Rosalind A. Kelly v. Demoss Owners Association and Association Management, Inc.

• Court: Court of Appeals of Texas
• Decided: January 7, 2002
• Docket: 07-00-00589-CV
• Status: Published

Opinion

NO. 07-00-0589-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

JANUARY 7, 2002

______________________________

ROSALIND A. KELLY, APPELLANT

V.

DEMOSS OWNERS ASSOCIATION AND

ASSOCIATION MANAGEMENT, INC., APPELLEES

_________________________________

FROM THE 11TH DISTRICT COURT OF HARRIS COUNTY;

NO. 96-50669; HONORABLE MARK DAVIDSON, JUDGE

_______________________________

Before BOYD, C.J., and REAVIS and JOHNSON, JJ.

Appellant Rosalind A. Kelly presents this appeal from a summary judgment that she

take nothing against Demoss Owners Association and Association Management, Inc. (the

Association) on her action for damages allegedly caused by the wrongful foreclosure of her

condominium unit by the Association. By her first issue, Kelly contends the trial court erred

in rendering summary judgment because the Association did not serve the motion 21 days before the hearing. By her second issue, she contends the trial court erred in granting

summary judgment because the Association’s summary judgment proof was legally

insufficient. Based upon the rationale expressed herein, we affirm.

Kelly purchased a condominium in the Demoss subdivision in 1987. Beginning in

June 1993 and continuing thereafter, Kelly established a history of delinquent and partial

payments on her monthly maintenance assessment. Because of her defaults, the

Association foreclosed on the condominium. After the foreclosure, Kelly was notified of the

sale and was given 90 days to redeem the property, which she failed to do. On October 4,

1996, Kelly, a member of the State Bar of Texas residing in St. Thomas, Virgin Islands, filed

the underlying action against the Association contending that the foreclosure was wrongful,

additionally seeking damages for slander, intentional infliction of emotional distress,

negligent infliction of emotional distress, and breach of contract. Proceding pro se, she

signed the petition which stated her mailing address to be:

Rosalind A. Kelly Pro Se 11237580 P.O. Box 308004 St. Thomas, U.S.V.I. 00802

Between 1998 and 2000, trial settings were changed on four occasions. According to the

clerk’s record, Kelly continued to use the St. Thomas address as late as September 22,

1999, when she filed her motion to withdraw deemed admissions. After verifying that Kelly’s

2 mailing address was unchanged with the trial court on August 7, 2000, counsel for the

Association filed its no-evidence motion for summary judgment on August 10, 2000, and

mailed a copy of the motion and notice of a submission date of September 11, 2000, to

Kelly’s St. Thomas address shown on her original petition and her most recent pleading filed

on September 22, 1999.

Neither the record nor Kelly’s brief1 inform us as to when Kelly moved from St.

Thomas. However, on August 15, 2000, she filed a notice of change of address and sent

a copy to the Association’s counsel designating her new address as 355 E. Vista Ridge Mall

Drive, Suite 3124, Lewisville, Texas, 75067, and provided telephone and facsimile numbers.

Upon receipt of the notice of change of address, on August 21, 2000, counsel for the

Association sent her a courtesy copy of the motion for summary judgment, special

exceptions, and notice of oral hearing on the special exceptions. Kelly acknowledged that

she received the August 21 notice on August 23, 2000. Then, on September 5, 2000, Kelly

filed a response to the motion for summary judgment contending that because she was not

served until August 23, 2000, that the hearing date of September 11, 2000 did not provide

1 Although Texas Rule of Appellate Procedure 38.1(f) and (h) requires that the fact statement and the argument in an appellate brief “be supported by record references,” Kelly’s fact statement makes no references to the record. Therefore, we refer to the Association’s fact statement and the clerk’s record.

3 her 21 days notice as required by Rule 166a(c). Kelly did not respond to the no-evidence

motion with any summary judgment evidence or file a motion for continuance.2

On October 5, 2000, the trial court signed an order on the Association’s motion for

summary judgment which, among other things, provided that Kelly take nothing against the

Association. This order became final when the trial court signed a subsequent order on

December 11, 2000, overruling Kelly’s motion for new trial and ordering that Kelly take

nothing from the Association.3

No-Evidence Summary Judgment Standard of Review

Where, as here, the summary judgment does not specify or state the grounds relied

on, it will be affirmed on appeal if any of the grounds presented in the motion are

meritorious. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989); Insurance Co. of N. Am.

v. Security Ins., 790 S.W.2d 407, 410 (Tex.App.--Houston [1st Dist.] 1990, no writ). Where

a motion is presented under Rule 166a(i) asserting there is no evidence of one or more

2 We do not consider Kelly’s account of a court appearance on September 5, 2000 because it is not supported by the record. 3 The order signed October 5 and the order signed December 11, 2000, when taken together, constitute a final judgment. Mafrige v. Ross, 866 S.W.2d 590, 591 n. 5 (Tex. 1993). We have also determined that our jurisdiction was invoked although appellant’s notice of appeal reflects she is appealing the order signed October 5, 2000. The rules of appellate procedure provide that a prematurely filed notice of appeal need not be considered ineffective so long as it can properly be applied to a subsequent appealable order. Tex. R. App. P. 27.1; see Berry-Parks Rental Equipment v. Sinsheimer, 842 S.W.2d 754, 757 (Tex.App.--Houston [1st Dist.] 1992, no writ).

4 essential elements of the non-movant's claims upon which the non-movant would have the

burden of proof at trial, the movant does not bear the burden of establishing each element

of its own claim or defense as under 166a(a) or (b). Rather, although the non-moving party

is not required to marshal its proof, it must present evidence that raises a genuine fact issue

on the challenged elements. See Tex. R. Civ. P. 166a, Notes and Comments.

Because a no-evidence summary judgment is essentially a pretrial directed verdict,

we apply the same legal sufficiency standard in reviewing a no-evidence summary judgment

as we apply in reviewing a directed verdict. Jackson v. Fiesta Mart, Inc., 979 S.W.2d 68,

70 (Tex.App.--Austin 1998, no pet.). Thus, our task as an appellate court is to ascertain

whether the non-movant produced any evidence of probative force to raise a fact issue on

the material questions presented. Id. We consider all the evidence in the light most

favorable to the party against whom the no-evidence summary judgment was rendered,

disregarding all contrary evidence and inferences. Merrill Dow Pharmaceuticals v. Havner,

953 S.W.2d 706, 711 (Tex. 1997), cert. denied, 523 U.S.1119, 118 S.Ct. 1799, 140 L.Ed.2d

939 (1998). A no-evidence summary judgment is improperly granted if the non-movant

presents more than a scintilla of probative evidence to raise a genuine issue of material

fact. Fiesta Mart, Inc., 979 S.W.2d at 70-71. More than a scintilla of evidence exists when

the evidence “rises to a level that would enable reasonable and fair-minded people to differ

in their conclusions.” Havner, 953 S.W.2d at 711.

5 By her first issue, Kelly contends the trial court erred in granting the motion for

summary judgment because the Association did not serve the motion within 21 days of the

hearing. 4 We disagree. Texas Rule of Civil Procedure 166a(c) provides in part that:

Except on leave of court, with notice to opposing counsel, the motion and any supporting affidavits shall be filed and served at least twenty-one days before the time specified for hearing. Except on leave of court, the adverse party, not later than seven days prior to the day of hearing may file and serve opposing affidavits or other written response. No oral testimony shall be received at the hearing.

The clerk’s record reflects that the motion for summary judgment was filed August

10, 2000, and counsel’s certificate of service demonstrates that notice was sent to Kelly at

her address in St. Thomas by certified mail. The clerk’s record also reflects that Kelly filed

a response to the motion for summary judgment on September 5, 2000. By her response,

she admitted that on August 23, 2000, she received the motion for summary judgment and

other matters mailed to her on August 21, 2000, by counsel for the Association, but

contended she was not afforded 21 days notice under Rule 166a(c). However, in her

response, Kelly did not contend that she did not receive the notice sent by certified mail on

August 10 and she did not produce any summary judgment evidence, by affidavit or

otherwise, that she had not received the notice dated August 10, 2000. Further, Kelly’s

response did not attempt to offer any proof that the August 10 mailing was not timely

received as provided by Rule 21a of the Texas Rules of Civil Procedure. Additionally, Kelly

4 Kelly does not contend that the trial court erred in overruling her motion for new trial.

6 did not respond to the merits of the motion for summary judgment, file a motion for

continuance, or seek additional time to file her responses. Accordingly, because Kelly did

not challenge the date of service by proper summary judgment evidence, we cannot

consider the issue on appeal as grounds for reversal. City of Houston v. Clear Creek Basin

Authority, 589 S.W.2d 671, 677 (Tex. 1979).

Moreover, by her response in the trial court and brief herein, Kelly acknowledged that

on August 21, she had actual notice of the filing of the motion for summary judgment, which

was 44 days before the trial court signed the judgment. Although Kelly did file a response

contending that, based on the August 21 notice, she did not have 21 days notice of the

hearing set for September 11, 2000, she did not file a motion for continuance requesting

additional time to conduct discovery, to prepare her response, or demonstrate her diligence

in keeping the court and opposing counsel informed of her current mailing address. By her

original petition filed in October 1996, Kelly designated her mailing address as P.O. Box

308004, St. Thomas, U.S.V.I. 00802, and according to the clerk’s record, her address

remained the same until she gave notice of the new address on August 15, 2000.

Mailing addresses of parties or attorneys are material to many rules of procedure.5

Among other rules, Rule 21a requires that every pleading, plea, motion, or application “shall

be served on all other parties,” and by separate paragraph, provides:

5 See, e.g., Texas Rules of Civil Procedure 10, 21a, 57, 86, 99, 119, 19a, 165a, 196.7, 239a, 534, and 736.

7 If there is more than one other party represented by different attorneys, one copy of such pleading shall be delivered or mailed to each attorney in charge.

Before a pleading can be mailed, the receiving party must have provided the proper mailing

address. Also, Rule 21a provides for alternative methods of service including United States

mail. Further, under Rule 57, the address of a pro se party or the attorney must be stated

in the pleadings; and, Rule 79 requires that a petition state the residences of the parties.

Addresses of attorneys and pro se parties are essential because they furnish the opponent

an address “to which copies of later pleadings and motions may be sent.”6 As a member

of the State Bar of Texas, Kelly was charged with notice that if she wanted to ensure prompt

notice to her of a motion or other filing by counsel for the Association, she should promptly

give notice of any new mailing address. This record demonstrates that any delay in service

of actual notice of the filing of the motion for summary judgment was invited by Kelly.

Invited error is an equitable doctrine which prohibits a party from acting in a way that

misleads a trial court into committing error and is well established in Texas jurisprudence.

See General Chemical Corp. v. De La Lastra, 852 S.W.2d 916, 920 (Tex. 1993).

Accordingly, because Kelly did not promptly file a designation of new address, she cannot

complain on appeal that the trial court erred in rendering summary judgment,

notwithstanding her contention that she was not afforded 21 days notice under Rule

166a(c). Kelly’s first issue is overruled.

6 See 2 McDonald Texas Civil Practice §7:19 (1992).

8 By her second issue, Kelly contends the trial court erred in granting the motion for

summary judgment because the Association’s summary judgment proof was legally

insufficient. We disagree. Kelly’s issue misplaces the burden of proof. The motion under

review is a no-evidence motion and states in bold print in a subheading, No Evidence

Summary Judgment, and references Texas Rule of Civil Procedure 166a(i) in the

subsequent paragraph. Also, the motion separately sets out the elements of Kelly’s alleged

causes of action and asserts the absence of evidence on those elements.

Contrary to a traditional motion for summary judgment, a party presenting a no-

evidence motion for summary judgment is not required to submit summary judgment

evidence. Rule 166a(i) expressly provides in part:

a party without presenting summary judgment evidence may move for summary judgment on the ground that there is no evidence . . . .

Where, as here, the movant asserts that there is no evidence of one or more essential

elements of the non-movant’s claims upon which the non-movant would have the burden

of proof at trial, the movant does not bear the burden of establishing each element of its

own claim or defense as under Rule166a(a) or (b). Rather, although the non-movant is not

required to marshal its proof, it must present evidence that raises a genuine fact issue on

the challenged elements. See Tex. R. Civ. P. 166a , Notes and Comments; see also Roth

v. FFP Operating Partners, 994 S.W.2d 190, 195 (Tex.App.--Amarillo 1999, pet. denied).

Kelly’s second issue is overruled.

9 Accordingly, the judgment of the trial court is affirmed.

Don H. Reavis Justice

Publish.