                                                                                   ACCEPTED
                                                                              04-15-00233-CV
                                                                   FOURTH COURT OF APPEALS
                                                                        SAN ANTONIO, TEXAS
                                                                         4/16/2015 1:29:25 PM
                                                                                KEITH HOTTLE
                                                                                       CLERK
                           04-15-00233-CV
                     NO. _____________________

                                                            FILED IN
                     IN THE COURT OF APPEALS         4th COURT OF APPEALS
                                                      SAN ANTONIO, TEXAS
                   THE FOURTH DISTRICT OF TEXAS      04/16/2015 1:29:25 PM
                                                         KEITH E. HOTTLE
                          SAN ANTONIO TEXAS                   Clerk



            JEREMIAH MARTIN, and all other OCCUPANTS
                                                       Appellant

                                      v.


         FEDERAL NATIONAL MORTGAGE ASSOCIATION
                                                          Appellee.


           Appeal from the County Court at Law Number Three
                          Bexar County, Texas
                   Trial Court Case No. 2015CV01933
                    Hon. David Rodrigquez, presiding

Oral Argument Requested

    APPEAL OF DISMISSAL OF MOTION TO REINSTATE
    FORCIBLE DETAINER APPEAL TO BEXAR COUNTY
               BRIEF FOR APPELLANT




                                  1
                              Identity of the Parties

Appellant/Defendant

Jeremiah Martin

Counsel for Appellant/Defendant

James Minerve
State Bar No. 24008692
115 Saddle Blanket Trail
Buda, Texas 78610
(210) 336-5867
(888) 230-6397 (Fax)
(Appellate, Post-trial, and Appellate)


Appellee/Plaintiff

FEDERAL NATIONAL MORTGAGE ASSOCIATION

Counsel for Appellee/Plaintiff

Jeff Lewis
Texas State Bar No. 12290000
Robertson Anschutz Vetters
10333 Richmond Avenue, Suite 550
Houston, Texas 77042
Phone: (713) 980-9500
Fax: (713) 888-2703
(Appellate, Post-trial, and Appellate)




                                         2
                                                    Table of Contents

Identity of Parties and Counsel ................................................................................. 2
Table of Authorities ................................................................................................... 4
Statement of the Case............................................................................................. 5-6
Statement Regarding Oral Argument ........................................................................ 7
Issues Presented ......................................................................................................... 8
Statement of Facts ................................................................................................ 9-10
Summary of the Argument....................................................................................... 11
Argument.................................................................................................................. 11
         The Cliff v. Huggins Holding ........................................................................ 11
Prayer ....................................................................................................................... 13
Certificate of Service ............................................................................................... 14
Certificate of Compliance ........................................................................................ 14




                                                               3
                                              Table of Authorities
Cases                                                                                                      Page

Cliff v Huggins, 724 S.W.2d 778 ............................................................................. 10
Southland Life Ins. Co. v. Greenwade, 138 Tex. 450, 159 S.W.2d 854 (Comm’n
App.1942, opinion adopted) .................................................................................... 10

Texas Rules of Civil Procedure
Texas Rule of Civil Procedure 21a .......................................................................... 10
Texas Rule of Civil Procedure 143a ........................................................................ 11




                                                        4
                           Statement of the Case

1. On February 3, 2015, Bexar County Justice Court, Precinct 3-1 issued

   judgment in forcible detainer Cause 31E1500070 in favor of the Appellee.

   See Exhibit A.

2. On February 9, 2015 the Appellant perfected an appeal. See Exhibit B.

3. The Defendant nor his attorney of record received the notice prescribed under

   Texas Rules of Civil Procedure 143a, setting the 20 day time period within

   which the appellant must pay the court costs (TRCP 143a notice).

4. March 17, 2015, the Bexar County Clerk sent the Defendant’s attorney a

   notice stating the appeal was being dismissed for failure to pay the court costs

   under TRCP 143a.

5. The Bexar County Clerk sent the notice certified mail return receipt property

   addressed to the Defendant’s attorney, as required by TRCP 21a. However,

   the Defendant’s attorney never received the notice.

6. The 20 day notice was mis-delivered, because the return receipt was signed

   by someone other than James Minerve or one of his employees. See Exhibit

   C.

7. Attorney James Minerve operates out of a home office at 115 Saddle Blanket

   Trail, Buda, Texas 78610. Mr. Minerve employed only two persons at all


                                                               Page 5 of 14
   times relevant to this matter, legal assistants Kevin Gates and Maria Rogers.

8. Mr. Minerve nor his legal assistants signed the return receipt, and neither of

   them received the 20 day notice.

9. A properly addressed notice placed in the US mail certified return receipt

   requested creates a rebuttable presumption that the Defendant received notice.

   However, if receipt of the notice is challenged, the presumption vanishes; and

   if the Defendant proves he didn’t receive notice, as in this case, the Defendant

   is deemed to not have been notified as required by TRCP 143a. In this case,

   the Defendant’s appeal and supersedeas bond is still in effect.




                                                              Page 6 of 14
                      Statement Regarding Oral Argument

Pursuant to Texas Rules of Appellate Procedure 39.1, Jeremiah Martin requests oral

argument and submits that it would materially aid the decisional process in this case.




                                                                  Page 7 of 14
                                Issues Presented

     Appellant respectfully submits the following motion for rehearing brief which

outlines the legal framework in which the Court should consider the following:

      1.    Whether the Defendant received notice required by TRCP 143a?




                                                               Page 8 of 14
                        STATEMENT OF FACTS
10.On February 3, 2015, Bexar County Justice Court, Precinct 3-1 issued

   judgment in forcible detainer Cause 31E1500070 in favor of the Appellee.

   See Exhibit A.

11.On February 9, 2015 the Appellant perfected an appeal. See Exhibit B.

12.The Defendant nor his attorney of record received the notice prescribed under

   Texas Rules of Civil Procedure 143a, setting the 20 day time period within

   which the appellant must pay the court costs (TRCP 143a notice).

13.March 17, 2015, the Bexar County Clerk sent the Defendant’s attorney a

   notice stating the appeal was being dismissed for failure to pay the court costs

   under TRCP 143a.

14.The Bexar County Clerk sent the notice certified mail return receipt property

   addressed to the Defendant’s attorney, as required by TRCP 21a. However,

   the Defendant’s attorney never received the notice.

15.The 20 day notice was mis-delivered, because the return receipt was signed

   by someone other than James Minerve or one of his employees. See Exhibit

   C.

16.Attorney James Minerve operates out of a home office at 115 Saddle Blanket

   Trail, Buda, Texas 78610. Mr. Minerve employed only two persons at all


                                                               Page 9 of 14
   times relevant to this matter, legal assistants Kevin Gates and Maria Rogers.

17.Mr. Minerve nor his legal assistants signed the return receipt, and neither of

   them received the 20 day notice.




                                                             Page 10 of 14
                       SUMMARY OF THE ARGUMENT

      A properly addressed notice placed in the US mail certified return receipt

requested creates a rebuttable presumption that the Defendant received notice.

However, if receipt of the notice is challenged, the presumption vanishes; and if the

Defendant proves he didn’t receive notice, as in this case, the Defendant is deemed

to not have been notified as required by TRCP 143a. In this case, the Defendant’s

appeal and supersedeas bond is still in effect.

                                     ARGUMENT

       Whether the Defendant received notice required by TRCP 143a?

The Cliff v Huggins Holding

      The County Court dismissed the Defendant’s motion to reinstate its appeal

because the County Court held that a properly addressed notice placed in the US

mail certified return receipt requested is irrefutable that notice under TRCP 21a has

been satisfied. The County Court ignored case law. In Cliff v Huggins, the Texas

Supreme Court held that a properly addressed certified return receipt notice creates

a rebuttable presumption notice was received; however, if the receipt of the notice

is challenged, the presumption vanishes; and if the Defendant proves that notice was

in fact not received; then notice required by TRCP 21a is deemed not met. Cliff v

Huggins, 724 S.W.2d 778, 780, ( (2987) (holding, “Rule 21a sets up a presumption


                                                                 Page 11 of 14
that when notice of trial setting properly addressed and postage prepaid is mailed,

that the notice was duly received by the addressee. See Southland Life Ins. Co. v.

Greenwade, 138 Tex. 450, 159 S.W.2d 854 (Comm’n App.1942, opinion adopted).

This presumption may be rebutted by an offer of proof of nonreceipt. In the absence

of evidence to the contrary, the presumption has the force of a rule of law. Id., 159

S.W.2d at 857. The presumption, however, is not “evidence” and it vanishes when

opposing evidence is introduced that the letter was not received.”).

      The green card return receipt, Exhibit C, clearly shows that the return receipt

was signed by someone other than James Minerve (the Defendant’s attorney of

record), Kevin Gates (James Minerve’s legal assistant), or Maria Rogers (James

Minerve’s legal assistant and only other employee at all times relevant to this

matter). James Minerve has complete control over his home/office, lives alone, and

no one other than James Minerve or his employees could receive mail at his

home/office. Given that the Defendant has produced evidence and the Bexar County

Clerk has not adduced any evidence, and the presumption of service has vanished,

according to Texas Supreme Court jurisprudence, the Defendant is deemed not to

have been notified as required by TRCP 143a. Therefore, the Defendant’s appeal

and supersedeas bond is still in effect.




                                                                 Page 12 of 14
                                     PRAYER

      1.       The    Appellant/Defendant    prays     the   Court    reinstates   the

Appellant’s/Defendant’s forcible detainer appeal to Bexar County Court, Cause

2015CV01933.

      2.       The Appellant/Defendant prays the Court recalls the writ issued by the

lower court.

Date: April 16, 2015                                  Respectfully submitted,
                                                     /s/ JAMES MINERVE
                                                       James Minerve
                                                       State Bar No. 24008692
                                                       115 Saddle Blanket Trail
                                                       Buda, Texas 78610
                                                       (210) 336-5867
                                                       (888) 230-6397 (Fax)
                                                       Attorney for Appellant
                                                       Jeremiah Martin




                                                                   Page 13 of 14
                          CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the above and foregoing
document was sent to the Appellee in accordance with the Texas Rules of Civil
Procedure on this 16th day of April, 2015:

Jeff Lewis
Robertson Anschutz Vetters
10333 Richmond Avenue, Suite 550
Houston, Texas 77042
Phone: (713) 980-9500
Fax: (713) 888-2703

                                /s/ James Minerve
                        ______________________________
                                  James Minerve


                       CERTIFICATE OF COMPLIANCE

      Relying on the word count function in the word processing software used to
produce this document, I certify that the number of words in this reply (excluding
any caption, identity of parties and counsel, statement regarding oral argument, table
of contents, index of authorities, statement of the case, statement of issues presented,
statement of jurisdiction, statement of procedural history, signature, proof of service,
certification, certificate of compliance, and appendix) is 695.

                                /s/ James Minerve
                        ______________________________
                                  James Minerve



                                                                   Page 14 of 14
