Court of Appeals of Texas, Third District, Austin
THE COUNTY COURT AT LAW NO. 2 OF WILLIAMSON COUNTY NO.
18-0232-CC2, THE HONORABLE LAURA B. BARKER, JUDGE PRESIDING
Chief Justice Rose, Justices Kelly and Smith
Housing Authority of The City of Austin (HACA) appeals a
default judgment against it in favor of Ahmed Elbendary. HACA
argues the trial court lacked subject matter jurisdiction
and, in the alternative, that the default judgment should be
set aside on equitable grounds. We will vacate the default
judgment and dismiss the case.
appeal arises out of a family's lease of Elbendary's
rental property with federal Section 8 housing assistance.
See generally 42 U.S.C. § 1437f. HACA is a
municipal corporation responsible for addressing a shortage
of safe and sanitary housing. See generally Tex.
Loc. Gov't Code § 392.011 (creating municipal
housing authorities). In furtherance of that goal, HACA
administers the federal Housing Choice Voucher Program, which
provides rental assistance to low income families.
See 24 C.F.R. § 982.1(a)(1) (2019) (explaining
that program "is generally administered by State or
local governmental entities called public housing
agencies" with funds provided by Department of Housing
and Urban Development). Under that program, a "family
selects a suitable unit" to rent and then applies to the
local public housing agency for approval. Id. §
982.1(b)(2). After approving the tenancy, the agency
"enters into a contract to make rental subsidy payments
to the owner to subsidize occupancy by the family."
April 2015, a family requested assistance with leasing a
residence Elbendary owned in the Austin area. HACA approved
the request and signed a contract with Elbendary to pay him
monthly rental subsidies. This family rented the residence
from April 2015 to April 2016 and allegedly caused $35, 000
in damages to the property.
February 2018, Elbendary sued HACA for breach of contract for
allegedly failing to conduct an adequate background check of
the family or to ensure the family complied with other
program requirements. HACA failed to answer the suit, and the
trial court granted Elbendary a default judgment awarding
Elbendary $35, 796.68 in actual damages on June 5, 2018. On
August 7, 2018, HACA filed a motion to extend post-judgment
deadlines, see Tex. R. Civ. P. 306a, and a motion
for new trial. HACA argued in its motion to extend that the
post-judgment deadlines should run from July 19, 2018. In its
motion for new trial, HACA argued that governmental immunity
deprived the trial court of subject matter jurisdiction or,
in the alternative, that HACA met the equitable criteria for
setting aside a no-answer default judgment. The trial court
denied HACA's motion to extend following an evidentiary
hearing. HACA filed notice of appeal on October 8, 2018.
initially argues that we lack jurisdiction over this appeal
because HACA's notice of appeal was
untimely. See Texas Entm't Ass'n v.
Combs, 431 S.W.3d 790, 796 (Tex. App.-Austin 2014, pet.
denied) ("Timely filing a notice of appeal is necessary
to invoke this Court's appellate jurisdiction[.]").
Generally, a party perfects appeal by filing written notice
of appeal within thirty days after the judgment is signed.
See Tex. R. App. P. 25.1, 26.1. Timely filing
certain post-judgment motions extends the deadline to perfect
appeal to ninety days. See id. R. 26.1(a)(1). The
periods to file these post-judgment motions begin on the date
the judgment is signed. Tex.R.Civ.P. 306a(1). Relevant here,
a motion for new trial is due within thirty days.
Id. R. 329b(a). There is no dispute that HACA filed
its motion for new trial and its notice of appeal more than
sixty days after the judgment was signed. However, HACA had
filed a motion to have the post-judgment deadlines run from
the date it learned of the judgment, July 19, 2018. See
id. R. 306a(4), (5). HACA argues in its first issue that
the trial court erred by denying this motion. Resolution of
this issue also resolves Elbendary's jurisdictional
argument because HACA filed its motion for new trial within
thirty days of July 19, 2018, and its notice of appeal within
ensure that parties can timely file post-judgment motions,
Rule 306a directs trial court clerks to "immediately
give notice to the parties or their attorneys of record by
first-class mail advising that the judgment or order was
signed." Id. R. 306a(3). If a party adversely
affected by a judgment learns of it more than twenty but less
than ninety-one days after it is signed, the post-judgment
deadlines begin on the earlier of the date the party received
notice from the clerk or acquired actual knowledge of the
judgment. Id. R. 306a(4). To invoke this exception,
the party alleging late notice must file a sworn motion with
the trial court establishing the date the party or its
attorney first learned of the judgment. Id. R.
306a(5). The sworn motion "establishes a prima facie
case that the party lacked timely notice and invokes a trial
court's otherwise-expired jurisdiction for the limited
purpose of holding an evidentiary hearing to determine the
date on which the party or its counsel first received notice
or acquired knowledge of the judgment." In re Lynd
Co., 195 S.W.3d 682, 685 (Tex. 2006) (orig. proceeding).
filed a sworn motion asserting it first learned of the
judgment on July 19, 2018, when Elbendary emailed Lisa
Garcia, Vice President of HACA, seeking payment of the
judgment. The court denied HACA's motion following an
evidentiary hearing, impliedly finding HACA received notice
within twenty days after the judgment was signed. See
id. at 686 (explaining denial of Rule 306a motion
implies finding movant received timely notice). HACA
challenges the legal sufficiency of that
finding. See LDF Constr., Inc. v. Texas Friends
of Chabad Lubavitch, Inc., 459 S.W.3d 720, 724 (Tex.
App.-Houston [14th Dist.] 2015, no pet.) (holding that
appellate courts have power to review trial court findings of
date party received notice for legal and factual
sufficiency); Hot Shot Messenger Serv., Inc. v.
State, 798 S.W.2d 413, 414-15 (Tex. App.-Austin 1990,
writ denied) (same). In conducting a legal-sufficiency
review, we credit favorable evidence if a factfinder could
reasonably do so and disregard contrary evidence unless a
reasonable factfinder could not. Shields Ltd. P'ship
v. Bradberry, 526 S.W.3d 471, 480 (Tex. 2017). A party
attacking the sufficiency of an adverse finding on which it
had the burden of proof at trial must demonstrate on appeal
that "the record conclusively establishes all vital
facts in support of the issue." Id.
support of its motion, HACA offered sworn affidavits from
Garcia; Michael Gerber, HACA's President; and Thomas
Bleich, HACA's trial counsel. The trial court admitted
the affidavits without objection. All three testified they
had no actual knowledge of the judgment prior to
Elbendary's email to Garcia on July 19, 2018, and did not
receive notice of the judgment before that time. Garcia and
Gerber explained that if HACA had received the notice it
would have been filed in one of two locations: the file for
the tenants who rented Elbendary's property or the file
for Elbendary himself. They examined both files but did not
find the clerk's notice. Similarly, Bleich averred that
the notice was not filed in his law firm's file for HACA.
HACA contends these affidavits conclusively establish that it
learned of the judgment on July 19. Elbendary responds that
he presented evidence showing HACA likely received notice of
the judgment much earlier. Specifically, he presented an
affidavit from Regina Brown, assistant Chief Deputy County
Clerk of Williamson County, who swears that the notice of
judgment was mailed to HACA on June 5, 2018, and that it has
not been returned. Elbendary attached Brown's affidavit
to his response to HACA's motion to extend but did not
offer it into evidence. With exceptions not relevant here,
"[e]xhibits attached to pleadings are not evidence in a
case until the exhibits are properly introduced and admitted
by the presiding authority." Shah v. Star
Anesthesia, P.A., No. 04-18-00465-CV, S.W.3d,, 2019 WL
2194544, at *4 (Tex. App.-San Antonio May 22, 2019, no pet.);
see Shor v. Pelican Oil & Gas Mgmt., LLC, 405
S.W.3d 737, 751 n.3 (Tex. App.-Houston [1st Dist.] 2013, no
pet.) ("[A]bsent the parties' agreement, affidavits
attached to pleadings and not admitted into evidence do not
constitute evidence." (quoting Ahmed v. Shimi
Ventures, L.P., 99 S.W.3d 682, 684 n.2 (Tex.
App.-Houston [1st Dist.] 2003, no pet.))). On this record, we
cannot consider Brown's affidavit as evidence HACA
received the notice.
absence of affirmative evidence of receipt, Elbendary argues
we should hold HACA had constructive notice of the judgment.
Constructive notice is a "legal device" in which
"a person is deemed to have actual knowledge of certain
matters." HECI Expl. Co. v. Neel, 982 S.W.2d
881, 887 (Tex. 1998). In some circumstances, "[a] person
is charged with constructive notice of the actual knowledge
that could have been acquired by examining public
records." Brown v. Arenson, 571 S.W.3d 324, 334
(Tex. App.-Houston [1st Dist.] 2018, no pet.) (quoting
Mooney v. Harlin, 622 S.W.2d 83, 85 (Tex. 1981)).
Elbendary argues that HACA was on constructive notice because
its lawyers could have discovered the judgment by tracking
the case through the website of the Williamson County Clerk.
However, Rule 306a expressly provides that the post-judgment
deadlines start on the date the party "acquired actual
knowledge of the signing" of the judgment. Tex.R.Civ.P.
306a(4). We will not read a constructive knowledge component
into Rule 306a without support in the plain language of the