Mark Rotella Custom Homes, Inc. D/B/A Benchmark Custom Homes and Mark David Rotella v. Joan Cutting

Citation: Not availableDocket: 02-07-00133-CV

Court: Court of Appeals of Texas; March 5, 2008; Texas; State Appellate Court

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Mark Rotella Custom Homes, Inc. (MRCH) and its owner, Mark David Rotella, appeal a trial court's decisions regarding a lawsuit brought by Joan Cutting. The appellants contest the trial court's summary judgment in favor of Cutting, asserting errors in law, denial of their motion for a new trial, findings of vicarious liability, and the lack of evidence for intent. The case is a follow-up to a previous action where MRCH and Rotella claimed inadequate notice of a hearing.

The underlying dispute began with a residential construction agreement dated November 7, 2001, for a custom home that allegedly suffered from over three hundred defects and fifty code violations, leading to Cutting's lawsuit in April 2005. In January 2007, Cutting filed two summary judgment motions, which were sent via certified mail but claimed by MRCH and Rotella to have been unreceived. The notices were returned as unclaimed, and Rotella did not attend the hearing. The court subsequently granted the motions, awarding Cutting substantial damages, including over $1.2 million in actual damages and treble damages, along with attorney's fees and interest.

The trial court denied MRCH and Rotella's motion for a new trial, concluding they had received adequate notice. The appeal addresses the trial court's discretion in these rulings, with the standard of review emphasizing the limitation of appellate intervention unless a clear abuse of discretion is demonstrated.

In Davis v. Huey, the Texas Supreme Court clarified that an abuse of discretion does not occur if there is some evidence supporting the trial court's decision. In the case at hand, MRCH and Rotella contended that the trial court wrongly granted Cutting’s Motions for Summary Judgment and denied their motion for a new trial, arguing that a lack of notice demonstrated their failure to respond was unintentional and not due to conscious indifference. The court disagreed. 

Texas law mandates that motions for summary judgment and notices of hearings must be served on all parties of record (Tex. R. Civ. P. 21, 166a(c)). Rule 166a ensures nonmovants have adequate notice of summary judgment hearings, and failure to provide such notice infringes on due process rights. Service of documents can be completed by certified or registered mail to the recipient's last known address (Tex. R. Civ. P. 21a), with a certificate of service serving as prima facie evidence of service. A presumption exists that properly mailed notices were received, but this can be rebutted by evidence of non-receipt. If a notice sent by certified mail is returned 'unclaimed,' it does not satisfy the notice requirement of Rule 21a, as established in Tanksley v. CitiCapital Commercial Corp. and Payton v. Ashton. The courts emphasize the necessity for actual receipt of notice, as the integrity of the service process depends on it.

In Rabie v. Sonitrol of Houston, Inc., the court determined that a motion for summary judgment and its notice, sent by certified mail but returned unclaimed, did not constitute adequate notice for the nonmovant. Actual notice is not necessary if the serving party adheres to Rule 21a, but constructive notice can be established if evidence shows the recipient selectively accepted or refused certified mail. The court outlined a four-step procedure for cases involving notice: 

1. The party claiming notice must show the method and manner of actual service.
2. The party disputing service must provide evidence that actual service was not achieved.
3. If claiming constructive notice, the party must present evidence of selective refusal or total refusal of service.
4. If the first three steps are satisfied, the party asserting lack of service must explain why the selective or total refusal does not equate to constructive service under Rule 21a.

In this case, Rotella, in an affidavit, claimed he did not receive any motions or notices regarding the summary judgment hearings. Evidence presented included multiple pleadings mailed to Rotella that were returned unclaimed and an affidavit from his former counsel indicating that Rotella had previously accepted deliveries at the same address. The court's order noted that despite proper notice being given, the Rotella Defendants did not appear. The summary judgment motions were certified mailed to Rotella's address, reinforcing the claim of proper notification.

Cutting's two motions for summary judgment were presumed served via certified mail, but this presumption was challenged by Rotella’s affidavit. The court found that Rotella and MRCH selectively accepted service from their prior counsel while refusing service regarding 24 items sent by Cutting. Rotella failed to provide an explanation for this selective acceptance at the hearing for a new trial. The court determined that the trial court did not err in granting Cutting’s second motion for summary judgment, concluding that Rotella and MRCH had proper notice but chose not to appear. 

Regarding joint and several liability, Rotella argued he should not be held liable because he was not in privity with the contract and was a disclosed agent of MRCH. However, the court noted that Rotella personally guaranteed the contract's performance, making him liable. Additionally, he could be held accountable for his own tortious actions as an agent, including fraudulent acts. The court dismissed Rotella's arguments, affirming that he was liable for both contract and tort causes of action. Rotella’s challenges to the trial court's decisions were overruled.

Rotella argues that there is no evidence of fraudulent intent in the record, claiming that this deficiency requires reversal of his fraud and DTPA claims. However, he fails to provide citations to the record or relevant legal authority in support of his argument. The court emphasizes that appellate briefs must include clear statements of arguments with appropriate citations, as outlined in the Rules of Appellate Procedure. The court notes that brief and unsupported claims do not meet these requirements and thus yield nothing for review. Consequently, Rotella's fourth issue is overruled. The court affirms the trial court's judgment after overruling Rotella's first, second, and third issues as well. The panel responsible for the decision includes Justices Dauphinot, Gardner, and McCoy, and the ruling was delivered on March 6, 2008.