Luz Maria Oranday v. Henry Briceno

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-24-00675-CV

Luz Maria Oranday, Appellant

v.

Henry Briceno, Appellee

FROM COUNTY COURT AT LAW NO. 1 OF TRAVIS COUNTY
NO. C-1-CV-24-000776, THE HONORABLE TODD T. WONG, JUDGE PRESIDING

MEMORANDUM OPINION

Luz Maria Oranday, appearing pro se, appeals from the trial court’s final

summary judgment (Judgment) rendered in favor of Henry Briceno on his claim for breach of

contract. Oranday argues on appeal that she was denied due process because she did not receive

notice of Briceno’s motion or the hearing on it. For the following reasons, we will affirm.

BACKGROUND

Briceno filed suit against Oranday, his landlord, for breach of contract in

connection with a loan he allegedly made to her. Oranday answered and, within the body of her

answer, specified her email and mailing address. She later filed a counterclaim, alleging that

Briceno was liable for unpaid rent.

Briceno filed a traditional and no-evidence motion for summary judgment and a

notice of hearing, attaching thereto a certificate of service indicating the motion was served on
August 12, 2024, at the email address Oranday listed in her answer. On August 13, 2024,

Briceno also served by USPS Priority Mail a copy of the motion at the physical address

indicated by Oranday in her answer. On August 16, 2024, he filed with the court a supplemental

certificate of service to which he attached a copy of the postage receipt and a tracking certificate

confirming delivery at the physical address provided by Oranday in her answer.

The trial court conducted the noticed hearing on Briceno’s motion on

September 17, 2024. Oranday did not appear. Thereafter, the trial court rendered an order

granting Briceno’s no-evidence motion as to Oranday’s counterclaim and then rendered its

September 19, 2024 Judgment granting Briceno’s traditional summary-judgment motion on

Briceno’s breach-of-contract claim and incorporating its ruling granting Briceno’s no-evidence

motion as to Oranday’s counterclaim. The Judgment awarded Briceno damages of $17,000;

attorneys’ fees of $3,125; and court costs.

On October 16, 2024, Oranday filed with the trial court a handwritten letter. In

the letter, Oranday wrote that she is “filing an appeal because the plaintiff did not provide me

with notice of any hearing” and that she “is contesting any and all evidence.” She filed another

handwritten letter two days later, in which she requested the court to “vacate the judgment” and

allow her to have her “day in court” because Briceno did not give her notice of the hearing or

provide her with a copy of his motion, depriving her of her “opportunity to respond.” The trial

court and this Court construed Oranday’s October 16, 2024 letter as a notice of appeal.

DISCUSSION

In one issue, Oranday argues that she did not receive notice of Briceno’s motion

or the hearing on the motion and was, therefore, denied due process. Briceno correctly responds

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that the two certificates of service in the record—which comply with the applicable rule—

establish a rebuttable presumption that Oranday received his motion and notice of hearing. See

Tex. R. Civ. P. 21a(b)(1), (3), (e); Quintero v. Alvarez, No. 14-23-00422-CV, 2024 WL 1103059,

at *3 (Tex. App.—Houston [14th Dist.] Mar. 14, 2024, no pet.) (mem. op.). The certificates of

service are prima facie evidence of the fact of service, but the presumption may be rebutted

when opposing evidence is introduced that a document was not received. Quintero, 2024 WL

1103059, at *3.

Oranday did not file a motion for new trial. However, even if we interpret either

or both of her two letters as a motion for new trial, she did not attach any evidence to them to

demonstrate that she did not receive the motion or notice of the hearing. She also did not set any

motion for a hearing or otherwise seek to present evidence to the trial court of her claim of

having had no notice. See JD Shelton Enters. LLC v. AGL Constructors, No. 05-18-00765-CV,

2019 WL 2498682, at *2 (Tex. App.—Dallas June 17, 2019, no pet.) (mem. op.) (observing that

appellant’s claim that it did not receive notice of summary-judgment hearing required evidence,

but record showed no evidence was taken); Tex. R. App. P. 33.1(b) (providing that “the

overruling by operation of law of a motion for new trial” preserves for appellate review those

complaints properly made in motion “unless taking evidence was necessary to properly present

the complaint in the trial court”); see also Tex. R. Civ. P. 329b(c) (providing that motion for new

trial is overruled by operation of law if it is not determined by written order signed within

seventy-five days after judgment signed).

Oranday concedes that the presumption of proper service applies and that she did

not file a motion for new trial or submit any evidence to the trial court supporting her contention

that she did not receive notice. Rather, she argues that her filing of her notice of appeal itself

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“constitutes sufficient evidence to rebut the presumption of proper service.” However, the cases

she cites do not support the proposition that a notice of appeal may constitute evidence. See

Wembley Inv. Co. v. Herrera, 11 S.W.3d 924, 927 (Tex. 1999) (determining that Rule 21a

presumption vanished because conflicting evidence of non-receipt was presented to trial court);

Cliff v. Huggins, 724 S.W.2d 778, 780 (Tex. 1987) (“In the absence of evidence to the contrary,

the presumption has the force of a rule of law.”). Oranday does not cite any authority supporting

her argument that her notice of appeal constitutes evidence supporting her contention that she did

not receive Briceno’s motion or notice of the summary-judgment hearing, nor have we found

any. We therefore cannot construe Oranday’s notice of appeal as evidence of her non-receipt of

Briceno’s motion and hearing notice, and we accordingly overrule Oranday’s appellate issue.

CONCLUSION

We affirm the trial court’s Judgment.

__________________________________________
Karin Crump, Justice

Before Justices Triana, Theofanis, and Crump

Affirmed

Filed: November 19, 2025

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