                                                                      ACCEPTED
                                                                  03-15-00800-CV
                                                                        13149298
                                                       THIRD COURT OF APPEALS
                                                                  AUSTIN, TEXAS
                                                           10/10/2016 12:56:18 PM
                                                                JEFFREY D. KYLE
                                                                           CLERK
                IN THE COURT OF APPEALS
                     THIRD DISTRICT
                      AUSTIN, TEXAS               FILED IN
                                           3rd COURT OF APPEALS
                                               AUSTIN, TEXAS
ARDETRA LEWIS              §
                                          10/10/2016 12:56:18 PM
    APPELLANT              §
                                             JEFFREY D. KYLE
                           §                       Clerk
VS.                        §    CASE NO. 03-15-00800-CV
                           §
HOUSING AUTHORITY OF THE   §
CITY OF AUSTIN             §
    APPELLEE               §


       ON APPEAL FROM CAUSE NO. C-1-CV-15-008003
               COUNTY COURT AT LAW NO. 2
                  TRAVIS COUNTY, TEXAS
      HONORABLE ERIC M. SHEPPERD, JUDGE PRESIDING
                      (bench trial)
        HONORABLE TODD T. WONG, JUDGE PRESIDING
                 (motion for new trial)




        REPLY BRIEF OF APPELLANT ARDETRA LEWIS


                Oral Argument Requested




                     Jim Parker
                     Johnson, Rial & Parker, P.C.
                     3660 Stoneridge Road, B-102
                     Austin, Texas 78746
                     (512) 322-8100
                     (512) 322-8143 (fax)
                     State Bar No. 15488300
                     jim.parker@johnson-rial-parker.com
                     http://www.johnson-rial-parker.com
                     ATTORNEYS FOR ARDETRA LEWIS
                   TABLE OF CONTENTS
                                                      Page

TABLE OF CONTENTS.. . . . . . . . . . . . . . . . . .    i

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . .     ii

ISSUES PRESENTED. . . . . . . . . . . . . . . . . . .    1

SUMMARY OF THE ARGUMENT.. . . . . . . . . . . . . . .    2

ARGUMENT. . . . . . . . . . . . . . . . . . . . . . .   4
    THERE IS NO BASIS FOR THE TRIAL COURT TO
    DISREGARD ALL THE TESTIMONY AT THE MOTION TO SET
    ASIDE DEFAULT JUDGMENT HEARING.. . . . . . . . .     4

    A PRESUMPTION OF SERVICE UNDER TEX. R. CIV. P.
    21A(E) DOES NOT OVERCOME ALL TESTIMONY TO THE
    CONTRARY.. . . . . . . . . . . . . . . . . . . .     9

    THERE IS NO EVIDENCE SUPPORTING AN INFERENCE
    THAT JARRELL GREEN SIGNED PLAINTIFF'S
    EXHIBIT 1.. . . . . . . . . . . . . . . . . . .     11

CONCLUSION AND PRAYER FOR RELIEF. . . . . . . . . .     13

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . .     14

CERTIFICATE OF COMPLIANCE WITH TEX. R. APP. P. 9(i).    14




                           i
                 INDEX OF AUTHORITIES

Cases                                                 Page

Ashworth vs. Brzoska, 274 S.W.3d 324 (Tex.
App.--Houston [14th Dist.], no pet.). . . . . . . .     10

In re E.A., 287 S.W.3d 1 (Tex. 2009). . . . . . . . .    9

In the Interest of Madeiros, No. 04-00-00827-CV,
2001 Tex. App. LEXIS 7670 at *4, 2001 WL
1411564 (Tex. App.--San Antonio November 14,
2001, no pet.). . . . . . . . . . . . . . . . . . . .    7

Mathis vs. Lockwood, 166 S.W.3d 743 (Tex. 2005).. . .    5


Rules

Tex. R. Civ. P. 21a(e). . . . . . . . . . . . .   2, 5, 7




                           ii
                    ISSUES PRESENTED

THERE IS NO BASIS FOR THE TRIAL COURT TO DISREGARD ALL
THE TESTIMONY AT THE MOTION TO SET ASIDE DEFAULT JUDGMENT
HEARING.

A PRESUMPTION OF SERVICE UNDER TEX. R. CIV. P. 21A(E)
DOES NOT OVERCOME ALL TESTIMONY TO THE CONTRARY.

THERE IS NO EVIDENCE SUPPORTING AN INFERENCE THAT JARRELL
GREEN SIGNED PLAINTIFF'S EXHIBIT 1.




                            1
                 SUMMARY OF THE ARGUMENT

    HACA makes two arguments in its Brief of Appellee

that have not been addressed before.

    One relies on the doctrine that a fact-finder may

believe all, some, or none of the evidence before it.

Under this doctrine, HACA argues, a trial court always

has the power to disbelieve all evidence other than the

certificate of service on the piece of mail in question.

Perhaps, HACA argues, the trial judge disbelieved all

evidence other than its certificate of service.          Under

that possibility, the presumption of service under Tex.

R. Civ. P. 21a(e) prevails.

    Lewis' response is that this argument proves too much

and is a misapplication of the evidentiary effect of a

legal   presumption.   The   practical   meaning   of   HACA's

argument is that the denial of a new trial can never be

challenged when there is a proper certificate of service

because, perhaps, the trial court chose to disregard all

evidence to the contrary.     This is incorrect under the

Texas case law involving presumptions in general, and

constructive notice in particular.

                              2
    HACA's other new argument comes from the certified

mail green card that has a name that looks like "Jarrell

Green" on it.   12/11/15 RR Vol.3 Px1.    HACA argues that

the trial court could infer that this means the green

card was signed by Jarrell Green, thereby providing an

example of selective acceptance of correspondence.

    Lewis' response is that no such presumption can be

made in the face of Green's denial that he signed for

mail.   In addition, Green was cross-examined by HACA, but

HACA did not ask him about the exhibit.    HACA should not

be allowed to infer a fact when it had the opportunity to

provide direct evidence of that fact (and also risk

having it denied) but chose not to do so.




                             3
                        ARGUMENT

    THERE IS NO BASIS FOR THE TRIAL COURT TO
    DISREGARD ALL THE TESTIMONY AT THE MOTION TO SET
    ASIDE DEFAULT JUDGMENT HEARING.

    Only two witnesses testified at the Motion to Set

Aside Default Judgment hearing: the Appellant Ardetra

Lewis and her boyfriend Jarrell Green.   No one testified

for the Appellee HACA.     The core of the Appellee's

argument is that the trial judge was free to disregard

all testimony from any or all witnesses.    If the trial

court disregarded all testimony from all witnesses and

only considered HACA's exhibits, the evidence of mailing

and the presumption of service of notice would be the

only evidence, and HACA would win.   This is, indeed, the

direction that HACA's argument must take because both

witnesses who testified said that there was no actual

notice, and HACA offered no evidence of actual notice. 1


1   HACA has chosen not to confront or rebut Lewis' and
Green's explanation of how the mail could have been
misdirected.   The issue of HACA setting up multiple
mailboxes with the same apartment number resulting in the
misdelivery of mail is discussed under "Step four:
explain the situation if step three is proven" on pages
24-26 of Appellant's Brief. In the interest of saving
                                           (continued...)
                            4
    In support of its argument that the trial judge was

free to disregard all witness testimony and rely only on

the Tex. R. Civ. P. 21a(e) presumption, HACA cites Mathis

vs. Lockwood, 166 S.W.3d 743, 745 (Tex. 2005).                The

language   in   Mathis,   however,   stands    for   almost   the

opposite of what HACA cites it for.           Mathis holds that

disbelieving a witness is not affirmative proof of the

opposite of what the witness said.     In Mathis, that meant

that if the trial judge, hypothetically, disbelieved the

Defendant on non-service, that disbelief was no evidence

of actual service.

    In considering HACA's argument, the question becomes

whether the trial judge can disregard all evidence on a


1   (...continued)
space, reference is made to that discussion instead of
repeating it here.
However, HACA makes one statement that requires a
specific response. On page 30 of Appellee's Brief, HACA
states, "Here, HACA indisputably complied with Rule 21a
and, as explained above, there is evidence that Lewis and
Green accepted mail and avoided or refused mail
concerning this case."      HACA is free to make its
arguments regarding alleged avoidance of mail, but there
is no evidence whatsoever that mail was "refused." This
issue was also discussed in Appellant's Brief, and in the
interest of saving space, reference is made to that
discussion instead of repeating it here.
                               5
disputed    fact   without   abusing    its   discretion.    HACA

argues that the only witnesses offering direct evidence

on these fact could be disbelieved in their entirety

because    of   four   alleged       inconsistencies   in   their

testimony:

    1.     Lewis went to the clerk's office on November 5
           and was told there was no setting even though
           the notice of setting was e-filed after the
           close of business on November 2.2

    2.     Lewis said she lives in her apartment while
           Green used the word "our" apartment in a
           sentence.3

    3.     Lewis testified that she is the only one to
           receive mail while Green testified that he
           checks mail when Lewis asks him to, and "we" get
           other people's mail all the time because the
           mailbox is set up with multiple apartments
           having the same mailbox number.4

    4.     Green testified that he never signed for "mail,"
           but he did sign for a UPS package that was not
           mail.5




2   12/11/15 RR Vol.3 21/7-10 vs. 12/11/15 RR Vol.3 Px1.
3   12/11/15 RR Vol.2 16/24-17/1 vs. 20/19-20.
4   12/11/15 RR Vol.2 17/2-4 vs. 24/22-25/2 and 20/19-
21/1.
5   12/11/15 RR Vol.2 25/14-20.
                                 6
    Lewis        first    disputes       whether      these    are      even

inconsistencies.         If they are, are they inconsistencies

of such a degree that they would justify a trial judge

disbelieving       all    testimony      on    any    topic     by   these

witnesses?        HACA argues repeatedly in its brief that

Lewis'     and     Green's      testimony      was     so     tainted    by

inconsistencies          that   they,     in   effect,        offered     no

"competent" evidence controverting the presumption of

service under Tex. R. Civ. P. 21a(e).6                      This argument

assumes    that     the      four    alleged     inconsistencies         in

testimony neutralize all testimony from all witnesses,

thereby making it all "incompetent."                 Of the cases cited

by HACA, only one explains what "competent" means in this

context.     In In the Interest of Madeiros, No. 04-00-

00827-CV, 2001 Tex. App. LEXIS 7670 at *4, 2001 WL

1411564 (Tex. App.--San Antonio November 14, 2001, no

pet.), the only evidence the complaining party offered

was an unsupported allegation of no notice in a motion

for new trial.           That is what no "competent" evidence



6   Appellee's Brief at 17, 24, 26, 28, and 32.
                                     7
means.   It   does   not   mean   a   hypothetical   choice   to

disbelieve all testimony from the only witnesses with

first hand, personal knowledge.




                              8
      A PRESUMPTION OF SERVICE UNDER TEX. R. CIV. P.
      21A(E) DOES NOT OVERCOME ALL TESTIMONY TO THE
      CONTRARY.

      Once a presumption is overcome, it no longer plays a

role in the case.      "The presumption of service under Rule

21a   is   not   evidence    and       it   vanishes   when   opposing

evidence is introduced that a document was not received."

In re E.A., 287 S.W.3d 1, 5 (Tex. 2009).

      Nevertheless, HACA argues that the trial judge in the

case at bar could still rely solely on the presumption of

service to decide the case notwithstanding the testimony

of Lewis and Green.       As practical matter, however, such

a rule goes too far.        Were this the law, the denial of a

motion for new trial in a proper notice case could never

be reviewed because the trial judge might have ignored

all   evidence   and   relied      only     on   the   presumption   of

service.    More broadly, what happens to sufficiency of

the evidence appeals if the appellee can say, "The fact-

finder must have chosen to disbelieve all testimony from

the other side"?

      In almost all the cases found by both parties in the

case at bar, the complaining party submitted no evidence

                                   9
other than a pleading saying they were not served, so

believing       or     disbelieving     the    complaining   party's

evidence did not play a role.           Ashworth vs. Brzoska, 274

S.W.3d 324 (Tex. App.--Houston [14th Dist.], no pet.),

does, however, discuss this issue.              The court held that

although the regular mail notice in that case did not

give rise to the presumption, even if the presumption

existed    it    was    rebutted   by    the   complaining   party's

testimony of no notice.        A new trial was ordered.       Id. at

331.

       Under HACA's reading of the law, the Ashworth ruling

could never be made because of the impossible-to-rebut

"maybe the trial judge disbelieved everyone" argument.

But that can not be the law if there is ever to be

judicial review of the denial of a motion for new trial.




                                   10
    THERE IS NO EVIDENCE SUPPORTING AN INFERENCE
    THAT JARRELL GREEN SIGNED PLAINTIFF'S EXHIBIT 1.

    12/11/15 RR Vol.3 Px1 is the certified mail notice

that the appeal from the justice of the peace to the

county court at law had been docketed.                HACA states five

times in its brief that the signature on the certified

mail green card for that notice "appears to be Green's

name"7    and    "appears    to    be    that   of    Jarrell    Green."8

However, this signature is only relevant to the issue of

constructive notice if it is Green's signature.                  "Appears

to be" is not good enough.                 For the signature to be

relevant,       it   must   "be"   Green's,     not    just   the    words

"Jarrell Green" by an unknown author.                    The existing

record contains no evidence that Green signed for that

letter.    This is because HACA chose not to ask Green this

question.

    Green testified clearly under cross-examination that

he has not signed for mail.              12/11/15 RR Vol.2 25/14-20.

There    are    no   exemplars     of    Green's     signature      in   the


7   Appellee's Brief at 26.
8   Appellee's Brief at 12, 15, 26, and 28.
                                    11
record, so if HACA wanted to undermine Green's testimony,

it had to examine him on the exhibit.        It did not.      Green

was never asked, "Is this your signature?" or "Write your

signature   on   this   blank   piece   of   paper    ten   times."

Instead HACA chose to leave Green's clear denial as the

only evidence in the record.

    At some point the argument "maybe the trial judge

disbelieved every bit of evidence other than the evidence

that favors me" has to come to an end.               Otherwise the

whole concept of no evidence review and insufficient

evidence review is a waste of time.




                                12
            CONCLUSION AND PRAYER FOR RELIEF

    Ardetra Lewis received no actual notice of the trial

that resulted in a judgment against her, and there is no

basis for disbelieving every word of testimony from the

only two witnesses who testified in the case.        The trial

court abused its discretion in denying a new trial.         The

judgment should be reversed and remanded for a new trial.

    Wherefore,     Ardetra   Lewis   prays   that   this   court

reverse the trial court's judgment and remand this case

for a new trial.

    Alternatively, Ardetra Lewis prays that this court

enter such additional or alternative decisions to which

she may be entitled.

                        Respectfully submitted,
                        /s/ Jim Parker
                        Johnson, Rial & Parker, P.C.
                        3660 Stoneridge Road, B-102
                        Austin, Texas 78746
                        (512) 322-8100
                        (512) 322-8143 (fax)
                        State Bar No. 15488300
                        jim.parker@johnson-rial-parker.com
                        http://www.johnson-rial-parker.com
                        Attorneys for Appellant Ardetra
                        Lewis




                               13
                 CERTIFICATE OF SERVICE

    This is to certify that a true and correct copy of
the above and foregoing has been forwarded to the
following on October 10, 2016, by eserve.

Arthur Troilo, III
Heather R. Starling
Troilo Law Firm, P.C.
700 East Eleventh Street, Suite 300
Austin, Texas 78701

                                       /s/ Jim Parker

  CERTIFICATE OF COMPLIANCE WITH TEX. R. APP. P. 9(i)

    This is to certify that this Reply Brief of Appellant
Ardetra Lewis, except the portions described in Tex. R.
App. P. 9.4(i)(1), contains a total of 1,810 words.

                                       /s/ Jim Parker




                           14
