                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH


                                 NO. 2-07-133-CV


MARK ROTELLA CUSTOM HOMES, INC.                              APPELLANTS
D/B/A BENCHMARK CUSTOM HOMES
AND MARK DAVID ROTELLA

                                           V.

JOAN CUTTING                                                    APPELLEE

                                       ------------

           FROM THE 158TH DISTRICT COURT OF DENTON COUNTY

                                       ------------

                          MEMORANDUM OPINION 1

                                       ------------

                                   I. Introduction

     In four issues, Appellants Mark Rotella Custom Homes, Inc. d/b/a

Benchmark Custom Homes (“MRCH”) and Mark David Rotella assert that the

trial court (1) erred as a matter of law in granting summary judgment, (2)



     1
         See T EX. R. A PP. P. 47.4.
abused its discretion in denying MRCH and Rotella’s Motion for New Trial, (3)

erred in holding Rotella vicariously, jointly, and severally liable with MRCH, and

(4) erred in finding intent where the record is absent of any such evidence.

                    II. Factual and Procedural Background

      This is the second case before this court wherein it is asserted by MRCH

and Rotella that they did not receive adequate notice of a hearing.           See

Benchmark Homes v. Baker, No. 2-07-138-CV, 2008 WL 281540 (Tex.

App.—Fort Worth Jan. 31, 2008, no pet. h.) (mem. op.).

      On November 7, 2001, MRCH and Rotella executed a residential

construction agreement with Appellee Joan Cutting to construct a custom

home for Cutting. Rotella is the sole shareholder, president, and sole employee

of MRCH, which did construct the residence.

      On April 14, 2005, Cutting sued MRCH, and Rotella, individually, for

improper and unscrupulous billing practices, and for the defective construction

of her home, which included more than three hundred defects and fifty code

violations.

      Cutting filed two motions for summary judgment in January 2007, which

were set for hearing on February 14, 2007. Cutting sent the motions and

notice of the hearing to MRCH and Rotella through certified mail, return receipt

requested. MRCH and Rotella contend that they did not receive the summary

                                        2
judgment motions or notice of any hearing from opposing counsel. The notices

were returned to Cutting as unclaimed, and Rotella did not attend. 2

      Following the hearing, the trial court granted both motions for summary

judgment and awarded Cutting the following:

      1) $1,233,514.60 in actual damages;

      2) $1,437,672.66 in treble damages pursuant to Section 17.50 of
      the Texas Business and Commerce Code; 3

      3) $336,342.59 in reasonable and necessary attorneys’ fees, plus
      an additional amount if this matter is appealed;

      4) $191,819.95 in prejudgment interest through February 7, 2007,
      computed at the rate of 8.25 percent, and further accruing
      thereafter at the rate of $278.81 per day until the date this
      judgment is signed;

      5) Postjudgment interest at the maximum rate allowed by law from
      the date this judgment is signed until it is satisfied; and

      6) costs of court.

The trial court also ordered MRCH and Rotella to take nothing on their

counterclaim, dismissed all of their affirmative defenses, and held that MRCH

and Rotella were jointly and severally liable on all claims asserted by Cutting.




      2
       Rotella’s trial counsel withdrew on January 12, 2007, and Rotella did not
retain new counsel until March 2007.
      3
      T EX. B US. & C OM. C ODE A NN. § 17.50 (Vernon Supp. 2007).

                                       3
      On March 16, 2007, MRCH and Rotella filed a motion for new trial. The

trial court denied the motion and found that MRCH and Rotella had notice of the

motions for summary judgment and the hearing on the motions. This appeal

followed.

                            III. Standard of Review

      The determination of a motion for new trial is within the trial court’s

discretion, and the court’s ruling will not be disturbed on appeal in the absence

of a showing that the trial court abused its discretion. Dir., State Employees

Workers’ Comp. Div. v. Evans, 889 S.W.2d 266, 268 (Tex. 1994). The test

for abuse of discretion is not whether, in the opinion of the reviewing court, the

facts present an appropriate case for the trial court’s action. Rather, it is a

question of whether the court acted without reference to any guiding rules and

principles. Another way of stating the test is whether the act was arbitrary or

unreasonable. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-

42 (Tex. 1985), cert. denied, 476 U.S. 1159 (1986). The mere fact that a trial

court may decide a matter within its discretionary authority in a different

manner than an appellate court in a similar circumstance does not demonstrate

that an abuse of discretion has occurred. Id. An abuse of discretion does not

exist where the trial court bases its decisions on conflicting evidence. Davis v.

Huey, 571 S.W.2d 859, 862 (Tex. 1978). Nor does an abuse of discretion

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occur as long as some evidence of substantive and probative character exists

to support the trial court’s decision. Butnaru v. Ford Motor Co., 84 S.W.3d

198, 211 (Tex. 2002).

                                 IV. Notice

     In their first and second issues, MRCH and Rotella assert that the trial

court erred in granting Cutting’s Motions for Summary Judgment and in denying

MRCH and Rotella’s motion for new trial because evidence showing a lack of

notice established that MRCH and Rotella’s failure to respond to the motions

for summary judgment was neither intentional nor the result of conscious

indifference. We disagree.

     A. The Law Regarding Notice

     This court has discussed this area of the law recently in Etheredge v.

Hidden Valley Airpark Association, Inc., 169 S.W.3d 378 (Tex. App.—Fort

Worth 2005, pet. denied) (op. on reh’g).

           The Texas Rules of Civil Procedure require motions for
     summary judgment and notices of hearings to be served on all
     parties of record. T EX. R. C IV. P. 21, 166a(c). Rule 166a gives the
     nonmovant the right to have minimum notice of the hearing on a
     motion for summary judgment. See Lewis v. Blake, 876 S.W.2d
     314, 315 (Tex. 1994). Lack of notice to the nonmovant of the
     summary judgment hearing violates the nonmovant’s due process
     rights. See Smith v. Mike Carlson Motor Co., 918 S.W.2d 669,
     672 (Tex. App.—Fort Worth 1996, no writ) (citing Peralta v.
     Heights Med. Ctr., Inc., 485 U.S. 80, 84-85, 108 S. Ct. 896, 899,
     99 L. Ed. 2d 75 (1988); Lopez v. Lopez, 757 S.W.2d 721, 723

                                      5
(Tex. 1988); Mosser v. Plano Three Venture, 893 S.W.2d 8, 12
(Tex. App.—Dallas 1994, no writ)).
       A document may be served on a party by delivering a copy
via certified or registered mail to the party’s last known address.
T EX. R. C IV. 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, when properly mailed, was received by the
addressee. See Cliff v. Huggins, 724 S.W.2d 778, 780 (Tex.
1987).
       However, the opposing party may rebut this presumption by
offering proof that the notice or document was not received. Id.;
see also T EX. R. C IV. P. 21a (“Nothing [in Rule 21a] shall preclude
any party from offering proof that the notice or instrument was not
received. . . .”). . . .
       . . . “[I]mplicit in the concept of service is the need for the
party upon whom an item is served to actually receive it.” Payton
v. Ashton, 29 S.W.3d 896, 898 (Tex. App.—Amarillo 2000, no
pet.); see also Wembley Inv. Co. v. Herrera, 11 S.W.3d 924, 928
(Tex. 1999) (concluding that nonmovant had not been served with
motion of nonsuit when presumption of receipt raised by certificate
of service was rebutted by evidence of nonreceipt). If not, “then
there would be no reason for those who drafted Rule 21a to state
that nothing precluded a party from establishing non-receipt.”
Payton, 29 S.W.3d at 898. Accordingly, a notice of hearing
setting sent by certified mail and returned “unclaimed” does not
provide the notice required by Rule 21a. Tanksley v. CitiCapital
Commercial Corp., 145 S.W.3d 760, 764 (Tex. App.—Dallas
2004, pet. denied); see also Payton, 29 S.W.3d at 898-99 (holding
that trial court did not err in refusing to deem unanswered requests
for admissions admitted because requests had been returned to
sender unclaimed); Rabie v. Sonitrol of Houston, Inc., 982 S.W.2d
194, 197 (Tex. App.—Houston [1st Dist.] 1998, no pet.) (holding
that motion for summary judgment and notice of motion’s
submission sent by certified mail but returned unclaimed did not
provide nonmovant with due notice).

                                  6
            Even when a party does not receive actual notice, if the
      serving party has complied with the requirements of Rule 21a,
      “constructive notice” may be established if the serving party
      presents evidence that the intended recipient engaged in instances
      of selective acceptance or refusal of certified mail relating to the
      case, see Gonzales v. Surplus Ins. Servs., 863 S.W.2d 96, 102
      (Tex. App.—Beaumont 1993, writ denied), overruled on other
      grounds, Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d
      682 (Tex. 2002), or that the intended recipient refused all
      deliveries of certified mail, see Roberts v. Roberts, 133 S.W.3d
      661, 663 (Tex. App.—Corpus Christi 2003, no pet.).

Id. at 381-82.

      In sum, we hold that the proper procedure in a case such as this is

potentially a four-step process. First, the party claiming that notice was given

must demonstrate to the court the method and manner of actual service.

Second, the party asserting that no service was obtained must present evidence

to the court that no actual service was had. Third, if the party claiming notice

is asserting constructive notice, that party must evidence that to the court,

including evidence of selective refusal of service or a total refusal of service.

Fourth, we hold that if the first three steps have been met, the party asserting

a lack of service must then explain, if possible, why the apparent selective

acceptance or refusal of service does not constitute “constructive service”

under 21a.




                                       7
      B. Analysis

      In Rotella’s affidavit filed in connection with the Motion for New Trial, he

states,

      I have not received delivery of any Motions for Summary Judgment
      from opposing counsel, nor have I received delivery of any Notice
      advising of a date that such Motions would be heard. I was
      unaware of the date of any such proceedings.

      The following evidence was presented in support of Cutting’s Response

to Defendants’ Motion for New Trial, Reconsideration, and Rule 21b Sanctions:

      (a) Rotella and MRCH’s address during the time period in question
      was 2 Hunter’s Ridge Lane, Trophy Club, Texas 76262-5653.

      (b) Some 24 pleadings, notices, and discovery related instruments
      were mailed to Rotella’s Trophy Club address on January 5,
      January 10, January 12, January 16, January 19, January 30,
      February 22, and March 5, 2007. All were returned “unclaimed.”
      Among these items were Plaintiff’s Motion for Summary Judgment
      and Brief in Support Thereof, Notice of Hearing on Plaintiff’s
      Motion for Summary Judgment and Brief in Support Thereof (both
      sent January 12, 2007), Plaintiff’s Second Motion for Summary
      Judgment and Brief in Support Thereof and Notice of Hearing on
      Plaintiff’s Second Motion for Summary Judgment and Brief in
      Support Thereof (both sent January 16, 2007).

      (c) An affidavit of Michael Ysasga, former counsel for Rotella,
      which stated in part “In the past, Mr. Rotella has accepted service
      and delivery at the Hunter’s Ridge address, and he has signed and
      returned certified mail, return receipt green cards at this same
      address. At no time, did Mr. Rotella ever inform me that he had
      moved or that he had a forwarding address.”

      (d) The Amended Order Granting Plaintiff Joan Cutting’s Second
      Motion for Summary Judgment, signed February 14, 2007, finding

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      that “Despite having been given all due and proper notice of the
      hearing, the Rotella Defendants did not appear through counsel or
      otherwise.”

      (e) The two summary judgment motions and accompanying notices
      contained certificates of service indicating that they were mailed by
      certified mail, return receipt requested on January 12 and January
      16, 2007, respectively, to Rotella and MRCH at 2 Hunter’s Ridge
      Lane, Trophy Club, Texas 76262-5653.

      C. Application

      Applying our previously discussed four-step process, first, we observe

that Cutting’s two motions for summary judgment and hearing notices were

presumptively served via certified mail when they were deposited with the

United States Postal Service with supporting certificates.         Second, this

presumption of actual service was rebutted by Rotella’s affidavit.            Third,

Cutting demonstrated to the court that Rotella, and MRCH through Rotella, had

both selectively refused service, in that Rotella and MRCH had accepted service

regarding the suit from Rotella and MRCH’s prior counsel, but totally refused

service regarding the 24 items (set out above) that were sent by Cutting.

Fourth, Rotella offered nothing at the hearing on the motion for new trial, or at

any other time, to explain the apparent selective acceptance and total refusal

of service.

      Rotella and MRCH cite Tanksley v. Citicapital Commercial Corp., 145

S.W.3d 760, 761 (Tex. App.–Dallas 2004, pet. denied), to support their failure-

                                       9
of-notice issues one and two. However, this case addresses only steps one and

two of our four-step process, and as such is inapplicable. They also urge with

respect to issue number one that the Craddock factors should apply, which is

disputed by Cutting. See generally Craddock v. Sunshine Bus Lines, Inc., 133

S.W.2d 124, 126 (1939). Assuming, without deciding, that Craddock should

apply, it is of no help to Rotella and MRCH. The record reveals no evidence

that their failure to appear or respond was the result of accident or mistake; and

in fact, established that Rotella and MRCH’s lack of notice was due to selective

and total refusal to accept service.

      Under these circumstances, we hold that the trial court did not err in its

Amended Order Granting Plaintiff Joan Cutting’s Second Motion for Summary

Judgment, signed February 14, 2007, finding that “Despite having been given

all due and proper notice of the hearing, the Rotella Defendants did not appear

through counsel or otherwise.” We further hold that the trial court did not

abuse its discretion in denying Rotella and MRCH’s motion for new trial. Rotella

and MRCH’s first and second issues are overruled.

                         V. Joint and Several Liability

      In his third point, Rotella complains that the trial court erred in holding

him jointly and severally liable with MRCH. Specifically, Rotella asserts that (1)

he was not in privity with the contract between MRCH and Cutting, (2) that he

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was a disclosed agent of his principal, MRCH, and as such cannot be held liable

for his principal’s actions, and (3) there was no pleading or finding to make him

vicariously liable for MRCH’s actions.

      These arguments are without merit. In the Addendum to the Abbreviated

Form of Agreement Between Owner and Contractor, which references the

contract to build Cutting’s residence, the opening paragraph indicates that the

addendum amends, supplements, and modifies the contract.               Paragraph

fourteen   reads,   “Guaranty.     The    undersigned   hereby   guarantees   the

performance of Contractor under this Contract,” and is followed by Rotella’s

signature above his typed name. Therefore, with respect to the contract cause

of action, Rotella is liable because he personally guaranteed performance under

the contract and the liability of the guarantor is equal to that of the principal.

Resolution Trust Corp. v. Northpark Joint Venture, 958 F.2d 1313, 1321 (5th

Cir. 1992), cert. denied, 506 U.S. 1048 (1993). With regard to the tort causes

of action, an agent is liable for his own torts, even if acting as an agent,

including fraudulent acts. Kingston v. Helm, 82 S.W.3d 755, 758-59 (Tex.




                                         11
App.—Corpus Christi 2002, pet. denied);4 Cameron v. Terrell & Garrett, Inc.,

599 S.W.2d 680, 682 (Tex. Civ. App.—Fort Worth 1980), 5 rev’d on other

grounds, 618 S.W.2d 535 (Tex. 1981); Whitson Co. v. Bluff Creek Oil Co., 278

S.W.2d 339, 347 (Tex. Civ. App.—Fort Worth 1955),6 aff’d, 293 S.W.2d 488

(Tex. 1956).    Because Rotella concedes that he was MRCH’s agent, his

contention that he cannot be liable for the tort causes of action is erroneous.

Rotella’s third issue is overruled.

                             VI. Fraudulent Intent

      In his final issue, Rotella complains that the record is devoid of any

evidence of fraudulent inten,t and hence, the fraud and knowing violation of the

DTPA claims must be reversed.


      4
       ”’A corporation’s employee is personally liable for tortious acts which he
directs or participates in during his employment.’ The law is well-settled that
a corporate agent can be held individually liable for fraudulent statements or
knowing misrepresentations even when they are made in the capacity of a
representative of the corporation.” Kingston, 82 S.W.3d at 758-59 (citations
omitted).
      5
        “Although an agent is generally not liable for contracts made by him for
the benefit of his principal, the agent can be held personally liable to a third
person for damages arising out of intentional deceit in procuring such contracts
under certain circumstances. In cases where liability attaches, the principal is
liable both in contract and in tort. The agent, however, is liable only in tort.”
Cameron, 599 S.W.3d at 682 (citations omitted).
      6
       “[A]n agent is always primarily liable for his own torts despite the fact
that his principal is likewise responsible by and through him under the doctrine
of respondeat superior . . . .” Whitson Co., 278 S.W.2d at 347.

                                       12
      In his brief, however, Rotella fails to cite to the record or to any authority

in support of this contention. We are mindful that appellate briefing is to be

construed liberally. Howeth Inves., Inc v. White, 227 S.W.3d 205, 212 (Tex.

App.–Houston [1st Dist.] 2007, no pet.). However, as one of our sister courts

has noted,

             . . . [P]ursuant to the Rules of Appellate Procedure, [a] brief
      must contain a clear and accurate statement of the arguments
      made in the body of the brief with appropriate citations to
      authorities and to the record. Rule 38 requires [Appellant] to
      provide this Court with such discussion of the facts and the
      authorities relied upon as may be requisite to maintain [his] point at
      issue. Brief, conclusory statements, unsupported by argument or
      citation to legal authority, are insufficient to comply with these
      requirements and present nothing for this Court to review.

Martinez v. Leeds, 218 S.W.3d 845, 848-49 (Tex. App.—El Paso 2007, no

pet.) (citations omitted).

      Because Rotella has presented nothing for this court to review, we overrul

issue four.




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                               VII. Conclusion

      Having overruled issues one and two presented by Rotella and MRCH, and

having overruled Rotella’s third issue and held that his fourth issue presented

nothing for review, we affirm the judgment of the trial court.




                                           BOB MCCOY
                                           JUSTICE

PANEL B:    DAUPHINOT, GARDNER, and MCCOY, JJ.

DELIVERED: March 6, 2008




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