Letha O. Carroll v. the Bank of New York ( 2005 )

IN THE

TENTH COURT OF APPEALS

No. 10-03-00319-CV

Letha O. Carroll,

                                                                      Appellant

 v.

The Bank of New York,

                                                                      Appellee

From the 66th District Court

Hill County, Texas

Trial Court # 4066

MEMORANDUM Opinion

          Letha Carroll brings this restricted appeal from a default judgment rendered in favor of the Bank of New York. The Bank of New York filed a petition for forcible detainer in the justice of the peace court, which entered a judgment that the Bank of New York was entitled to possession of the property in which Carroll was living.  Carroll gave notice to the justice of the peace court of her intent to appeal.  The Bank of New York filed a notice of appearance in the district court and requested a trial setting.  Notice of the trial setting was sent to Carroll at the address of the property at issue.  A hearing was held at the district court at which the Bank of New York appeared but Carroll did not.  The district court entered judgment for the Bank of New York.  Carroll brings two issues: (1) she never received the notice of the trial setting; and (2) the notice of the trial setting was inadequate because it was sent fewer than 45 days before the hearing.

We will overrule her issues and affirm the judgment.

Restricted Appeal

          This appeal is brought as a restricted appeal pursuant to Rule 30 of the Texas Rules of Appellate Procedure.  Tex. R. App. P. 30.  To prevail on a restricted appeal, the appellant must establish that: (1) she filed the notice of restricted appeal within six months after the judgment or order appealed from was signed; (2) she was a party to the underlying suit; (3) she did not participate at trial; and (4) the trial court erred and the error is apparent from the face of the record.  Tex. R. App. P. 26.1, 30; Campbell v. Fincher, 72 S.W.3d 723, 724 (Tex. App.—Waco 2002, no pet.).  Both parties agree that Carroll brought this case within six months of the district court’s order, that she was a party to the suit, and that she did not participate in the trial.  Therefore, the issue before us is whether error is apparent from the face of the record. Campbell, 72 S.W.3d at 724.

          Carroll argues that she did not receive notice of the trial setting.  We presume that a trial court will hear a case only after proper notice is given.  Welborn-Hosler v. Hosler, 870 S.W.2d 323, 328 (Tex. App.—Houston [14th Dist.] 1994, no writ).  An appellant has the burden of rebutting this presumption by affirmatively showing lack of notice.  Id.  The absence of proof that notice was given or received is insufficient to establish error on the face of the record.  Gen. Elec. Co. v. Falcon Ridge Apartments Joint Venture, 811 S.W.2d 942, 944 (Tex. 1991).

The district court mailed notice of the trial setting to 407 North Brazos Street, which is the address of the property in dispute.  The Bank of New York sent a notice of the trial setting to Carroll by certified mail to the same address.  Both notices were sent to the address Carroll listed on her appeal bond, which was at that time the only pleading that she had filed with the court.  Carroll argues that she does not receive mail at that address and never received the notice.  However, Carroll concedes that there is no testimony or direct evidence on the face of the record to show that she did not actually receive the notices.  Rather, she points to two documents in the record that she argues raise an inference that she did not receive notice.  The first document is a warranty deed from 1999 on which Carroll’s mailing address is listed as a post office box.  The second document is a certified mail envelope, addressed to

407 North Brazos Street

, that was returned to the Bank of New York.

Carroll has not overcome the presumption that the district court gave proper notice of the trial setting.  The fact that she had a post office box in 1999 says nothing about whether she received mail at her street address in 2003.  The envelope that was returned undelivered to the Bank of New York contained a notice to vacate, not the notice of trial setting.  The envelope does not indicate why it was not delivered to the address.  Because Carroll has not met her burden of affirmatively showing lack of notice, we overrule her first issue.

          In her second issue, Carroll argues that even if she received the notice of the trial setting, the notice was inadequate because it was not sent at least forty-five days before trial as required by Rule 245.  Tex. R. Civ. P. 245.  Carroll’s reliance on Rule 245 is misplaced.  A forcible detainer action is a special proceeding governed by particular statutes and rules found in the Texas Property Code and Texas Rules of Civil Procedure.  See Tex. Prop. Code Ann. §§ 24.001—24.011 (Vernon 2000); Tex. R. Civ. P. 738–755.  A forcible detainer action is intended to be a summary, speedy, and inexpensive remedy for resolving the question of who is entitled to immediate possession of the premises.  See McGlothlin v. Kliebert, 672 S.W.2d 231, 232 (Tex. 1984). Consistent with that purpose, Rule 753 provides that the appeal “shall be subject to trial at any time after the expiration of eight full days after the date the transcript is filed in the county court.”  Tex. R. Civ. P. 753.  Here, the transcript from the justice of the peace court was filed on February 12, 2003—approximately five months before the trial occurred. The notice letters of trial setting were sent more than eight days before the trial.  Finding no error, we overrule the second issue.

CONCLUSION

          Having overruled the issues, we affirm the judgment.

BILL VANCE

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Affirmed

Opinion delivered and filed February 2, 2005

[CV06]