Sherry A. Singleterry v. State of Texas, et al.--Appeal from 359th District Court of Montgomery County

  NUMBER 13-01-260-CV

  COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI  BEDINBURG

SHERRY A. SINGLETERRY, Appellant,

v.

STATE OF TEXAS

  COUNTY OF MONTGOMERY, Appellee.

On appeal from the 359th District Court

of Montgomery County, Texas.

O P I N I O N

Before Chief Justice Valdez and Justices Ya ez and Wittig[1]

Opinion by Justice Wittig

Sherry Ann Singleterry, pro se, appeals a post answer default judgment. In three issues, she attacks the trial court=s failure to grant her motion for new trial for lack of actual notice of a trial setting, the failure of the court reporter to mark and file evidence, and she challenges the qualifications of the trial judge to render judgment. We will affirm.

I

As best we can reconstruct the record, appellant filed several appearances in the underlying delinquent tax suit. In her letter to the District Clerk dated May 22, 2000, appellant requested Aadvise me of any court date@ and AIf I am needing to appear concerning this matter. Please mail it to: Sherry Singleterry, 9221 Pagewood, #299, Houston, TX 77063.@ Appellees, the State of Texas, County of Montgomery and Conroe I.S.D., sent notice of the trial setting to appellant, at her Pagewood address as instructed by appellant. Appellant apparently moved, and though she states she notified the post office to forward her mail, she did not notify the District Clerk or opposing counsel of her new address. The post office returned the notification of the trial setting and marked the envelope AMoved left no forwarding address.@ After a trial to the bench, judgment was signed by the assigned senior district judge, Lee Alworth. Judge Alworth was properly assigned by the Second Region Administrative Judge, Olin Underwood by order dated December 20, 2000, to the 359th District Court of Montgomery County. Further factual background information will be developed as necessary to address and analyze appellant=s issues.

II

Appellant first argues she was denied due process under both the Texas and United States Constitutions. She cites Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80 (1988). That case principally held that no meritorious defense is necessary when no service of process is shown. Id. at 86-87. A[I]t seems obvious that had a meritorious defense been shown, and the allegations on service and notice found to be true, the offending judgment would have been vacated.@ Id. at 86. However, Peralta assumed, there was no proper notice. Id. Unlike Peralta, appellant was notified of the trial setting in accordance with the applicable rules of procedure and her own instructions.[2] Her complaints about the notice procedures were presented to the trial court and denied. Additionally, appellant has a legal remedy. Appellant has a right of redemption to her property. A property owner may exercise her right of redemption under section 34.21(a) of the tax code by paying the prescribed amount. Tex. Tax Code Ann. ' 34.21(a) (Vernon 2001); see also Burkholder v. Klein Indep. Sch. Dist., 897 S.W.2d 417, 420 (Tex. App.BCorpus Christi 1995, no writ). We cannot find in appellant=s pleadings or the record that appellant denies owing the underlying taxes. To the contrary, she argues her difficulty in tendering payment for the past due taxes and attorney=s fees.[3] In other words, appellant is authorized to reclaim her property by paying the undisputed past due taxes, attorney=s fees and prescribed costs, thus redeeming her Montgomery County lot.[4] Accordingly, her complaint is not of constitutional dimension.

Next appellant argues Strawder v. Thomas, 846 S.W.2d 51, 62 (Tex. App.BCorpus Christi 1992, no writ), holding rules relating to service of process are mandatory, and a failure to comply renders a judgment void. However, the opinion also notes a party may waive service of citation or appear voluntarily. Id. Because appellant voluntarily appeared, she waived further service of citation.

Finally, appellant argues it is impermissible in a default judgment to render judgment for damages in excess of the damages specifically pleaded, citing Capitol Brick, Inc. v. Fleming Mfg. Co. Inc., 722 S.W.2d 399, 401 (Tex. 1986). Though this is an accurate statement of law, the argument is inapplicable. Damages were not awarded in excess of an amount pled. The judgment was limited to the amount of taxes past due and owing, plus statutory fifteen per-cent attorney=s fees.

III

We believe appellant=s first issue fails for three reasons. First, before a pleading or notice can be mailed, the receiving party must provide a proper mailing address. Kelly v. Demoss Owners Ass'n, 71 S.W.3d 419, 424 (Tex. App.BAmarillo 2002, no pet.). Rule 21a provides for alternative methods of service and notice, including United States mail. Tex. R. Civ. P. 21a. Counsel for appellees properly followed this rule and mailed the notice of setting to appellant at her designated Pagewood address. Under Rule 57, the address of a pro se party or the attorney must be stated in the pleadings. Tex. R. Civ. P. 57. Rule 79 requires that a petition state the residences of the parties. Tex. R. Civ. P. 79. 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." Kelly, 71 S.W.3d at 424. As far as we are able to determine, these rules of procedure were followed except that appellant failed to notify the court or parties she changed addresses. And because the trial judge also denied appellant=s motion for new trial, we must assume he found appellant=s contentions without merit.[5] In re R.D.C., 912 S.W.2d 854, 857 (Tex. App.BEastland 1995, no writ).

Regarding appellant=s due process argument, notice of dispositive settings by first class mail is constitutionally sufficient, as long as the party acts reasonably under the circumstances, even if the intended recipient of the notice never receives it. In re Eagle Bus Mfg., Inc., 62 F.3d 730, 735 (5th Cir. 1995) (in bankruptcy proceeding, notice by first class mail to creditors notifying them of bar date for proof of claims met due process requirements; question was not whether notice was received but whether it was properly mailed); Farhoud v. INS, 122 F.3d 794, 796 (9th Cir. 1997) (notice of deportation proceeding by first class mail to last known address held sufficient); Weigner v. City of New York, 852 F.2d 646, 650 (2d Cir. 1988) (notice of tax foreclosure action sent by first class mail satisfied due process). The two Houston courts of appeals have split on this issue. In Transoceanic Shipping Co., Inc. v. Gen. Universal Sys., Inc., 961 S.W.2d 418, 419 (Tex. App.BHouston [1st Dist.] 1997, no writ), the court held that default judgment was improper because the record showed that counsel did not receive notice. That holding is distinguishable, because the opinion does not reflect, as here, that appellant specifically requested notice to a certain address, namely Pagewood. The other Houston court noted that there is no error "apparent from the face of the record" when the trial court or clerk fully complies with Rule 245 by mailing notice of the trial setting to appellant's attorney of record at his last known address. Withrow v. Schou, 13 S.W.3d 37, 41 (Tex. App.BHouston [14th Dist.] 1999, pet. denied). That court further noted that neither Rule 245 nor the due process clause absolutely require actual notice of a trial setting. Id.

Finally, invited error is an equitable doctrine which prohibits a party from acting in a way that misleads a trial court into committing error. See Gen. Chem. Corp. v. De La Lastra, 852 S.W.2d 916, 920 (Tex.1993). Accordingly, because appellant did not withdraw her specific instruction to the court to send all notices to her Pagewood address, or furnish the court and parties any other address, she cannot complain on appeal that the trial court erred in proceeding to trial when notice was sent in accordance with her explicit instructions and the applicable rules of procedure. We find appellant=s first issue to be without merit.

IV

In her second issue, appellant seems to complain of an alleged failure of the court reporter to mark and file exhibits. She does not direct us to any place in the record where the reporter refused or failed to mark or file exhibits. See Tex. R. App. P. 38.1(f), (h). To the contrary, the record affirmatively shows both tax statements and an affidavit of attorney=s fees sufficient to support the judgment. The final judgment itself reflects a prima facie case was established by the evidence. Appellant=s second issue is overruled.

V

Finally, appellant argues ARetired judge did not met procedural requirement to sit as an assigned judge.@ [sic] She cites Buckholts I.S.D. v Glaser, 632 S.W.2d 146, 148 (Tex. 1982). It is true Buckholts observes by way of dicta, any order involving judicial discretion by a constitutionally disqualified judge is "absolutely void," or "a nullity." Id. Buckholts held a resident judge should not hear a bond election contest but the error was not fundamental and was waived. Id. AThe correct procedure was to file a motion to recuse.@ Id. Here, appellant filed neither a motion to recuse nor an objection to the assigned senior district judge. We already noted the record affirmatively reflects the proper assignment of Judge Alworth by Judge Underwood. Tex. Gov=t Code Ann. ' 74.056 (Vernon 2001). Appellant=s third issue is overruled.

The judgment of the trial court is affirmed.

DON WITTIG

Justice

Do not publish.

Tex. R. App. P. 47.3.

Opinion delivered and filed this

the 12th day of December, 2002.

[1]Retired Justice Don Wittig assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov=t code Ann. ' 74.003 (Vernon 1998).

[2]We also observe LBL Oil Co. v. Int=l Power Servs., Inc., 777 S.W.2d 390 (Tex. 1989), holding there was a denial of due process where there was no actual or constructive notice of a dispositive motion. The case sub judice presents a case of constructive notice as amplified in the opinion.

[3]Appellee correctly notes that appellant alludes to post judgment matters that are not properly raised as issues before this court. We assume without deciding, that counsel for appellees would not refuse a proper tender, in violation of the law of judgments and the Tax Code.

[4] We note the time limitation of redemption rights to be two years. See Tex. Tax Code Ann. ' 34.21(a) (Vernon 2001).

[5] We treat the trial court=s granting of appellee=s objections to the motion for re-hearing as effectively denying appellant=s motion for new trial.