### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-03-00500-CV

Limestone Construction, Inc., Appellant

v.

Summit Commercial Industrial Properties, Inc., Appellee

FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 368TH JUDICIAL DISTRICT

NO. 03-368-C368, HONORABLE BURT CARNES, JUDGE PRESIDING

O P I N I O N

Limestone Constr

uction, Inc. (Limestone) appeals from the district court’s overruling,

by operation of law, Limestone’s motion for new trial challenging a default no-evidence summary

judgment. Limestone claims that the affidavit it filed with its new trial motion, which averred that

Limestone did not receive prior notice of the summary judg ment motion or hearing, conclusively

entitles it to relief. Appellee Summit Commercial Industrial Properties, Inc. (Summit) contends that

Limestone, in effect, waived its right to relief by failing to comply with the Williamson County local

rules for obtaining a hearing on its motion. Because we hold that Limestone’s affidavit established

its entitlement to a new trial on the record before us, we must reverse the trial court and remand for

a new trial.2 BACKGROUND

The underlying dispute arises from a real estate transaction, the details of which are

unnecessary to address the issues before us. To summarize, Limestone filed suit against several

d efendants, including Summit, for common law fraud, statutory fraud, and neglige n t

misr epresentation arising from Limestone’s attempt to purchase development property that later

proved to be subject to federal endangered species restrictions.

On March 27, 2003, Summit filed a no-evidence motion for summary judgment and

obtained a hearing for April 21. S ee Tex. R. Civ. P. 166a(i). The motion contained a certificate of

service prepared by Summit’s attorney that complied with Texas Rule of Civil Procedure 21a. The

certificate stated that “on March 27, 2003, a true and correct copy of the f oregoing No Evidence

Motion for Summary Judgment has been forwarded via certified mail, return receipt requested” to

Limestone’s attorney at “7475 Skillman, # 101-A, Dallas, Texas.” It also referenced certified mail

certificate numb er 7002 2030 0000 8852 4469 as having been posted to Limestone’s attorney.

Written in bold, capital letters just below the certificate of service was the following: “ A HEARING

HAS BEEN SCHEDULED FOR APRIL 21, 2003, AT 9:00 A.M., ON THE NO EVIDENCE

MOTION FOR SUMMARY JUDGMENT, IN THE ABOVE REFERENCED MATTER .”

Limestone did not file a response to the summary judgment motion. The summary

judgment hearing was held on April 21 as scheduled, but Limestone’s attorney did not attend. The

trial court granted summary judgment in an order reflecting that “Plaintiff failed to appear or

respond.” Limestone’s attorney later claimed that he learned of the summary judgment motion and1 Tex. R. Civ. P. 329b(a). The thirtieth day after the May 22 severance order was a Saturday,

June 21. Id. R. 4.

3 hearing for the first time “mid-morning” on April 21, when he received a call from Summit’s

attorney’s office inquiring whether he had intended to attend the hearing.

Upon obtaining summary jud g ment, Summit filed a motion to sever Limestone’s

claims against it so as to make the order final and appealable. Summit set its severance motion for

hearing on May 22. Limestone does not dispute that it had notice of the severance motion and

hearing, but neither filed a response nor appeared at the hearing. On May 22, the trial court granted

the severance.

On June 23, the last day on which it could do so, 1 Limestone filed a motion for new

trial. The motion, supported by the affidavit of Limestone’s attorney, relied solely on the ground that

Limestone had not received notice of the summary judgment motion or hearing unt il after the

hearing. Limestone’s attorney further testified that he had received no notice of any attempted failed

delivery of certified mail regarding the summary judgment proceedings until Summit’s attorney

advised him of same by letter of April 21, 2003. Thereafter, Limestone’s attorney went to the post

office “and they had no undelivered mail addressed to me, being held for me, nor did they know of

any which had been held for me.” He acknowledged that he shared his office with another attorney

and a secretary who were authorized to sign for his mail, and “routinely” would do so. But he added,

“To my knowledge, no mail has ever been re fused by failure of the other attorney or his secretary

to sign for mail addressed to me.”2 The letter went on to explain that Limestone’s counsel would be out of state between July

27 and August 13 on family vacation and attending continuing legal education programs.

4 Limestone’s letter transmitting its new tr ial motion to the Williamson County District

Clerk purported to request a hearing “on or before July 25, 2003.” 2 The Williamson County local

rules require that all settings for non-jury matters be obtained through the office of court coordinator

for each of the county’s district courts. Williamson County (Tex.) Dist. Ct. Loc. R. III, B.1. There

is no evidence that Limestone complied with these procedures or otherwise made further attempts

to obtain a hearing.

On September 5, the seventy-fourth day after the summary judgment became final

and appealable, Summit filed an affidavit from its attorney in opposition to Limestone’s new trial

motion. Summit’s attorney averred that on March 27, 2003, he sent to Limestone’s attorney’s office,

by certified mail, return receipt requested, reference number 7002 2030 0000 8852 4469, a copy of

Summit’s no-evidence summary judgment motion and notice of hearing. Attached to the affidavit

was a co py of the front side of the transmittal envelope, which had been returned to Summit’s

attorney’s o f

fice on May 28, 2003. The envelope had a postal service stamp mark indicating an

attempted delivery on March 28 and three stamps stating “Returned to Sender–Unclaimed.”

Also attached to the affidavit was a computer printout dated April 21, 2003, signed

and stamped by a postal employee on the same date, indicating that the envelope had been mailed

on March 27, 2003, from ZIP code 78626 in Georgetown to ZIP code 75231 in Dallas, and that

notice had been left at the Dallas ZIP code on March 28. Although the 75231 Dallas ZIP code3 Limestone did not object to the admissibility of this document.

5 corresponded to that of Limestone’s attorney, the report did not state a specific address at which the

notice had been left. 3

No hearing on Limestone’s new trial motion was ever set or held and, on September

6, 2003, the seventy-fifth day after the summary judgment became appealable, Limestone’s motion

for new trial was overruled by operation of law. S ee Tex. R. Civ. P. 329b(c). This appeal ensued.

DISCUSSION

Limestone brings a single issue complaining that the trial court abused its discretion

in failing to grant its motion for new trial.

Standard of review

Trial courts have broad discretion in ruling on motions for new trial. We review the

denial of a motion for new trial for an abuse of discretion. C liff v. Huggins

, 724 S.W.2d 778, 778-79

(Tex. 1987); Smith v. Holmes

, 53 S.W.3d 815, 817 (Tex. App.—Aust in 2001, no pet). When a

motion for new trial is overruled by operation of law, as here, the question becomes whether the trial

court abused its discretion in allowing the motion to be overruled. B ank One of Tex., N.A. v. Moody

,

830 S.W.2d 81, 85 (Tex. 1992).

A trial court abuses its discretion when it fails to correctly analyze or apply the law.

In re Dupont De Nemours & Co.

, 136 S.W.3d 218, 223 (Tex. 2004); Comanche Nation v. Fox

, 128

S.W.3d 745, 749 (Tex. App.—Austin 2004, no pet.). In matters committed to a trial court’s4 133 S.W.2d 124 (Tex. 1939).

6

discretion, the test is whether the trial court acted arbitrarily or without reference to guiding legal

principles. Cire v. Cummings , 134 S.W.3d 835, 838 (Tex. 2004).

Standards governing new trial motions challenging default summary judgments

Limestone assumes that the trial court’ s disposition of its new trial motion is

controlled by the equitable standard that the Texas Supreme Court established in Craddock v.

Sunshine Bus Lines, Inc.

, 4 to review motions for new trial challenging no-answer default judgments

and post-answer default judgments where a party fails to appear at trial on the merits. See also Ivy

v. Carrell

, 407 S.W.2d 212, 214 (Tex. 1966) (extending Craddock equitable principles to postanswer default judgments where party fails to appear at trial on the merits). Under C raddock and

its progeny, a default judgment should be set aside when the party against whom the judgment is

taken establishes that (1) the failure to answer (or appear) was not intentional or the result of

conscience indifference, but the result of an accident or mistake; (2) the motion for new trial sets up

a meritorious defense; and (3) granting the motion will occasion no undue delay or otherwise injure

the party taking the default judgment. Smith v. Babcock & Wilcox Constr. Co. , 913 S.W.2d 467, 468

(Tex. 1995); Craddock , 133 S.W.2d at 126.

It is unclear, however, whether the Craddock equitable standard applies in the default

summ a ry judgment context. Some of our sister courts of appeals have applied a variant of the

Craddock standard in the default summary judgment context: (1) the failure to answer must not have

been intentional or the result of conscience indifference, but the result of an accident or mistake; and5 See

, e.g.

, Huffine v. Tomball Hosp. Auth

., 979 S.W.2d 795, 799 (T ex. App.—Houston [14th

Dist.] 1998, no pet.); Medina v. Western Waste Indus

., 959 S.W.2d 328, 330 (Tex. App.—Houston

[14th Dist.] 1997, pet. denied); Washington v. McMillan , 898 S.W.2d 392, 396 (Tex. App.—San

Antonio 1995, no writ); Gonzales v. Surplus Ins. Servs

., 863 S.W.2d 96, 102 (Tex. App.—Beaumont

1993, writ denied); Krchnak v. Fulton

, 759 S.W.2d 524, 528-29 (Tex. App.—Amarillo 1988, writ

denied); Costello v. Johnson , 680 S.W.2d 529, 531 (Tex. App.—Dallas 1984, writ ref'd n.r.e.).

6 The supreme court reasoned:

Our purpose in adopting the Craddock standard was to alleviate unduly harsh and

unjust results at a point in time wh en the defaulting party has no other remedy

available. S ee Craddock

, 133 S.W.2d at 126. But when our rules provide the

defaulting party a remedy, C raddock does not apply. Thus, we hold that

Craddock does not apply to a motion for new trial filed after judgment has been

granted on a summary-judgment motion to which the nonmovant failed to timely

respond when the movant had an opportunity to seek a continuanc e or obtain

permission to file a late response. Here, the facts necessary to establish good

cause were available from Cimarron's own counsel and his employees two days

before the summary-judgment hearing. The facts were all ascertainable without

resort to any time-consuming formal discovery processes. Because Cimarron had

an opportunity to seek a continuance or leave to file a late response, the court of

appeals erred in applying Craddock

.

Carpenter v. Cimarron Hydrocarbons Corp. , 98 S.W.3d 682, 686 (Tex. 2002).

7 the nonmovant’s motion for new tri al must (2) allege facts and contain proof sufficient to raise a

material question of fact; and (3) demonstrate that the granting thereof w ill occasion no delay or

otherwise work an injury to the movant. 5 But this Court has never applied C raddock in the default

summary judgment context, and the Texas Supreme Court more recently held that a different, “good

cause” standard applies, at le ast in cases where a summary judgment nonmovant fails to timely

respond, but learns of its failure prior to the summary judgment hearing and has an opportunity to

seek a remedy under the rules of civil procedure, such as a continuanc e or leave to file a late

response. Carpenter v. Cimarron Hydrocarbons Corp. , 98 S.W.3d 682, 685-86 (Tex. 2002). 67 Although the supreme court discussed this standard in the context of reviewing the trial

court’s denial of leave for the nonmovant to file a late summary judgment response, it applied the

same standard to the nonmovant’s motion for new trial. Id. at 688.

8 In a lone concurrence, Justice Hecht went further to suggest tha t “[t]he reason the C raddock

standards should not a pply is that the failure to timely answer a petition and the failure to timely

respond to a motion for summary judgment are very different situations.” 98 S.W.3d at 689 (Hecht,

J., concurring).

To date, both the Corpus Christi and El Paso Courts of Appeals, in memorandum opinions,

have suggested that Craddock applies where a summary judgment nonmovant does not receive

notice of the motion or hearing prior to the hearing. C antu v. Valley Baptist Med. Ctr.

, No. 13-02-

321-CV, 2003 Tex. App. LEXIS 7379, at *3 n.2 (Tex. App.—Corpus Christi Aug. 28, 2003, no. pet.)

(memorandum opi n ion) (applying Craddock in lieu of Cimarron where “appellant contends she

never received notice, and onl y found out about the summary judgment hearing after the default

summary judgment was entered”); Olien v. University of Tex. of the Permian Basin

, No. 08–02-

00300-CV, 2003 Tex. App. LEXIS 1549, at *4 (Tex. App.—El Paso Feb. 20, 2003, no pet.)

(memorandum opinion) (the situation in Cimarron “is not the case here”: no n movant did not become

aware of the hearing until after the trial court had already granted summary judgment). On the other

hand, while ultimately deciding the case on other grounds, the Beaumont Court of Appeals observed

that Cimarron “called into serious quest ion” whether C raddock would apply where a summary

judgment nonmovant did not discover his error until after the hearing. S tanley v. CitiFinancial Mort.

Co. , 121 S.W.3d 811, 815-16 (Tex. App.—Beaumont 2003, pet. filed).

8 The Cimarron “good cause” standard is similar to the first and third elements of the

Craddock standard. It requires the nonmovant to show: (1) the failure to respond was not intentional

or the result of conscious indifference, but the result of accident or mistake; and (2) allowing the late

response will occasion no undue delay or otherwise injure the party seeking summary judgment. I d.

at 688. 7 The supreme court expressly reserved the question of whether C raddock or its new “good

cause” standard would apply where a party did not le arn of its failure to respond prior to the

summary judgment motion or hearing. Id . at 686. 8

A related unresol ved issue in our Court is how we would apply C raddock or

Cimarron when a summary judgment nonmovant establishes they did not receive the motion. In the9 We also note that the pre- Cimarron cases cited in note 5, supra

, each ap plied the full

Craddock test in situations where the nonmovant had received notice but nonetheless failed to

respond or appear in opposition to the summary judgment motion.

9 context of non-summary judgment no-answer or post-answer default judgments, our court has

regarded lack of notice, if established, as a substitute for the first C raddock element. S mith

, 53

S.W.3d at 817. Once a party establishes such lack of notice, moreover, due process requires that it

prevail without need to prove the other Craddock elements. I d .; see also Lopez v. Lopez , 757

S.W.2d 721, 722 (Tex. 1988) (citing Peralta v. Heights Med. Ctr

, Inc

., 485 U.S. 80 (1988)). Some

of our sister courts have applied these principles to the default summary judgment context, both

before and after Cimarron

. R abie v. Sonitrol of Houston, Inc.

, 982 S.W.2d 194, 197-98 (Tex.

App.—Houston [1st Dist.] 1998, no pet.); see also Cantu v. Valley Baptist Med. Ctr.

, No. 13-02-321-

CV, 2003 Tex. App. LEXIS 7379, at *3 (Tex. App.—Corpus Christi Aug. 28, 2003, no. pet.)

(memorandum opinion). 9

We believe these due process principles would logically extend at least to the “no

evidence” summary judgment context, where the viability of the nonmovant’s claims or defenses that

are targeted by the summary judgment motion rest entirely (barring some form of self-inflicted

procedural defect of the movant) upon the nonmovant’s abilit y to respond and raise a fact issue.

Tex. R. Civ. P. 166a(i) (“The court must grant the motion unless the respondent produces summary

judgment evidence raising a genuine issue of material fact.”). We also believe this to be true

regardless of which test, Craddock or Cimarron

, would otherwise govern. The first element of each10 See Texas Dep’t of Pub. Safety v. Friedel

, 112 S.W.3d 768, 771 (Tex. App.—Beaumont

2003, no pet.) (“The Carpenter [ v. Cimarron ] test for good cause is esse ntially the first and third

elements of the Craddock test.”).

10 test is similar. 10 If due process concerns require that the absence of notice issue supplants the first

element of the Craddock test and obviates the need to prove other elements, we see no basis for

treating the Cimarron test any differently. Accordingly, we need not address whether C raddock or

Cimarron governs, but only whether Limestone established that it did not receive notice of Summit’s

summary judgment motion and hearing.

Application

Limestone’s motion for new trial is based solely on its claim that it did not receive

prior notice of Summit’s summary judgment motion and hearing. We initially note that the historical

trend is towards the liberal granting of motions for new trial filed after default judgments. CustomCrete, Inc. v. K-Bar Servs.

, 82 S.W.3d 655, 658 (Tex. App.—San Antonio 2002, no pet.); Norton

v. Martinez

, 935 S.W.2d 898, 901 (Tex. App.—San Antonio 1996, no writ); Miller v. Miller

, 903

S.W.2d 45, 47 (Tex. App.—Tyler 19 95, no writ). But bare allegations of lack of notice do not

suffice; instead, the nonmovant must offer evidence, either in the form of an affidavit or live

testimony. H

olt Atherton Indus., Inc. v. Heine

, 835 S.W.2d 80, 82 (Tex. 1992). We thus turn to

evidentiary record.

It is undisputed that Limestone’s summary judgment motion contained a certificate

of s ervice complying with Texas Rule of Civil Procedure 21a. “A certificate by a party or an

attorney of record, or the return of an officer, or the affidavit of any person showing service of a11 As was observed in R abie

, there are means by which a party can establish that the postal

service made a delivery, or attempted to do so, including various postal service forms or the affidavit

of a postal clerk. S ee Rabie v. Sonitrol of Houston, Inc.

, 982 S.W.2d 194, 197 (Tex. App.—Houston

[1st Dist.] 1998, no pet.).

11 notice shall be prima facie evidence of the fact of service.” Tex. R. Civ. P. 21a. That the motion

was mailed creates a rebuttable presumption that it was received. Smith , 53 S.W.3d at 817 (citing

Thomas v. Ray

, 889 S.W.2d 237, 238 (Tex. 1994)). But a presumption is not evidence, and it

vanishes when opposing evidence is introduced that the notice in question was not received. C liff

,

724 S.W.2d at 780.

In this case, the presumption of service was rebutted in two ways. First, Limestone’s

attorney unequivocally denied receiving notice of the summary judgme nt motion, notice of the

hearing, or even notice that the post office had att empted to deliver those items. The second is

Summit’s own affidavit. At most, Summit’s affidavit and attachments demonstrate that the postal

service attempted to deliver Summit’s summary judgment motion somewhere in the ZIP code

corresponding to Limestone’s attorney’s of fice and that the package was eventually returned

“unclaimed.” None of this constitutes a certification by the postal service that it delivered the notices

to Limestone, and it does not controvert Limestone’s affidavit. R abie

, 982 S.W.2d at 197 (notations

on envelope t hat postal service made two attempts to deliver summary judgment motion and returned

it “unclaimed” did not controvert nonmovant’s affidavit that he never received notice). 11 Instead,

by demonstrating that the package was returned “unclaimed,” Summit’s affidavit constitutes further

proof that Limestone did not receive it.12 A panel of this court followed Shamrock Roofing Supply, Inc. v. Mercantile Nat’l Bank

,

703 S.W.2d 356, 357 (Tex. App.—Dallas 1985, no writ) in a single unreported decision, Truong v.

Rose

. No. 03-99-00740-CV, 2000 Tex. App. LEXIS 5281, at *3 (Tex. App.—Austin Aug. 10, 2000,

no pet.) (not designated for publication); see also McGuire v. Commission for Lawyer Discipline

, No. 14-01-00920-CV, 2003 Tex. App. LEXIS 1510, at *4 (Tex. App.—Houston [14th Dist.] Feb.

20, 2003, pet. denied) (memorandum opinion) (holding no abuse of discretion in allowing new trial

motion to be overruled by operation of law where defendant fails to call court’s attention to motion).

We note that unreported opinions are not binding authority. Tex. R. App. P. 47.7 (“[o]pinions not

designated f

or publication by the court of appeals under these or prior rules have no precedential

value but may be cited with the notation, ‘(not designated for publication)’”); see also Ortega v. City

Nat’l Bank , 97 S.W.3d 765, 773 n.7 (Tex. App.—Corpus Christi 2003, no pet.).

13 The Shamrock court insisted that it was not relying on the “presentment” requirement of

the pre-1981 version of Texas Rule of Civil Procedure 329b. S hamrock

, 703 S.W.2d at 358. That

rule required a

new trial movant to “present the same to the trial court,” which the supreme court

interpreted to require “no more than that the movant must call the motion to the court’s attention and

ask for a ruling upon the same or face the possibility that the court will not act and allow the motion

12 Summit places greatest reliance on two arguments predicated on Limestone’s failure

to obtain a hearing on its new trial motion. First, it relies on a line of cases suggesting that,

regardless of the state of affidavit proof, a new trial movant waives its right to relief if it fails to

obtain a hearing in order to afford the trial court the “opportunity t o exercise its discretion.” S ee

Fluty v. Simmons Co.

, 835 S.W2d 664, 668 (Tex. App.—Dallas 1992, no writ); Shamrock Roofing

Supply, Inc. v. Mercantile Nat’l Bank

, 703 S.W.2d 356, 357 (Tex. App.—Dallas 1985, no writ). 12

As Justice Guittard explained in Shamrock :

We are unwilling to hold that an abuse of discretion occurs when the defaulting

defendant fails to call his motion to the judge’s attention and allows it to be overruled

by operation of law. Trial judges have a heavy load of trials and contested motions.

They cannot be expected to examine sua sponte all papers filed in their courts. They

must rely on counsel to see that motions are set for hearing.

Id. at 357-58. 13to be overruled by operation of law.” Moore v. Maudlin

, 428 S.W.2d 808, 809 (Tex. 1968). Rule

329b was amended in 1981 to delete the “presentment” requirement. S ee Cecil v. Smith

, 804 S.W.2d

509, 511 n.3 (Tex. 1991).

14 Limestone does not dispute the applicability of these rules. See Tex. R. Civ. P. 3a.

15 Nor do we address whether we can square Shamrock with Texas S upreme Court

precedent. S ee Strackbein v. Prewitt

, 671 S .W.2d 37, 38 (Tex. 1984) (“It is sufficient that the

movant’s motion and affidavits set forth facts which, if true, would negate intentional or consciously

indifferent conduct.”).

13

Limestone seeks to dis tinguish these decisions as involving instances where no

request for a hearing on the motion for new trial was ever made. S ee Continental Carbon Co. v. SeaLand Serv., Inc. , 27 S.W.3d 184, 188 (Tex. App.–Dallas 2000, pet. denied) (distinguishing S hamrock

and finding no waiver where plaintiff twice obtained hearing dates that were postponed at request

of defendant before new trial motion was overruled by operation of law). Here, Limestone did

purport to request a hearing in its transmittal letter to the Williamson County District Clerk, although

these steps were ineffective under the local rules of Williamson County, which require hearing

requests to be direc ted to the court coordinator. Williamson County (Tex.) Dist. Ct. Loc. R. III,

B.1. 14 We need not address the implications, under the S hamrock line of cases, of Limestone’s

noncompliance with the Willi amson County hearing procedures because we are bound to follow

authority from our court that is contrary to Shamrock

. 15

In Smith v. Holmes

, we considered a new trial motion supported by an affidavit from

a prisoner denying receipt of a notice of trial setting before a post-answer default judgment was taken

against him. The appellees presented evidence not only of a signed certificate of service, but also

a signed “green card” (presumably executed by someone else at the prison) acknowledging receipt16 For the same reasons, we attribute no significance to what Summit characterizes as

Limestone’s lack of diligence in obtaining a hearing or in opposing severance.

14 of service by certified mail. We held that an affidavit by the prisoner unequivocally denying receipt

of the notice not only overcame the prima facie presumption of notice, but conclusively established

lack of notice whe re the a ppellee who had taken the default judgment had not requested an

evidentiary hearing. S mith

, 53 S.W.3d at 817-18. We relied on the proposition that “[o]n a motion

for new trial, the trial court is bound to accept as true the affidavits of the movant, unless the

opponent requests an evidentiary hearing.” I d

. at 818 (emphasis added). Thus, under our precedents,

Summit had the burden to request an evidentiary hearing if it wanted to prevent the trial court from

taking Limestone’s affidavit as true. Limestone did not waive its rights by failing to obtain such a

hearing. 16

In its other chief argument, Summit urges that if the hearing had been held, the trial

court would have been within its discretion to overrule the motion. In particular, Summit suggests

that the evidence was such that the trial court would have been within its discretion to overrule

Limestone’s motion on the basis that Limestone had constructive notice under the rule of Gonzales

v. Surp lus Ins. Serv. , 863 S.W.2d 96, 101–02 (Tex. App.—Beaumont 1993, writ denied)

(constructive notice of document can be imputed to party where there is evidence that party engaged

in “selective refusal/acceptance” of certified mail). We disagree for two reasons.

Because there was no hearing, the trial court was requ i red to take Limestone’s

affidavit as true. S mith

, 53 S.W.3d at 818. We will not speculate as to what the proof at a hearing

might have been, much less evaluate the trial court’s disposition of Limestone’s new trial motion on17 While unequivocally denying having personal notice of Summit’s summary judgment

papers or their attempted delivery, Limestone’s attorney goes on to observe that a lawyer with whom

he shared an office and a secretary were authorized to accept his mail, and did so “routinely” when

he was out of the office. They were thus his agents for these purposes, and their actions in this

regard would be imputed to him. See Elite Towing, Inc. v. LS I Fin. Gr. , 985 S.W.2d 635, 642-43

(Tex. App.—Austin 1999, no pet.). Limestone’s attorney added that he had been out of the office

on March 28, the day the post office attempted to deliver Summit’s papers. He goes no farther than

to state that, “ To my knowledge

, no mail has ever been refused by failure of the other attorney or his

secretary to sign for mail addressed to me.” (emphasis added).

15 that basis, especially where it was Summit’s burden to request the hearing. I d

. And we do not view

the evidence in the affidavits as rising to the level from which the trial court could have concluded

that Limestone engaged in selective refusal or acceptance of certified mail. The mere fact that the

package was returned unclaimed is not evidence that Limestone refused or evaded delivery. R abie

,

9 82 S.W.2d at 197. At most, Limestone’s affidavit stops short of conclusively negating the

possibility that some other person in Limestone’s attorney’s office, without his knowledge, declined

to accept delivery of Summit’s summary judgment papers. 17 But it is not affirmative evidence that

such selective refusal or evasion occurred. R abie

, 982 S.W.2d at 197 n.3 (distinguishing Gonzalez

as involving evidence of “repeated instances of selective acceptance and refusal of certified mail”);

cf. Smith

, 53 S.W.3d at 818 (nonmovant’s uncontested denial that he received notice overcame any

inference that others at prison who signed the green card forwarded the notice to him). Again, it was

Summit’s burden to adduce such evidence, if it existed.

Because Limestone’s affidavit proof thus establishes that it did not receive notice of

Summit’s summary judgment motion or hearing, we are compelled to hold that the trial court abused

its discretion in overruling Limestone’s motion for new trial by operation of law.16 CONCLUSION

We reverse the judgment of the trial court and remand for a new trial.

Bob Pemberton, Justice

Before: Justices Kidd, B. A. Smith and Pemberton

Reversed and Remanded

Filed: August 26, 2004