Case Information

*0 FILED IN 4th COURT OF APPEALS SAN ANTONIO, TEXAS 04/16/2015 1:29:25 PM KEITH E. HOTTLE Clerk *1 ACCEPTED 04-15-00233-CV FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 4/16/2015 1:29:25 PM KEITH HOTTLE CLERK 04-15-00233-CV

NO. _____________________ IN THE COURT OF APPEALS THE FOURTH DISTRICT OF TEXAS SAN ANTONIO TEXAS

JEREMIAH MARTIN, and all other OCCUPANTS Appellant v.

FEDERAL NATIONAL MORTGAGE ASSOCIATION Appellee. Appeal from the County Court at Law Number Three Bexar County, Texas

Trial Court Case No. 2015CV01933 Hon. David Rodrigquez, presiding Oral Argument Requested

APPEAL OF DISMISSAL OF MOTION TO REINSTATE FORCIBLE DETAINER APPEAL TO BEXAR COUNTY BRIEF FOR APPELLANT 1

*2 Identity of the Parties Appellant/Defendant

Jeremiah Martin

Counsel for Appellant/Defendant

James Minerve

State Bar No. 24008692

115 Saddle Blanket Trail

Buda, Texas 78610

(210) 336-5867

(888) 230-6397 (Fax)

(Appellate, Post-trial, and Appellate)

Appellee/Plaintiff

FEDERAL NATIONAL MORTGAGE ASSOCIATION

Counsel for Appellee/Plaintiff

Jeff Lewis

Texas State Bar No. 12290000

Robertson Anschutz Vetters

10333 Richmond Avenue, Suite 550

Houston, Texas 77042

Phone: (713) 980-9500

Fax: (713) 888-2703

(Appellate, Post-trial, and Appellate)

2 *3 Table of Contents

Identity of Parties and Counsel ................................................................................. 2

Table of Authorities ................................................................................................... 4

Statement of the Case ............................................................................................. 5-6

Statement Regarding Oral Argument ........................................................................ 7

Issues Presented ......................................................................................................... 8

Statement of Facts ................................................................................................ 9-10

Summary of the Argument ....................................................................................... 11

Argument.................................................................................................................. 11

The Cliff v. Huggins Holding ........................................................................ 11 Prayer ....................................................................................................................... 13

Certificate of Service ............................................................................................... 14

Certificate of Compliance ........................................................................................ 14

3 *4 Table of Authorities

Cases Page

Cliff v Huggins, 724 S.W.2d 778 ............................................................................. 10

Southland Life Ins. Co. v. Greenwade , 138 Tex. 450, 159 S.W.2d 854 (Comm’n

App.1942, opinion adopted) .................................................................................... 10 Texas Rules of Civil Procedure

Texas Rule of Civil Procedure 21a .......................................................................... 10

Texas Rule of Civil Procedure 143a ........................................................................ 11

4

*5

Statement of the Case 1. On February 3, 2015, Bexar County Justice Court, Precinct 3-1 issued judgment in forcible detainer Cause 31E1500070 in favor of the Appellee. See Exhibit A.

2. On February 9, 2015 the Appellant perfected an appeal. See Exhibit B. 3. The Defendant nor his attorney of record received the notice prescribed under Texas Rules of Civil Procedure 143a, setting the 20 day time period within which the appellant must pay the court costs (TRCP 143a notice).

4. March 17, 2015, the Bexar County Clerk sent the Defendant’s attorney a notice stating the appeal was being dismissed for failure to pay the court costs under TRCP 143a.

5. The Bexar County Clerk sent the notice certified mail return receipt property addressed to the Defendant’s attorney, as required by TRCP 21a. However, the Defendant’s attorney never received the notice.

6. The 20 day notice was mis-delivered, because the return receipt was signed by someone other than James Minerve or one of his employees. See Exhibit C.

7. Attorney James Minerve operates out of a home office at 115 Saddle Blanket Trail, Buda, Texas 78610. Mr. Minerve employed only two persons at all *6 times relevant to this matter, legal assistants Kevin Gates and Maria Rogers.

8. Mr. Minerve nor his legal assistants signed the return receipt, and neither of them received the 20 day notice.

9. A properly addressed notice placed in the US mail certified return receipt requested creates a rebuttable presumption that the Defendant received notice. However, if receipt of the notice is challenged, the presumption vanishes; and if the Defendant proves he didn’t receive notice, as in this case, the Defendant is deemed to not have been notified as required by TRCP 143a. In this case, the Defendant’s appeal and supersedeas bond is still in effect.

*7 Statement Regarding Oral Argument Pursuant to Texas Rules of Appellate Procedure 39.1, Jeremiah Martin requests oral

argument and submits that it would materially aid the decisional process in this case.

*8 Issues Presented Appellant respectfully submits the following motion for rehearing brief which outlines the legal framework in which the Court should consider the following:

1. Whether the Defendant received notice required by TRCP 143a? *9 STATEMENT OF FACTS

10. On February 3, 2015, Bexar County Justice Court, Precinct 3-1 issued judgment in forcible detainer Cause 31E1500070 in favor of the Appellee. See Exhibit A.

11. On February 9, 2015 the Appellant perfected an appeal. See Exhibit B. 12. The Defendant nor his attorney of record received the notice prescribed under Texas Rules of Civil Procedure 143a, setting the 20 day time period within which the appellant must pay the court costs (TRCP 143a notice).

13. March 17, 2015, the Bexar County Clerk sent the Defendant’s attorney a notice stating the appeal was being dismissed for failure to pay the court costs under TRCP 143a.

14. The Bexar County Clerk sent the notice certified mail return receipt property addressed to the Defendant’s attorney, as required by TRCP 21a. However, the Defendant’s attorney never received the notice.

15. The 20 day notice was mis-delivered, because the return receipt was signed by someone other than James Minerve or one of his employees. See Exhibit C.

16. Attorney James Minerve operates out of a home office at 115 Saddle Blanket Trail, Buda, Texas 78610. Mr. Minerve employed only two persons at all *10 times relevant to this matter, legal assistants Kevin Gates and Maria Rogers.

17. Mr. Minerve nor his legal assistants signed the return receipt, and neither of them received the 20 day notice.

*11 SUMMARY OF THE ARGUMENT A properly addressed notice placed in the US mail certified return receipt requested creates a rebuttable presumption that the Defendant received notice.

However, if receipt of the notice is challenged, the presumption vanishes; and if the

Defendant proves he didn’t receive notice, as in this case, the Defendant is deemed

to not have been notified as required by TRCP 143a. In this case, the Defendant’s

appeal and supersedeas bond is still in effect.

ARGUMENT

Whether the Defendant received notice required by TRCP 143a?

The Cliff v Huggins Holding

The County Court dismissed the Defendant’s motion to reinstate its appeal because the County Court held that a properly addressed notice placed in the US

mail certified return receipt requested is irrefutable that notice under TRCP 21a has

been satisfied. The County Court ignored case law. In Cliff v Huggins, the Texas

Supreme Court held that a properly addressed certified return receipt notice creates

a rebuttable presumption notice was received; however, if the receipt of the notice

is challenged, the presumption vanishes; and if the Defendant proves that notice was

in fact not received; then notice required by TRCP 21a is deemed not met. Cliff v

Huggins, 724 S.W.2d 778, 780, ( (2987) (holding, “Rule 21a sets up a presumption

*12 that when notice of trial setting properly addressed and postage prepaid is mailed,

that the notice was duly received by the addressee. See Southland Life Ins. Co. v.

Greenwade , 138 Tex. 450, 159 S.W.2d 854 (Comm’n App.1942, opinion adopted).

This presumption may be rebutted by an offer of proof of nonreceipt. In the absence

of evidence to the contrary, the presumption has the force of a rule of law. Id ., 159

S.W.2d at 857. The presumption, however, is not “evidence” and it vanishes when

opposing evidence is introduced that the letter was not received.”).

The green card return receipt, Exhibit C, clearly shows that the return receipt was signed by someone other than James Minerve (the Defendant’s attorney of

record), Kevin Gates (James Minerve’s legal assistant), or Maria Rogers (James

Minerve’s legal assistant and only other employee at all times relevant to this

matter). James Minerve has complete control over his home/office, lives alone, and

no one other than James Minerve or his employees could receive mail at his

home/office. Given that the Defendant has produced evidence and the Bexar County

Clerk has not adduced any evidence, and the presumption of service has vanished,

according to Texas Supreme Court jurisprudence, the Defendant is deemed not to

have been notified as required by TRCP 143a. Therefore, the Defendant’s appeal

and supersedeas bond is still in effect.

*13 PRAYER

1. The Appellant/Defendant prays the Court reinstates the Appellant’s/Defendant’s forcible detainer appeal to Bexar County Court, Cause

2015CV01933.

2. The Appellant/Defendant prays the Court recalls the writ issued by the lower court.

Date: April 16, 2015 Respectfully submitted,

/s/ JAMES MINERVE James Minerve State Bar No. 24008692 115 Saddle Blanket Trail Buda, Texas 78610 (210) 336-5867 (888) 230-6397 (Fax) Attorney for Appellant Jeremiah Martin *14 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the above and foregoing document was sent to the Appellee in accordance with the Texas Rules of Civil

Procedure on this 16 th day of April, 2015:

Jeff Lewis

Robertson Anschutz Vetters

10333 Richmond Avenue, Suite 550

Houston, Texas 77042

Phone: (713) 980-9500

Fax: (713) 888-2703

/s/ James Minerve ______________________________ James Minerve

CERTIFICATE OF COMPLIANCE Relying on the word count function in the word processing software used to produce this document, I certify that the number of words in this reply (excluding

any caption, identity of parties and counsel, statement regarding oral argument, table

of contents, index of authorities, statement of the case, statement of issues presented,

statement of jurisdiction, statement of procedural history, signature, proof of service,

certification, certificate of compliance, and appendix) is 695.

/s/ James Minerve ______________________________ James Minerve