### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-10-00410- CV

H. Carl Mye rs, Appellant

v. County of

Williamson, Texas; City of Austin, T exas; Austin Com m uni ty College ; Anderson Mill Ltd . District ; Anderson Mill Municip al District ; Upper Brushy Creek Wate r Contr ol & Im provem ent Distr ict #1A; Williamson County Em erge ncy District

#1; and Roun d Rock Ind ependent School District, Appellees

F ROM TH E DISTRI CT COURT O F WI LLIAM SO N COUNTY , 26TH JUDICI AL DISTRICT NO. 09- 619- T26, H ONO RAB LE B ILLY RAY STUB B LEF IELD, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

H. Carl My ers, an attorney appea ring pro se, appea ls the trial co u rt ’s denial of his motion for new trial and to set aside a post-answe r defa u l t j u dg ment ag ainst him in favor of Wil liamson County , Texas; the C ity of Austi n, Texas; Austin Communi ty C o l l ege ; t h e Anderson Mill L td. District; the Ander son Mill Municipal District; the Upper Br ushy Creek Water Control & I mprovement District #1A; Wil l i am son County Emerg ency District #1; and Round Rock I ndepende nt School District (A p p el l ees). I n two issues, My ers contends that Appellee s failed to prove that he had a ctual or c onstructive noti ce of the t rial setti ng . For the reasons that follow, we

reve rse the judg ment and re mand this case to the tr ial court for a new trial.F ACTUAL AND P ROCEDURAL BACK GR OUND Wil liamson County , on behalf of itself and the political subdivisions for which it collects proper

ty taxes, filed suit ag ainst H. Carl My ers in Sep t em b er 2009 to collect delinquent

1 proper ty taxes owed on My ers’ s residenc e, associated penalties and interest, and attorney ’s fee s. My ers timely filed an answe r pro se. Round Rock I ndepende nt School District, Ander son Mill L td. District, Austin Comm unity College , and the City

of Austin subsequently

intervene d in the action
to collect taxes owed on My ers’ s residenc e to those entities. App el l ee s set the case for trial on Mar ch 3 0 , 2010. My ers did not appea r. Appellee s offe red into evidenc e cer tified copies of tax

rec ords ref

lecting amounts owed and a copy of a notice of trial Appellee s had sent to My ers by

cer tified mail, return rec eipt reque sted. At trial, counsel for Appellee s stated t hat he was offering “a Notice of Trial, return rec eipt, showing Def endant did r ece ive proper notice of today ’s setting.” The trial court g rante d defa u l t j udg ment in the amount of $13,046.27, awa rded fore closure of Appellee s’ liens, and orde red the proper ty sold as under e x ecution. My ers filed a timely motion for new trial and to set aside defa ult judgme nt for failure to provide notice of

setting, w hich the cour

t hear d on J une 22, 2010. Mey ers testified by aff idavit and in person. Wil liamson County ’s attorney , Craig Morton, testified on behalf of Appellee s. Both parties offe red documentar y evidenc e, including the notice of trial setting and United States Postal Service (USPS) recor ds relatingto the cer tified mailing.

Ander son Mill Municipal District , Upper Br ushy Creek Water Control & I mprovement 1 District #1A, and Williamson C ounty Emerg ency

District #1. 2M orton testified that his office mailed a notice of trial setting to My ers at hi s

residenc e addre ss by cer

tified mail, return rec eipt reque sted. Morton also testified that when he had
not rec eived the return rec eipt by the eve of trial, he or his leg al assistant went to the USPS website and enter ed the return rec eipt number to “tra ck and confirm” its delivery status, rec eiving a messag e that delivery status information for the item wa s n o t av ai lable on the website. Morton stated that he later lea

rned that he or his leg al assistant had inadvertently enter ed the wr ong return

rec eipt number.

Morton al s o testified t hat after Appellees obt ained the defa ult judgme nt, his office mailed a notice o f i n tent to sell the proper ty to My ers on April 6, 2010, by regular mail and that, afte r rec eiving it, My ers contac ted Morton’s office stating that he had not rec eived proper notice of the t ri al s et t ing. Morton testified that afte r talking with My ers, he ag ain visited the USPS website to trac k and confirm delivery of the notice of trial setting, this time rec eiving a messag e that

a notice of attempted delivery had been lef t at My ers’ s residenc e addre ss on Fe bruar y 3, 2010. Morton further stated that he subsequently t ra v el ed t o the Geor g etown post office wher e he obtained a document indicating that a postal ca rr i er had left a notice of attempted delivery of the notice of trial setting on Fe bruar y 3, 2010, and that the item ha d been delivere d on April 16, 2010,
sevente en day s afte r t ri al

. T h e USPS repor t ref lected no other activity on the cer tified mailing. Morton also testified that his office rec eived the sig ned re turn rec eipt dated Apr il 16, 2010.

My ers testified that he re ceive d no notice of the t rial setti ng prior to the date of the
t rial and first lear

ned that the litigation was proce eding and Appellee s had set it for trial wh en he rec eived the notice of intent to sell. He stated that he returne d home o n e d ay i n April to find

a USPS notice of attempted delivery , signe d it, put it back in his mailbox , and subseque n t l y
3rec eived the cer tified mail contain i n g the notice of trial setting. The trial court did not rule on My ers’ s motion, and it was overrule d by opera tion of law. This appe al followed.

DISCUSSIO N The dispositi on of a motion for new trial is within the trial court’s sound discretion;

we will n o t d i s t urb the court’s ruling absent an abuse of that discretion. W affle House, Inc.

v. W illiams , 313 S. W

. 3 d 7 9 6 , 8 1 3 (Tex

. 2010). A trial court abuses its discretion if it acts in an

unrea sonable or arbitra

ry manner or without re fer ence to any g uiding rules and principles. Cire v. Cummings , 134 S.W .3d 835, 838–39 (Tex. 2004). Gene rally , befor e a de fault judg ment can be
set aside and a new trial g rante d, the defa ulting party must satisfy the three elements of the Craddock
test. Craddock v. Sunshine Bus Lines , Inc. , 133 S.W .2d 124, 126 (Tex. 1939)

. The Craddock test is well-e stablished: A trial court should set aside a defa ult judgme nt an d o rd er a new trial in any

case in which (1) the defa ulting party ’s failure t o an s we r or to appea r was not intentional, or the result of conscious indiffer ence , but was due to a mistake or an acc ident; (2) the defa ulting party has

a meritorious defe nse or claim; and (3) the motion is filed at a time when the g ranting of a new trial will not occasion dela

y or work othe r injury

to the preva iling par

ty

. Id. at 126. A party who proves lack of notice of a trial setting satisfies the first Craddock element beca use one cannot show intent or conscious indiffer ence wi t h re gar d t o a trial of which one is

unawa re . Mathis v. Lockwood , 166 S.W .3d 743, 744 (Tex. 2005); Limestone Constr., Inc. v. Summit Commercial Indus. Props., Inc. , 143 S.W .3d 538, 543–44 (Tex. App.—Austin 2004, no pet.) (citing Smith v. Holmes , 53 S.W .3d 815, 818 (Tex. App.—Austin 2001, pet. denied) ). My ers contends that the trial court err ed in allowing his motion for new trial to be overr uled by operation of law beca use

4he had no notice of the trial setting. In his first issue, My ers argues that the trial court err ed beca use 2 he did not have actua l notice of the trial setting. Howeve r, Appellee s do not dispute that My ers had

no actua l notice of the trial setting until afte r the trial court rende red defa ult judgme nt, and we need
not a ddress My ers’ s first issue. I n his se cond issue, on which the parties join issue, My ers asser ts that the trial cour

t erre d beca

use he ha d no constructive notice of the trial se tting. A serving party may establish constructive notice by demonstrating compliance with Rule 21a of the Texas Rules of Civil Procedur e and prese nting evidenc e that the intended rec ipient eng ag ed in selec tive acc eptanc e or ref usal of ce rt ified mail relating to the case . See Tex. R. Civ. P. 21a; Approximately $14,980.00 v. State , 261 S.W .3d 182, 189 (Tex. App.—Houston [14t h Dist.] 2008, no pet.); Etheredge v. Hidden Valley Airpark Ass’n , 169 S.W .3d 378, 382 (Tex. A pp.—For t Worth 2005, pet. denied)

. There fore , we first deter mine whether Appellee s serve d the notice of trial setting in c ompliance with Rule 21a.

I t is undisputed that Appellee s serve d the notice by cer tifi ed m ai l to My ers’ s last known addre ss in acc ordanc e with Rule 21a’s require ments for addre ssing and sending no t i ce. Howeve r, Rule 21a a lso provides that the par ty or attorney of rec ord shall cer tify compliance with the rule “in writing over signature and on the filed instrument .” Tex. R. Civ. P. 2 1 a. (empha sis added)

. The supreme court has observe d that such a cert i ficate “bea rs some assura

nce of trustworthiness as it was p re p ar ed as a matter of office routine befor e any dispute about notice

arose .” Mathi s , 166 S.W .3d at 745. Her e, the undisputed evidenc e shows that the notice of trial does not contain a cer

tificate of service

. There fore , Appellee s failed to fully comply with Rule 21a.

I n his two issues, My ers challeng es both the trial court’s entry of the defa ult judgme nt and 2 its allowing his motion for new tr ial to be over ruled by operation of law. 5SeeTex. R. C iv. P. 21a; In re E.A. , 287 S.W .3d 1, 5–6 (Tex. 2009); Mathis , 166 S.W .3d at 745. Despite the lack of a cer

tificate of service , Appellee s contend that the trial court did
not abuse its discretion in imputing constructive notice to My ers. As evidenc e of constructive notice, Appellee s point to USPS rec ords ref lecting that a notice of attempted delivery of the cer tified mail containing the notice of

trial setting w as deliver ed to My ers’ s addre ss prior to trial and that My ers cl ai m ed the cer

tified mail afte r the trial court rende red defa ult judgme nt. Appellee s also cite to evidenc e that My ers rec eived the notice of intent to sell sent by regular mail afte r trial. I n addition, Appellee s’ attorney testified t hat he sent Appellee s’ response to My ers’ s motion for new t rial and

a notice of setting for that motion by cer tified mail and re ceive d signe d returne d rec eipts for those items. Appellee s argue that My ers rec eived the notice of attempted delivery and selec tively ref used to claim the ce rtified mail containingthe notice of trial. I n support of their argument that My ers selec tively ref used the cer

ti fi ed m ai l containing the notice of trial setting, Appellee s cite case s that they contend are analog ous to this case and require that we conclude My ers eng age d i n s el ective ref usal. Howeve r, we find these case s distinguishable on their facts. I n the cases Appellees ci t e, t h e evidence showed that the pl aintiffs strictly complied with Rule 21a, that there wer e multipl e failed attempts at deliver y , and that the defe ndants knew the plaintiffs wer e ac tively pursuing the litigation, acknow ledg ed deliberately ref using rec eipt of notice, moved without leaving a forwa rding addre ss, and/or offe red no competent controve rting evidenc e. See Sharpe v. Kilcoyne , 962 S.W .2d 697, 699–700 (Tex. App.—For t Worth 1998, no pet.); Gonzales v. Surplus Ins. Servs. , 863 S.W .2d 96, 98, 101 (Tex. App.—B eaumont 1993, writ denied) ; In re Madeiros , No. 04-00-00827- CV, 2001 Tex. App. L EXI S 7670, at *5 (Tex.

6App.—San Antonio Nov. 14, 2001, no pet.) ( mem. op.). 3 I n this case , the evidenc e shows that Appellee s failed to fully comply with Rule 21a by omitti ng a cer

tificate of service and that there was a single attempted delivery of the notice of trial setting. I n addition, it is undisputed that afte r fili ng an answ er , M y ers made efforts t o resolve the matter, contac ted counsel for Appellee s on sever al occa sions, both befor e and afte r trial, and on one of those occa sions informed coun s el for Appellee s that he had obtained pre- approva l for a home equity line of cre dit to pay the proper ty taxes. It is also undisputed that in none of the conver sations that took place prior to trial did counsel for Appellee s inform My ers of the t ri al setting and that althoug h My ers provided counsel for Appellee s with his cell phone number, no one from the office of counse l f

or Appellee s called My ers to notify him of the setting. Fur ther, the r ecor d contains no evidenc e that My ers admitted to ref using the cer

tified mail; rather My ers offe red an aff idavit in which he unequivoca lly denied rec eiving notice of the trial setting and sworn testimony stating that he did not rec all rec eiving a notice of attempted deliver

y until after the tr ial date. Even assuming without deciding that My ers rec ei v ed the notice of attempted delivery prior to trial, the mere fac t that My ers did not claim the cer tified mail until afte r trial is not sufficie nt to show avoidanc e or ref

usal. See In r e E .A. , 287 S.W .3d at 5 (post office ’s repe ated attempts to deliver amende d petition not evidenc e of ref usal). Appellee s’ alleg ation that My ers deliberately did
not pick up the cer

tified mail containing notice of trial is n o t evidenc e that he dodg ed or ref used delivery

. See Approximately $14,980.00 , 261 S.W .3d at 189. “[E] vidence that [t he] notice of [t rial]

Appellee s also cite Zuyus v. No’Mis Commc’ns., Inc. , 930 S.W. 2 d 7 4 3 (Tex. App.—Corpus 3 Christi 1996, no pet.). Howeve r, Zuyus involves a no-answe r defa ult judgme nt. Be cause no advanc e notice of hear ing is require d for a no-answe r defa ult judgme nt proce eding , see Tex. R. Civ. P. 107, 239; 930 S.W .2d at 747, we f ind this case inapposite.

7went ‘uncla imed’ [for a period of time] afte r the U.S. Post Offic e unsucce ssfully attempted delivery

and left a notice of cer

tified mail at the intended rec ipient’s addre ss does n o t , s t an d i n g alone, constitute evidenc e that the intended rec ipient dodg ed or ref used delivery .” Dowell v. Theken Spine, LLC , No. 14-07-00887- CV, 2009 Tex. App. L EXI S 4316, at *6–7 (Tex. App.—Houston [14t h Dist.] J une 2, 2009, no pet.) (mem. op.); see a l s o P essel v. Jenk

ins , 125 S.W .3d 807, 810 (Tex. App.—Texarkana 2004, no pet.) (evide nce of one mailing of notice by cer tified mail, attempted to be delivere d twice, was not proof of selec tive acc eptanc e or ref usal). Nor does evidenc e that My ers subsequently acc epted certified mail related t o the case i ndicate that he do d ged or refused service of the notice of trial setting. I t is undisputed that the notice of attempted delivery did not include the identity of the sender or the contents of the cer tified mail. Especia lly in the absenc e of a cer tificate of service , and in light of My ers’ s undisputed pattern of communication, cooper ation, and attempts to resolve t h e matter with counsel for Appellee s, we conclude that My ers’ s failure to pick up the notice of trial setting afte r a single notice of attempted delivery of an unidentified mailing from an unidentified sender i s n o t ev idence of selec tive ref usal of cer

tified mail rela

ting to the case . See Etheredge , 169 S.W .3d at 382; Pessel , 125 S.W .3d at 809–10. 4

A def endant who ha s made an appea ranc e is e ntitled to notice of the trial setting a s

a matter of d u e p roce ss under the Four teenth Amendment. Peralta v. Heights Med. Ctr., Inc. , 485 U.S. 80, 84–85 (1988); LBL Oi l Co. v. International Power Servs., Inc. , 777 S.W .2d 390,

We likewise conclude that My ers’ s rec eipt of the notice of intent to sell by reg ular mail is 4 not evid en ce o f s el ec tive acc eptanc e or ref usal of cer

tified mail related to the case . See Pessel v. Jenk ins , 125 S.W .3d 807, 810 (Tex. App.—Texarkana 2004, no pet.) (notice by regular mail not authorized method of service and fac t that notice sent by regular mail was not returne d while cer tified mail was returne d unclaimed was not evidenc e of selec tive acc eptance o r re fu s al of cer tified mail). 8390–91 (Tex. 1989). We ag ree with our sister courts that in order to protec t conce rns for proce dural

due proce ss, we should deter mine constructive notice on a “c as e-by -ca se basis rathe r than by
statement of a g ener al rule.” See Sharpe , 962 S.W .2d at 700 (quoting Gonzales , 863 S.W .2d at 102); Gonzales , 863 S.W .2d at 101–02 (issuing “re strictive holding direc ted to the specific fac ts of the

case befor e the trial court at t h e m o t i o n for new trial hear ing” ); see also Rabie v. Sonitrol 5 of Houston, In c. , 982 S.W .2d 194, 197 n.3 (Tex. App.—Houston [1st Dist.] 1998, no pet.); (fa ctually distinguishing Gonzales and finding no const ru ctive notice in absenc e of evidence o f s elec tive ref

usal/acc eptanc e of cer

tified mail); Stiles v. Stiles , No. 04-08-00885- CV, 2009 Tex. App. L EXI S 5409, at *11 (Tex. App.—San Antonio J uly 15, 2009, no pet.) (mem. op.) (fa ctually distinguishing Sharpe and finding no constructive notice wher e there was no evidenc e to contra dict defe ndant’s unequivoca l statement that she did not rec eive notice of trial setting) ; Cantu

v. Salcedo , No. 04-0 7 - 0 0 1 6 1-CV, 2007 Tex. App. L EXI S 7443, at *8 (Tex. App.—San Antonio Sept. 12, 2007, no pet.) (mem. op.) (same)

. Whil e some fac ts may support a finding of constructive notice that satisfies the Peralta due proces s conce rns, see, e.g. , Sharpe , 962 S.W .2d at 699–700 (twelve attempted mailings and defe ndant mo v e d w it h o u t le aving forwa

rding addre ss, knew plaintiff

was actively pursuing litigation, acknow ledg ed ref using multipl e mailings, and even acknow ledg ed ref using mailing conta ining notice of trial setting) , the fac ts in this case do not. See In re E.A. , 287 S.W .3d at 5–6; Pessel , 125 S.W .3d at 809–10. Wit hout evidenc e that My ers dodg ed or ref used

I n Carpenter v. Ci ma r r o n Hydroc arbons Corp. , 98S.W .3d 682, 686 (Tex. 2002), the 5 supreme court disapproved of Gonzales and other court of appea ls decisions to the extent that they can be rea d to hold that the Craddock test applies in a summary j u dg ment case in which the nonmovant is awa

re of its failure to file a response at or befor e a summary judgme nt hear ing and thus has an opportunity to apply for relief under the rules. The Carpenter court did not addre ss the use of a case -by -ca se approa ch for deter mi n in g c o n s tr

u ctive notice in a post-answe r defa ult judgme nt when the de fenda

nt had no ac tual notice. 9delivery o f cer tified mail, and in the absenc e of a cer tificate of service , we cannot impute constructive notice to him, and it was an abuse of discretion for the trial court to do so. See Approxim a t ely $14,980.00 , 261 S.W .3d at 189–90; Etheredge , 169 S.W .3d at 382. We sustain My ers’ s second issue.

Having d eter

mined that My ers has shown he had neither actua l nor constructive notice of the trial setting, we conclude that he has met the first Craddock element. A defe ndant who has been denied due proce ss throug h lack of notice of a trial setting is entitled to a new trial without further showing

. See Peralta , 48 5 U. S

. at 8 6 ; In re E.A. , 287 S.W .3d at 3; Limestone Constr. , 143 S.W .3d at 544 (whe n first Craddock element established by proof that defa ulting party did not

rec eive notice of trial setting, cou rt s dispense with rema ining Craddock require ments); Smith , 53 S.W .3d at 818 (same)

. Be cause the eviden ce shows that My ers did not have actua l or constructive notice of the trial setting, we do not r eac h the rema ining two fac tors under Craddock

.
CONCLUSION For these rea sons, we reve rse the judgme nt of the trial court and rema nd the case for

a new trial.

__________________________________________ Melissa Goodwin, Jus tice Be fore J ustices Pury ear , Henson, a nd Goodwin Reverse d and Remande d Filed: De cembe r 16, 2011

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