Charise Caudle v. Oak Forest Apartments

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00308-CV
CHARISE CAUDLE APPELLANT
V.
OAK FOREST APARTMENTS APPELLEE
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FROM COUNTY COURT AT LAW NO. 3 OF TARRANT COUNTY
TRIAL COURT NO. 2013-005811-3
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MEMORANDUM OPINION 1
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Charise Caudle, pro se, appeals from the no-evidence summary judgment
granted in favor of Oak Forest Apartments on her claims under the federal Fair
Credit Reporting Act 2 (FCRA) and the federal Fair Housing Act. 3
1
See Tex. R. App. P. 47.4.
2
15 U.S.C.A. §§ 1681–1681x (West 2009 & Supp. 2015).
3
42 U.S.C.A. §§ 3601–3631 (West 2012).
In three issues, Caudle argues that the county court erred by issuing a writ
of certiorari, by granting no-evidence summary judgment for Oak Forest when
she did not receive a copy of the motion before the hearing, and by granting the
no-evidence summary judgment when there was no judgment of eviction against
her. Because we hold that the grant of summary judgment was not erroneous
and that Caudle has not shown that the issuance of the writ was an abuse of
discretion, we affirm the trial court’s judgment.
Caudle was once a tenant at Oak Forest. Oak Forest filed eviction
proceedings against her for nonpayment of rent. Oak Forest prevailed in the
justice court, and Caudle appealed to the county court. Caudle moved out of
Oak Forest before the county court rendered a judgment; trial in the county court
was held on October 27, 2010, Caudle moved out on October 1, 2010, but the
record does not show when the eviction suit was originally filed in the justice
court. The county court signed a judgment for Oak Forest finding that Caudle
had breached the lease agreement and that Oak Forest was entitled to
possession, and awarding it $1,794.22 in actual damages plus attorney’s fees
and court costs. The court crossed out language in the judgment ordering
Caudle to vacate.
In 2013, Caudle filed this case in small claims court asserting that Oak
Forest broke “FCA and FHA law and [caused] me to have money damages and
pain and suffering.” Although the record is not clear on the exact legal or factual
basis of her claims, Caudle based her suit at least in part on Oak Forest’s
2
reporting of the prior judgment from the eviction proceedings to credit reporting
agencies. She contends that she was not evicted, and, therefore, the information
Oak Forest reported to the agencies was false.
On August 12, 2013, the justice of the peace signed a default judgment
against Oak Forest awarding Caudle $5,000 in damages. Oak Forest
subsequently filed an application for writ of certiorari in the county court at law for
Tarrant County. 4 On November 14, 2013, the county court ordered the writ to be
issued on the ground that a final judgment was rendered against Oak Forest
without notice.
After the matter was set for trial, 5 Oak Forest filed a no-evidence motion for
summary judgment to which Caudle filed no response. The trial court granted
summary judgment for Oak Forest. Caudle appeals from that judgment.
Caudle argues in her first issue that the trial court erred by issuing the writ
of certiorari because Oak Forest received notice of the certificate of process of
her suit and failed to appear.
In a ruling on an application for writ of certiorari, the question for the county
court is whether “the final determination of the suit worked an injustice to the
applicant that was not caused by the applicant’s own inexcusable neglect.” 6 Oak
4
See Tex. R. Civ. P. 506.4 (setting out procedure for applying to a county
court for a writ of certiorari after a final judgment in a justice court).
5
See id. (stating that if an application for writ of certiorari is granted, the
county court may try the case de novo).
6
See id.
3
Forest explained in its application and by an affidavit of its property manager that
it never received any communications from the court or from Caudle regarding
the trial date or any other matter requiring Oak Forest to appear in court, and that
was the basis for its application.
Caudle does not argue or point out to us any evidence in the record that
Oak Forest received notice of the trial date. There is no evidence of mailing or
other service of the notice of the trial. The record does not show that the notice
was mailed by certified or registered mail or whether service was by some other
method. 7 Caudle does not explain how the county court’s decision that the
default judgment was not caused by Oak Forest’s inexcusable neglect was
reversible error, nor does she cite any applicable authority. 8 With no evidence of
service in the record, and with no argument or authorities from Caudle about why
Oak Forest did not meet the requirements for issuance of the writ despite the
lack of service, we cannot say that the county court’s issuance of the writ was
reversible error.
Caudle further argues under this issue that Oak Forest did not appeal the
judgment of the justice court within the proper time frame, and therefore the
county court did not properly grant the application for writ of certiorari. But a writ
of certiorari is a separate, independent way to obtain relief from the judgment of a
7
See Tex. R. Civ. P. 536 (repealed 2013) (setting out methods of service in
the justice court); Tex. R. Civ. P. 501.4 (current version).
8
See Tex. R. App. P. 38.1(i).
4
justice court, 9 and Oak Forest could file an application for writ of certiorari even if
it did not file an appeal. The rules for appeals do not apply to writs of certiorari. 10
Caudle also argues that a trial court must grant a no-evidence summary
judgment if the nonmovant does not produce evidence raising a genuine issue of
material fact, and Oak Forest did not appear or produce evidence at the default
judgment hearing in the justice court. Caudle appears to be confusing the default
judgment hearing in the justice court and the summary judgment hearing in the
county court. Caudle did not file a no-evidence motion for summary judgment in
the justice court, and therefore the rules that apply to such motions did not apply
to the justice court proceedings. In the county court proceedings, however,
Caudle had the burden to produce evidence to defeat the no-evidence summary
judgment motion. 11 We overrule Caudle’s first issue.
In her second issue, Caudle argues that the summary judgment should be
reversed because she spoke to Oak Forest’s attorney on August 4, 2014, and
informed him that she had a new address, but he nevertheless mailed the no-
evidence motion to her old address, and she did not receive it.
9
See A-1 Auto Body & Paint Shop, LLC v. McQuiggan, 418 S.W.3d 403,
407–08 (Tex. App.—Houston [1st Dist.] 2013, pet. denied).
10
See Tex. R. Civ. P. 506.1 (setting out the rules for appealing justice court
judgments), 506.4 (setting out the procedure for obtaining a writ of certiorari).
11
See Tex. R. Civ. P. 166a(i) (providing for no-evidence summary
judgments).
5
Oak Forest mailed a copy of the motion in accordance with civil procedure
rule 21a, thus creating a presumption of service. 12 The motion was sent to
Caudle’s old address. She argues that she notified Oak Forest’s attorney of her
new address before he mailed the motion and that the record backs this up.
Caudle refers us to a letter attached to Oak Forrest’s response to her motion for
new trial. 13 In that letter of August 5, 2014, Oak Forest’s attorney wrote to
Caudle, “This letter will confirm our conversation of August 4, 2014 regarding a
hearing on [Oak Forest’s] Objection to Mediation.”
This letter does not help her because it indicates only that Caudle and Oak
Forest’s attorney spoke on August 4 about a hearing about mediation. It says
nothing about her change of address. The address listed on the letter as
Caudle’s was her old address, the same address identified as Caudle’s in Oak
Forest’s certificate of service for its no-evidence motion for summary judgment.
And Caudle acknowledged at the hearing on her new trial motion that she did not
tell the court of her new address; she changed it with the mediator but did not
inform the court, believing that informing the mediator would be sufficient.
Nothing in the record indicates that Oak Forest’s mailing of the motion to
Caudle’s former address was the fault of anyone but Caudle.
12
See Cliff v. Huggins, 724 S.W.2d 778, 780 (Tex. 1987).
13
Caudle does not argue in this appeal that the trial court erred by denying
her motion.
6
Oak Forest asserts that we should hold that Caudle had constructive
service because Caudle has engaged in selective acceptance and refusal of mail.
The certified mail was sent to Caudle’s old address and was returned unclaimed.
But nothing in the record supports a conclusion that Caudle dodged receipt of the
certified mail or refused delivery of it, and constructive notice cannot be imputed
to her. 14
Caudle argues in this issue that under civil procedure rule 107, citation of
service must be signed for. Rule 107 applies to the return of service by an officer
or other authorized person executing a citation. 15 That rule does not apply to
service of summary judgment motions. 16
Caudle also cites rule 9.5 of the rules of appellate procedure, 17 but that
rule applies to proceedings in the courts of appeals and does not apply to the
county court proceedings below. Caudle cites Owens v. Housing Authority of
14
See Approximately $14,980.00 v. State, 261 S.W.3d 182, 189–90 (Tex.
App.—Houston [14th Dist.] 2008, no pet.) (holding that the facts of the case did
not support constructive service).
15
Tex. R. Civ. P. 107.
16
See Gaytan v. Terry, No. 01-09-00818-CV, 2010 WL 2723174, at *2
(Tex. App.—Houston [1st Dist.] July 8, 2010, no pet.) (mem. op.).
17
See Tex. R. App. P. 9.5 (requiring service of documents at or before the
time of the documents’ filing in the appellate court). Caudle’s citation is to
nonexistent civil procedure rule 9.5, but from her discussion, it is clear she
means rule of appellate procedure 9.5.
7
City of San Augustine, 18 but that opinion also addresses service of documents on
appeal.
Nowhere in Caudle’s brief does she cite to or discuss civil procedure rules
21a or 166a(a), the rules applicable to the service of the summary judgment
motion and of notice of the hearing on the motion. 19 Further, although the right to
proper service of trial settings and of motions is a due process right, 20 that right
may be waived. 21 In the summary judgment context, failure to be timely and
properly served with the motion and notice of the hearing may be waived if the
18
No. 12-12-00034-CV, 2012 WL 690295, at *1 (Tex. App.—Tyler Feb. 29,
2012) (mem. op.), on reh’g, 12-12-00034-CV, 2013 WL 2286079 (Tex. App.—
Tyler May 22, 2013, no pet.) (mem. op.).
19
See Tex. R. App. P. 38.1(i) (providing that a brief must contain
appropriate citations to authorities); Hall v. Stephenson, 919 S.W.2d 454, 467
(Tex. App.—Fort Worth 1996, writ denied); see also 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).
20
Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 84, 108 S. Ct. 896, 899
(1988).
21
Rockwell v. Wells Fargo Bank, N.A., No. 02-12-00100-CV, 2012 WL
4936619, at *1 (Tex. App.—Fort Worth Oct. 18, 2012, no pet.) (mem. op.); Dunn
v. Bank-Tec S., 134 S.W.3d 315, 321 (Tex. App.—Amarillo 2003, no pet.) (noting
that the Dunns did not preserve their due process complaint based on
inadequate notice of a no-evidence summary judgment motion because they did
not raise the complaint with the trial court prior to or at the summary judgment
hearing); see also Dhingra v. Charterwood Cmty. Improvement Ass’n, No. 01-02-
00330-CV, 2003 WL 21512674, at *2 (Tex. App.—Houston [1st Dist.] July 3,
2003, no pet.) (mem. op.) (holding that parties failed to preserve complaint of
lack of service of summary judgment motion).
8
nonmovant learns of the hearing in time to request a continuance or ask the court
for permission to file a late response but fails to do so. 22
In this case, Caudle was timely served with notice of the hearing, 23 but she
was never served with the motion. We have been unable to find a case in which
a nonmovant plaintiff did not receive service of a no-evidence summary judgment
motion but did timely receive notice of the hearing, and neither Caudle nor Oak
Forest cited such a case. However, under the specific facts before us, we find
the case law on untimely service, rather than no service, to be applicable.
The reason for requiring twenty-one days’ notice of a summary judgment
motion and hearing “is to provide the nonmoving party ‘a full opportunity to
respond on the merits.’” 24 “A nonmovant who complains of less than 21 days’
notice of a summary judgment hearing but admits to knowing of the hearing date
before it occurs waives its defense of insufficient notice if [s]he fails to bring the
22
See Rockwell, 2012 WL 4936619, at *1; Carpenter v. Cimarron
Hydrocarbons Corp., 98 S.W.3d 682, 688 (Tex. 2002) (pointing out that
procedural rules allow a nonmovant to seek a continuance of a summary
judgment hearing in order to file a response to the motion or to obtain permission
to file a late response).
23
See Tex. R. Civ. P. 166a (requiring motions for summary judgment and
notice of hearing to be on file with the court and served twenty-one days before
the hearing on the motion); Lewis v. Blake, 876 S.W.2d 314, 315 (Tex. 1994)
(describing how to calculate the required time for service of a summary judgment
motion hearing when served by mail).
24
Viesca v. Andrews, No. 01-13-00659-CV, 2014 WL 4260355, at *5 (Tex.
App.—Houston [1st Dist.] Aug. 28, 2014, no pet.) (mem. op.) (quoting Stephens
v. Turtle Creek Apts., Ltd., 875 S.W.2d 25, 26 (Tex. App.—Houston [14th Dist.]
1994, no writ); see also Magnuson v. Mullen, 65 S.W.3d 815, 824 (Tex. App.—
Forth Worth 2002, pet. denied).
9
defect to the trial court’s attention at or before” the hearing date. 25 A nonmovant
who receives no notice can raise that issue in a motion for new trial. 26 The
difference in the treatment of cases of late notice and of cases of no notice
“hinges on knowledge of a procedural error and the ability to bring it to the trial
court’s attention for correction before judgment.” 27 When a nonmovant has no
notice, she does not have the opportunity to complain of the lack of notice until
after judgment, whereas when she has some notice, though inadequate under
the rules, she “has the ability to bring the matter to the trial court’s attention
before judgment” is rendered. 28
As in cases of untimely service, because Caudle knew of the hearing (and
appeared at it), she had the opportunity to let the court know prior to or at the
hearing that she had not received the summary judgment motion to obtain an
opportunity to respond to the motion. Additionally, it was Caudle’s own failure to
update the court with her correct address that caused her not to receive the
certified mail containing the motion in the first place.
She knew that there would be a hearing on a motion that she had not seen
or been served with. She claimed in her motion for new trial that she called the
court to ask about the hearing, yet the record does not show that she asked
25
Viesca, 2014 WL 4260355, at *6.
26
Id.
27
Id.
28
Id.
10
either the clerk of the court or Oak Forest’s attorney for a copy of the motion.
The record does not show that she objected to the lack of service, filed a written
motion for continuance or otherwise complained in writing to the lack of an
opportunity to respond prior to the granting of the summary judgment, either
before or during the hearing. 29 In other words, despite knowing that there was an
upcoming hearing on a motion she had not seen and had not responded to,
Caudle did nothing to apply to the trial court for relief. 30 We overrule Caudle’s
second issue.
In her third issue, Caudle argues that the previous judgment against her
was not for $5,549 or $785 and she was not evicted as was reported on her
credit report. She argues that the walk-through form from when she moved out
of her apartment at Oak Forest shows that Oak Forest found no damage to the
apartment at the time she moved out and that Oak Forest’s report to credit
agencies violated the FCRA. 31
Caudle’s argument addresses the merits of her claim. She appears to be
attempting to raise a fact issue in order to demonstrate why summary judgment
29
Nguyen v. Short, How, Frels & Heitz, P.C., 108 S.W.3d 558, 560 (Tex.
App.—Dallas 2003, pet. denied) (“If a party receives notice that is untimely, but
sufficient to enable the party to attend the summary judgment hearing, the party
must file a motion for continuance or raise the complaint of late notice in writing,
supported by affidavit evidence.”).
30
See Carpenter, 98 S.W.3d 682, 686 (Tex. 2002) (discussing the factors
that apply “when a nonmovant is aware of its mistake at or before the summary-
judgment hearing and thus has an opportunity to apply for relief”).
31
15 U.S.C.A. § 1681.
11
was not proper. But because she did not raise this argument in response to the
motion for summary judgment, we may not consider it now. 32
Further, we are unclear about the factual or the legal basis of Caudle’s
arguments under this issue. The record shows that Oak Forest once filed an
eviction proceeding against her for nonpayment of rent, and in the same suit, it
also sued to recover that unpaid rent. 33 On appeal, the county court found that
Caudle breached the lease, that Oak Forest was entitled to possession of the
property, and that Oak Forest had suffered actual damages.
Caudle argues in her brief that when she moved out, she had not caused
damage to the apartment. The term “damages” in an eviction proceeding
judgment does not mean physical damage to the rented property. It means
“[m]oney claimed by, or ordered to be paid to, a person as compensation for loss
or injury,” 34 and in eviction cases, the damages are usually unpaid rent. 35
The judgment against Caudle in the eviction case awarded Oak Forest
damages of $1,794.22, plus attorney’s fees of $1,050 and postjudgment interest,
and it found that Oak Forest had the right to possession of the premises. Even if
we could have considered arguments on the merits of her claim, Caudle does not
explain how Oak Forest’s reporting of this judgment against her to credit
32
See Unifund CCR Partners v. Weaver, 262 S.W.3d 796, 797 (Tex. 2008).
33
See Tex. R. Civ. P. 500.3 (allowing a claim for unpaid rent to be joined
with an eviction proceeding).
34
Damages, Black’s Law Dictionary (10th ed. 2014).
35
See, e.g., Tex. R. Civ. P. 510.3(a)(4).
12
reporting agencies was a violation of the FCRA. 36 Further, as Oak Forest
pointed out in its summary judgment motion, Caudle did not allege in facts in her
petition or produce evidence about how Oak Forest either negligently or willfully
failed to comply with the FCRA. 37
Caudle further argues that the trial court’s no-evidence summary judgment
was erroneous because Oak Forest had no evidence proving that the report to
the credit agencies was accurate. Caudle is mistaken about what Oak Forest
had to prove in the county court. Because Oak Forest filed a no-evidence
summary judgment motion, Caudle had the burden to produce evidence on her
claims, and therefore Caudle needed to produce evidence that the reports were
inaccurate. 38 If Caudle did not produce evidence on that point in a written
response to the summary judgment motion, Oak Forest was entitled to no-
evidence summary judgment. 39 We overrule Caudle’s third issue.
Having overruled Caudle’s three issues, we affirm the trial court’s summary
judgment.
36
See Tex. R. App. P. 38.1(i).
37
See 15 U.S.C.A. §§ 1681n, 1681o (providing for civil liability for willful or
negligent noncompliance with the chapter).
38
See Tex. R. Civ. P. 166a(i).
39
See id.
13
/s/ Lee Ann Dauphinot
LEE ANN DAUPHINOT
JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and SUDDERTH, JJ.
DELIVERED: December 17, 2015
14