ANDREW ALEXANDER EROS, Appellant v. BOYINGTON CAPITAL GROUP, LLC, Appellee

AFFIRM and Opinion Filed November 10, 2010
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-08-01703-CV
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ANDREW ALEXANDER EROS, Appellant
V.
BOYINGTON CAPITAL GROUP, LLC, Appellee
.............................................................
On Appeal from the 199th Judicial District Court
Collin County, Texas
Trial Court Cause No. 199-02144-06
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MEMORANDUM OPINION
Before Justices O'Neill, Lang, and Murphy
Opinion By Justice O'Neill
        The trial court granted a motion for summary judgment against appellant Andrew Alexander Eros based on deemed admissions. He filed a motion for new trial arguing he failed to answer the requests for admissions because he did not receive them rather than conscious indifference. The trial court denied his motion for new trial.
        Appellant appeals the order granting summary judgment in favor of appellee Boyington Capital Group, LLC. He first argues the trial court erred in admitting deemed admissions because the method of substitute service used by appellee did not show proof of receipt. Second, he asserts he should be allowed to amend his answers to the admissions and present a meritorious defense because as a pro se defendant, he did not realize he was an individual participant in the suit. We affirm the trial court's judgment. The facts are well-known to the parties; therefore, we only recite those necessary to decide the appeal and issue this memorandum opinion. See Tex. R. App. P. 47.4.
Substitute Service
        In his first issue, appellant claims the trial court erred by granting appellee's motion for summary judgment based on deemed admissions that were improperly served on him through substituted service. Appellee responds the trial court acted within its discretion by ordering substituted service under Texas Rules of Civil Procedure 21a and 106(b)(2), and appellee complied with the order; therefore, appellant was properly served. When appellant failed to respond to the request for admissions, they were deemed admitted and formed the basis for granting summary judgment. We agree with appellee.
Texas Rule of Civil Procedure 21a provides that pleadings, pleas, motions, or other documents required to be served under rule 21 may be served by personal delivery, certified or registered mail, fax, “or by such other manner as the court in its discretion may direct.” Tex. R. Civ. P. 21a. Further, rule 106(b)(2) states that upon motion, supported by affidavit, a court may authorize service “in any other manner that the affidavit or other evidence . . . shows will be reasonably effective to give the defendant notice of the suit.” Tex. R. Civ. P. 106(b)(2).
        Substitute service is predicated on having a procedure that, though it may or may not actually give notice, is expected to be “reasonably effective to give the defendant notice of the suit.” Id.; see also Thomas v. Wheeler, 06-07-00117-CV, 2008 WL 2884933, *5 (Tex. App.-Texarkana 2008, no pet.) (mem. op.). Substitute service exists to allow plaintiffs to effect service where proof of actual notice under rule 106(a) is impractical. State Farm Fire & Cas. Co. v. Costley, 868 S.W.2d 298, 299 (Tex. 1993) (per curiam) (citing Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1993)).
        Under Rule 106(b) a court may authorize substituted service only after a plaintiff has unsuccessfully tried to effect personal service or service by certified mail, return receipt requested, as required by Rule 106(a). Tex. R. Civ. P. 106(b). A plaintiff may resort to substituted service upon the failure of these methods that provide proof of actual notice.
        Appellant contends substitute service was improper because it did not allow for proof that he actually received the request for admissions. However, to require proof of actual notice upon substituted service would frustrate Rule 106(b)'s purpose of providing alternate methods for plaintiffs in the position of appellee. See Costley, 868 S.W.2d at 299. In fact, the rule itself contemplates other procedures which will not necessarily furnish evidence of actual notice. The rule allows service by leaving a copy of the citation and petition with someone over the age of sixteen at the defendant's place of abode as stated in the affidavit. Tex. R. Civ. P. 106(b)(1). Service by mail achieves a similar result because it allows a plaintiff to properly post a return of service, which demonstrates the plaintiff has precisely followed the court's order of service by means reasonably calculated to provide actual notice. See Costley, 868 S.W.2d at 299.
        Thus, appellant's argument that there must be proof he received actual receipt of the admissions before the trial court could deem them admitted is without merit. Therefore, our inquiry is whether appellee complied with the substitute service order issued by the court.   See Footnote 1 
        After repeated attempts to serve appellant with an order on appellee's motion to compel, a motion for sanctions, motion to show cause, and a subpoena for appellant to appear at a hearing, the trial court ordered the following:
 
        It is ORDERED that Boyington's Motion for Substitute Service is GRANTED and Boyington is authorized to accomplish substitute service on Defendant Eros by delivering via USPS first class mail and via FedEx all papers and notices in this case at Defendant's residence . . . .
 
The record indicates that following entry of the order for substituted service, appellee served appellant a copy of (1) the order allowing substituted service, (2) a second request for production of documents, (3) the motion to compel production, (4) a notice of hearing for pending motions including plaintiff's special exceptions, motion for sanctions and to show cause regarding contempt of court, and request for scheduling conference, (5) notice of hearing for motion to compel production, (6) plaintiff's first request for admissions, and (7) motion for summary judgment in accordance with the court's order for substitute service allowing service by FedEx and regular Unites States Postal Service. Thus, appellee precisely followed the court's order of service by means reasonably calculated to provide actual notice. Id.
        Appellant relies on two cases to support his argument that proof of actual receipt of discovery is required; otherwise, service is defective. See Etheredge v. Hidden Valley Airpark Ass'n, 169 S.W.3d 378 (Tex. App.-Fort Worth 2005, pet. denied); Payton v. Ashton, 29 S.W.3d 896 (Tex. App.-Amarillo 2000, no pet.). In both Etheredge and Payton, parties were served by certified mail, return receipt requested; however, the documents were returned “unclaimed.” Etheredge, 169 S.W.3d at 380; Payton, 29 S.W.3d at 898. Thus, the presumption of receipt created under rule 21a was rebutted by proof that the documents were not received.
        The present facts are distinguishable from Etheredge and Payton. First, neither case involves an order from the trial court allowing for substitute service. And second, we have no evidence in the record indicating the numerous documents delivered to appellant's home were returned “unclaimed.” Thus, we are unpersuaded by appellant's arguments.
        Because appellee served appellant in compliance with the order for substituted service and actual notice of receipt is not required when substituted service is used, the trial court did not err in using the deemed admissions to support the motion for summary judgment. See Farahmand v. Do, 153 S.W.3d 601, 603 (Tex. App.-Dallas 2004, pet. denied) (holding deemed admissions were sufficient to support motion for summary judgment). We overrule appellant's first issue.
Individual Party to Suit
        In his second issue, appellant argues the trial court erred by not allowing him to withdraw his deemed admissions when he erroneously believed the case was solely against his company and not him individually.
        We first note that appellant states several times throughout his brief that he was a pro se defendant. However, parties who represent themselves must comply with the applicable law and rules of procedure because pro se litigants are held to the same standards as licensed attorneys. Mansfield State Bank v. Cohn, 573 S.W.2d 181, 185 (Tex. 1978). Thus, any argument for special consideration because of his pro se status is irrelevant to our decision.
        Appellant's assertion he did not realize appellee filed suit against him individually is without merit. The record shows plaintiff's original petition named “Defendant Eros,” an individual living in Collin County, Texas, as a party to the lawsuit. The affidavit of service indicates he was personally served with citation on July 6, 2006. The record further shows appellant filed an original answer denying all allegations of the original petition. Thus, the evidence contradicts his assertions he did not know he was a party to the suit. See, e.g., 21st Century Home Mortg. v. City of El Paso, 281 S.W.3d 83, 86 (Tex. App.-El Paso 2008, no pet.) (holding record containing copy of citation served on mortgage company contradicted its assertion that it did not know it was a party to the lawsuit); Acosta v. Tri State Mortg. Co., 08-08-00296-CV, 2010 WL 3373911, *6 (Tex. App.-El Paso 2010, no pet.) (holding citation clearly informed party he had been sued and there was no doubt he had knowledge of suit).         Appellant further argues it was inappropriate for the trial court to rely on the deemed admissions to grant the motion for summary judgment. He relies on Wheeler v. Green, 157 S.W.3d 439 (Tex. 2005) (per curiam) for support. In that case, the court reversed the denial of a motion for new trial based on a summary judgment supported by deemed admissions granted against a pro se defendant. However, the court reversed because the pro se defendant had in fact filed responses, but the responses were two days late based on the “mailbox rule.” Id. at 441. The pro se defendant also attended the summary judgment hearing. Id. It concluded the trial court should have granted a new trial and allowed the deemed admissions to be withdrawn upon learning the summary judgment was solely based on her admissions being two days late. Id. at 444.
        Wheeler is distinguishable from appellant's facts. Appellant did not make any attempt to file a motion to withdraw his deemed admissions and respond to the admissions until some time after the court entered its final summary judgment order. Further, he did not attend the hearing. Thus, unlike the pro se defendant in Wheeler, appellant did not attempt to participate and defend against the suit. Accordingly, the trial court did not err in using the deemed admissions to support its order granting summary judgment. See Farahmand 153 S.W.3d at 603.
        Likewise, the trial court did not abuse its discretion in refusing to withdraw the deemed admissions post-summary judgment. The court may permit a party to withdraw or amend his admissions if the party shows good cause for the withdrawal or amendment. Tex. R. Civ. P. 198.3(a). A party can establish good cause by showing his failure to answer was accidental or the result of a mistake, rather than intentional or the result of conscious indifference. Stelly v. Papania, 927 S.W.2d 620, 622 (Tex. 1996) (per curiam).
        It was within the trial court's discretion, based on this record, to conclude appellant engaged in instances of selective acceptance/refusal of service based on his acceptance of personal service of the original petition and then his sudden absence during later attempts at service of other documents. His only explanation, that he did not realize he was sued individually, has no merit as discussed above. Thus, he failed to establish good cause because such behavior was intentional rather than the result of a mistake or accident. Accordingly, we cannot say the trial court acted arbitrarily by denying him an opportunity to withdraw his deemed admissions. Appellant's second issue is overruled
        Having overruled both of appellant's issues, we affirm the trial court's judgment.
 
                                                          
                                                          MICHAEL J. O'NEILL
                                                          JUSTICE
 
081703F.P05
 
Footnote 1 Appellant has not challenged the motion or affidavit in support of appellee's motion for substitute service. See Tex. R. Civ. P. 106(b)(2) (stating “upon motion supported by affidavit . . . the court may authorize service . . .”).