NO. 07-00-0589-CV IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL A JANUARY

7, 2002

______________________________ ROSALIND A. KELLY, APPELLANT

V. DEMOSS OW NERS ASSOCIATION AND ASSOCIATION MA NAGEMENT, IN C., APPELLEES

_________________________________ FROM THE 11 TH DISTRIC T COURT O F HARRIS COU NTY; NO. 96-50669; H ONORABLE MAR K DAVIDSON, JUDGE

_______________________________ Before BOYD, C.J., and REAVIS an d JOHNSON, JJ. Appellant

Rosalind A. Kelly pr

esents this appe al from a summary judgment that s he take nothing against Demoss Owners Association and Associat ion Management, Inc. (the Association)

on her action for damages alle gedly caused by the wrong ful foreclosure of her condominium unit by theAssociation. By her fir st issue, Kel ly contendsthe trial court erred in rendering summary judg mentbeca use t he As soci atio n did not s erve t he m otio n 21 d ays2

before the hearing. By her s econd issue, s he contends the trial court erred in g ranting summary judg me nt becau se the Association’s summa ry judgment proof was legally insuffi cient . Base d upon t he rat ional e expr essed h erein , we affirm. Kellypurchased a co ndomi nium in the Demoss subdivision in 1987 . Beginning in June 1993 and continui ng thereafter, Kelly established a his tory of de l inquent and par tial payments on her monthly maintenance asses sment. Because of her defaults, the Association foreclosed on the condominium. After the foreclosure , Kelly w as notified of the sale and was g iven 90 days to redeem the prop erty, w hich she failed to do. On October 4, 1996, Kelly, amember of the State Bar of Texas r esiding i n St. Thomas, Virgi n Islands, filed the underlyi ng action ag ainst the Assoc iation contendi ng that the foreclosure was wrongful, additionally seeking damages for slander, inten tional i nfl iction of emotiona l distress, negligent infliction of emot ional distress, and breach ofco ntract. Proced ing pro se , she signed the pet ition whi ch stated her mai ling addres s to be: Rosalind A. Kelly Pro Se 11237580 P.O. Box 308004 St. Thomas, U.S.V.I . 00802
Between 1998 and 2000, tri al setting s were c hanged on four occasions

. According to the clerk’s record, Kelly

contin ued to use the St. Thomas address as l ate as September 22, 1999, when she fil ed her motion to withdraw deemed admissions. After verifying that Kelly’s1 Althou gh Texas Rule of Appellate Proced ure 38.1(f) and (h) requires that the f act

statement

and the argument in an appellate brief “be suppor ted by record references,” Kelly’s fa ct st atement makes no referen ces to the record. Therefore, w e refer to the Association’ s fact statement and th e clerk’srecord.
3 mailing address was uncha nged wi th the trial court on August 7, 2000, counsel for the Assoc iation filed its no- evidence moti on for summary j udgment on Augus t 10, 2000, and mailed a copy of the moti on and notice of a submi ssion date of Septe mber 11, 2000, to Kelly’s St. Thomas address shown on her orig inal petitio n and her most re cent pleading filed on September 22, 1999.
Neither the record nor

Kelly’ s brief 1 inform us as to w hen Kel ly mo ved from St. Thomas. However, on August 15, 2000, she f iled a notice of change of addressand sent
a copy to the Association’ s counsel desi gnating her new addres s as 355 E. Vista Ridge Mall Drive, Suite 312 4, Lewisville, Texas, 75067, and provided telephon e and facsimile num bers. Upon receipt of the not ice of change of addr ess, on Augus t 21, 2000, counsel for the Association sent her a cour tesy copy

of the motion for summar y judgment, special exceptions, and notice of oral h earing on thespecial exceptions. Kel ly acknow ledged that she received the August 21 notice on August 23, 20 00. Then, on Sept ember 5, 2000, Kelly filed a response to t he motion for summary judgment contend ing that because shewas not served until Augus t 23, 2000, that thehearing dateof September 11, 2000 di d not provi de2 We do not consider Kel ly’s account of a court appear ance on September

5, 2000 because it is

not supported by

the record.
3 The order sig ned October 5 and the order signed December 11, 2000, w hen taken together, cons tit ute a fi nal ju dgme nt. Ma frige v. Ross , 866 S.W .2d 5 90, 5 91 n. 5 (Te x. 1993). We have also d etermined t hat our jurisdiction was invoked although appellant’s notice of appeal reflects she is appealing the order si gned October 5, 2000. The rulesof appellate procedure provide that a prematurel y filed noti ce of appeal need not be considered ineffective so long as it ca n pro perly be applied to a subsequent appe alable order. Tex. R. App. P. 27.1; see Berry- Parks Rental Equipment v . Sinsheimer, 842 S.W.2d 754, 757 (Tex.App .--Houston [ 1 stDist.] 1992, no writ)

. 4 her 21 days notice as required by Rule 166a(c). Kelly did not respond to the no-evidence motion with any summary judgment ev idence or file a motion for continu ance. 2 On October 5, 2000, the trial court sig ned an order on th e Association ’s motion for summary judgment which, among other things, provided that Kelly take nothing against the Association. This order be came final when the trial court signed a su bsequent order on December

11, 2 000 , over rulin g Kell y’ s m otion for new trial and ordering that Kelly take nothing from the As sociation. 3

No-Ev idence Summar y Jud gment Stan dard of R eview Where, as here, the s ummary judg ment does not speci fy or state t he grounds r elied on, i t will be affirmed on appea l if any of the grounds presented in the motio n ar e meri torio us. Ca rr v. Bra sher , 776 S.W .2d 5 67, 5 69 (T ex. 1989); Insurance Co. of N. Am.
v. Security

Ins., 790 S.W.2d 407, 410 (Tex.App. --Houston [1 st Dist.] 1990, no writ). Wh ere a motion is presented unde r Rule 166a(i) asserting there is no evidence of one or mo re5

essential elements of the no n-movant's claims upon which the non-movant would have the burden of proof at trial, the movant does not bear the burden of establ ishing eac h element of its own claim or defense as under 166a (a) or (b). Rather, alt hough the non-mov ing party is not requir

ed to marshal i ts proof, it must pr esent evidence that raisesa genuine fact issue on the challeng ed elements. See Tex. R. Civ. P. 166a, Notes and Comments.
Because a no-evide nce summary j udgment is ess entially a pretrial directed verdict,
we apply the s ame legal suffici ency standar d in revi ewing a n o- evidence summar y judgment as we apply in reviewi ng a di rect ed ver dict . Jack son v. Fiesta Mar t, Inc., 979 S.W.2d 68, 70 (Tex.App.- -Austin 1998, no pet.). Th us, our task as an appellate court is to asce rtain whether the non-movant produced any evidence of probative for ce to raise afact issue on the material q ues t ions presented. Id . W e consider all the evidence in the light most favorable to th e par ty against whom the no-ev idence summary judgment was rendered, disregar ding all contraryevidence and inferences. Merrill Dow Pharmaceuticals v. Havner, 953 S.W.2d 706, 711 (Tex. 1997), cert. denied, 523 U.S.1119, 118 S.C t. 1799, 140 L.Ed.2d 939 (1 998). A no-ev idence summary judgment is improperly granted if the non-movant presents more than a sci ntilla of probati ve evi dence t o raise a genuine is sue of material fact. FiestaMart , Inc ., 979 S.W .2d at 70-71. More than a scintilla of evidence ex ists whe n the evidence “ rises toa level t hat would enab le reasonable a nd fair-minded peopl e to differ in their conclusions.” Havner , 953 S.W.2d at 711.4 Kelly does not contend that

the trial court erre d in overruling her motion for new trial. 6 By her first i ssue, Kelly

contends the tr ial court erred in g ranting the motion for summary judgm ent b ecau se th e Ass ocia tion did n ot se rve the m otio n with in 21 days of the hearing. 4 We disagree. Texas Ru le of Civi l Procedure 1 66a(c) prov ides in part that: Except on leave of

court, w ith notice toopposing coun sel, the motion a nd any supporting affidavits shall be filed an d served at least twenty-one days before the time specified for hearing. Ex cept o n leave of co urt, the a dvers e par ty, notlater than sev

en days pri or to the day of hearing may

fi le an d ser ve opposing aff idavits or

other written response. No oral tes timony shal l be received a t the he aring.
The clerk’s record reflects that the motion for summ ary judgment was filed August 10, 2000, and counsel’ s certificateof servicedemonstrates that notice wa s sent to Kellyat her address in St . Thomas by cer tified mail. The c lerk’s r ecord also r

eflects that Kell y filed
a response to the motion for summary judgment on Septe mber 5, 2000. By her r esponse, she admitted that on Aug ust 23, 2000, she r eceived themotion for summary judgment and other matters mailed to her on August 21, 20 00, by counsel for the Associa tion, but contended she was not afforded 21 days noti ce under Rule 166a(c). H owever , in her response, Kelly di d not contend that s he did not recei ve the notice sent by certified mail on August 10 and she did not produce any s ummary judg ment evidence, by affidavit or otherwis e, that she had not r eceived the notice dated Aug ust 10, 2000. Further, Kelly’s response did not attempt to offer any proof that theAu gust 10 ma iling was not timely received as provi ded by Rule 2 1a of the Texas Rules of Civil Procedure. Addition ally, Kelly5 S ee, e.g., Texas Rulesof Civil Procedure 10, 21a, 57, 86, 99, 119, 19a, 165a,

196.7, 239a, 534, and 736. 7 did not resp ond to t he merit s of the motion for sum mary judgm ent, file a motion for continuance, or see k addi tional time to file her responses. Accordingly, because Kelly did notchallenge t he date of servi ce by proper summary judg ment evidence, we cannot consider the issue on appeal as g rounds for reversal. Ci ty of Houston v. Clear Creek Basin Authority, 589 S.W .2d 671, 677 (Tex. 1979 ). Moreover, by her r

esponse in thetrial cour t and brief herei n, Kelly acknowledg ed that
on August 21, she had actual notice of the filing of the motion for summ ary judgment, which
was 44 days before t he trial cour t signed thejudgment. Although Kelly did file a response contending that, based on the August 21 noti ce, she did not have 21 da ys notic e of the hearing set for September 11, 2000, she did not file a m otion for continuan ce requesti ng additional time to conduct discover y, to prepar

e her response, or

demonstrate her diligence in keeping thecourt and opposi ng counsel i nformed of her current mailing addr

ess. By he r original petition filed in October 1996, Kelly des ignated her mai ling address as P.O. Box 308004, St. Thomas, U.S.V. I. 00802, and ac cording to the clerk’s record, her address remained the same unt il she gave notice of the new address on Aug ust 15, 2000. Mailing addressesof parties or attorney s are material to many rul es of procedure. 5 Among other rules, Rule 21a req uires that every pleading, plea, motion, or application “shall be served on all other parties,” and by separate paragraph , provides:6 See 2 McDonald Texas Civil Practice §7:19 (1992). 8 If there is mor

e than one other par

ty represented by

different attorney

s, one copy of such pleading shall be deli vered or mailed to each at

torney in charge.
Before a pleading can be mailed, the r eceiving party must have prov ided the proper mailing address. Also, Rule 21a prov ides for alter native methods of service including United States mail. Fur

ther , und er R ule 57, t he ad dres s of a pro se party or the attorney

must be stated in the pleadings ; and, Rule 79 r equiresthat a petition state the residence s of the parties. Addressesof attorneys a nd pro se parties areessential because they furnish the opponent an address “to whi ch copiesof later pleadin gs and motions may be sent.” 6 As a member of the State Bar of Texas, Kelly was char

ged wit h notice that

if she wanted to ensure prompt notice to her of a motion or other filing by counsel for the Associa tion, she should promptly give notice of any n ew

mailing addr

ess. This record demonstrates th at any delay in service
o f actu al no tice of t he f iling of t he m otio n fo r sum mary j udgm ent wa s invit ed by K elly. Invited error is an equitable d octrine w hich prohibi ts a party from acting i n a way that misleads a trial co urt into commit ting err or and is we ll establi shed in Texasjurisprud ence. See Gener

al Che mical Corp. v. D e La Las tra, 8 52 S.W.2d 916, 920 (Te x. 1993)

. Acco rdin gly, because Kelly did not promptl y file a desi gnation of new address, she cannot comp lain on appe al that the tr ial court e rred i n rende ring summar y jud gme nt , notwithsta nding her contention that she was not afforded 21 days not ice under Rule 166a(c). Kel ly’s fir

st issue is

overrul ed.9

By her second issue, Kelly contends the tri al c ourt erred i n granting the motion for summary judg me nt becau se the Association’s summa ry judgment proof was legally insufficient. We disagree. Kelly’ s issue misplacesthe burden of proof. The motion under review is a no-ev idence motion and s tates in bold print in a sub headi ng, No Evi dence Summary

Judgment , an d refere nces Texas R ule of Civi l Procedure 1 66a(i) in t he subsequent

paragraph. Also, the motio n separately sets out the elements of Kell y’s all eged causes of action and asserts the absence of e vidence on those elements. Contraryto a traditi onal motion for summar y judgment , a party pres enting a noevidence motion for summa ry judgment is not re qu ired to submit summary judg ment evidence. R ule 166a(i) expressl y prov ides in part:

a pa rty w ithout presenti ng summary judgment ev idence may move for summary judg ment on the ground that there is no evidence

. . . . Where, as here, the movant asserts t hat there is no evidence of one or more essent ial elements of the non-movant’s claims upon w hich the non-movant would hav e the burden of proof at trial, the movant doe s not bear the burden ofestablish ing e ach el eme nt of its
own claim or defense as under Rule166a( a) or (b). Rather, alt hough the non-movant i s not required to marshal its proof, it must present evidence th at raises a genuine fact is sue on the challenged elements. See Tex. R. Ci v. P. 166a, Notes and Comments; see also Roth
v. FFP Operati ng Partners , 994 S.W.2d 190, 195 (Tex.App.--Amarillo 1999, pet. denied). Kelly’s second issue is overruled.10

Accordingl y, the judg ment of the trial court is affirmed.

Don H. Reavis Justice
Publish.