Jimmy Swaggart Ministries v. City of Arlington
| Decision Date | 09 October 1986 |
| Docket Number | No. 2-86-010-CV,2-86-010-CV |
| Citation | 718 S.W.2d 83 |
| Parties | JIMMY SWAGGART MINISTRIES, a Louisiana Nonprofit Corporation, Appellant, v. CITY OF ARLINGTON, and Arlington Independent School District, and Dick Rhodes, Assessor-Collector for the City of Arlington; and Lanier Wilson, Assessor- Collector for the Arlington Independent School District and Larry Hammonds, Assessor-Collector for the Arlington Independent School District and the County of Tarrant, and Reed Stewart, Assessor-Collector for the County of Tarrant and the Tarrant County Appraisal Review District, the Appraisal Review Board of Tarrant County and Vinita Tribble, as Supervisor of the Exemption Section for the Tarrant County Appraisal District, Appellees. |
| Court | Texas Court of Appeals |
HUGHES, Justice (Retired, Sitting by Assignment).
Appellant, plaintiff below, appeals from the trial court's denial of its motion to reinstate its suit after it was dismissed for want of prosecution.
We affirm.
Appellant filed suit in January of 1978, contesting appellee taxing authorities' failure to recognize as tax-exempt certain real and personal property it owned which was used in connection with the radio station it owned and operated. Appellant sought tax-exempt status on the basis that the property was an "actual place of religious worship ... used exclusively to support and serve the spread of a religious faith ... by the dissemination of information on a religious faith through radio, television and similar media of communication," under former Civil Statute Article 7150 sec. 1(a). 1
Appellant's suit remained on the trial court's docket for over seven years. On August 9, 1985, the district court issued its notice of intent to dismiss appellant's suit on September 16, 1985. On September 27, 1985, appellant's suit was ordered dismissed for want of prosecution. On October 30, 1985, the district court clerk mailed a bill of costs for the dismissal to appellant's counsel, Jones, Day, Reavis and Pogue (Jones, Day). On November 15, 1985, appellant moved to reinstate its suit. After a hearing on appellant's motion, the trial court denied reinstatement for lack of jurisdiction.
The trial court's findings of fact and conclusions of law were made in the form of a memorandum to all counsel of record and read as follows:
Gentlemen:
I have this date signed an order denying the plaintiff's Motion to Reinstate for lack of jurisdiction. I believe that the evidence is insufficient to invoke the extension of time under Rule 306a, Tex.R.Civ.P. Inter alia, the plaintiff's docket clerk, Ms. Seely, testified that she had not seen or examined the Tarrant County docket for either dismissal notices or orders of dismissal; and while neither Mr. Middleton nor Mr. Coleman actually saw the order of dismissal, there is no evidence that it was not received by the "mail room" personnel or even "central files" at plaintiff's law firm; and there is evidence that both the monthly docket containing the notice of intent to dismiss and the one containing the order of dismissal were prepared by the clerk and mailed in the routine fashion and directed to the proper address (at which in fact, the cost bill was received) and that it was not returned to the clerk which it would have been had it not been delivered. That the system employed by plaintiff's law firm did not work to route the docket and its information to the correct attorney or that the docket clerk had not been given proper instruction does not support a finding that a properly addressed and mailed docket was not received by the law firm, thus giving it the actual notice contemplated by the law.
Proving a negative is inherently difficult, but all signs point to the fact that mail form [sic] the clerk to the proper address was in fact delivered and that improperly addressed or undelivered dockets would be returned. While it was not argued, I will observe that there is no showing that the requirements of Rule 246 were met.
This memorandum constitutes the Court's findings and conclusions under Rule 296, Tex.R.Civ.P.
By points of error one and two, appellant alleges the trial court erred in denying reinstatement because its finding that the notice of the order of dismissal was mailed was against the great weight and preponderance of the evidence. Appellant argues that, since there was insufficient evidence of mailing, the presumption of receipt did not arise, and there was no evidence or insufficient evidence of receipt by appellant's attorney of the notice of dismissal.
Appellant had thirty days following the order of dismissal in which to file its motion to reinstate. See TEX.R.CIV.P 165a(2). However, if within twenty days of the signing of the order neither appellant nor his attorney had received notice or acquired actual knowledge of the dismissal, the thirty day time period did not begin until appellant or his attorney received such notice or acquired such actual knowledge. See TEX.R.CIV.P. 306a(3) and (4).
It is undisputed appellant did not file its motion to reinstate within thirty days of the court's dismissal order. It was appellant's burden, then, to show it did not receive notice or acquire actual knowledge of the trial court's order of dismissal before November 7, 1985, when it received the court's bill of costs notifying it of the dismissal.
The facts adduced at trial concerning mailing of the court's order of dismissal were as follows. Brenda Sealy testified she began working as Jones, Day's docket clerk in May or June of 1985. She described her general responsibility as receiving documents and calendaring events for the lawyers who had cases pending in litigation. However, she received no training regarding the Tarrant County docket notice system when she began her job. A monthly docket was brought to her by one of the firm's lawyers for the first time in September of 1985. The next monthly docket she received was for the month of December, after she requested it from the district clerk's office. Sealy did not receive or sort the mail coming into the firm each day. She received the...
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Litster v. Utah Valley Community College
...default notices to [the defendants] in the office outgoing mail box." Id. (emphasis added). Similarly, in Jimmy Swaggart Ministries v. Arlington, 718 S.W.2d 83 (Tex.Ct.App.1986), the court stated: "If no direct evidence shows a person mailed the letter in question, an inference of mailing m......
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Pentico v. Mad-Wayler, Inc.
...Appellees made no assertions and presented no evidence of the dates they contend payments were mailed. See Jimmy Swaggart Ministries v. City of Arlington, 718 S.W.2d 83, 86 (Tex.App.--Fort Worth 1986, no writ) (clerk's testimony concerning preparation and dispatch of notices raised presumpt......
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Barowski v. Gabriel
...and the notices are mailed to the attorneys of record, supports the presumption of mailing and receipt. Jimmy Swaggart Ministries v. City of Arlington, 718 S.W.2d 83, 86 (Tex. App. Fort Worth 1986, no writ). See Cooper v. Hall, 489 S.W.2d 409, 415 (Tex. Civ. App. Amarillo 1972, writ refd n.......
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General Elec. Supply Co. v. Utley-James of Texas, Inc.
...may prove that a letter was actually mailed through use of circumstantial evidence. Jimmy Swaggart Ministries v. City of Arlington, 718 S.W.2d 83, 86 (Tex.App.--Fort Worth, 1986, writ ref'd n.r.e.). GESCO argues that the same should be true of proof of the mailing date. We GESCO presented s......