                         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

                                     ----------

                        MEMORANDUM OPINION 1

                                     ----------

      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.

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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




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