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. _____________________
FILED IN IN THE COURT OF APPEALS 4th COURT OF APPEALS SAN ANTONIO, TEXAS THE FOURTH DISTRICT OF TEXAS 04/16/2015 1:29:25 PM KEITH E. HOTTLE SAN ANTONIO TEXAS Clerk
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 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 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 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 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
Page 5 of 14 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.
Page 6 of 14 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.
Page 7 of 14 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?
Page 8 of 14 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.
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
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,
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
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
Page 9 of 14 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
Page 10 of 14 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
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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. _____________________
FILED IN IN THE COURT OF APPEALS 4th COURT OF APPEALS SAN ANTONIO, TEXAS THE FOURTH DISTRICT OF TEXAS 04/16/2015 1:29:25 PM KEITH E. HOTTLE SAN ANTONIO TEXAS Clerk
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 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 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 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 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
Page 5 of 14 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.
Page 6 of 14 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.
Page 7 of 14 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?
Page 8 of 14 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.
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
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,
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
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
Page 9 of 14 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
Page 10 of 14 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
Page 11 of 14 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.
Page 12 of 14 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
Page 13 of 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 16th 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
Page 14 of 14