James Griffith v. Johnny Kirk, BJ Services Co., USA, L.P., and BJ Unichem Chemical Services, a Division of BJ Services Co.--Appeal from 270th District Court of Harris County

Affirmed and Memorandum Opinion filed March 15, 2005

Affirmed and Memorandum Opinion filed March 15, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-03-01403-CV

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JAMES GRIFFITH, Appellant

V.

JOHNNY KIRK, BJ SERVICES CO., U.S.A., L.P., and BJ UNICHEM CHEMICAL SERVICES, a Division of BJ Services Co., Appellees

On Appeal from the 270th District Court

Harris County, Texas

Trial Court Cause No. 2002-50221

M E M O R A N D U M O P I N I O N

Appellant, James Griffith, appeals the trial court=s award of costs to appellees after Griffith filed a non-suit of his claims. Griffith contends he was not given adequate notice or an opportunity to be heard on the issue of costs, and therefore, the court=s award violated his due process rights.

This appeal arises from a negligence action involving an automobile accident in Hobbs, New Mexico, in October of 2000. Griffith originally filed suit in Harris County on September 30, 2002. The trial court initially scheduled the case for trial sometime around September 1, 2003. After Griffith moved for a continuance, the trial court reset the case for the two weeks following February 2, 2004. Meanwhile, on October 3, 2003, Griffith filed a non-suit of his claims.[1]

After Griffith non-suited his claims, appellees sought to recover costs pursuant to Texas Rule of Civil Procedure 162. On October 21, 2003, they filed a motion for costs along with a notice of hearing that set a hearing for October 31, 2003. Appellees allegedly mailed both the motion and notice to Griffith=s attorney via certified mail, return receipt requested the same day it was filed. Two days later, on October 23, Griffith=s attorney received these documents. On October 24, appellees filed and mailed their supplemental evidence in support of their motion and an amended order for costs. These documents also were sent via certified mail, return receipt requested. Griffith=s attorney allegedly left for vacation on October 25. On October 27, appellees= supplemental evidence and amended order arrived at Griffith=s attorney=s office. Then, on October 30, Griffith=s attorney returned from vacation but did not open his mail until November 3. Meanwhile, on October 31, as scheduled, the trial court held a hearing on appellees= motion to recover costs. The court entered an order of dismissal and awarded costs to appellees in the amount of $6,477.20. Griffith was neither present nor represented at this hearing.

Subsequently, after opening his mail on November 3, 2003, Griffith=s attorney found mention of the October 31 hearing in appellees= supplemental evidence, allegedly for the first time. Griffith immediately filed a motion for new hearing, arguing that he did not receive notice of the October 31 hearing until after the hearing was over. Specifically, he claimed appellees= notice of hearing was not delivered with their motion to recover costs. Moreover, he contends the only time appellees provided notice of the hearing was by mentioning it in their supplemental evidence filed on October 24 and delivered on October 27. Because his attorney was allegedly out of town when that was delivered, Griffith claimed to be unaware of the hearing. Therefore, Griffith requested the trial court to hold a second hearing on November 21, 2003, to allow him to contest the award of costs. It appears from the record, the trial court subsequently held this hearing on November 21, as requested. It also appears that the court denied Griffith=s requested relief and upheld its October 31 order granting costs to appellees, thus giving rise to this appeal. Griffith now argues the trial court violated his due process rights by awarding costs to appellees without affording him adequate notice or an opportunity to be heard.

Appellees counter by arguing, first, that the award of costs under Rule 162 is automatic. Therefore, they claim whether or not Griffith received notice is irrelevant. Second, they contend that Griffith did receive notice of the hearing as evidenced by certified receipts from the United States Postal Service. Finally, contrary to Griffith=s contentions, appellees point out that Griffith had an opportunity to be heard when the trial court held the second hearing on November 21, 2003.

Texas Rule of Civil Procedure 162 dictates that when a party takes a non-suit, the court clerk is authorized to tax costs against that party, unless otherwise ordered by the court. Tex. R. Civ. P. 162; City of Houston v. Woods, 138 S.W.3d 574, 581 (Tex. App.CHouston [14th Dist.] 2004, no pet.). This court recently explained, A[w]hen a plaintiff abandons an action by obtaining a nonsuit, that plaintiff is liable for all costs.@ Woods, 138 S.W.3d at 581 (emphasis added) (citing Leon Springs Gas Co. v. Rest. Equip. Leasing Co., 961 S.W.2d 574, 580 (Tex. App.CSan Antonio 1997, no pet.)). Therefore, when Griffith voluntarily non-suited his claims against appellees, the trial court was fully authorized to award costs to appellees pursuant to Rule 162.[2] The only other issue that requires discussion is whether notice was required and properly given to Griffith according to the Rules of Civil Procedure.

Texas Rule of Civil Procedure 21 provides that at least three days= notice of a hearing is required to apprise the parties of the hearing. Tex. R. Civ. P. 21. A party may be properly notified by delivering a copy of the notice of hearing by certified or registered mail and that service is complete once deposited with the postal service. Tex. R. Civ. P. 21a. If notice of the hearing is properly addressed and mailed, postage prepaid, a presumption arises that the notice was properly received by the addressee. Thomas v. Ray, 889 S.W.2d 237, 238 (Tex. 1994); Cliff v. Huggins, 724 S.W.2d 778, 779B80 (Tex. 1987); Huffine v. Tomball Hosp. Auth., 979 S.W.2d 795, 799 (Tex. App.CHouston [14th Dist.] 1992, no writ). Moreover, a certificate of service is prima facie evidence that the party was properly served. Tex. R. Civ. P. 21a; Cliff, 724 S.W.2d at 779B80.

The presumption of receipt may be rebutted by an offer of proof of non-receipt. Tex. R. Civ. P. 21a; Thomas, 889 S.W.2d at 238; Cliff, 724 S.W.2d at 780; see also Meek v. Bishop Peterson & Sharp, P.C., 919 S.W.2d 805, 809 (Tex. App.CHouston [14th Dist.] 1996, writ denied) (explaining that the presumption may be rebutted by proof of non-receipt, but in the absence of such proof, the presumption has the force of law). Then it becomes the sender=s burden to present other evidence of delivery. See Wembley Inv. Co. v. Herrea, 11 S.W.3d 924, 928 (Tex. 1999); Continental Cas. Co. v. Davilla, 139 S.W.3d 374, 379B80 (Tex. App.CFort Worth 2004, pet. filed).

Here, appellees filed their motion to recover costs along with a notice of hearing on October 23, 2003. That same day, appellees properly addressed and mailed the motion and notice to Griffith. This is evidenced by two separate certificates of service, one accompanying the notice and another attached to the motion. These certificates serve as prima facie evidence that Griffith was properly served and create the presumption that he received notice of hearing. As such, it was Griffith=s burden to rebut the presumption of receipt with proof of non-receipt. See Tex. R. Civ. P. 21a; Thomas, 889 S.W.2d at 238; Cliff, 724 S.W.2d at 780.

Griffith=s attorney filed a motion for new hearing and an affidavit averring that he received no notice regarding the October 31 hearing. He further claimed in the motion that the only time appellees mentioned the hearing was in their second motion (the supplemental evidence), sent on October 24. This was sufficient proof to rebut the presumption of receipt. See Wembley Inv. Co., 11 S.W.3d at 927B28 (holding that an affidavit averring non-receipt was sufficient to overcome the presumption of receipt). Thus, it became appellees= burden to respond by presenting other evidence of delivery. See Wembley Inv. Co., 11 S.W.3d at 928; Continental Cas. Co., 139 S.W.3d at 379B80. Appellees did exactly that by presenting the return receipt Agreen card@ indicating their motion for costs and notice of hearing was received by Griffith=s attorney=s office on October 23, 2003Ceight days before the hearing was scheduled. Furthermore, the article number listed on the Agreen card@ exactly matched the certified receipt number listed on the certificates of service attached to both the motion and the notice of hearing. Therefore, appellees put forth the necessary evidence to prove appellant received notice of the October 31 hearing.

Even were we to accept Griffith=s argument that he was not adequately notified about the hearing, we still find that there was no harm to Griffith and that his due process rights were not violated. Griffith requested a second hearing on the issue of costs. The trial court granted this request and held a second hearing on November 21. Therefore, any error in the failure to provide notice in this instance was rendered harmless. See Martin v. Martin, Martin & Richards, Inc., 989 S.W.2d 357, 359 (Tex. 1998) (explaining that the failure to give a party notice of a submission date is rendered harmless when the court considers the party=s response and reconfirms its ruling). Accordingly, we overrule Griffith=s sole point of error.

The judgment of the trial court if affirmed.

/s/ J. Harvey Hudson

Justice

Judgment rendered and Memorandum Opinion filed March 15, 2005.

Panel consists of Justices Anderson, Hudson, and Frost.

[1] Griffith later re-filed his claims in New Mexico state court.

[2] Griffith also argues that the issue of costs will be addressed in the New Mexico courts and therefore, costs should not have been awarded after he took a non-suit in Texas. However, the fact that Griffith re-filed his claims in another state does not preclude a Texas court from awarding costs under Texas Rule of Civil Procedure 162. In fact, as appellees note, there is no certainty that appellees will be able to recover the costs expended in Texas in the New Mexico proceedings. Therefore, this argument is without merit.