      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                                      NO. 03-10-00410-CV




                                    H. Carl Myers, Appellant

                                                 v.

    County of Williamson, Texas; City of Austin, Texas; Austin Community College;
            Anderson Mill Ltd. District; Anderson Mill Municipal District;
  Upper Brushy Creek Water Control & Improvement District #1A; Williamson County
    Emergency District #1; and Round Rock Independent School District, Appellees


 FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 26TH JUDICIAL DISTRICT
    NO. 09-619-T26, HONORABLE BILLY RAY STUBBLEFIELD, JUDGE PRESIDING



                            MEMORANDUM OPINION


               H. Carl Myers, an attorney appearing pro se, appeals the trial court’s denial of his

motion for new trial and to set aside a post-answer default judgment against him in favor of

Williamson County, Texas; the City of Austin, Texas; Austin Community College; the Anderson

Mill Ltd. District; the Anderson Mill Municipal District; the Upper Brushy Creek Water Control &

Improvement District #1A; Williamson County Emergency District #1; and Round Rock

Independent School District (Appellees). In two issues, Myers contends that Appellees failed to

prove that he had actual or constructive notice of the trial setting. For the reasons that follow, we

reverse the judgment and remand this case to the trial court for a new trial.
                     FACTUAL AND PROCEDURAL BACKGROUND

               Williamson County, on behalf of itself and the political subdivisions for which it

collects property taxes,1 filed suit against H. Carl Myers in September 2009 to collect delinquent

property taxes owed on Myers’s residence, associated penalties and interest, and attorney’s fees.

Myers timely filed an answer pro se. Round Rock Independent School District, Anderson Mill Ltd.

District, Austin Community College, and the City of Austin subsequently intervened in the action

to collect taxes owed on Myers’s residence to those entities. Appellees set the case for trial on

March 30, 2010. Myers did not appear. Appellees offered into evidence certified copies of tax

records reflecting amounts owed and a copy of a notice of trial Appellees had sent to Myers by

certified mail, return receipt requested. At trial, counsel for Appellees stated that he was offering

“a Notice of Trial, return receipt, showing Defendant did receive proper notice of today’s setting.”

The trial court granted default judgment in the amount of $13,046.27, awarded foreclosure of

Appellees’ liens, and ordered the property sold as under execution.

               Myers filed a timely motion for new trial and to set aside default judgment for failure

to provide notice of setting, which the court heard on June 22, 2010. Meyers testified by affidavit

and in person. Williamson County’s attorney, Craig Morton, testified on behalf of Appellees. Both

parties offered documentary evidence, including the notice of trial setting and United States Postal

Service (USPS) records relating to the certified mailing.




       1
          Anderson Mill Municipal District, Upper Brushy Creek Water Control & Improvement
District #1A, and Williamson County Emergency District #1.

                                                 2
                Morton testified that his office mailed a notice of trial setting to Myers at his

residence address by certified mail, return receipt requested. Morton also testified that when he had

not received the return receipt by the eve of trial, he or his legal assistant went to the USPS website

and entered the return receipt number to “track and confirm” its delivery status, receiving a

message that delivery status information for the item was not available on the website. Morton

stated that he later learned that he or his legal assistant had inadvertently entered the wrong return

receipt number.

                Morton also testified that after Appellees obtained the default judgment, his office

mailed a notice of intent to sell the property to Myers on April 6, 2010, by regular mail and that,

after receiving it, Myers contacted Morton’s office stating that he had not received proper notice

of the trial setting. Morton testified that after talking with Myers, he again visited the USPS

website to track and confirm delivery of the notice of trial setting, this time receiving a message that

a notice of attempted delivery had been left at Myers’s residence address on February 3, 2010.

Morton further stated that he subsequently traveled to the Georgetown post office where he

obtained a document indicating that a postal carrier had left a notice of attempted delivery of the

notice of trial setting on February 3, 2010, and that the item had been delivered on April 16, 2010,

seventeen days after trial. The USPS report reflected no other activity on the certified mailing.

Morton also testified that his office received the signed return receipt dated April 16, 2010.

                Myers testified that he received no notice of the trial setting prior to the date of the

trial and first learned that the litigation was proceeding and Appellees had set it for trial when

he received the notice of intent to sell. He stated that he returned home one day in April to find

a USPS notice of attempted delivery, signed it, put it back in his mailbox, and subsequently


                                                   3
received the certified mail containing the notice of trial setting. The trial court did not rule

on Myers’s motion, and it was overruled by operation of law. This appeal followed.


                                           DISCUSSION

               The disposition of a motion for new trial is within the trial court’s sound discretion;

we will not disturb the court’s ruling absent an abuse of that discretion. Waffle House, Inc.

v. Williams, 313 S.W.3d 796, 813 (Tex. 2010). A trial court abuses its discretion if it acts in an

unreasonable or arbitrary manner or without reference to any guiding rules and principles. Cire

v. Cummings, 134 S.W.3d 835, 838–39 (Tex. 2004). Generally, before a default judgment can be

set aside and a new trial granted, the defaulting party must satisfy the three elements of the Craddock

test. Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex. 1939). The Craddock test

is well-established: A trial court should set aside a default judgment and order a new trial in any

case in which (1) the defaulting party’s failure to answer or to appear was not intentional, or the

result of conscious indifference, but was due to a mistake or an accident; (2) the defaulting party has

a meritorious defense or claim; and (3) the motion is filed at a time when the granting of a new trial

will not occasion delay or work other injury to the prevailing party. Id. at 126.

               A party who proves lack of notice of a trial setting satisfies the first Craddock element

because one cannot show intent or conscious indifference with regard to a trial of which one is

unaware. Mathis v. Lockwood, 166 S.W.3d 743, 744 (Tex. 2005); Limestone Constr., Inc. v. Summit

Commercial Indus. Props., Inc., 143 S.W.3d 538, 543–44 (Tex. App.—Austin 2004, no pet.) (citing

Smith v. Holmes, 53 S.W.3d 815, 818 (Tex. App.—Austin 2001, pet. denied)). Myers contends that

the trial court erred in allowing his motion for new trial to be overruled by operation of law because



                                                  4
he had no notice of the trial setting.2 In his first issue, Myers argues that the trial court erred because

he did not have actual notice of the trial setting. However, Appellees do not dispute that Myers had

no actual notice of the trial setting until after the trial court rendered default judgment, and we need

not address Myers’s first issue. In his second issue, on which the parties join issue, Myers asserts

that the trial court erred because he had no constructive notice of the trial setting.

                  A serving party may establish constructive notice by demonstrating compliance with

Rule 21a of the Texas Rules of Civil Procedure and presenting evidence that the intended recipient

engaged in selective acceptance or refusal of certified mail relating to the case. See Tex. R. Civ.

P. 21a; Approximately $14,980.00 v. State, 261 S.W.3d 182, 189 (Tex. App.—Houston [14th Dist.]

2008, no pet.); Etheredge v. Hidden Valley Airpark Ass’n, 169 S.W.3d 378, 382 (Tex. App.—Fort

Worth 2005, pet. denied). Therefore, we first determine whether Appellees served the notice of trial

setting in compliance with Rule 21a.

                  It is undisputed that Appellees served the notice by certified mail to Myers’s last

known address in accordance with Rule 21a’s requirements for addressing and sending notice.

However, Rule 21a also provides that the party or attorney of record shall certify compliance with

the rule “in writing over signature and on the filed instrument.” Tex. R. Civ. P. 21a. (emphasis

added).       The supreme court has observed that such a certificate “bears some assurance of

trustworthiness as it was prepared as a matter of office routine before any dispute about notice

arose.” Mathis, 166 S.W.3d at 745. Here, the undisputed evidence shows that the notice of trial

does not contain a certificate of service. Therefore, Appellees failed to fully comply with Rule 21a.



          2
          In his two issues, Myers challenges both the trial court’s entry of the default judgment and
its allowing his motion for new trial to be overruled by operation of law.

                                                    5
See Tex. R. Civ. P. 21a; In re E.A., 287 S.W.3d 1, 5–6 (Tex. 2009); Mathis, 166 S.W.3d at 745.

                Despite the lack of a certificate of service, Appellees contend that the trial court did

not abuse its discretion in imputing constructive notice to Myers. As evidence of constructive notice,

Appellees point to USPS records reflecting that a notice of attempted delivery of the certified mail

containing the notice of trial setting was delivered to Myers’s address prior to trial and that Myers

claimed the certified mail after the trial court rendered default judgment. Appellees also cite to

evidence that Myers received the notice of intent to sell sent by regular mail after trial. In addition,

Appellees’ attorney testified that he sent Appellees’ response to Myers’s motion for new trial and

a notice of setting for that motion by certified mail and received signed returned receipts for those

items. Appellees argue that Myers received the notice of attempted delivery and selectively refused

to claim the certified mail containing the notice of trial.

                In support of their argument that Myers selectively refused the certified mail

containing the notice of trial setting, Appellees cite cases that they contend are analogous to this case

and require that we conclude Myers engaged in selective refusal. However, we find these cases

distinguishable on their facts. In the cases Appellees cite, the evidence showed that the plaintiffs

strictly complied with Rule 21a, that there were multiple failed attempts at delivery, and that the

defendants knew the plaintiffs were actively pursuing the litigation, acknowledged deliberately

refusing receipt of notice, moved without leaving a forwarding address, and/or offered no competent

controverting evidence. See Sharpe v. Kilcoyne, 962 S.W.2d 697, 699–700 (Tex. App.—Fort Worth

1998, no pet.); Gonzales v. Surplus Ins. Servs., 863 S.W.2d 96, 98, 101 (Tex. App.—Beaumont

1993, writ denied); In re Madeiros, No. 04-00-00827-CV, 2001 Tex. App. LEXIS 7670, at *5 (Tex.




                                                   6
App.—San Antonio Nov. 14, 2001, no pet.) (mem. op.).3

                In this case, the evidence shows that Appellees failed to fully comply with Rule 21a

by omitting a certificate of service and that there was a single attempted delivery of the notice of trial

setting. In addition, it is undisputed that after filing an answer, Myers made efforts to resolve the

matter, contacted counsel for Appellees on several occasions, both before and after trial, and on one

of those occasions informed counsel for Appellees that he had obtained pre-approval for a home

equity line of credit to pay the property taxes. It is also undisputed that in none of the conversations

that took place prior to trial did counsel for Appellees inform Myers of the trial setting and that

although Myers provided counsel for Appellees with his cell phone number, no one from the office

of counsel for Appellees called Myers to notify him of the setting. Further, the record contains no

evidence that Myers admitted to refusing the certified mail; rather Myers offered an affidavit in

which he unequivocally denied receiving notice of the trial setting and sworn testimony stating that

he did not recall receiving a notice of attempted delivery until after the trial date.

                Even assuming without deciding that Myers received the notice of attempted delivery

prior to trial, the mere fact that Myers did not claim the certified mail until after trial is not sufficient

to show avoidance or refusal. See In re E.A., 287 S.W.3d at 5 (post office’s repeated attempts to

deliver amended petition not evidence of refusal). Appellees’ allegation that Myers deliberately did

not pick up the certified mail containing notice of trial is not evidence that he dodged or refused

delivery. See Approximately $14,980.00, 261 S.W.3d at 189. “[E]vidence that [the] notice of [trial]



        3
         Appellees also cite Zuyus v. No’Mis Commc’ns., Inc., 930 S.W.2d 743 (Tex. App.—Corpus
Christi 1996, no pet.). However, Zuyus involves a no-answer default judgment. Because no advance
notice of hearing is required for a no-answer default judgment proceeding, see Tex. R. Civ. P. 107,
239; 930 S.W.2d at 747, we find this case inapposite.

                                                     7
went ‘unclaimed’ [for a period of time] 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.” Dowell v. Theken Spine,

LLC, No. 14-07-00887-CV, 2009 Tex. App. LEXIS 4316, at *6–7 (Tex. App.—Houston [14th Dist.]

June 2, 2009, no pet.) (mem. op.); see also Pessel v. Jenkins, 125 S.W.3d 807, 810 (Tex.

App.—Texarkana 2004, no pet.) (evidence of one mailing of notice by certified mail, attempted to

be delivered twice, was not proof of selective acceptance or refusal). Nor does evidence that Myers

subsequently accepted certified mail related to the case indicate that he dodged or refused service

of the notice of trial setting. It is undisputed that the notice of attempted delivery did not include the

identity of the sender or the contents of the certified mail. Especially in the absence of a certificate

of service, and in light of Myers’s undisputed pattern of communication, cooperation, and attempts

to resolve the matter with counsel for Appellees, we conclude that Myers’s failure to pick up the

notice of trial setting after a single notice of attempted delivery of an unidentified mailing from an

unidentified sender is not evidence of selective refusal of certified mail relating to the case. See

Etheredge, 169 S.W.3d at 382; Pessel, 125 S.W.3d at 809–10.4

                A defendant who has made an appearance is entitled to notice of the trial setting as

a matter of due process under the Fourteenth Amendment. Peralta v. Heights Med. Ctr., Inc.,

485 U.S. 80, 84–85 (1988); LBL Oil Co. v. International Power Servs., Inc., 777 S.W.2d 390,



        4
          We likewise conclude that Myers’s receipt of the notice of intent to sell by regular mail is
not evidence of selective acceptance or refusal of certified mail related to the case. See Pessel
v. Jenkins, 125 S.W.3d 807, 810 (Tex. App.—Texarkana 2004, no pet.) (notice by regular mail not
authorized method of service and fact that notice sent by regular mail was not returned while
certified mail was returned unclaimed was not evidence of selective acceptance or refusal of
certified mail).

                                                    8
390–91 (Tex. 1989). We agree with our sister courts that in order to protect concerns for procedural

due process, we should determine constructive notice on a “case-by-case basis rather than by

statement of a general rule.” See Sharpe, 962 S.W.2d at 700 (quoting Gonzales, 863 S.W.2d at 102);

Gonzales, 863 S.W.2d at 101–02 (issuing “restrictive holding directed to the specific facts of the

case before the trial court at the motion for new trial hearing”);5 see also Rabie v. Sonitrol

of Houston, Inc., 982 S.W.2d 194, 197 n.3 (Tex. App.—Houston [1st Dist.] 1998, no pet.);

(factually distinguishing Gonzales and finding no constructive notice in absence of

evidence of selective refusal/acceptance of certified mail); Stiles v. Stiles, No. 04-08-00885-CV,

2009 Tex. App. LEXIS 5409, at *11 (Tex. App.—San Antonio July 15, 2009, no pet.) (mem. op.)

(factually distinguishing Sharpe and finding no constructive notice where there was no evidence to

contradict defendant’s unequivocal statement that she did not receive notice of trial setting); Cantu

v. Salcedo, No. 04-07- 00161-CV, 2007 Tex. App. LEXIS 7443, at *8 (Tex. App.—San Antonio

Sept. 12, 2007, no pet.) (mem. op.) (same). While some facts may support a finding of constructive

notice that satisfies the Peralta due process concerns, see, e.g., Sharpe, 962 S.W.2d at 699–700

(twelve attempted mailings and defendant moved without leaving forwarding address, knew plaintiff

was actively pursuing litigation, acknowledged refusing multiple mailings, and even acknowledged

refusing mailing containing notice of trial setting), the facts in this case do not. See In re E.A.,

287 S.W.3d at 5–6; Pessel, 125 S.W.3d at 809–10. Without evidence that Myers dodged or refused


       5
           In Carpenter v. Cimarron Hydrocarbons Corp., 98S.W.3d 682, 686 (Tex. 2002), the
supreme court disapproved of Gonzales and other court of appeals decisions to the extent that they
can be read to hold that the Craddock test applies in a summary judgment case in which the
nonmovant is aware of its failure to file a response at or before a summary judgment hearing and
thus has an opportunity to apply for relief under the rules. The Carpenter court did not address the
use of a case-by-case approach for determining constructive notice in a post-answer default judgment
when the defendant had no actual notice.

                                                 9
delivery of certified mail, and in the absence of a certificate of service, we cannot impute

constructive notice to him, and it was an abuse of discretion for the trial court to do so. See

Approximately $14,980.00, 261 S.W.3d at 189–90; Etheredge,169 S.W.3d at 382. We sustain

Myers’s second issue.

                Having determined that Myers has shown he had neither actual nor constructive

notice of the trial setting, we conclude that he has met the first Craddock element. A defendant who

has been denied due process through lack of notice of a trial setting is entitled to a new trial without

further showing. See Peralta, 485 U.S. at 86; In re E.A., 287 S.W.3d at 3; Limestone Constr.,

143 S.W.3d at 544 (when first Craddock element established by proof that defaulting party did not

receive notice of trial setting, courts dispense with remaining Craddock requirements); Smith,

53 S.W.3d at 818 (same). Because the evidence shows that Myers did not have actual or

constructive notice of the trial setting, we do not reach the remaining two factors under Craddock.


                                          CONCLUSION

                For these reasons, we reverse the judgment of the trial court and remand the case for

a new trial.



                                                __________________________________________

                                                Melissa Goodwin, Justice

Before Justices Puryear, Henson, and Goodwin

Reversed and Remanded

Filed: December 16, 2011



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