Ardetra Lewis v. Housing Authority of Austin
03-15-00800-CV
Tex.Oct 10, 2016Background
- Appellant Ardetra Lewis moved to set aside a default judgment entered after she did not appear at a county-court trial; she and her boyfriend Jarrell Green testified at the motion hearing that they never received actual notice of the county-court setting.
- Appellee Housing Authority of the City of Austin (HACA) introduced certified-mail paperwork showing mailing and a certificate of service but offered no live witnesses at the hearing.
- The certified-mail green card bears a name resembling "Jarrell Green," which HACA argues supports constructive notice; Green denied signing for mail and was not asked on cross whether the signature on the exhibit was his.
- The central legal dispute is whether the presumption of service under Tex. R. Civ. P. 21a(e) can stand when the only live testimony directly contradicts receipt of notice.
- Appellant argues the presumption disappears once contrary evidence (her and Green’s testimony) is introduced and that the trial court abused its discretion by denying a new trial.
Issues
| Issue | Plaintiff's Argument (Lewis) | Defendant's Argument (HACA) | Held |
|---|---|---|---|
| Whether the Rule 21a(e) presumption of service can be dispositive when live testimony denies receipt | The presumption vanishes when credible, contrary testimony is introduced; therefore the trial court erred in denying a new trial | The trial court may disbelieve witness testimony and rely on the certificate of mailing/presumption alone | Trial court denied the motion for new trial (appellant contends this was an abuse of discretion) |
| Whether the trial court could disregard all witness testimony as inconsistent or incompetent | Testimony from Lewis and Green was direct, competent, and not so inconsistent as to justify total disbelief; their testimony rebuts the presumption | The factfinder may believe all, some, or none of the evidence; the judge could have disbelieved the witnesses and accepted the certificate of service | Trial court treated the certificate as sufficient (appellant argues that legal review must be possible and presumption cannot be immune from rebuttal) |
| Whether the signature on the certified-mail green card can be inferred to be Green’s without direct proof | HACA had the opportunity to ask Green if the signature was his and to introduce exemplars; without that, “appears to be” is insufficient to prove Green signed | The green card signature "appears to be" Jarrell Green and supports constructive notice | Trial court treated mailing evidence as establishing notice; appellant disputes sufficiency of signature evidence |
| Whether a denial of a new trial can be insulated from appellate review by hypothesizing that the trial judge disbelieved all contrary testimony | Appellant: allowing that hypothesis would foreclose meaningful appellate review whenever a certificate of service exists; legal presumptions are rebuttable so review remains possible | HACA: Permits the judge’s exercise of discretion to disbelieve testimony, leaving the presumption intact | Trial court exercised discretion to deny new trial; appellant asks appellate reversal and remand |
Key Cases Cited
- Mathis v. Lockwood, 166 S.W.3d 743 (Tex. 2005) (disbelief of a witness is not affirmative proof of the opposite fact)
- In re E.A., 287 S.W.3d 1 (Tex. 2009) (presumption of service under Rule 21a is not evidence and vanishes once opposing evidence of nonreceipt is introduced)
- Ashworth v. Brzoska, 274 S.W.3d 324 (Tex. App.—Houston [14th Dist.] 2008) (testimony of no notice can rebut notice presumption and warrant new trial)