Dorinda Allison v. Post-Newsweek Stations Houston LP KPRC TV

Citation: Not availableDocket: 01-10-00775-CV

Court: Court of Appeals of Texas; December 21, 2011; Texas; State Appellate Court

Original Court Document: View Document

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On December 22, 2011, the Court of Appeals for the First District of Texas issued an opinion regarding separate appeals by Dorinda and Camell Allison against Post-Newsweek Stations Houston LP, operating as KPRC TV, following a trial court’s summary judgment in favor of KPRC. Dorinda challenged the judgment on three grounds: (1) lack of proper notice of KPRC's motion for summary judgment, (2) reliance on merits-preclusive deemed admissions for the summary judgment, and (3) denial of her motion for a new trial. Camell, in his restricted appeal, argued that reversal was appropriate due to being served with an incorrect pleading.

The background reveals that in June 2008, KPRC filed a petition against Dorinda and Camell for unpaid advertising services totaling $30,000. A process server claimed to have served Camell with the original petition. The trial court initially granted a default judgment against both appellants but voided it shortly after. KPRC later requested disclosure and admissions from Dorinda, who did not respond, and obtained an interlocutory default judgment against Camell for his non-appearance. Dorinda attempted to set aside the default judgment, but only her name was on the request. Eventually, the court granted Camell a new trial.

In February 2009, both appellants filed a continuance request with KPRC's discovery requests served to Camell. KPRC filed a motion for summary judgment in April 2010, to which neither Dorinda nor Camell responded, with Dorinda asserting she had not received notice of the motion or hearing. The court affirmed the trial court's ruling.

Judgment was entered for KPRC against both appellants, leading Dorinda to file motions for a new trial, to withdraw deemed admissions, and for severance. The trial court overruled her motion for a new trial by operation of law, prompting Dorinda to file a timely notice of appeal. Camell subsequently filed a restricted appeal within six months of the judgment.

In her appeal, Dorinda contends that the trial court incorrectly granted KPRC’s motion for summary judgment and denied her new trial motion due to insufficient notice of the motion prior to the hearing. The trial court's ruling on new trial motions is reviewed for abuse of discretion. Evidence shows that the motion for summary judgment was delivered to Dorinda’s business address on April 13, 2010, where it was signed for by Desiree Loase, providing more than the required twenty-four days’ notice before the hearing.

Dorinda argues non-receipt of the motion, citing a precedent concerning ineffective notice when signed for by someone other than the intended recipient. However, this case pertains to summary judgment motions, governed by different procedural rules. Under Texas Rule of Civil Procedure 21a, proper notice is crucial for due process, and service is complete upon mailing. A certificate of service serves as prima facie evidence of service, but the recipient can rebut this presumption with proof of non-receipt.

Dorinda claims she rebutted the service presumption with her affidavit, stating she was not Desiree Loase and never received the letter. The court's consideration of this rebuttal is significant in determining the validity of the notice received.

KTRK asserts compliance with Rule 21a by sending notice to Dorinda's designated business address, supported by a 'green card' confirming delivery. The principle that notice to an agent constitutes notice to the principal is upheld, as established in Elite Towing, Inc. v. LSI Fin. Group. Dorinda does not dispute Loase's authority to receive mail on her behalf but claims she did not receive the motion for summary judgment. However, her affidavit fails to provide evidence contesting Loase's agency or authority, merely indicating that Loase did not forward the motion to her. The law states that a party cannot excuse their lack of response due to their attorney’s negligence. The summary judgment notice was deemed sufficient as it was correctly addressed, and Dorinda did not deny that Loase was authorized to receive mail at that address. In related case law, once notice delivery is proven, the burden shifts back to the party asserting lack of notice to demonstrate that their inaction was not due to conscious indifference. Dorinda did not provide evidence to refute Loase's authority. Regarding her motion for a new trial, Dorinda argues that the trial court improperly denied it under the Craddock criteria, which require showing that the failure to respond was not intentional, demonstrating a meritorious defense, and filing the motion timely to avoid prejudice to the plaintiff.

To satisfy the Craddock test for challenging a post-answer default judgment, the defaulting party must demonstrate that they did not receive notice of the trial setting; the remaining elements of Craddock do not need to be proven. This principle extends to motions for new trials following default summary judgments. However, if a motion for new trial is filed after summary judgment when the party had notice of the hearing and failed to respond timely, the Craddock standard does not apply. In such cases, a late response can be accepted if the party shows good cause for the delay, specifically that the failure to respond was unintentional and not the result of conscious indifference, and that granting the late response will not cause undue delay or injury to the opposing party.

In this case, Dorinda did not provide adequate evidence to demonstrate her failure to respond was unintentional, relying only on her assertion of not receiving notice, which was deemed insufficient. There was no proof that notice was sent to an incorrect address or that the person who received it on her behalf was unauthorized. Consequently, the trial court's denial of her motion for new trial was not an abuse of discretion.

Regarding the second issue on appeal, Dorinda contended that the trial court wrongly granted KPRC’s motion for summary judgment based solely on deemed admissions. Even if the court had erred by not withdrawing these admissions, the error was harmless because KPRC presented sufficient other evidence to support the judgment. KPRC needed to establish three elements for its sworn account claim: the sale and delivery of goods or services, that the charges were just, and that the amount remained unpaid. Although deemed admissions were significant in KPRC's motion, they were not the sole evidence provided. KPRC also submitted an affidavit from its credit and collections clerk, confirming that Dorinda and Camell owed $30,000, which was just and due.

KPRC submitted a credit application signed by Dorinda and several invoices, invoking Rule 185 of the Texas Rules of Civil Procedure. This rule allows for a claim based on an open account or liquidated money demand to be taken as prima facie evidence if supported by an affidavit affirming the claim's validity and that all offsets have been accounted for. Dorinda's letter disputing KPRC’s claim was not made under oath, failing to meet the requirements of Rule 185, which bolstered Fisher’s affidavit as prima facie evidence for KPRC. The court found no material fact dispute favoring Dorinda, affirming the trial court's judgment against her.

In a restricted appeal, Camell contended that a July 2008 return of service was defective, claiming it erroneously identified the served document as the 'Original Petition' rather than a 'true copy of the Citation' as stated. This misidentification could undermine jurisdiction and the validity of the default judgment since strict compliance with service rules is necessary. The standard for a restricted appeal requires that the appeal be filed within six months, the appellant must be a party, must not have participated in the hearing, and must show apparent error in the record. Camell's argument addresses only the fourth requirement, focusing on the alleged service defect.

No presumptions are made regarding the valid issuance, service, or return of citation in the context of a default judgment. Strict compliance with procedural rules does not necessitate adherence to every detail, as established in Ortiz v. Avante Villa. The overall record must demonstrate that citation was served on the defendant; if so, service cannot be invalidated. Camell's argument, supported by two cases—Primate Const. Inc. v. Silver and Shamrock Oil Co. v. Gulf Coast Natural Gas, Inc.—is that default judgments were reversed in those instances due to discrepancies in service returns. However, KPRC contends that those cases are distinguishable because, in this case, both the citation and return of service clearly reference the same 'Original Petition,' negating confusion over what was served. KPRC acknowledges the absence of discovery documents but emphasizes that the critical issue is the service of the petition itself. The record confirms that Camell was served with the 'Original Petition,' leading to the conclusion that there is no error on record. Consequently, Camell's restricted appeal is unsuccessful, and the trial court's judgment against him is affirmed. Additionally, the record includes evidence that Dorinda's business address complies with procedural requirements, supported by documentation showing prior service at that location.