P. 21a.  A certificate of service by a party or attorney of record is prima facie evidence of the fact of service, id., and creates a presumption of receipt of notice.  See Cliff v. Huggins, 724 S.W.2d 778, 780 (Tex. 1987); Approx. $14,980 v. State, 261 S.W.3d 182, 187 (Tex. App.CHouston [14th Dist.] 2008, no pet.).  This presumption is rebuttable through verified proof of non‑receipt, Thomas v. Ray, 889 S.W.2d 237, 238B39 (Tex. 1994), as A[n]othing [in Rule 21a] shall preclude any party from offering proof that the notice or instrument was not received.@  Tex. R. Civ. P. 21a.  A notice of hearing sent by certified mail and returned Aunclaimed@ does not provide the notice required by Rule 21a.  Approx. $14,980, 261 S.W.3d at 189; Rabie v. Sonitrol of Houston, Inc., 982 S.W.2d 194, 197 (Tex. App.CHouston [1st Dist.] 1998, no pet.).  Therefore, verified proof that notice sent by certified mail is returned Aunclaimed@ rebuts the presumption of receipt of notice.  See Thomas, 889 S.W.2d at 238B39; Approx. $14,980, 261 S.W.3d at 189; Rabie, 982 S.W.2d at 197.

Even if this presumption is rebutted, constructive notice may be established if the serving party demonstrates compliance with Rule 21a and presents evidence that the intended recipient engaged in instances of selective acceptance or refusal of certified mail.  Approx. $14,980, 261 S.W.3d at 189.  However, evidence that notice of the hearing went Aunclaimed@ after the U.S. Post Office unsuccessfully attempted delivery and left a notice of certified mail at the intended recipient=s address does not, standing alone, constitute evidence that the intended recipient dodged or refused delivery.  See id.; Pessel v. Jenkins, 125 S.W.3d 807, 810 (Tex. App.CTexarkana 2004, no pet.).

Here, the certificates of service attached to the summary judgment motion and notice of hearing filed with the trial court at the time of the hearing established a presumption of receipt of notice in Theken=s favor under Rule 21a.  See Tex. R. Civ. P. 21a; Approx. $14,980, 261 S.W.3d at 187; Cliff, 724 S.W.2d at 780.  This was the only verified proof regarding notice that was before the trial court when it granted summary judgment.  Scarborough=s statements regarding notice at the summary judgment hearing were not verified proof rebutting the presumption of actual notice.  See Tanksley v. CitiCapital Comm. Corp., 145 S.W.3d 760, 764 (Tex. App.CDallas 2004, pet. denied) (holding that statements by counsel at the hearing on the motion for summary judgment were not sufficient proof of notice under Rule 21a, and noting that a summary judgment hearing is for argument only); see also Tex. R. Civ. P. 166a(c) (stating no oral testimony shall be received at a summary judgment hearing); In re Brown, 277 S.W.3d 474, 485 n.3 (Tex. App.CHouston [14th Dist.] 2009, no pet. h.) (noting that arguments of counsel are not evidence); Daugherty v. Jacobs, 187 S.W.3d 607, 619 (Tex. App.CHouston [14th Dist.] 2006, no pet.) (unsworn statements by counsel are not evidence). Likewise, the ATrack & Confirm@ document that Scarborough states was shown to the trial judge at the summary judgment hearing was not verified proof of non-receipt, as nothing in the record indicates that it was formally entered into evidence at the hearing or filed with the courtCeither independently or as part of Theken=s summary judgment motionCat the time summary judgment was granted.  See Tex. R. Civ. P. 166a(c); Thompson v. Dart, 746 S.W.2d 821, 827B28 (Tex. App.CSan Antonio 1988, no writ).  Because there was no verified proof before the trial court rebutting the presumption of actual notice, the trial court did not err in granting Theken=s summary judgment motion due to lack of notice.  See Thomas, 889 S.W.2d at 238B39.  We therefore overrule Dowell=s first issue.

In her second issue, Dowell contends that the trial court erred in denying her motion for new trial because she presented evidence of lack of Aservice@ demonstrating that her failure to Aanswer@ was due to mistake or accident.  We review the trial court=s denial of Dowell=s motion for new trial for an abuse of discretion.  Dir., State Employees Workers= Comp. Div. v. Evans, 889 S.W.2d 266, 268 (Tex. 1994).  A trial court must grant a motion for new trial in this context when the evidence presented establishes that the movant did not receive notice, which demonstrates that her failure to appear was not intentional or the result of conscious indifference under the first prong of the test articulated in Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124 (Tex. 1939).  See Rabie, 982 S.W.2d at 197B98; see also Ashworth, 274 S.W.3d at 329 (if notice was not received, appellant satisfied the first prong of Craddock and need not establish a meritorious defense to be entitled to a new trial); Mosser v. Plano Three Venture, 893 S.W.2d 8, 11B12 (Tex. App.CDallas 1994, no writ) (holding that party that never receives notice of a summary judgment is relieved of the second and third Craddock requirements).

It was Dowell=s burden as the appellant to furnish this court with a record supporting her allegations of error.  See Christiansen v. Prezelski, 782 S.W.2d 842, 843 (Tex. 1990); Simon v. York Crane & Rigging Co., 739 S.W.2d 793, 795 (Tex. 1987) (finding that appellant had the burden of presenting a sufficient record to establish that the trial court abused its discretion).  We recognize that Dowell attached a copy of the returned envelope marked Aunclaimed@ to her motion, along with the Track & Confirm document purportedly shown to the trial court at the summary judgment hearing.  However, no reporter=s record of the hearing on Dowell=s motion for new trial was taken, and none has been presented to this court.  Absent a complete record of the hearing showing that the trial court abused its discretion in denying Dowell=s motion for new trial, we must presume that adequate evidence was presented at the hearing to support the trial court=s order.  See Simon, 739 S.W.2d at 794B95; In re D.A.P., 267 S.W.3d 485, 487 (Tex. App.CHouston [14th Dist.] 2008, no pet.); Motley v. Allison, No. 05-90-00747-CV, 1991 WL 119238, at *3 (Tex. App.CDallas July 2, 1991, no writ) (not designated for publication).  Therefore, we cannot hold that the trial court=s order was an abuse of discretion.  We overrule Dowell=s second issue.

Having overruled both of Dowell=s issues, we affirm the trial court=s judgment.

/s/      Leslie B. Yates

Justice

Panel consists of Justices Yates, Guzman, and Sullivan.

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^[1]  Theken argues Dowell has committed briefing waiver on appeal by failing to cite to the clerk=s record.  We must construe appellate briefs reasonably, yet liberally, to avoid waiver and reach the merits of an appeal where reasonably possible.  Perry v. Cohen, 272 S.W.3d 585, 587 (Tex. 2008) (per curiam).  Here, Dowell supported the material portions of her statement of facts by referencing documents attached as appendices to her brief, which are also contained in the clerk=s record.  Dowell also filed a reply brief which contained appropriate record cites.  Because Dowell=s briefing makes it reasonably possible to reach the merits of her appeal, we decline to find briefing waiver.  See id.