IN THE COURT OF APPEALS 12/03/96

OF THE

STATE OF MISSISSIPPI

NO. 93-CA-01266 COA

ROBERT E. THAMES

APPELLANT

v.

SMITH INSURANCE AGENCY, INC.

APPELLEE

CONSOLIDATED WITH

NO. 93-CA-01267 COA

ROBERT THAMES D/B/A MALTA MART APPELLANT

v.

SMITH INSURANCE AGENCY, INC. APPELLEE

CONSOLIDATED WITH

NO. 93-CA-01268 COA

SEAVIEW RESORTS, INC. APPELLANT

v.

SMITH INSURANCE AGENCY, INC. APPELLEE

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND

MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B

TRIAL JUDGE: HON. KEITH STARRETT

COURT FROM WHICH APPEALED: LINCOLN COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANT:
ROBERT ALAN BYRD

ATTORNEYS FOR APPELLEE:

JERRALD L. NATIONS

MICHAEL MADISON TAYLOR

NATURE OF THE CASE: CIVIL - INSURANCE

TRIAL COURT DISPOSITION: MOTION FOR CONTINUANCE OVERRULED

BEFORE BRIDGES, P.J., BARBER, AND MCMILLIN, JJ.

MCMILLIN, J., FOR THE COURT:

This matter is before the Court on three separate appeals. The appeals arise out of three judgments

rendered in the Circuit Court of Lincoln County -- two against Robert Thames, individually, and one

against Seaview Resorts, Inc., apparently a corporation controlled by Thames. All were brought by

Smith Insurance Agency, Inc., seeking recovery of sums alleged to be due on open account. The

cases were tried together in the circuit court although the record contains no order of consolidation.

Separate appeals were perfected in each one; however, by previous order of the Mississippi Supreme

Court, these cases were once again consolidated for consideration on appeal. The appeals do not

reach the merits of Smith Insurance’s claim, but rather assert that these defendants were denied a fair

trial because they did not receive timely notice of the trial setting as required by Mississippi Rule of

Civil Procedure 40. Finding no basis to disturb the judgment entered in these cases, we affirm.

I.

Facts

At a docket setting held on April 13, 1993, these cases were set for trial on the merits on May 25,

1993. Counsel for the defendants, though aware of the docket setting, did not attend due to

conflicting commitments. According to evidence given by a deputy court clerk, on or about April 20,

1993, the clerk’s office mailed a docket sheet showing the setting date for the three cases to the

attorney of record for the defendants. It is undisputed that the mailing was sent to "P. O. Box 1939,

Biloxi, MS 39538," which address was correct in all respects except that the correct zip code was

actually 39533. The clerk further testified that, at the special request of counsel for the plaintiff, she

mailed an additional copy of the docket sheet a few days later to the same address. There was

uncontroverted evidence that there is no separate postal branch with the zip code 39538.

On the morning of trial, counsel for the defendants filed a motion for continuance claiming that his

office had not received the mailed notices and that he had only learned of the trial setting the day
before by virtue of a telephone call from the trial judge. Prior to commencing the trial, the court

conducted a hearing on the continuance motion at which time both sides presented fact witnesses.

The defendants presented the testimony of Kenneth Johnston, their counsel of record, that no notice

of a trial setting had been received in his office. The trial court received an affidavit from Wanda

Stanovich, the office manager for defense counsel’s firm, stating essentially that, to her knowledge,

no notice of the trial setting had been received at the firm’s offices. The court also received the

testimony of the deputy court clerk, a part of which we have already mentioned. The deputy clerk

additionally testified that she had previously mailed a notice of the docket setting to the same address

with the erroneous zip code, and that none of the three mailings had been returned to the clerk’s

office as undeliverable.

The plaintiff presented testimony from Nolon Bowman, who was a managerial employee of the

United States Post Office in Brookhaven. He testified concerning the procedures required by postal

service regulations to deal with improperly addressed mail (especially as related to zip code errors),

what attempts were made to complete delivery, and the proper ultimate disposition of mail that could

not be delivered as addressed.

At the conclusion of the hearing, the trial court denied the continuance motion. Defense counsel

thereafter declined to participate in the trials. A jury was empaneled and heard evidence from the

plaintiff in all three cases, was instructed by the court, and returned verdicts in favor the plaintiff in

each case.

The defendants filed new trial motions, relying solely on the issue of failure to receive notice of the

trial setting. In denying the new trial motion, the trial court made the following specific finding of

fact:

I further find, as a finding of fact, that notwithstanding the wrong zip code being on the

mail to the attorneys, that it was properly mailed and that they did receive

it -- both the notice of the docket setting and of the trial setting. And the motions will be

overruled.

This appeal followed the denial of the new trial motions.

II.

Discussion
Mississippi Rule of Civil Procedure 40 governs the matter of trial settings and ensuring that the

parties are afforded notice of various critical events in the progress of litigation. See M.R.C.P. 40. In

order to permit parties adequate time for final trial preparation, the rule provides that a case must be

set on the court’s trial docket at least twenty days before the trial date. M.R.C.P. 40(b). In the

instance where a case is set for trial and no representative of a party was present at the docket

setting, the rule further provides the notice that must be given to the nonappearing party. The clerk is

required "within three (3) days after a case has been placed on the trial docket [to] notify all parties

who were not present personally or by their attorney of record at the docket setting as to their trial

setting. Notice shall be by personal delivery or by mailing of a notice within said three (3) day

period." M.R.C.P. 40(b).

This Court has examined the notice in the record purported to have been mailed to counsel for the

defendants in this case and concludes that it contained the necessary information to substantially

comply with the requirements of the cited rule. Thus, the only issue facing the Court is whether the

notice was actually received by the defendants’ attorney of record.

There is no doubt that defendants’ counsel vehemently denied actual receipt of the notice mailed to

his address. However, such a denial, standing alone, does not resolve the issue. "The rule is well

settled that proof that a letter properly directed was placed in a post office, creates a presumption

that it reached its destination in usual time and was actually received by the person to whom it was

addressed." Hagner v. United States, 285 U.S. 427, 430 (1932) (citations omitted); see also Threatt

v. Threatt, 212 Miss. 555, 559, 54 So. 2d 907, 908-09 (1951). Once the presumption is established,

the burden shifts to the party denying receipt to present evidence to rebut the presumption. Threatt,

212 Miss. at 559.

Hagner and Threatt share the distinction of having arisen before the advent of the zip code as a

device to facilitate mail delivery. The issue before this Court, therefore, becomes whether, on these

facts, the mailings to an address correct in all particulars except an error in the final digit of the fivedigit zip code can be said to be "properly directed" so as to give rise to the presumption of delivery.

There is no case authority in Mississippi directly on the issue; however, there is authority in other

jurisdictions regarding the effect that minor errors in addressing mail has on the presumption.

In In re Walker, the court considered a notice in a bankruptcy proceeding that had been sent to "153

N. Washington" instead of the correct address of "153 S. Washington." In re Walker, 125 B.R. 177,

179 (Bankr. E.D. Mich. 1990). The recipient denied receipt of the notice; however, the court refused

to seize on a nonsensical literal application of the presumption, and said that the test should be "if the

address provided by the debtor is sufficiently accurate to permit delivery by the United States Postal

Service to the appropriate party." Id. at 180. In In re Pettibone Corporation, notices were sent with

an incorrect law firm name and the complete absence of a zip code; however, the court still applied

the presumption of delivery, saying "where the address is only slightly incorrect the presumption

remains, but is weakened." In re Pettibone Corporation 123 B.R. 304, 310 (Bankr. N.D. Ill. 1990).

In that case, the court commented that mere "[d]enial by addressee of receipt of mail does not rebut

the presumption of receipt but merely raises a question of fact." Id. at 310 (citation omitted)

(emphasis supplied). It went on to adjudicate timely delivery of the notice despite the recipient

attorney’s protestations to the contrary, relying, in part on the fact that the notice had not been

returned by the postal service as undeliverable and that the proof showed that the attorney had
received other mailings addressed in the same manner. Id. at 310.

In In re Longardner & Associates, the court again dealt with a missing zip code and its effect on the

presumption of delivery. In re Longardner & Assocs., 855 F. 2d 455, 460 (7th Cir. 1988). The court

stated:

We also do not accept the creditor’s argument that the absence of a zip code on the

address used by the clerk precludes a finding that the notice was properly addressed.

Although the presumption of delivery may be weakened by the absence of a zip code, it is

strengthened in this case by the fact that the notice was never returned to the clerk’s

office.

Id. (citations omitted).

In a case remarkably on point, the United States Bankruptcy Court of Vermont dealt with a notice

that was correct in all respects except for an error in the final digit of the zip code. See In re STN

Enterprises, 94 B.R. 329, 331 (Bankr. D. Vt. 1988). That court, despite the error, applied the

presumption in its "weakened" form and found it to prevail over the mere denial of receipt upon

proof that it was never returned to the sender and that the recipient had received other mailings with

the same error. Id. at 334.

In the case now before us for consideration, there was ample proof that the clerk had mailed two

separate notices of the docket setting, neither of which was returned. There was further testimony by

the deputy clerk that she had previously mailed a notice of the docket setting to the same address,

and it had not been returned as undeliverable. There was affirmative proof from the postal service

representative that the first three correct digits of the zip code would have served to get the mail to

the Biloxi post office for further processing, since those first three digits determine the initial routing.

He informed the court of what steps would normally be taken to resolve zip code problems and

ensure the delivery of such mail. He also testified that standard postal procedures call for the return

of undeliverable mail to the sender if a return address is shown.

We determine, on these facts, that the cited cases from other jurisdictions are persuasive on the point

that this one-digit error in the zip code is not sufficient, as a matter of law, to defeat the application

of the presumption of delivery that accompanies proof of mailing, even though the presumption may

be "weakened" by the zip code error. The "weakened" presumption was, nonetheless, strengthened

by evidence that the mailings would have been deliverable as addressed, subject only to a special

processing procedure designed to resolve incorrect zip code insertions. The presumption was further

strengthened by proof that at least three mailings using the incorrect zip code were not returned to

the clerk as undeliverable. The burden of overcoming the presumption rested with the defendants.

They offered only a denial of receipt, albeit by two separate representatives of the recipient law firm.

This proof, then, posed a classic issue of disputed fact.

Since this was a disputed issue of fact on which the trial court acted as fact finder, this Court, on

appellate review, is not charged with determining de novo where we feel the preponderance of the

evidence might have been on the issue. Our review is limited to determining whether the conclusion
of the fact finder is against the substantial weight of the evidence. $107,000 United States Currency

v. State ex rel. Harrison County Sheriff’s Dep’t, 643 So. 2d 917, 920 (Miss. 1994). There is no

basis, on this record, to reach such a conclusion, and we are, therefore, bound to affirm the ruling of

the trial court that necessarily followed his resolution of this hotly contested fact issue.

We are left, then, with the limited issue of whether the admitted delay of the clerk’s office in mailing

the notices until approximately seven days after the docket setting, rather than within three days

required by Rule 40(b) is fatal to the notice. We conclude that, on these facts, it is not. The clear

emphasis of the rule is upon giving parties ample time to prepare for trial by requiring a case to be on

the trial docket at least twenty days in advance of the actual trial date. Nevertheless, the three-day

period to mail out notices to nonpresent parties contemplates that a litigant may not receive actual

notice of a trial setting, even upon strict compliance with the rule, until less than seventeen days prior

to trial. This is true since the rule permits a case to be set exactly twenty days after the docket setting

and, nevertheless, permits the clerk three days to mail out the notice, which, even assuming next-day

delivery, reduces the time of actual notice to sixteen days. In this case, the first notice was mailed

some thirty days in advance of trial, which provided substantially more advance notice than is

contemplated as necessary under the rule. Thus, we conclude that, absent a showing of prejudice, the

technical violation of the three-day requirement of Rule 40(b) by the clerk’s office does not serve to

void the notice. The defendants in this case put on no proof of such prejudice, neither do they

advance in their brief any facts that would support a finding of prejudice by virtue of this technical

violation of the rule. The rule was amended in 1985 because the rules committee "determined that

[the old] rule required too much notice of the date the case was to be set, and failed to require

adequate notice of the trial date." M.R.C.P. 40 cmt. This stated purpose of the amendment clearly

indicates that the committee determined that something in the range of sixteen to twenty days was

"adequate notice" in terms of time for trial preparation. In this case, th e trial court concluded that the

defendants had actual notice of trial for a substantially longer period, and there can, thus, be no

prejudice.

THE JUDGMENTS OF THE LINCOLN COUNTY CIRCUIT COURT ARE AFFIRMED.

STATUTORY DAMAGES AND INTEREST ARE AWARDED. COSTS OF THIS APPEAL

ARE ASSESSED TO THE APPELLANTS.

FRAISER, C.J., BRIDGES AND THOMAS, P.JJ., AND SOUTHWICK, JJ., CONCUR.

BARBER, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY

COLEMAN, DIAZ, KING, AND PAYNE, JJ.

IN THE COURT OF APPEALS 12/03/96

OF THE

STATE OF MISSISSIPPI
NO. 93-CA-01266 COA

ROBERT E. THAMES

APPELLANT

v.

SMITH INSURANCE AGENCY, INC.

APPELLEE

CONSOLIDATED WITH

NO. 93-CA-01267 COA

ROBERT THAMES d/b/a MALTA MART APPELLANT

VERSUS

SMITH INSURANCE AGENCY, INC. APPELLEE

CONSOLIDATED WITH

NO. 93-CA-01268 COA

SEAVIEW RESORTS, INC. APPELLANT

VERSUS

SMITH INSURANCE AGENCY, INC. APPELLEE

BARBER, J., DISSENTING:

I respectfully dissent.

The issue presented for our consideration is whether the dictates of Rule 40 of the Mississippi Rules

of Civil Procedure for providing notice of a trial setting were followed in this case. I conclude they

were not and would find that the trial court erred in denying both Thames’ motion for a continuance

and for a new trial.

Although the facts of this case are set out in the majority opinion, a more detailed account of events

adds to a clearer understanding of whether proper notice was given in this case. Therefore, I have

chronologically recounted the facts here with more specificity.

On March 18, 1993, the Lincoln County Circuit Clerk's office caused a notice of the setting of the

trial docket to be mailed to the Appellants’ attorney at "P.O. Box 1939, Biloxi, Mississippi 39538"

and not to his correct address of "P.O. Box 1939, Biloxi, Mississippi 39533". "39538" is a non

existent zip code. On April 12, 1993 during a telephone call with Honorable Keith Starrett, the circuit
judge, Appellants' attorney was told that a setting of the trial docket would be held on April 13,

1993. It appears from the record that no notice was received prior to the telephone call.

On April 13, 1993, the setting of the trial docket was held in the Lincoln County Circuit Court. The

three cases involving the Appellants and Smith Insurance were on the trial calendar for the trial

docket setting. Because of a scheduling conflict, Appellants' attorney did not attend this setting of the

trial docket.

On April 20, 1993, the Lincoln County Circuit Clerk's office received the trial docket. Appellants'

cases had been placed on the trial docket and had been set for trial on May 25, 1994. On April 20,

1993, the Lincoln County Circuit Clerk's office caused a notice of the Appellants' trial setting to be

mailed to Appellants' attorney at "P.O. Box 1939, Biloxi, Mississippi 39538," and not to his correct

address of "P.O. Box 1939, Biloxi, Mississippi 39533."

On April 26, 1993, the Lincoln County Circuit Clerk's office, pursuant to a request by one of Smith

Insurance's attorneys, caused another notice of the Appellants' trial setting to be mailed to the

Appellants' attorney. Once again it was addressed to the non-existent zip code of "39538".

On May 24, 1993, Appellants' attorney received a telephone call from Judge Starrett. During that

telephone call, Appellants' attorney was told that Appellants' cases were set for jury trial at 9:00 a.m.

on May 25, 1993.

On May 25, 1993, Appellants' attorney filed a motion for continuance and asked that the jury trial for

these cases be continued. This motion was supported by his affidavit in which he stated that he had

not received the notices of the setting of the trial docket and of the trial setting which were sent by

the Lincoln County Circuit Clerk's office.

At the hearing on the motion for continuance held on May 25, 1993, Nolan Bowman, an employee of

the United States Post Office located in Brookhaven, Mississippi testified regarding the procedure

which would be followed in the case of a letter addressed to an incorrect zip code. Appellants’

attorney testified that he had received neither notice of the setting of the trial docket nor of the trial

setting. A deputy circuit clerk testified that the notices had not been returned to the Circuit Clerk’s

office as "undeliverable". This, however, does not preclude the possibility that the notice was still in

the process of being delivered. In fact, the return receipt for the item was dated June 10, 1993

indicating that this was precisely the situation. As such, this testimony is not inconsistent with the

testimony of the Appellants’ attorney.

Appellants’ motion for continuance was denied by Judge Starrett. Appellants did not appear, and

Appellants’ attorney did not participate in the trial held on May 25, 1993. After a jury was selected,

evidence was offered by the attorneys for Smith Insurance. The jury rendered verdicts in each case

for Smith Insurance for a sum certain. Upon those verdicts, judgments were filed on June 2, 1993.

On June 4, 1993, Appellants’ attorney filed a "Rule 59 Motion for New Trial and to Alter or Amend

Judgment". By this motion, Appellants’ attorney, citing the failure of the Circuit Clerk’s office to

comply with the dictates of Rule 40 regarding mailing of the notice of trial setting and his non receipt

of the notices of the setting of the trial docket and the trial setting, sought to have the judgments

entered in the three cases set aside and a setting for a new trial fixed. This motion was later supported
by a copy of the return receipt for the trial setting which showed a delivery date of June 10, 1993.

After a hearing September 7, 1993, Judge Starrett apparently found that the Appellants had notice of

the trial setting which he found had been "properly mailed". Orders were entered denying the motion

for new trial on October 4, 1993.

The Appellants maintain that there was a clear and substantial departure from the edicts of Rule 40 of

the Mississippi Rules of Civil Procedure for providing notice of the setting of causes for trial. In such

circumstances, the Appellants assert that the trial court's failure to set aside the judgments and to

order a new trial constitutes an abuse of discretion.

Smith Insurance argues that the trial court did not abuse its discretion in denying the motion for the

continuance because, as the trier of fact, the trial judge had an opportunity to observe the witnesses

and rule on the motion. Even if Smith Insurance was correct that at the time of the motion for

continuance the evidence was such that the court was not manifestly wrong in finding that notice was

received, it should still not ultimately prevail on appeal. This is so because, given the additional

evidence of the untimely date on the return receipt which was available at the hearing on the motion

for a new trial, the court abused its discretion in denying such motion. Smith Insurance, in its brief,

does not address the issue of whether the court erred in denying the Appellants’ motion for a new

trial.

Rule 40 (b) provides as follows:

(b) Notice. The Court shall provide by written direction to the clerk when a trial docket

will be set. The clerk shall at least five (5) days prior to the date on which the trial docket

will be set notify all attorneys and parties without attorneys having cases upon the trial

calendar of the time, place, and date when said docket shall be set. All cases shall be set

on the trial docket at least twenty (20) days before the date set for trial unless a shorter

period is agreed upon by all parties or is available under Rule 55. The trial docket shall be

prepared by the clerk at the time actions are set for trial and shall state the case to be tried,

the date of trial, the attorneys of record in the case, and the place of trial. Additionally,

said trial docket shall reflect such attorneys of record and parties representing themselves

as were present personally or by designee when the trial docket was set. The clerk shall

within three (3) days after a case has been placed on the trial docket notify all parties

who were not present personally or by their attorney of record at the docket setting as to

their trial setting. Notice shall be by personal delivery or by mailing of a notice within

said three (3) day period. Matters in which a defendant is summoned to appear and

defend at a time and place certain pursuant to Rule 81 or in which a date, time and place

for trial have been previously set shall not be governed by this rule.

(M.R.C.P. 40(b) (emphasis added).
With little supporting analysis and no supporting authority, the majority summarily concludes that the

notice contained the necessary information to "substantially comply" with the requirements of the

rule. I cannot agree.

At the motion for continuance, Karen Maxwell, Lincoln County Deputy Circuit Clerk, testified that

the notices of the trial setting and the docket calls were mailed with the erroneous zip code. She also

testified that notices of the trial setting were mailed on April 20, 1993. This is seven days after the

setting of the trial docket. Rule 40 requires that the clerk notify all parties within three days, either by

mail or personal delivery of the trial setting, if they were not present at the docket setting. Therefore,

the clerk did not comply with this requirement of Rule 40. Additionally, the postal return receipt for

the trial docket, also sent to the wrong zip code, was dated June 10, 1993. This was well after the

trial date of May 25, and certainly not within the twenty-day minimum notice required by Rule 40.

The usage of the word "shall" in Rule 40 denotes that the contents of the rule must be complied with

and are not merely suggestive in their purpose. Given these factors, the Appellants did not receive the

required timely notice of the trial setting. This deficiency was not cured by a telephone call made less

than twenty-four hours before trial and ostensibly for the purpose of notification from the trial judge

to the Appellants’ attorney. See King v. King, 556 So. 2d 716, 719 (Miss. 1990). The trial court’s

finding, therefore, that notice of the trial setting was "properly mailed" is contrary to the

overwhelming weight of the evidence and, thus, manifestly wrong.

In affirming the lower court, the majority cites the general rule that mail properly addressed and

deposited in the mail system is presumed to have been received by the party to whom it is addressed.

Hagner v. United States, 285 U.S. 427, 430 (1932). The glaring distinction which exists in the case

before us is that the notice in question was not properly addressed. The majority also cites Threatt v.

Threatt, 54 So. 2d 907, 908-09 (Miss. 1951) in support of this presumption. Threatt, however, is

also distinguishable in that there was no showing that the item was mailed with an incorrect address.

Furthermore, this case is not dispositive of the issue because it was decided prior to the adoption of

the Mississippi Rules of Civil Procedure.

The majority goes on to cite various bankruptcy cases from foreign jurisdictions to buttress the

validity of their conclusion that because of the existence of a presumption of delivery, we must find

that the Defendants-Appellants received timely notice. These cases hold that where an address is only

slightly incorrect the presumption of delivery may still exist in a weakened state, if there is sufficient

evidence from which to presume that the addressee nonetheless received the incorrectly addressed

notice. Such evidence has historically been that the recipient had received other mailings with the

same error in the address. Nevertheless, in the facts before us, there is no showing that the

Appellants’ attorney had previously received mail with the non existent zip code used on the notice.

Accordingly, there is insufficient evidence presented in the instant case to warrant a weakened

presumption.

Furthermore, the limited persuasiveness of these opinions is further diminished by the existence of

other decisions from various jurisdictions which contradict those cited by the majority. These cases

hold that where an incorrect address is used the presumption of receipt does not arise. This is true

even though the mail contains a return address and was not returned to sender. Randbre Corp. v.
Ladney (In re Randbre Corp.), 66 B.R. 482, 485-86 (Bankr. S.D.N.Y. 1986) (citing Optivision Inc.

v. Syracuse Shopping Ctr Assoc., 472 F. Supp. 665, 693 (N.D.N.Y. 1979); Nassau Ins.Co. v.

Murray, 386 N.E.2d 1085, 1086 (N.Y. 1978).

Unlike the opinions cited above, the majority finds reassurance in the fact that the notice sent to the

Appellants’ attorney had not been received by the deputy clerk as undeliverable. I, however, find no

consolation in this fact given the limited time frame involved. Simply put, the notice was still in the

process of being delivered at the time of trial. It seems to me that the majority confuses the issue of

"timely notification", as required by the rule, with that of "eventual notification". As the court in

Randbre Corp. v. Ladney, astutely observed, "[t]he tenacity of the postal service in delivering

imperfectly addressed mail cannot be credibly established . . . . Indeed such tenacity, which may be

exhibited in specific instances, is improbable as a general proposition." Randbre Corp., 66 B.R. at

486.

The majority also finds that the Appellants in this case fail to show prejudice. Where a defendant does

not receive timely notice of a trial date, prejudice is assumed. See Walker v. Parnell, 566 So. 2d

1213, 1216 (Miss. 1990) (providing that where notice was mailed to wrong address, judgment was to

be reversed). Therefore, the argument that the Appellants did not make a showing of surprise or

prejudice does not resolve the issue before us. Such a showing would only be required in a Rule

60(b) motion for relief from judgment, not in a motion for new trial. Id.

The majority states that it is bound to affirm the ruling of the trial court on a contested issue of fact.

It is equally true, however, that as a question of law, we are compelled to uphold the dictates of the

Mississippi Rules of Civil Procedure. It is clear from the record that the requirements of Rule 40

were not complied with. The trial docket was not mailed within the required three-day period, and it

is apparent from the postal return receipt on the trial docket setting that the Defendant did not

receive the required twenty-day notice. Therefore, the trial court abused its discretion in denying the

Appellants' motion for a new trial on this basis. Given the above, I would reverse and remand for a

new trial.

COLEMAN, DIAZ, KING AND PAYNE, JJ., JOIN THIS SEPARATE WRITTEN OPINION.