Opinion
No. 05-03-00423-CV
Opinion Filed July 27, 2004.
On Appeal from the County Court at Law No. 3, Dallas County, Texas, Trial Court Cause No. 02-055-95-C.
Reversed and Remanded.
Before Justices WRIGHT, O'NEILL, and FRANCIS.
MEMORANDUM OPINION
In this suit to collect a debt, Ramesh K. Wadhwa appeals the trial court's summary judgment against him and in favor of Bank One, NA. After reviewing the record, we conclude the unrefuted evidence establishes that Wadhwa did not receive notice of the summary judgment hearing. Accordingly, we reverse the trial court's judgment.
Bank One, NA, sued Wadhwa after he allegedly defaulted on a promissory note. Wadhwa filed an answer in which he generally denied the allegations and also asserted that Bank One had not credited all payments he made. Bank One filed a motion for summary judgment. Wadhwa, who is in prison and represents himself in this lawsuit, did not respond to the motion nor did he appear at the hearing. The trial judge granted the summary judgment and awarded Bank One $25,970 plus prejudgment interest and attorney's fees.
Wadhwa timely filed a motion for new trial asserting that he did not have notice of the summary judgment hearing. In an affidavit attached to the motion, Wadhwa asserted: "I never received notice from the plaintiff or its attorneys of the date and time scheduled for the hearing on their [sic] motion for summary judgment. Nor did I ever receive any kind of notice from the court or clerk, either." Wadhwa said he first learned there was a hearing when he received a copy of the order granting Bank One judgment. Bank One did not respond to the motion for new trial, which was overruled by operation of law. This appeal ensued.
In his first point of error, Wadhwa contends the trial court abused its discretion by failing to grant his motion for new trial in which he established that he did not receive notice of the hearing. Wadhwa argues that the lack of notice violated his due process rights.
Determining whether to grant or deny a motion for new trial is a matter which falls within the sound discretion of the trial court. Bank One, Tex. N.A. v. Moody, 830 S.W.2d 81, 85 (Tex. 1992); Mosser v. Plano Three Venture, 893 S.W.2d 8, 10 (Tex. App.-Dallas 1994, no writ). Although the trial court's decision will not be disturbed absent an abuse of discretion, we treat the trial court's application of law to facts with less deference than we do the judge's findings of fact. Mosser, 893 S.W.2d at 10. The trial court does not have unbridled discretion to decide a motion for new trial, but must rely upon guiding rules and principles in reaching its decision. Id. The guiding rules and principles a trial court must follow are contained in the Texas Rules of Civil Procedure as well as the decisions of the appellate courts of this state and the United States.
Texas Rule of Civil Procedure 166a requires that a party serve notice of a summary judgment hearing on opposing counsel at least twenty-one days before the hearing date. Tex. R. Civ. P. 166a(c); Mosser, 893 S.W.2d at 11 . Absence of actual or constructive notice violates a party's due process rights under the Fourteenth Amendment to the federal constitution. Smith v. Mike Carlson Motor Co., 918 S.W.2d 669, 672 (Tex. App.-Fort Worth 1996, no writ).
Texas Rule of Civil Procedure 21a sets up a presumption that when notice of a trial setting properly addressed and postage prepaid is mailed, the notice was received by the addressee. Cliff v. Huggins, 724 S.W.2d 778, 780 (Tex. 1987). This presumption may be rebutted by an offer of proof of nonreceipt. Id. In the absence of evidence to the contrary, the presumption has the force of a rule of law. Id. The presumption, however, is not "evidence" and vanishes when opposing evidence is introduced that the notice is not received. Id.
The only evidence in the record that could possibly suggest notice to Wadhwa is the fiat following the certificate of service at the end of the motion for summary judgment. The fiat contains a time and date of hearing and is signed by the judge, but there is nothing to suggest this fiat was completed at the time the motion was mailed to Wadhwa. In fact, the appellate record shows the contrary. In a motion to correct the clerk's record, Wadhwa attached the copy of the motion for summary judgment sent to him. This motion did not contain a clerk's file stamp, and the fiat was silent.
Even assuming the certificate of service preceding the fiat creates the presumption provided in rule 21a, Wadhwa filed a sworn affidavit attesting that he did not receive notice of the hearing.
This affidavit overcame any presumption of receipt that may have been created by the certificate of service. See Wembly Inv. Co. v. Herrera, 11 S.W.3d 924, 927 (Tex. 1999). Bank One elected to not respond to Wadhwa's motion for new trial with evidence of any notice it may have sent to Wadhwa. There being no evidence to refute Wadhwa's sworn affidavit that he did not receive notice, we conclude the trial court abused its discretion in failing to grant the motion for new trial based on lack of notice. We therefore sustain the first point of error. In light of our disposition of this point, we need not address Wadhwa's remaining points.
We reverse the trial court's judgment and remand for proceedings consistent with this opinion.