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Click here for the full text of this decision FACTS:The Jenkins family sued the Pessel family for construction defects in the house the Pessels built for the Jenkinses. Seventeen months after the Jenkinses filed suit and the Pessels answered, the Pessels’ attorney filed a motion to withdraw. The trial court granted the motion and instructed the Jenkinses that all further notices concerning settings in the case should be served upon Pete Pessel “personally.” The Pessels did not appear at the Jan. 14, 2002, trial, so the trial court rendered judgment against them for more than $45,000 in damages and attorneys’ fees. The Pessels filed a motion for new trial, claiming in an affidavit that they never received notice of the trial setting. The Jenkinses said they served notice in two ways: by certified mail that was attempted twice, but then returned as “unclaimed,” and by regular mail that was not returned. The trial court denied the motion for new trial, finding the Pessels had constructive notice of the trial. The Pessels appeal. They say: (1) their constitutional rights of due process were violated because they were not given notice of the trial setting; and (2) the trial court abused its discretion by failing to grant their motion for new trial. HOLDING:Reversed and remanded. The court rules that notice by regular mail is not an authorized method of service, and the fact that regular mail was not returned is not evidence of selective acceptance or refusal of certified mail as it was in Gonzales v. Surplus Inc. Servs., 863 S.W.2d 96 (Tex.App. � Beaumont 1993, writ denied). This fact plus the affidavit the Pessels filed refutes a finding of constructive notice. The court then finds that a party denied due process through lack of notice of a trial setting satisfies the first factor necessary for a new trial: the defendants’ failure to answer before judgment was not intentional or the result of conscious indifference on the defendant’s part, but was due to a mistake or accident. The second factor � that the motion for new trial sets up a meritorious defense � was established above, and there was no question that the motion for new trial was filed at a time when its granting would not result in a delay or otherwise injure the plaintiff. OPINION:Ross, J.; Morriss, C.J., Ross and Carter, JJ.

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