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

CLERKTABLE 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 C O U R T 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 N O E VIDENCE 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)
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iINDEX 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

iiISSUES 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 UNDE R 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.

1SUMMARY OF THE ARGUMENT

HACA makes two arguments i n its Brief of Appellee that have not been addressed before. One relies on the doctrine that a f a ct-finder may believe all, s o me, or none of the evidence before it. Under this doctrine, HACA argues, a trial court always has the power to disbelieve all evidence ot h e r t han 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 Te x . R. Civ. P. 21a(e) prevails. Lewis' response is that this argument proves too much and is a m isapplication of the evidentiary effect of a legal presumption. The practical meaning of HACA' s argument is that the denial of a new t r i a l c an never be challenged when there is a proper certificate of service because, perhaps, the trial court chose to disregard all evidence to the c o ntrary. This is incorrect under the
T e xas case law involving presumptions in general, and constructive notice in particular.

2HACA's other new argument comes from the ce r t ified

mail green card that has a name that looks like "Jarrell Green" on it. 12/11/15 RR Vol.3 P x 1 . HACA argues that the trial court could infer t h at 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 c a n 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 e vidence of that fact (and also risk having it denied) but chose not to do so.

3ARGUMENT

THERE IS NO BASIS FOR THE TRIAL COU R T T O DISREGARD ALL THE TESTIMONY AT THE MOTION TO SET ASIDE DEFAULT JUDGMENT HEARING. Only two wit n e sses testified at the Motion to Set Aside Default Judgment hearing: the Appel l a n t Ardetra Lewis and her boyfriend Jarrell Green. No one testified for the Appellee HAC A . The core of the Appellee's argument is that the trial judge was free to d i s r egard all testimony from any or all witnesses. If the trial court d isregarded all testimony from all witnesses and only considered HACA's exhibits, the evidence of mailing and the presumption of service of notice w o uld be the only evidence, and HACA would win. This is, indeed, the direction th a t HACA's argument must take because both

w i t n esses who testified said that there was no act u a l notice, and HACA offered no evidence of actual notice. 1

1 HACA has chosen no t t o confront or rebut Lewis' and Green's explanation of how the mail could h ave been misdirected. T he issue of HACA setting up multiple mailboxes with the same apartment number resulting in the misdelivery of mail is di s cussed under "Step four: e xplain the situation if step three is proven" on p a g e s 24-26 of Appell a n t 's Brief. In the interest of saving (continued...) 4In support of its a r g ument 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. L o c k w ood , 166 S.W.3d 743, 745 (Tex. 2005). The language in Mathis , however, stands for alm o st 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 whe t h e r the trial judge can disregard all evidence on a

1 (...continued) space, reference is made to that discussion instead of repeating it here. Howe v er, HACA makes one statement that requires a specific response. On page 30 of Appellee's Brief, HACA states, "Here, H ACA indisputably complied with Rule 21a and, as explained above, there is evidence that Lewis and Green a c cepted 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 int e r est of saving space, reference is made to that discussion instead of repeating it here. 5disputed fact with o ut abusing its discretion. HACA

arg u es that the only witnesses offering direct evidence

on these fact could be di s b e l ieved 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 se t t i n g even though the notice of setting was e-filed after t h e close of business on November 2. 2 2. Lewis said she lives in her a p a r tment while Green used th e w ord "our" apartment in a sentence. 3 3. Lewis testifi e d 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 t h e 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 1 2 /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. 6Lew i s first disputes whether these are even

inc o nsistencies. If they are, are they inconsistencies of such a degree that they would justify a trial judge disbelieving all testimony o n any topic by these witne s s e s ? HACA argues repeatedly in its brief that Lewis' and Gr e en's testimony was so tainted by inconsistencies that they, in effect, offered no "competent" evidence controverting the presumption of service u nder 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 I n t e r e s t of Madeiros , No. 04-00- 00827-CV, 2001 Tex. App. LEXIS 7670 at *4, 2 0 0 1 WL 1411564 ( Tex. App.--San Antonio November 14, 2001, no p e t.), the only evidence the complaining party offered

was an unsupported allegation of no n o tice in a motion for new trial. That i s w h a t no "competent" evidence

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

disbel i eve all testimony from the only witnesses with first hand, personal knowledge.

8A PRESUMPTION OF SERVICE UNDER TEX. R. CIV. P.

21A(E) DOES NOT OVERCOM E A LL 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 eviden c e a n d 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 p r a c t i cal 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 9other 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.], n o pet.), does, however, discuss this issue. Th e c o u rt held that although the regular mail notice in that case did no t give rise to the presumption, even if t h e p resumption existed it was rebutted by the complaining p arty'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-t o -rebut "maybe the trial judge disbelieved everyone" argument. But that can not be the law if there is eve r t o be judicial review of the denial of a motion for new trial.

10THERE IS N O E VIDENCE SUPPORTING AN INFERENCE

THAT JARRELL GREEN SIGNED PLAINTIFF'S EXHIBIT 1. 12/11/15 RR Vol.3 Px1 is the certifi e d m ail notice that the appeal from the justice of the peace to the county court at law had been docketed. HACA states five times i n its brief that the signature on the certified mail green card for that notice "appears t o 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 "Jar r e ll 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. 11record, 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 cl e a r d enial as the only evidence in the record.
A t some point the argument "maybe the trial judge disbelieved every bit of evidence other than the evidence that fa v o r s me" has to come to an end. Otherwise the whole c o ncept of no evidence review and insufficient evidence review is a waste of time.

12CONCLUSION 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 fo r 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. Wherefo r e , Ardetra Lewis prays that this court

reverse the trial court's judgment and remand th i s case for a new trial. Alternatively, Ardetra Lewis prays that thi s c o urt enter such additional or alt e rnative 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 Ard e t ra Lewis

13CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of the above and foregoing has b e e n f o rwarded 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 t h e portions described in Tex. R. App. P. 9.4(i)(1), contains a total of 1,810 words. /s/ Jim Parker

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