Ray E. Waggoner v. William Breland ( 2011 )

Opinion issued July 14, 2011.                  

In The

Court of Appeals

For The

First District of Texas

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NO. 01-10-00226-CV

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Ray E. Waggoner, Appellant

V.

William Breland, Appellee

On Appeal from the County Court at Law Four

Harris County, Texas

Trial Court Case No. 927,721

MEMORANDUM OPINION

In this appeal from a grant of summary judgment, appellant Ray Waggoner contends that the trial court erred in granting appellee William Breland’s motion for summary judgment and in denying Waggoner’s motion for new trial.  We affirm.

Background

In October 2008, Waggoner sued Breland for personal injuries that he alleged were sustained when their vehicles collided two years earlier. Breland was served with the suit on November 24, 2009—more than 13 months after the suit was filed and over three years from the date of the accident.  When Breland moved for summary judgment in late January 2010 based upon the statute of limitations, Waggoner filed no response and did not appear for the hearing on the motion.  The trial court rendered summary judgment and dismissed Waggoner’s lawsuit.  

Waggoner filed his notice of appeal on March 15, 2010.  Nine days thereafter he filed a “Motion for Sanctions and Reversal,” which the trial court construed as a motion for new trial, contending that his failure to respond was based on a lack of notice of the summary judgment hearing and motion.  

Breland’s response argued not only that service upon Waggoner was pursuant to Texas Rule of Civil Procedure 21a, but that Waggoner had engaged in “selective acceptance” of his certified mail service when he had accepted discovery and other documents by certified mail sent to the same address, both before and after the filing of the summary judgment motion, and that this was the second piece of certified mail returned “unclaimed.” Copies of the “green cards” for each mailing were attached to Breland’s response.  After a hearing, the court denied Waggoner’s motion.  There is no reporter’s record of the hearing. 

Inadequate Briefing

Breland argues that Waggoner’s issues on appeal are inadequately briefed and thus waived.  Appellate briefs are to contain “a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.”  Tex. R. App. P. 38.1(i); see also Howeth Investments, Inc. v. City of Hedwig Village, 259 S.W.3d 877, 902 (Tex. App.—Houston [1st Dist.] 2008, pet. denied) (declining to reach, for lack of adequate briefing, appellate challenge lacking citation to authority and sufficient legal analysis); Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284–85 (Tex. 1994) (discussing “long-standing rule” that point may be waived due to inadequate briefing).  Waggoner’s two-page, single-spaced brief,  short on case law and relevant legal analysis, does provide such an absence of argument that we could easily refuse to consider his issues on the basis that they are inadequately briefed, but we will address his arguments nevertheless in the interest of justice.

Summary Judgment

Waggoner argues that the trial court abused its discretion when it (1) granted summary judgment in Breland’s favor and (2) denied his motion for new trial because he never received notice of Breland’s summary judgment motion or hearing on the motion and that he was never notified that he had certified mail waiting for him at the post office.  Waggoner argues that the notice was presumably lost in the mail. 

Proper notice to the nonmovant of the summary-judgment hearing is a prerequisite to summary judgment, the absence of which violates the nonmovant’s due process rights.  Tanksley v. CitiCapital Commercial Corp., 145 S.W.3d 760, 763 (Tex. App.—Dallas 2004, pet. denied).  Notice may be served on the nonmovant by delivering a copy via certified or registered mail to the party’s last known address.  See Tex. R. Civ. P. 21a.  Service by mail is complete upon deposit of the document, enclosed in a postpaid, properly addressed wrapper, in a post office or official depository under the care and custody of the United States Postal Service.  Id. A certificate by a party or an attorney of record is prima facie evidence of the fact of service.  Id. Accordingly, Rule 21a creates a presumption that a notice of hearing setting, if mailed pursuant to the Rule, was received by the intended recipient.  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.—Houston [14th Dist.] 2008, no pet.).  The intended recipient, however, may rebut this presumption by offering proof of non-receipt.  Cliff, 724 S.W.2d at 780; see also Tex. R. Civ. P. 21a (“Nothing [in Rule 21a] shall preclude any party from offering proof that the notice or instrument was not received. . . .”).

Here, the certificates of service attached to the summary judgment motion, as well as the hearing notice, recited that they were mailed to Waggoner at his last known address[1] via certified mail on January 29, 2010, establishing a presumption of receipt.  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 proof regarding notice that was before the trial court when it granted summary judgment.  Because there was no countervailing evidence before the court to rebut the presumption of actual notice, the trial court’s grant of Breland’s summary judgment motion on those grounds was not error.

Motion for New Trial

We review a trial court’s ruling on a motion for new trial for an abuse of discretion.  Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922, 926 (Tex. 2009).  The trial court abuses its discretion if it acts unreasonably or in an arbitrary manner, without reference to guiding rules or principles.  Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985).

Here, Waggoner attached to his motion for new trial a letter from the U.S. Postal Service which stated that the certified mail in question was returned to sender as “unclaimed” on March 3, 2010.  Assuming without deciding that this was a sufficient offer of proof, the letter would be sufficient to rebut the presumption of service.  See Approx. $14,980, 261 S.W.3d at 189 (concluding that proof that notice was sent by certified mail and returned “unclaimed” rebutted presumption of service); Rabie v. Sonitrol of Houston, Inc., 982 S.W.2d 194, 197 (Tex. App.—Houston [1st Dist.] 1998, no pet.) (holding defendant rebutted presumption of service by asserting under oath that he never received notice of certified letter from post office and by presenting evidence that post office’s attempts to deliver certified mail failed).

Even if the presumption is rebutted, constructive notice may still 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.  See Approx. $14,980, 261 S.W.3d at 189; Gonzales v. Surplus Ins. Servs., 863 S.W.2d 96, 101–02 (Tex. App.—Beaumont 1993, writ denied), overruled in part on other grounds by Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 686 (Tex. 2002).

As the appellant, Waggoner bears the burden of bringing forward a sufficient record to show that the trial court abused its discretion when it denied his motion for new trial.  See Christiansen v. Prezelski, 782 S.W.2d 842, 843 (Tex. 1990).  The record reflects that, although a hearing was held on Waggoner’s motion, the hearing was not recorded.  Without a record of the hearing, we must presume that the proceedings support the trial court’s judgment.  See Bennett v. Cochran, 96 S.W.3d 227, 229 (Tex. 2002); Christiansen, 782 S.W.2d at 843.  Therefore, we cannot hold that the trial court’s order was an abuse of discretion. See Dowell v. Theken Spine, LLC, No. 14-07-00887-CV, 2009 WL 1677844, at *4 (Tex. App.—Houston [14th Dist.] June 2, 2009, no pet.) (affirming denial of motion for new trial based on lack of notice because without record of hearing, court must presume that proceedings support trial court’s judgment). We overrule Waggoner’s second issue.

Conclusion

We affirm the judgment of the trial court.

                                                                   Jim Sharp

                                                                   Justice

Panel consists of Chief Justice Radack and Justices Sharp and Brown.

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[1]           Waggoner also argues that the motion and notice of hearing were not properly addressed because they were addressed to “1914 E. Avenue” rather than “1914 East Avenue.”  We find this argument unpersuasive.  The record demonstrates that Waggoner accepted the certified mail that Breland sent to the “1914 E. Avenue” address on at least four other occasions—both before and after the summary judgment was filed.