Patrick Sullivan v. Paula Elliott, Carole Elliott-Futcher, and Elliott Family Holdings D/B/A Elliott Land Co.

• Court: Court of Appeals of Texas
• Decided: September 14, 2023
• Docket: 09-22-00368-CV
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

________________

NO. 09-22-00368-CV ________________

PATRICK SULLIVAN, Appellant

V.

PAULA ELLIOTT, CAROLE ELLIOTT-FUTCHER, AND ELLIOTT FAMILY HOLDINGS D/B/A ELLIOTT LAND CO., Appellees ________________________________________________________________________

On Appeal from the County Court at Law Polk County, Texas Trial Cause No. CIV22-0361 ________________________________________________________________________

MEMORANDUM OPINION

Appellant Patrick Sullivan sued Paula Elliott, Carole Elliott-Futcher, and

Elliott Family Holdings d/b/a Elliott Land Co. (collectively, “Appellees”) for

fraudulently issuing him a 1099 showing he received income from them. Appellees

filed a Rule 91a Motion to Dismiss, which the trial court granted.1 Sullivan then filed

1 Rule 91a allows a party to move for dismissal of a cause of action that has no basis in law or in fact. See Tex. R. Civ. P. 91a.1. “A cause of action has no basis in law if the allegations, taken as true, together with inferences reasonably drawn from 1 a “Motion to Set Aside Default Judgment and Notice of Hearing” claiming he did

not have notice of the hearing on the Rule 91a Motion to Dismiss, which the trial

court denied. In one issue, Sullivan argues the trial court erred by denying his Motion

for New Trial. For the reasons discussed below, we will affirm the trial court’s

judgment.

BACKGROUND

Sullivan’s “domestic partner,” Edward Bolton, worked for Elliott Land Co.

and lost his driver’s license. Since Bolton did not have a checking account or “way

to settle his paycheck,” Bolton asked Appellees to temporarily write his paychecks

to Sullivan, so he could take them to their bank and cash them until Bolton received

his new license in the mail. Sullivan admittedly cashed several checks for Bolton “as

a favor” given the loss of his identification but contends that “[c]hecks written to me

do not make it my income.” In his Petition, Sullivan claimed Appellees “fraudulently

extracted his social security number from a mortgage contract and issues [sic] a

1099.”

Appellees answered the lawsuit and then filed 91a Motions to Dismiss arguing

that Sullivan’s claims had no basis in law or fact. Specifically, they point to Sullivan

admittedly cashing the checks made out to him.

them, do not entitle the claimant to the relief sought. A cause of action has no basis in fact if no reasonable person could believe the facts pleaded.” Id. 2 When he filed his lawsuit, Sullivan consented to being served via email and

provided his email address. The record shows that the Rule 91a Motions to Dismiss

contained certificates of service showing they were sent to Sullivan. Appellees set

their Rule 91a Motions to Dismiss for hearing on August 31, 2022, but the Notices

of Hearing did not contain certificates of service. Appellees filed both the Motions

to Dismiss and notices of hearing via eFile. Sullivan failed to appear at the hearing,

and the trial court asked whether he received notice. Appellees’ counsel represented

to the trial court that Sullivan received notice, the trial court stated it had read the

Rule 91a motions, and the motions were granted. On September 1, 2022, the trial

court signed a Final Judgment and dismissed Sullivan’s claims against the Appellees

with prejudice and awarded attorney’s fees to Appellees.

On September 14, 2022, Sullivan filed his “Motion to Set Aside Default

Judgment and Notice of Hearing” and requested a new trial. In that Motion, he

claimed he had no knowledge that Appellees filed Motions to Dismiss. The Motion

to Set Aside contained an Unsworn Declaration signed by Sullivan in which he

stated that the facts in the Motion were true and correct and within his personal

knowledge. Appellees filed a Response to Plaintiff’s Motion for New Trial. In that

Response, Appellees argued they served all pleadings and motions in the case to the

email address Sullivan provided when he consented to service via email. Appellees

also challenged Sullivan’s claim that he had not been served with notice of the

3 hearing and asserted they served the Rule 91a Motions to Dismiss and Notices of

Hearing on Sullivan via email at the email address he provided. Included with

Appellees’ Response were exhibits showing that Sullivan consented to service by

email, the email address he provided, and emails showing the Rule 91a Motions to

Dismiss and Notices of Hearing were sent to Sullivan via his email address. In their

Response, Appellees also contended that a hearing on a Rule 91a motion is non-

evidentiary and based on the pleadings only. They also argued that Sullivan’s

Motion was not properly verified as it included no affidavit and was not notarized.

The trial court held a hearing and denied Sullivan’s request for a new trial.

STANDARD OF REVIEW

We review a trial court’s decision on a motion for new trial for abuse of

discretion. B. Gregg Price, P.C. v. Series 1–Virage Master LP, 661 S.W.3d 419, 423

(Tex. 2023) (citation omitted); Dolgencorp of Tex. v. Lerma, 288 S.W.3d 922, 926

(Tex. 2009) (citation omitted); Vargas v. Applied Mach. Corp., No. 09-15-00049-

CV, 2016 WL 423708, at *4 (Tex. App.—Beaumont Feb. 4, 2016, no pet.) (mem.

op.). “A trial court abuses its discretion when it acts in an arbitrary or unreasonable

manner, or if it acts without reference to any guiding rules or principles.” Vargas,

2016 WL 423708, at *4 (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d

238, 241–42 (Tex.1985)). The trial court is the factfinder at a hearing on a motion

for new trial, is the sole judge of the witnesses’ credibility and weight to give their

4 testimony. Roman v. Ramirez, 573 S.W.3d 341, 352 (Tex. App.—El Paso 2019, pet.

denied) (citation omitted); Jackson v. Mares, 802 S.W.2d 48, 51 (Tex. App.—

Corpus Christi 1990, writ denied).

ANALYSIS

“Rule 91a expressly requires that notice of the date of the hearing, whether

oral or by submission, be given to the parties.” Gaskill v. VHS San Antonio Partners,

LLC, 456 S.W.3d 234, 239 (Tex. App.—San Antonio 2014, pet. denied) (citing Tex.

R. Civ. P. 91a.6). To be entitled to a new trial, the movant must first establish their

failure to appear was unintentional or the result of conscious indifference, and

evidence that the movant did not receive notice of the hearing is sufficient. 2 See

Mathis v. Lockwood, 166 S.W.3d 743, 744 (Tex. 2005); see also Varady v. Gyorfi,

No. 09-15-00237-CV, 2016 WL 1468859, at *6 (Tex. App.—Beaumont Apr. 14,

2016, no pet.) (mem. op.) (citing Liberty Mut. Fire Ins. Co. v. Ybarra, 751 S.W.2d

615, 618 (Tex. App.—El Paso 1988, no writ)) (“The party seeking a new trial has

the burden to prove the lack of intent or lack of conscious indifference.”). If the

factual allegations in a movant’s affidavits are uncontroverted, it is sufficient that

2 We expressly do not decide whether Craddock applies to hearings on Rule 91a Motions to Dismiss; however, based on Sullivan’s claimed lack of notice, at a minimum, he would have to establish that lack of notice. See Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex. 1939); see also B. Gregg Price, P.C. v. Series 1–Virage Master LP, 661 S.W.3d 419, 424 (Tex. 2023) (citation omitted). 5 the motion and affidavit state facts which, if true, would negate intentional or

consciously indifferent conduct. Id. (citing Mares, 802 S.W.2d at 50). “If the

nonmovant provides controverting evidence showing conscious indifference by the

movant, then the issue becomes a fact question for the trial court to determine.” Id.

(citation omitted).

“A certificate by a party or an attorney of record, or the return of the officer,

or the affidavit of any other person showing service of a notice shall be prima facie

evidence of the fact of service.” Tex. R. Civ. P. 21a(e). “The mere denial of receipt

is sufficient to rebut the presumption.” Texaco, Inc. v. Phan, 137 S.W.3d 763, 767

(Tex. App.—Houston [1st Dist.] 2004, no pet.) (citation omitted); see also Hanash

v. Walter Antiques, Inc., 551 S.W.3d 920, 927–28 (Tex. App.—El Paso 2018, pet.

denied). While denial of receipt can rebut the presumption of receipt, the denial is

not conclusive and presents a fact issue for the factfinder. Phan, 137 S.W.3d at 767.

The certificate of service attached to the Rule 91a Motions to Dismiss created

a presumption that the Appellees served the documents and that Sullivan received

them. See Tex. R. Civ. P. 21a(e); see also Mathis, 166 S.W.3d at 745 (explaining

that notice properly sent pursuant to Rule 21a creates a presumption it was received).

As to the Notices of Hearing, although they do not contain certificates of service, in

their Response to Defendant’s Motion for New Trial, Appellees included exhibits

showing that they sent the Rule 91a Motions to Dismiss and the Notices of Hearing

6 to Sullivan at the email address he provided in his Petition, and he consented to being

served documents via email. Given Sullivan’s denials rebutting the presumption of

receipt, whether he received the documents was a fact issue for the trial court to

resolve. See Hanash, 551 S.W.3d at 927–28; Phan, 137 S.W.3d at 767.

During the hearing, Sullivan also confirmed his email address, which matched

the email address where Appellees sent the Rule 91a Motions to Dismiss and Notices

of Hearing. Sullivan offered no other excuse for failing to respond to the Rule 91a

Motions to Dismiss or to appear at the scheduled hearing other than he did not

receive the documents. In his “Motion to Set Aside Default Judgment,” Sullivan

asked why Appellees’ attorney did not file the documents through eFile, yet the

record shows that Appellees’ counsel did so. Sullivan, however, must register as an

eFile user to receive documents through eFile. See https://efiletexas.gov/faqs.htm

(last visited Aug. 8, 2023) (providing at #3 that pro se litigants may use eFile and

providing at #4 that parties must register to use eFileTexas.gov); see also Rhojo

Enters., LLC v. Stevens, 540 S.W.3d 621, 625 (Tex. App.—Beaumont 2018, no pet.)

(noting that parties must register for efiling). Sullivan argues on appeal that “all

documents must be filed through e-file and the Plaintiff/Appellant has always been

registered.” In the trial court, Sullivan did not claim that he had always been

registered with eFile. Rather, he argued it was Appellees’ responsibility to put his

email on service contacts within the eFile system. While the record shows that in his

7 Petition, Sullivan consented to service via email and provided an email address, he

provided no evidence that he registered with the electronic filing manager (“EFM”)

to receive or serve documents via eFile before the August 31 hearing on the Rule

91a Motion to Dismiss.3 Since Sullivan failed to show he was registered with the

EFM when the 91a motions and notices of hearing were served, Appellees’ counsel

could serve him via email. See Tex. R. Civ. P. 21a(a)(1)–(2) (providing acceptable

methods of service for parties not on file with the electronic filing manager including

email).

Appellees’ counsel provided copies of emails as exhibits showing that he

served the documents at the email address Sullivan provided with his original

Petition. At the hearing, Sullivan testified to his email address, which matched the

email address on the exhibits provided by Appellees in their Response to

Defendant’s Motion for New Trial. See Mathis, 166 S.W.3d at 745 (explaining that

unsworn factual statements and representations can constitute evidence when the

opponent to the testimony waives the oath requirement by failing to object under

circumstances that clearly indicated each was tendering evidence on the record based

on personal knowledge of contested issues); Martin v. Jasper Indep. Sch. Dist., No.

3 Sullivan claimed that he did not receive any filings until August 12, 2022, which is the first date that his name shows up in the efiling records. He presented no evidence to show that he had registered with EFM prior to that date. 8 09-17-00195-CV, 2018 WL 2974490, at *3 (Tex. App.—Beaumont June 14, 2018,

pet. denied) (mem. op.) (noting same). The trial court questioned Sullivan’s

credibility and asked Sullivan why he contacted the court repeatedly about the

August 31 hearing if he had not received notice of it. The trial court added that

multiple court staff spoke with him about the upcoming August 31 hearing. Yet

Sullivan continued to deny he received notice.

The trial court was free to disbelieve Sullivan’s assertions that he did not

receive notice of the August 31 hearing. See Roman, 573 S.W.3d at 352; Mares, 802

S.W.2d at 50. In the face of controverting evidence, including Appellees’ exhibits

showing that notices of the hearing and copies of the rule 91a Motions to Dismiss

were emailed to the same email address Sullivan provided, the trial court was free

to resolve that fact issue against Sullivan. See Varady, 2016 WL 1468859, at *6;

Phan, 137 S.W.3d at 767. The trial court could have reasonably concluded

Appellees’ counsel sent notice of the hearing on the Motions to Dismiss and that

Sullivan received it, thus the trial court did not abuse its discretion by denying

Sullivan’s request for a new trial. See B. Gregg Price, 661 S.W.3d at 423;

Dolgencorp, 288 S.W.3d at 926; Vargas, 2016 WL 423708, at *4. We overrule

Sullivan’s sole issue on appeal.

9 CONCLUSION

Having overruled Sullivan’s sole issue, we affirm the trial court’s judgment.

AFFIRMED.

W. SCOTT GOLEMON Chief Justice

Submitted on July 5, 2023 Opinion Delivered September 14, 2023

Before Golemon, C.J., Johnson and Wright, JJ.