Texas Department of Aging and Disability Services v. Carol Mersch , 418 S.W.3d 736 ( 2013 )

Opinion issued December 10, 2013.
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-13-00021-CV
———————————
TEXAS DEPARTMENT OF AGING AND DISABILITY SERVICES,
Appellant
V.
CAROL MERSCH, Appellee
On Appeal from the 344th District Court
Chambers County, Texas
Trial Court Case Nos. CV25849 & CV26248
OPINION
Through mistakes in interpreting and executing local electronic service
rules, the Texas Department of Aging and Disability Services (DADS) managed to
timely file a response to a motion for summary judgment, but untimely serve it.
DADS explained its mistakes in an affidavit from the legal staff entrusted with
service of the filing and rectified the faulty service as soon as it was brought to its
attention—well before the summary–judgment hearing. The trial court struck
DADS’ response as untimely and granted summary judgment. Because DADS
proffered an unrebutted explanation demonstrating good cause for its errant service
and no harm would have resulted in considering the motion and response on the
merits, the trial court abused its discretion in striking the response. We reverse and
remand.
Background
DADS is the permanent guardian of the Reverend John Stout, an
incapacitated person residing in Chambers County, Texas, and his estate.
Reverend Stout is an ordained Presbyterian minister. In 1968, Stout founded the
Apollo Prayer League, a Christian ministry focused on prayer and support for
American astronauts. Through the League, Captain Edgar Mitchell and other
Apollo astronauts brought the League’s microform Bibles with them in their
spaceships during various NASA missions. See 1st Book on the Moon – the Bible,
THE STARS AND STRIPES, Mar. 30, 1971, at 7 (recounting history of a number of
Apollo Prayer League Bibles). These space–traveled Bibles became known as the
“Lunar Bibles.”
2
Mersch approached Stout to interview him about the Lunar Bibles, in the
hope of publishing a book. As Mersch researched the book, she developed a
friendship with Stout. In a declaratory judgment action filed in Tulsa County,
Oklahoma, Mersch claimed that Stout gifted her with four of the Lunar Bibles, and
provided her with ten others to place in museums. She also claimed that Stout
gave her his files, containing photographs, news articles, and other memorabilia
related to the Apollo Prayer League. Mersch self–published a book entitled
Apostles of Apollo to tell the story of Stout and the Lunar Bibles.
As Stout’s guardian, DADS demanded return of the Bibles and memorabilia,
claiming that Stout did not gift them to Mersch or that, if he did, Stout lacked the
capacity to do so. After Mersch refused its demand, DADS sued Mersch in
Chambers County district court, seeking a declaratory judgment that the Lunar
Bibles and memorabilia in Mersch’s possession belong to Stout. DADS also sued
Mersch for breach of fiduciary duty, conversion, and trespass, and for violating the
Texas Theft Liability Act. The case was scheduled for trial on November 26,
2012.
Course of proceedings
Mersch moved for summary judgment on the claims against her, and she had
the motion set for hearing twenty–one days later, on October 9, 2012. At the time,
the Chambers County District Courts had a set of Texas Supreme Court–approved
3
local rules for electronic filing and service. See Tex. Sup. Ct., Approval of Local
E–Filing Rules for the District Courts of Chambers County, Misc. Docket No. 09-
9096 (Jun. 15, 2009). Part 4 of the rules, entitled “Filing Mechanics,” observes
that “Filers do not electronically file documents directly with the district clerk.
Rather, filers indirectly file a document with the district clerk by electronically
transmitting the document to an electronic filing service provider (EFSP)[,] which
then electronically transmits the document . . . to the district clerk.” Chambers
(Tex.) Dist. Ct. Loc. R. 4.1(c).
The filing mechanics part of the local rule also addresses the time of
filing:
Upon sending an electronically–transmitted document to a filer’s
EFSP, the filer is deemed to have delivered the document to the
clerk and, subject to Rule 4.3(h) [(payment of the applicable fee)],
the document is deemed to be filed. If a document is electronically
transmitted to the filer's EFSP and is electronically transmitted on
or before the last day for filing the same, the document, if received
by the clerk not more than ten days tardily, shall be filed by the
clerk and deemed filed in time. A transmission report by the filer
to the filer’s EFSP shall be prima facie evidence of date and time of
transmission.
Chambers (Tex.) Dist. Ct. Loc. R. 4.3(b). The rules further provide that
“Electronic service shall be complete upon transmission of the document by the
filer to the party at the party’s email address.” Chambers (Tex.) Dist. Ct. Loc.
4
Rawle 5.2(a). But unlike the rule for filing, which provides for timely filing any time
of the day, the local rule for timely service is different:
When electronic service is complete after 5:00 p.m. (recipient’s
time), then the date of service shall be deemed to be the next day
that is not a Saturday, Sunday, or legal holiday.
Chambers (Tex.) Dist. Ct. Loc. R. 5.2(c).
At 6:06 p.m. on October 2, 2012—a week before the summary–judgment
hearing—a DADS legal assistant electronically filed DADS’ summary–judgment
response, using an EFSP known as Filerunner.com. Under the rules, the response
was timely filed with the clerk of the court. DADS’ legal assistant mistakenly
thought, however, that by identifying Mersch’s attorney as a “Service Party” in the
electronic filing and by electronically serving the filing contemporaneously with
the electronic filing, her actions would result in timely electronic service to
Mersch’s counsel. They did not. In reality, DADS had accomplished nothing in
the way of service. Mersch’s counsel had no affiliation with Filerunner.com and
had not authorized it to accept service on his behalf.
The following morning (October 3), as a courtesy, DADS faxed to Mersch’s
counsel a copy of DADS’ confirmation receipt, which indicated that a summary–
judgment response had been filed and Mersch’s counsel was a service party. After
5:00 p.m., the day after he received the faxed courtesy confirmation, Mersch’s
counsel faxed a letter to DADS, noting that he did not receive the response and
5
requesting that DADS send him a copy. Upon arriving at work the following
morning and learning that she had not properly served the response, DADS’ legal
assistant immediately faxed a copy to Mersch’s counsel, just after 10:00 a.m.
The day before the summary–judgment hearing, Mersch moved to strike
DADS’ response as untimely served. Mersch also filed objections to DADS
summary–judgment evidence. On the day of the summary–judgment hearing,
DADS filed an amended certificate of service, indicating that its service was made
by facsimile on October 5, 2012, rather than electronically on October 2, 2012.
DADS also filed an affidavit from its legal assistant, in which she explained that
she had been charged with “the timely filing of legal documents to courts and
opposing parties,” and that she had intended to timely serve the response and
follow “protocol” “in accordance with Tex. R. Civ. P. 21a.”
At the summary–judgment hearing, DADS explained why its service of its
summary–judgment response was untimely and referred the court to its legal
assistant’s affidavit. The trial court struck DADS’ response and granted summary
judgment.
6
Discussion
Standard of Review and Applicable Law
We review a trial court’s order to strike a late–served summary–judgment
response as we would review a trial court’s ruling on a motion for leave to file
one—for an abuse of discretion. Carpenter v. Cimarron Hydrocarbons Corp., 98
S.W.3d 682, 686 (Tex. 2002).
A trial court should grant a motion for leave to file a late summary–
judgment response if the non–movant shows (1) good cause and (2) no undue
prejudice. Wheeler v. Green, 157 S.W.3d 439, 442 (Tex. 2005) (citing Carpenter,
98 S.W.3d at 687–88). A non–movant establishes good cause if it shows that its
failure to timely respond was not intentional or the result of conscious indifference,
but was the result of an accident or mistake. Id. Undue prejudice depends on
whether filing a late response will delay trial or significantly hamper the opposing
party’s ability to prepare for it. Id. at 443.
Analysis
DADS’ counsel committed two mistakes. First, counsel committed a legal
mistake by attempting to electronically serve Mersch at 6:06 pm on October 2,
2012. Under the vagaries of the then–existing county e–filing rules, electronic
service completed after 5:00 p.m. was deemed to take place the next day, even
7
though a filing made at that time was timely. Chambers (Tex.) Dist. Ct. Loc.
R. 5.2(c) (“[w]hen electronic service is complete after 5:00 p.m. (recipient’s time),
then the date of service shall be deemed to be the next day.”). Because DADS’
attempted electronic service was deemed by local rule to take place six days, rather
than seven days, before the summary–judgment hearing, even a successfully
completed electronic service would have been untimely. See TEX. R. CIV.
P. 166a(c) (requiring a response to a motion for summary judgment to be filed and
served seven days before the hearing).
Second, counsel committed a technical mistake by attempting to
electronically serve Mersch, but failing due to a misunderstanding of the interface
between electronic filing service providers and legal counsel for parties that must
be served. DADS proffered the filing confirmation summary that listed Mersch’s
attorney as the service party. As proof of good cause, the legal assistant explained
in her affidavit that she mistakenly believed, based on the filing summary, that she
had electronically served Mersch’s attorney. Her statement that she served the
response on October 2 is supported by a copy of the courtesy confirmation that she
transmitted by fax to Mersch’s counsel the next day. Upon learning of her
mistake, she immediately rectified it.
Mersch contends that the facts here are analogous to the facts in Carpenter,
and thus the trial court was within its discretion to strike DADS’ response. In
8
Carpenter, the Texas Supreme Court held that a defendant failed to satisfy the
good–cause prong when counsel offered a bare assertion that he had
“miscalendared” the response date and gave no further explanation. Carpenter, 98
S.W.3d at 688.
But DADS’ offered more than a bare assertion that it had made a mistake.
At the hearing, DADS proffered a detailed explanation for its error: the filing
summary listed Mersch’s attorney as the “Service Party,” and DADS’ legal
assistant wrongly relied on it. DADS acknowledged that its service “was outside
the rules,” but noted that DADS quickly rectified the mistake once Mersch’s
counsel apprised DADS of it. Bungled as DADS’ service was, Mersch never
contended that it was intended to be that way. These circumstances demonstrate
that DADS’ service error was not intentional or the result of conscious
indifference.
Allowing DADS’ late response would not have delayed trial or hampered
Mersch’s ability to prepare for it, and Mersch does not contend that it would.
Mersch received DADS’ response on October 5, four days before the summary–
judgment hearing, and could have received it even sooner had counsel not waited
until after business hours of the day after receiving the courtesy fax to notify
DADS that DADS had not in fact electronically served it. Moreover, the delay
occasioned was that commensurate with a mailed response: it is likely that Mersch
9
would have received DADS’ response around the same time if DADS had mailed
the response on the evening of October 2, a proper method under Texas Rule of
Civil Procedure 21a, rather than attempting electronic service. See TEX. R. CIV.
P. 21a (service is complete on the day document is placed in the mail). By adding
three days to the prescribed period, Texas Rule of Civil Procedure 21a assumes
that the mailing process can last three days. See TEX. R. CIV. P. 21a.
Notably, in her motion to strike, Mersch did not contend that the delay in
receiving the response deprived her of necessary preparation time. On appeal,
Mersch argues that, other than rectifying its service, DADS did nothing to establish
that allowing the late response would not cause Mersch undue prejudice, and that
DADS should have moved for a continuance of the summary–judgment hearing.
But Mersch never asserted any claim of prejudice, and she proceeded as movant on
her motion with no delay to her hearing. See In re M.N., 262 S.W.3d 799, 804
(Tex. 2008) (finding record supported a finding of no undue prejudice where the
party opposing the late filing did not claim it would be prejudiced). The trial date
was not imminent, and it was the method of service—not any delay in receipt—
that caused the issue: if DADS’ legal assistant had mailed the response at a United
States Post Office, even after 5:00 p.m., service would have been timely—even
though service by mailing could have occasioned a later receipt of DADS’
response than resulted here. See TEX. R. CIV. P. 21a; see also Lee v. Palo Pinto
10
Cnty., 966 S.W.2d 83, 85 (Tex. App.—Eastland 1998) (summary–judgment
response is timely served if placed in mail seven days before hearing), pet. denied
per curiam, 988 S.W.2d 739 (Tex. 1998); Holmes v. Ottawa Truck, Inc., 960 S.W.
2d 866, 869 (Tex. App.—El Paso 1997, pet. denied) (same); see also Davis Family
Blanco Rd. Prop. Trust v. Canyon Creek Estates Homeowners Ass’n, No. 04-09-
00007-CV, 2009 WL 3382232, at *3 (Tex. App.—San Antonio Oct. 21, 2009, no
pet.) (mem. op.) (“Service . . . in a technical sense is incidental where the main
purpose of obtaining the appearance of all parties and their participation is
accomplished.”) (quoting Hill v. W.E. Brittain, Inc., 405 S.W.2d 803, 807 (Tex.
Civ. App.—Fort Worth 1966, no writ)).
The circumstances here more closely resemble those in M.N. than those in
Carpenter. In M.N., the Texas Supreme Court held that a defendant whose counsel
explained a calendaring mistake, without objection from the other side as to any
prejudice, should be afforded relief from it. M.N., 262 S.W.3d at 804. Similarly
here, DADS’ counsel explained the service mistake without an objection about
prejudice, and it proffered a supporting affidavit and fax transmission at the
hearing to demonstrate that its error was not intentional or the result of conscious
indifference. The mistakes in service occurred in a new area for practitioners,
ungoverned by statewide rules. The Texas Supreme Court has since mandated the
adoption of uniform statewide electronic filing and service rules. See Tex. Sup.
11
Ct., Order Requiring Electronic Filing in Certain Courts, Misc. Docket No. 12-
9206 (Dec. 11, 2012). That mandate was prompted in part by the confusion
engendered with “the decentralized nature of the current system and accompanying
local e–filing rules.” Id. at 2–3. Under the proposed new rules, service is complete
on the day the document is transmitted to the electronic filing service provider,
regardless of the hour or minute. See Tex. Sup. Ct., Order Adopting Texas Rule of
Civil Procedure 21c and Amendments to Texas Rules of Civil Procedure 4, 21,
21a, and 502.1, Texas Rules of Appellate Procedure 6 and 9, and the Supreme
Court Order Directing the Form of the Appellate Record in Civil Cases, Misc.
Docket No. 13-9128, at 7 (Aug. 16, 2013) (draft circulated for public comment;
proposed effective date Jan. 1, 2014) (“Electronic service is complete on
transmission of the document to the serving party’s electronic filing service
provider.”).
Finally, the Texas Supreme Court’s overarching policy in approaching the
unintentional errors of counsel is that cases should be decided on the merits rather
than on a procedural default, when possible. See Marino v. King, 355 S.W.3d 629,
634 (Tex. 2011) (“Constitutional imperatives favor the determination of cases on
their merits rather than on harmless procedural defaults.”); Milestone Operating,
Inc. v. ExxonMobil Corp., 388 S.W.3d 307, 310 (Tex. 2012) (reversing default
judgment and noting court’s policy that “adjudication on the merits is preferred”)
12
(quoting Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 86 (Tex. 1992));
Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 784 (Tex. 2005)
(reiterating that appellate rules “are designed to resolve appeals on the merits, and
we must interpret and apply them whenever possible to achieve that aim”);
Gallagher v. Fire Ins. Exch., 950 S.W.2d 370, 370–71 (Tex. 1997) (reiterating
commitment to ensuring that courts do not unfairly apply rules of appellate
procedure to avoid addressing meritorious claims); Crown Life Ins. Co. v. Estate of
Gonzalez, 820 S.W.2d 121, 121–22 (Tex. 1991) (stating that procedural rules
should be “liberally construed so that the decisions of the courts of appeals turn on
substance rather than procedural technicality”). The Chambers County Local
Rules themselves counsel leniency as their “guiding interpretation.” Chambers
(Tex.) Dist. Ct. Loc. R. 7.2: (“Rule Guiding Interpretation. These rules shall be
liberally construed so as to avoid undue prejudice to any person using the
electronic filing system or sending or receiving electronic service in good faith.”)
(emphasis added). The electronic filing and service rules should not become a trap
for the unwary when no harm is done.
Conclusion
Because DADS established that it did not intentionally commit the
electronic service mistakes that it made, and no undue prejudice would have
resulted from forgiving them, the trial court abused its discretion in striking
13
DADS’ summary–judgment response. See M.N., 262 S.W.3d at 804
(distinguishing Carpenter and holding no abuse of discretion in granting a motion
to extend when defendant’s counsel explained mistake); Wheeler, 157 S.W.3d at
442 (distinguishing Carpenter and holding trial court abused discretion in refusing
to grant new trial because pro se litigant erred in determining when service occurs).
We therefore reverse the summary judgment and remand the case for further
proceedings.
Jane Bland
Justice
Panel consists of Chief Justice Radack and Justices Bland and Huddle.
14