IN THE COURT OF APPEALS

THIRD DISTRICT

AUSTIN, TEXAS

ARDETRA LEWIS §

APPELLANT §

§

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

ACCEPTED

03-15-00800-CV

13149298

THIRD COURT OF APPEALS

AUSTIN, TEXAS

10/10/2016 12:56:18 PM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 10/10/2016 12:56:18 PM JEFFREY D. KYLE Clerk
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 factfinder 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