Thursday, October 13, 2011

Failure to brief issue waives it as ground for reversal by the court of appeals

Caveat Appellant: New issues and reason why the judgment of the trial court should be reversed cannot be raised for the first time in a reply brief. That would be too late.
Reply Brief Issue
Lastly, in his reply brief, Giraldo contends that the trial court erred in  basing summary judgment on deemed admissions because the record does not reflect that he actually received the  request for admissions.  Specifically, he asserts that Pavia sent the
request to the wrong address.  Because Giraldo did not raise an issue regarding service of
the request for admissions until his appellate reply brief, he has waived this  argument.  See Tex. R. App. P. 38.3;  Priddy v. Rawson, 282 S.W.3d 588, 597-98 (Tex. App.—
Houston [14th Dist.] 2009, pet. denied).
Accordingly, we overrule this issue

A certificate of service signed by a party or an attorney constitutes prima facie evidence of service and thus raises a presumption that the request for admissions was received. Approx. $14,980 State, 261 S.W.3d 182, 186 (Tex. App.—Houston [14th Dist.] 2008, no pet). In the absence of evidence rebutting the presumption, i.e., showing non-receipt, we presume service was perfected and the request for admissions received. Id.; Payton v. Ashton, 29 S.W.3d 896, 898 (Tex. App.—Amarillo 2000, no pet.). Here, Pavia’s attorney included a certificate of service with the request for admissions, describing proper service under Texas Rule of Civil Procedure 21a. Tex. R. Civ. P. 21a ("Methods of Service"). In response, Giraldo has provided no proof that he did not actually receive the requests for admissions. The record contains neither an affidavit from Giraldo denying receipt nor any return receipt or stamp from the post office demonstrating a failure of delivery. See Approx. $14,980, 261 S.W.3d at 189 (holding that envelope stamped "unclaime" along with testimony denying receipt was sufficient to rebut the presumption of receipt)

SOURCE: Fourteenth Court of Appeals - Houston - 14-10-00780-CV - 11/13/11

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