Pedro Echartea v. Juan D. Flores and Martha O. Gonzalez

Affirmed and Majority and Dissenting Opinions filed June 4, 2024.

In The

Fourteenth Court of Appeals

NO. 14-22-00920-CV

PEDRO ECHARTEA, Appellant

V.
JUAN D. FLORES AND MARTHA O. GONZALEZ, Appellees

On Appeal from the County Court at Law No. 3 and Probate Court
Brazoria County, Texas
Trial Court Cause No. CI64037

MAJORITY OPINION

This is an appeal from a final and appealable order dismissing appellant
Pedro Echartea’s application for writ of certiorari of the justice court’s dismissal of
his claims against appellees Juan Flores and Martha Gonzalez1 (collectively the
“Flores Parties”), as well as his appeal as a matter of right to the statutory county
court of the justice court’s judgment. Although Echartea initially challenged only
the statutory county court’s alleged error in not granting his motion for rehearing,
1
Martha Gonzalez is the wife of Juan Flores, who was added as defendant in the justice court.
or alternatively for a new trial, challenging the dismissal of his application for writ
of certiorari, this court requested further briefing as we considered our jurisdiction
and concluded that the dismissal order was a final judgment dismissing both
Echartea’s appeal from the justice court as well as his application for writ of
certiorari. Echartea filed a supplemental brief asserting that if the statutory county
court dismissed his appeal as a matter of right then that dismissal was error.
Concluding that (1) Echartea did not preserve error on his objection to the statutory
county court’s dismissal of his appeal as a matter of right and (2) the statutory
county court did not abuse its discretion in denying Echartea’s motion for
rehearing, or alternatively for a new trial, we affirm the statutory county court’s
judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND

Echartea filed suit against the Flores Parties seeking to recover damages for
concrete work performed on his property that Echartea paid for and alleges was not
properly completed in 2021. The suit was originally filed in one of Brazoria
County’s justice courts and then later transferred to the justice court precinct in
which the Flores Parties lived. After a hearing in April 2022, the justice court
dismissed Echartea’s claims with prejudice.

In May 2022, Echartea appealed the dismissal to the statutory county court
for a trial de novo. See Tex. R. Civ. P. 506.1, 506.3. A few days later, Echartea
also filed an application for writ of certiorari in the statutory county court
challenging the judgment of the justice court. See Tex. R. Civ. P. 506.4; Westwood
Shores Country Club v. Hendrickson, 395 S.W.3d 298, 303 (Tex. App.—Tyler
2013, no pet.) (“The remedy by certiorari is independent of the one by appeal, and

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additional thereto.”).2 The Flores Parties filed a motion in opposition to Echartea’s
application for writ of certiorari, which was set for hearing. However, neither
Echartea nor his counsel attended the hearing. The statutory county court signed an
order granting the Flores Parties’ “Motion to Dismiss the Writ of Certiorari” (the
“Dismissal Order”). In the Dismissal Order, the statutory county court granted the
Flores Parties’ motion, ordered that “this cause is dismissed with prejudice,” and
directed the justice court to “proceed with the execution of that Court’s Judgment.”
Echartea did not object to the finality language in the Dismissal Order; although he
did file a motion for rehearing, or alternatively for a new trial, arguing that he did
not get notice of the hearing and that the statutory county court improperly
dismissed his application for writ of certiorari.

II. ANALYSIS

In this appeal, Echartea initially raised a single issue (the first issue) arguing
that the statutory county court abused its discretion in failing to grant his motion
for rehearing or for a new trial.3 However, as a threshold matter, we must

2
Although this appeal does not raise the propriety of Echartea filing both an appeal from the
justice court as well as a writ of certiorari, we note that the difference between the two
procedures is in the scope of review:
The proceeding by certiorari is direct and appellate in its nature; but there is this
essential difference between an appeal by certiorari and an ordinary appeal from
the probate to the district court. An appeal removes the matter complained of to
the district court for trial de novo as a matter of right; whereas certiorari reviews
the action of the probate court for errors committed by that court. The trial in the
district court, it is true, is de novo, but the issues are confined to errors of the
county court specifically set forth in the application for the writ; and, unless there
be error, the order or decision of the county court will not be disturbed.
Cluck v. Hester, 521 S.W.2d 845, 848 (Tex. 1975) (quoting Schwind v. Goodman, 221 S.W. 579,
580 (Tex. [Comm’n] App. 1920)).
3
Although titled a motion for rehearing or in the alternative new trial, Echartea’s motion was a
motion for new trial. Although the statutory county court held a hearing, there was no written
ruling. Therefore, the motion for new trial was overruled by operation of law. See Tex. R. Civ. P.
329b(c).

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determine whether Echartea appeals from a final judgment.

An order issued without a conventional trial on the merits is final for
purposes of appeal if it (1) actually disposes of all claims and all parties before the
court or (2) states with unmistakable clarity that it is a final judgment. See
Lehmann v. Har-Con Corp., 39 S.W.3d 191, 192, 200 (Tex. 2001).

Echartea filed his application for writ of certiorari in the same case and
under the same cause number as his appeal, seeking both writ of certiorari relief
and de novo appeal relief in a single pleading filed in the statutory county court.4
The Flores Parties did not assert any counterclaims. When the statutory county
court dismissed the “cause” its ruling encompassed all Echartea’s claims, not just
his application for writ of certiorari. Under the unambiguous meaning of the
language used in the Dismissal Order, the statutory county court actually disposed
of all claims and all parties before the court by stating that “this cause is dismissed
with prejudice.” See Lehmann, 39 S.W.3d at 205 (stating that “[l]anguage that . . .
the case is dismissed, shows finality if there are no other claims by other parties”);
F.D.I.C. v. Finlay, 832 S.W.2d 158, 160 (Tex. App.—Houston [1st Dist.] 1992,
writ denied) (concluding that order was a final judgment where the only decretal
language in the order was “this cause is hereby DISMISSED WITH
PREJUDICE”). Even though the record does not support a legal basis for such an
adjudication, the order is nevertheless a final judgment. Lehmann, 39 S.W.3d at
206 (stating that “[a]n express adjudication of all parties and claims in a case is not
interlocutory merely because the record does not afford a legal basis for the
adjudication.”). Therefore, we conclude that the Dismissal Order is a final
judgment, over which this court has appellate jurisdiction. See Lehmann, 39

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We express no opinion over whether the writ of certiorari was correctly filed in the same cause
number as Echartea’s appeal.

4
S.W.3d at 205; Finlay, 832 S.W.2d at 160.

A. The appeal from the justice court as a matter of right

Because the statutory county court rendered a final judgment, Echartea’s
appeal as a matter of right is no longer pending and was dismissed by the statutory
county court. Although the parties did not brief the finality of the Dismissal Order
in their original appellate briefing, we requested further briefing to allow the
parties to address both our subject-matter jurisdiction any allegations of error in the
statutory county court relating to the rendition of final judgment.

Echartea filed a supplemental brief arguing that the statutory county court
erred in dismissing his appeal from the justice court (the second issue), because the
question of his appeal was not before the statutory county court and the Flores
Parties had not challenged his appeal.5 However, Echartea never addressed how
and whether he preserved error in the statutory county court. See Tex. R. App. P.
33.1.

Although he filed a postjudgment motion, Echartea failed to object to the
5
Echartea argues that the Dismissal Order is void and that the statutory county court lacked
subject-matter jurisdiction to dismiss the case. Appellant does not offer any authority for the
proposition that the Dismissal Order was void or that the statutory county court lacked
subject-matter jurisdiction to address his claims. We disagree with this statement as the statutory
county court had the jurisdiction to hear civil cases with an amount of controversy more than
$500, but less than $200,000, as well as appeals as matter of right from justice courts. See Tex.
Gov’t Code Ann. § 25.0222 (“In addition to the jurisdiction provided by Section 25.0003 and
other law, a statutory county court in Brazoria County has concurrent jurisdiction with the
district court in . . . civil cases in which the matter in controversy exceeds $500 but does not
exceed $200,000, excluding interest, statutory damages and penalties, and attorney’s fees and
costs, as alleged on the face of the petition”); Tex. R. Civ. P. 506.3 (appeal of judgment in justice
court goes to county court for trial de novo); Tex. Gov’t Code Ann. § 25.0003(a) (“A statutory
county court has jurisdiction over all causes and proceedings, civil and criminal, original and
appellate, prescribed by law for county courts.”). Nevertheless, despite invoking the term “void,”
the gravamen of Echartea’s supplemental argument is that the statutory county court erred in
dismissing the justice-court appeal because the Flores Parties “did not challenge any issue with
the appeal by proper and [timely] motion.” Therefore, we construe his argument to be one of
reversible error, rather than one of lack of subject-matter jurisdiction.

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finality language in the statutory county court’s judgment. Echartea did not raise
the complaint in the second issue by a request, objection, or motion in the statutory
county court. He did not make the statutory county court aware of the alleged
error. Therefore, the second issue has not been preserved for appellate review. See
Stamos v. Houston Indep. Sch. Dist., No. 14-18-00340-CV, 2020 WL 1528047, at
*4 (Tex. App.—Houston [14th Dist.] Mar. 31, 2020, no pet.) (mem. op.).

We overrule the second issue.

B. Denial of motion for new trial

In the first issue, Echartea argues that the statutory county court erred by
denying his motion for rehearing, or alternatively motion for a new trial, as to the
dismissal of his application for writ of certiorari, thereby depriving him of his
constitutional right to be heard.

The abuse-of-discretion standard applies to review of the denial of a motion
for new trial. In re R.R., 209 S.W.3d 112, 114 (Tex. 2006) (per curiam) (review of
motion for new trial); McInnis v. Mallia, 261 S.W.3d 197, 201 (Tex. App.—
Houston [14th Dist.] 2008, no pet.). A court abuses its discretion if its decision is
arbitrary, unreasonable, or without reference to guiding principles. K–Mart Corp.
v. Honeycutt, 24 S.W.3d 357, 360 (Tex. 2000).

Echartea sought a new trial on the basis that he did not receive notice of the
hearing on the Flores Parties’ motion to dismiss.6 Although the Flores Parties sent
a notice of hearing on their motion to dismiss, the notice was sent to the email
address for Echartea’s counsel in the electronic-filing system. That email address
was associated with a law firm at which Echartea’s counsel no longer worked by

6
In his motion for rehearing, Echartea challenged the legal basis for the statutory county court’s
dismissal of his application for writ of certiorari. However, he does not raise that legal issue on
appeal.

6
the time the notice of hearing was served. Echartea argues his counsel contacted
opposing counsel to alert them to both his change of contact information and
change of firms before the Flores Parties’ notice and motion were served.
Echartea’s counsel admitted that he did not update his email address in the Texas
electronic-filing system. Nevertheless, Echartea argues that regardless of the email
address in the electronic-filing system, the Flores Parties should have served
Echartea’s counsel at his new email address and did not do so. Because of this
alleged failure, Echartea maintains he was deprived of due process—here his
opportunity to appear and be heard at the hearing.

1. Service pursuant to Rule 21a

Notice is “[a]n elementary and fundamental requirement of due process.”
Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 314 (1950). The United
States Constitution’s Due Process Clause and the Texas Constitution’s Due Course
of Law Clause require adequate procedural due process for parties to a judgment,
including notice of trial court proceedings. See U.S. Const. amend. XIV, § 1; Tex.
Const. art. I, § 19; Mitchell v. MAP Res., Inc., 649 S.W.3d 180, 188–89 (Tex.
2022). Such notice must be “reasonably calculated, under all the circumstances, to
apprise interested parties of the pendency of the action and afford them an
opportunity to present their objections.” Mullane, 339 U.S. at 314.

Texas Rule of Civil Procedure 21a(a)(1) governs providing notice for
documents other than citation. The rule provides that a document “must be served
electronically through the electronic filing manager if the email address of the
party or attorney to be served is on file with the electronic filing manager.” Tex. R.
Civ. P. 21a(a)(1). The current version of Rule 21a was designed to avoid confusion
and disputes over service, including disputes over whether service was sent to the
correct email address. See Tex. R. Civ. P. 21a(a); Rouhana v. Ramirez, 556 S.W.3d

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472, 480 (Tex. App.—El Paso 2018, no pet.).

2. No abuse of discretion

Echartea’s counsel had previously electronically filed documents and
accordingly had a duty to update his email address not just with the court and the
other parties, but also with the electronic-filing system.7 See Brazoria Cnty. (Tex.)
Loc. R. 5.1(c) (stating that “a filer additionally agrees to provide information
regarding any change in his or her e-mail address to TexFile, the Clerk, and all
parties in the case”). Here, the Flores Parties used the electronic-filing system to
serve Echartea. The notice of hearing for the Flores Parties’ motion to dismiss
includes an automated certificate of eService from the electronic-filing system, as
well as a certificate of service confirming that Echartea was served through his
counsel’s email address.

“A certificate by a party or an attorney of record, or the return of the officer,
or the affidavit of any other person showing service of a notice shall be prima facie
evidence of the fact of service.” Tex. R. Civ. P. 21a(e); see Mathis v. Lockwood,
166 S.W.3d 743, 745 (Tex. 2005) (“It is true that notice properly sent pursuant to
Rule 21a raises a presumption that notice was received.”). Echartea, in his motion
for rehearing, or alternatively new trial, challenged this presumption as Rule 21a
allows. Echartea then had the burden to establish that the document was not
received. Tex. R. Civ. P. 21a(e). However, when a party challenges receipt of
notice, it must be proved according to the rule. See Mathis, 166 S.W.3d at 745.

7
Echartea argues in his reply brief that Rule 21a addresses the situation at hand because it
provides for service “[i]f the mail address of the party or attorney to be served is not on file with
the electronic filing manager.” Tex. R. Civ. P. 21a(a)(1). However, there was an email address
on file with electronic filing manager confirmed by the automated certificate of eService from
the electronic-filing system. It was also an email address that Echartea had designated in his most
recent pleading.

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It is undisputed that Echartea’s counsel had not updated his service address
in the electronic-filing system. Echartea does not argue that service was not
properly sent. He argues that the Flores Parties should have known his counsel
changed his address because of email correspondence counsel exchanged with a
staff member at the law firm representing the Flores Parties. There is no evidence
in the record that Echartea served or sent a change of address notification to the
Flores Parties before the motion to dismiss and corresponding notice of hearing
were filed. Rather, Echartea relies on language in his counsel’s email to an
employee of opposing counsel in which Echartea’s counsel states, “In between that
time, I had trouble getting the file from my old firm, after I started my own firm.”

There is nothing in the subject email that constitutes an affirmative
notification of any changes in the service address. Even if the paralegal noticed
that Echartea’s counsel had new or different contact information in his email
signature, the Flores Parties were still required to serve Echartea under the rules
through the electronic-filing system at the email address on file. Had the Flores
Parties noticed the new contact information they could have served Echartea with
an additional copy to the new address. However, there is neither any duty or rule
requiring such action, nor does Echartea cite to any. See Brandon v. Rudisel, 586
S.W.3d 94, 102 (Tex. App.—Houston [14th Dist.] 2019, no pet.) (concluding that
trial court did not abuse its discretion in denying motion for new trial when notice
was sent to party’s last known email address as required under Texas Rules of
Civil Procedure).

Although Echartea offered evidence that he did not receive actual notice of
the hearing, there was also evidence that Echartea had constructive notice of the
hearing at the email address that he had previously identified in the
electronic-filing system as well as in his most recent live pleadings. Constructive

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notice satisfies the requirement for procedural due process. See In re E.A., 287
S.W.3d 1, 5 (Tex. 2009). We cannot say the statutory county court abused its
discretion in denying Echartea’s motion for new trial on the basis that Echartea
was deprived of notice “reasonably calculated, under all the circumstances, to
apprise interested parties of the pendency of the action and afford them an
opportunity to present their objections.” Mullane, 339 U.S. at 314.

We overrule the first issue.

III. CONCLUSION

We affirm the final judgment of the statutory county court.

/s/ Randy Wilson
Justice

Panel consists of Justices Jewell, Spain, and Wilson (Spain, J., dissenting).

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