Reversed and Remanded and Majority and Concurring Opinions =
filed June=20
12, 2008.
In The
Fourteenth Court=20
of Appeals
____________
NO. 14-07-00164-CV
____________
APPROXIMATELY=20
$14,980.00, =
Appellant
V.
THE STATE OF=20
TEXAS, =
Appellee
On Appeal from the =
125th District Court
Harris County, =
Texas
Trial Court Cause =
No. 2006-41188
M A J O R=20
I T Y O P I N I O N
This is an=20
appeal from a seizure and forfeiture proceeding under Chapter 59 =
of the=20
Texas Code of Criminal Procedure. =20
Following a bench trial, the trial court entered a default =
judgment=20
against appellant Hermes Antonio Rodriguez,=20
and based on deemed admissions ordered that $14,980.00 be =
forfeited to the=20
State. In six issues, appellant contends the trial court =
erred in=20
not permitting him to demonstrate non-receipt of the discovery =
requests=20
and in admitting the deemed admissions into evidence. We =
conclude=20
the trial court erred in deciding, pursuant to a local court rule, =
not to=20
consider evidence that appellant did not receive service of the =
requests,=20
and we reverse the judgment of the trial court.
I. =20
Factual and Procedural Background
On June=20
30, 2006, the State filed a Notice of Seizure and Intended =
Forfeiture,=20
stating it had seized contraband property of approximately =
$14,980.00 from=20
appellant and that the property was subject to forfeiture. =
Appellant=20
filed an answer generally denying the allegations and served=20
interrogatories and requests for disclosure on the State. =
The State=20
served appellant via certified mail, return receipt requested, =
with=20
requests for admissions. The requests were sent to=20
appellant=3Ds=20
attorney=3Ds last=20
known address. Although the requests did not include a =
certificate=20
of service, the State included a certificate of written discovery =
and also=20
filed the discovery certificate with the court. The record =
reflects=20
that delivery was attempted on October 21, 2006 and again October =
26,=20
2006. =20
The envelope containing the requests for admissions was returned =
to the=20
State bearing the United States Post Office stamp Aunclaimed.@
At trial=20
on February 19, 2007, the State submitted the unanswered requests =
for=20
admissions into evidence, claiming that due to =
appellant=3Ds failure=20
to respond, the requests were deemed admitted as a matter of =
law. =20
The State also submitted the returned envelope bearing the =
Aunclaimed@ =
stamp and=20
the certified mail receipt showing the two failed attempts at=20
service. Based on the deemed admissions, the State moved for =
a=20
post-answer default judgment. Appellant objected, claiming =
that he=20
had never received the discovery requests. He also argued =
that=20
because no certificate of service was included in the requests, =
the State=20
had failed to comply with Texas Rule of Civil Procedure 21a and =
therefore=20
could not prove service of notice. Appellant made an oral =
motion to=20
have the deemed admissions set aside, but the trial court refused =
the=20
motion because local court rules require that all motions be filed =
in=20
writing ten days prior to the hearing or trial. The court =
denied=20
appellant=3Ds motion=20
for continuance on the same grounds. Appellant argued that =
Rule 21a=20
entitled him to an opportunity to present evidence proving =
non-receipt of=20
service. The trial court ultimately disagreed with appellant =
and=20
refused to consider any evidence of non-receipt of service or to =
allow him=20
to withdraw the deemed admissions. The trial court admitted =
the=20
deemed admissions into evidence and signed a final judgment =
ordering that=20
the $14,980.00 be forfeited to the State.
In six=20
issues on appeal, appellant contends the trial court erred in (1) =
deeming=20
the requests for admissions admitted because service was not =
perfected,=20
(2) refusing to consider evidence rebutting any presumption of =
service,=20
and (3) finding that the $14,980.00 was contraband because without =
the=20
deemed admissions, the evidence was legally insufficient. =
II. =20
Standard of Review
The=20
decision to allow or deny the withdrawal of deemed admissions lies =
within=20
the broad discretion of the trial court. Steffan v. =
Steffan,=20
29 S.W.3d 627, 631 (Tex. App.CHouston=20
[14th Dist.] 2000, pet. denied). An appellate court should =
set aside=20
the trial court=3Ds ruling=20
only if, after reviewing the entire record, the trial court =
clearly abused=20
its discretion by acting without reference to guiding rules or =
principles,=20
or acted arbitrarily or unreasonably. Id. We =
also=20
review the trial court=3Ds=20
application of local court rules in deciding not to hear a motion=20
rebutting the presumption of service of discovery requests under =
an abuse=20
of discretion standard. See Approximately $1,589.00 v. =
State,=20
230 S.W.3d 871, 873 (Tex. App.CHouston=20
[14th Dist.] 2007, no pet.) (holding that clear failure to =
correctly=20
analyze or apply law constitutes an abuse of=20
discretion).
III. =20
Analysis
Texas Rule=20
of Civil Procedure 198 entitles a litigant to serve requests for=20
admissions on another party. See Tex. R. Civ. P. =
198.1. =20
Failure to timely respond results in each request being deemed =
admitted by=20
operation of law. See Tex. R. Civ. P.=20
198.2(c). Rule 198.3 permits withdrawal of the deemed =
admissions=20
if the party shows good cause for the withdrawal, the court finds =
that the=20
parties relying on the deemed admissions will not be unduly =
prejudiced,=20
and the court finds that the presentation of the merits of the =
action will=20
be subserved by permitting the withdrawal. Tex. R. Civ. P. =
198.3. The=20
failure to answer must have been the result of accident or mistake =
and not=20
the result of an intentional act or conscious indifference on the=20
receiving party=3Ds=20
end. Steffan, 29 S.W.3d at 631.
A=20
party=3Ds duty to=20
respond is dependent upon receipt of the requests. See =
Tex. R. Civ. P. 21a; =
Payton v.=20
Ashton, 29 S.W.3d 896, 898 (Tex. App.CAmarillo=20
2000, no pet.). Where service is not perfected, the =
receiving party=20
cannot be made to suffer the consequences of not answering or =
untimely=20
answering. Payton, 29 S.W.3d at 898. =
Rule 21a provides for =
service=20
of notice on a party by sending the documents via certified mail =
to the=20
party=3Ds last known =
address. =20
Tex. R. Civ. P. =
21a. =20
Service by mail is complete upon deposit of documents in a =
properly=20
addressed envelope, postage prepaid, in a post office or official=20
depository under the care and custody of the United States Postal=20
Service. Id. A certificate by a party or =
attorney of=20
record is prima facie evidence of the fact of service. =
Id.=20
Accordingly, notice properly=20
sent pursuant to Rule 21a, that is, notice that =
is=20
properly addressed and mailed with prepaid postage to the=20
party=3Ds last known address, =
raises a=20
presumption that the notice was properly received by the =
addressee. =20
Id.; Mathis v.=20
Lockwood, 166=20
S.W.3d 743, 745 (Tex. 2005). The=20
presumption of receipt of notice may be rebutted by introducing =
opposing=20
evidence that the mailing was not received. See Tex. R. Civ. P. 21a =
(ANothing=20
herein shall preclude any party from offering proof that the =
notice or=20
instrument was not received . . . .@);=20
Cliff v. Huggins, 724 S.W.2d 778, 779B80 (Tex.=20
1987). In the absence of any proof to the contrary, the =
presumption=20
has the force of a rule of law. Cliff, 724 S.W.2d at =
780.=20
In his=20
second issue, appellant claims that because the State failed to =
comply=20
with the service requirements stated in Rule 21a, the trial court =
erred in=20
admitting the deemed admissions into evidence. Appellant =
argues that=20
the State failed to file a certificate of service with the =
requests for=20
admissions, and therefore the State cannot establish a presumption =
of=20
service. The State responds that the certificate of written=20
discovery, documenting service of the requests for admissions and =
on file=20
with the court, satisfied the Rule 21a requirement and established =
a=20
presumption of service. Appellant counters that because the=20
certificate of written discovery did not indicate the method of =
service,=20
it could not satisfy the Rule 21a requirement.
The=20
certificate of written discovery contained appellant=3Ds=20
attorney=3Ds address,=20
a statement that on a certain date the document was served on =
opposing=20
counsel, and the signature of the attorney for the State. =20
Although it did not mention the method of service, Rule 21a does =
not=20
require that a certificate of service detail the method of service =
used. See Tex. R.=20
Civ. P. 21a; Treat v. Muntzel, No. =
13‑04‑216‑CV, 2005=20
WL 1797048, at *1 (Tex. App.CCorpus=20
Christi July 28, 2005, pet. denied) (mem. op.) (noting that Rule =
21a=20
contains no requirement that certificate of service list method of =
service=20
used); Smith v. Mike Carlson Motor Co., 918 S.W.2d 669, 673 =
(Tex.=20
App.CFort Worth=20
1996, no pet.) (overruling claim that certificate of service on =
motion for=20
summary judgment was defective because it failed to mention method =
of=20
service). At trial, the prosecutor stated that the =
certificate of=20
written discovery had been included in the discovery requests that =
were=20
mailed to appellant via certified mail, return receipt requested.=20
Rule 21a=20
provides that A[t]he=20
party or attorney of record shall certify to the court compliance =
with=20
this rule in writing over signature and on the filed=20
instrument.@ =20
Tex. R. Civ. P. =
21a. =20
The State certified compliance with Rule 21a by signing the =
certificate of=20
written discovery, serving it with the discovery requests, and =
filing it=20
with the court. The purpose of a certificate of service is =
to prove=20
that the documents to which the certificate relates were actually =
served=20
on the party. See Granger v. Moye, No. =
03‑97‑00696‑CV, 1998=20
WL 717196, at *2 (Tex. App.CAustin=20
Oct. 15, 1998, no pet.) (not designated for publication). =
Here, the=20
certificate provided the date of service and the =
recipient=3Ds name and=20
address. It was signed, filed with the court, and included =
in the=20
discovery requests that were sent via certified mail return =
receipt=20
requested, an approved method of service under Rule 21a. =
Rule 1 of=20
the Texas Rules of Civil Procedure instructs us to interpret the =
rules=20
liberally to Aobtain a=20
just, fair, equitable and impartial adjudication of the rights of=20
litigants under established principles of substantive =
law.@ =20
When the language in a rule is specific and its meaning is clear, =
the rule=20
is entitled to a literal interpretation, unless it would lead to=20
absurdities and defeat the intent of the enacting body. =20
Owens‑Illinois, Inc. v. Chatham, 899 S.W.2d 722, 733 =
(Tex.=20
App.CHouston=20
[14th Dist.] 1995, writ dism=3Dd). =20
To hold that the State failed to serve the documents on appellant =
merely=20
because the certificate title read ACertificate=20
of Written Discovery@ =
instead=20
of ACertificate=20
of Service@ =
not only=20
runs contrary to the liberal interpretation urged in Rule 1, but =
it=20
borders on applying the rules so as to reach an absurd =
result. We=20
conclude the certificate of written discovery served the purpose =
of a=20
certificate of service and functioned as proof that the State =
attempted to=20
serve appellant=3Ds counsel=20
with the requests for admissions. Accordingly, we find that =
the=20
State sufficiently complied with the requirements of Rule 21a to =
raise a=20
presumption of receipt of notice. See Cliff, 724 =
S.W.2d at=20
780; cf. Mathis, 166 S.W.3d at 745 (concluding no=20
presumption of receipt arose because record contained no =
certificate of=20
service, no return receipt from certified mail, and no affidavit=20
certifying service). We overrule appellant=3Ds second=20
issue.
In his=20
first issue, appellant argues the trial court erred in admitting =
the=20
requests for admissions because he presented evidence that the =
requests=20
were not received. In his third and sixth issues, appellant=20
maintains the trial court erred in refusing to consider his =
evidence=20
rebutting the presumption of receipt of notice, and that if =
considered,=20
such evidence would have established he did not actually receive =
the=20
requests. We address these issues together.
At trial,=20
the court refused to allow appellant to move to set aside the =
deemed=20
admissions on grounds of non-receipt:
In the=20
event you had filed such a motion and given 10 days notice that =
the deemed=20
admissions should be set aside because you didn=3Dt receive=20
notice then I=3Dd have=20
something to hear. But the local rules require that a . . . =
motion=20
to set aside deemed admissions, any such motion that you want to =
have=20
considered by the Court has got to be in writing, and it has to be =
filed=20
10 days before the hearing . . . .
The trial=20
court then asked appellant if he had any further evidence to=20
present. Appellant=3Ds attorney=20
informed the court that he had never received the requests for=20
admissions. He stated that the first attempted delivery =
occurred on=20
a Saturday when his office was closed, and that he never received =
the=20
second attempted delivery, which allegedly occurred the following=20
Thursday. He stated that he had no notice of the requests =
for=20
admissions until the day of trial. The court refused to =
consider=20
this evidence of non-receipt. Although the court did not =
cite a=20
specific rule in refusing to allow appellant to move to set aside =
the=20
deemed admissions, the court was apparently relying on =
Rules=20
3.3.1 and 3.3.2 of the Local Rules for Harris County District=20
Courts. Rule 3.3.1 requires that all motions be submitted to =
the=20
court in writing. See Harris=20
Cty. (Tex.) Civ. Dist. Ct. Loc. R. 3.3.1. =
Rule 3.3.2=20
requires that motions heard on written submission be filed at =
least ten=20
days prior to the date of submission, except on leave of the =
court. =20
See Harris Cty. =
(Tex.) Civ.=20
Dist. Ct. Loc. R. 3.3.2. =
Appellant argues the =
court=20
erred in applying the local rules because the local rules are =
inconsistent=20
with Rule 21a, which provides that A[n]othing herein =
shall preclude=20
any party from offering proof that the notice or instrument was =
not=20
received . . . .@ Appellant =
claims that=20
according to Texas Rule of Civil Procedure 3a, the language =
Anothing herein shall=20
preclude@ in Rule 21a must =
prevail over=20
the time constraints stated in the local rules. See =
Tex. R. Civ. P. 3a(1) =
(providing=20
that Rules of Civil Procedure override inconsistent local court=20
rules).
We recently addressed =
a similar=20
argument. See Approximately $1,589.00, 230 S.W.3d =
871. =20
In Approximately $1,589.00, the trial court refused to hear =
a=20
motion to strike deemed admissions based on local filing rules =
similar to=20
those at issue in the present case. Id. at =
872B73. We held =
that Rule=20
3a(2) absolutely prohibits application of a local rule that alters =
a time=20
period set forth in the Texas Rules of Civil Procedure. =
Id.=20
at 874. We also held that under the circumstances, Rule =
3a(6)=20
precluded the trial court=3Ds application of the =
local=20
rules. Id. Rule 3a(6) provides that =
Ano local rule, order, =
or=20
practice of any court, other than local rules and amendments which =
fully=20
comply with all requirements of this Rule 3a, shall ever be =
applied to=20
determine the merits of any matter.@ See Tex. R. Civ. P. =
3a(6). We=20
held that because the deemed admissions were =
merits‑preclusive, the trial=20
court had effectively applied a Alocal =
rule@ or Apractice@ which did not fully =
comply=20
with Rule 3a to determine the merits of the case. See=20
Approximately $1,589.00, 230 S.W.3d at 874.
Here, Rule 21a =
entitled=20
Rodriquez to an opportunity to present evidence of non-receipt, =
and Rule=20
3a(1) requires that conflicts between local rules and the Rules of =
Civil=20
Procedure be resolved in favor of the Rules of Civil =
Procedure. =20
Moreover, due process requires that a trial court consider, absent =
evidence of flagrant bad faith or callous disregard for the rules, =
a=20
motion to strike deemed admissions that are =
merits-preclusive. =20
Id. at 875. The deemed admissions in this case were=20
merits-preclusive, and there was no evidence that appellant acted =
in=20
flagrant bad faith or callous disregard for the rules. =
Therefore,=20
applying our holding from Approximately $1,589.00, we =
conclude the=20
trial court erred to the extent it relied on local court rules in =
refusing=20
to consider appellant=3Ds evidence regarding=20
non-receipt of service.
Appellant=20
argues that if considered by the trial court, the evidence he put =
forth=20
demonstrating non-receipt of the requests would have rebutted the=20
presumption of service. We agree. The returned =
envelope=20
bearing the United States Post Office Aunclaimed@ =
mark was=20
submitted into evidence, as well as the return receipt indicating =
that=20
delivery was twice attempted but not completed. Notice sent =
by=20
certified mail and returned Aunclaimed@ =
does not=20
provide the notice required by Rule 21a. See Etheredge v. =
Hidden Valley=20
Airpark Ass=3Dn, 169 S.W.3d 378, 382 =
(Tex.=20
App.CFort Worth 2005, pet. =
denied).=20
Appellant=3Ds attorney=20
also directly testified to not receiving the notice. Because =
appellant successfully rebutted the presumption of receipt of =
actual=20
notice, we conclude the trial court erred in admitting the deemed=20
admissions into evidence. See Daniels v. Lavery, No.=20
05-06-00216-CV, 2007 WL 549223, at *5 (Tex. App.CDallas=20
Feb. 23, 2007, no pet.) (mem. op.) (holding trial court erred in =
deeming=20
requests admitted where evidence indicated requests were returned=20
Aunclaimed@ =
and=20
appellant directly told trial judge he knew nothing about =
certified mail=20
containing the requests); Rabie v. Sonitrol of Houston, =
Inc., 982=20
S.W.2d 194, 197 (Tex. App.CHouston=20
[1st Dist.] 1998, no pet.) (holding defendant rebutted presumption =
of=20
service by asserting under oath that he never received notice of =
certified=20
letter from post office and by presenting evidence that post=20
office=3Ds attempts=20
to deliver certified mail failed).
The State argues that =
even if=20
appellant did not have actual notice, he still received =
constructive=20
notice.=20
Constructive=20
notice may be established if the serving party demonstrates =
compliance=20
with Rule 21a and presents evidence that the intended recipient =
engaged in=20
instances of selective acceptance or refusal of certified mail =
relating to=20
the case. =20
See Etheredge, 169 S.W.3d at 382. Although at trial =
the State=20
alleged that appellant did not pick up his mail, the State =
presented no=20
evidence that appellant dodged or refused delivery of certified=20
mail. Without evidence in the record that appellant dodged =
or=20
refused delivery of certified mail, constructive notice cannot be =
imputed=20
to him. See id. at 383 (holding that lack of evidence =
of=20
dodging receipt or refusing delivery precluded finding of =
constructive=20
notice). We sustain=20
appellant=3Ds first,=20
third, and sixth issues.
IV. =20
Conclusion
The filing of the =
certificate=20
of written discovery created a presumption of service which =
appellant=20
successfully rebutted with evidence of non-receipt. Because =
Rule 21a=20
entitled appellant to an opportunity to present evidence rebutting =
the=20
presumption of service, the trial court erred in refusing to =
consider=20
appellant=3Ds evidence of =
non-receipt and=20
in admitting the deemed admissions into evidence.
We reverse=20
the trial court=3Ds judgment=20
and remand for further proceedings consistent with this opinion.=20
/s/ =20
Leslie B. Yates
Justice
Judgment=20
rendered and Majority and Concurring Opinion filed June 12, =
2008. =20
(Yates, J. Majority. Brown, J. Concurring)
Panel=20
consists of Justices Yates, Guzman, and Brown.
Chapter 59 of the Texas Code of =
Criminal=20
Procedure concerns the forfeiture of contraband and defines =
contraband as=20
property of any nature that is used or intended to be used in the=20
commission of felonies under the Controlled Substances Act. Tex. Code Crim. Proc. =
Ann.=20
art. 59.01(2)(B)(i) (Vernon Supp. 2007).
Although AApproximately $14,980.00@ is technically the appellant in this =
case, we=20
will refer to Rodriguez, the person from whom that money was =
sought, as=20
appellant.
At trial, the State claimed =
a third=20
attempt was made on November 5, 2006, but there is no evidence of =
an=20
additional attempt in the record.
The certificate of =
written=20
discovery stated that AOn the 20th day of =
October=20
2006, Plaintiff, THE STATE OF TEXAS, served her =
Plaintiff=3Ds First Request for =
Admissions on HERMES ANTONIO RODRIGUEZ, Respondent, by service =
upon his=20
attorney, Kirby J. Taylor, 4810 Caroline, Houston, Texas=20
77004.@ =
The State also claims the trial =
court found=20
that appellant=3Ds attorney had refused service of =
certified mail=20
from the State, and therefore appellant had constructive notice.=20
We disagree that the trial court =
actually made=20
such a finding, either explicitly or implicitly. The Final =
Judgment=20
states, AUpon [the State=3Ds] oral motion, evidence was presented =
by [the=20
State], regarding the lack of compliance by Kirby Taylor, Attorney =
for=20
[appellant] in retrieving the discovery requests forwarded to =
[appellant]=20
on October 20, 2006, specifically, the notice from the U.S. Post =
Office .=20
. . .@ However, this does not constitute =
an actual=20
finding of constructive notice.
In his fourth issue, appellant =
argues that=20
because the deemed admissions were not properly before the court, =
the=20
evidence was legally insufficient for the trial court to find that =
the=20
$14,980.00 was contraband. However, in a legal sufficiency =
review=20
the evidence examined includes improperly admitted evidence, which =
in the=20
instant case includes the requests for admissions. See =
Koch Oil=20
Co. v. Anderson Producing, Inc., 883 S.W.2d 784, 790 (Tex.=20
App.CBeaumont 1994), =
rev=3Dd on other grounds, 929 S.W.2d 416 (Tex. 1996). =20
Accordingly, we cannot do as appellant asks and review the=20
sufficiency of the evidence without considering the requests for=20
admissions. We overrule appellant=3Ds fourth issue.
|