ACCEPTED
03-15-00800-CV
13149298
THIRD COURT OF APPEALS
AUSTIN, TEXAS
10/10/2016 12:56:18 PM
JEFFREY D. KYLE
CLERK
IN THE COURT OF APPEALS
THIRD DISTRICT
AUSTIN, TEXAS FILED IN
3rd COURT OF APPEALS
AUSTIN, TEXAS
ARDETRA LEWIS §
10/10/2016 12:56:18 PM
APPELLANT §
JEFFREY D. KYLE
§ Clerk
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
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 fact-
finder 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
Ardetra Lewis v. Housing Authority of Austin
Combined Opinion