Opinion
No. 11-22-00054-CV
08-03-2023
Jacy GATES, Appellant v. Denise MCDONALD and Diana Dobbins, Appellees
Matthew Choate, Choate Law Firm, PLLC, P.O. Box 206, Abilene, TX 79604, for appellant. Jessica L. Haile, McMahon Surovik Suttle, P.C., 400 Pine Street, Suite 800, Abilene, TX 79601, for appellee.
Matthew Choate, Choate Law Firm, PLLC, P.O. Box 206, Abilene, TX 79604, for appellant.
Jessica L. Haile, McMahon Surovik Suttle, P.C., 400 Pine Street, Suite 800, Abilene, TX 79601, for appellee.
Panel consists of: Bailey, C.J., Trotter, J., and Williams, J.
OPINION
JOHN M. BAILEY, CHIEF JUSTICE
This appeal arises from the second phase of the parties’ partition proceedings. Appellant, Jacy Gates, filed objections to the report of the commissioners. Appellees, Denise McDonald and Diana Dobbins, filed a response to Appellant's objections wherein they asserted that his objections were untimely. The trial court entered a final judgment and partition decree wherein it found that Appellant's objections were untimely.
Appellant also appealed the trial court's first partition decree. We considered the merits of Appellant's contentions in that appeal and have today affirmed the trial court's judgment. See Gates v. McDonald , No. 11-21-00190-CV, 2023 WL 4937518 (Tex. App.—Eastland Aug. 3, 2023, no pet. h.) (mem. op.).
Appellant brings two issues on appeal. In his first issue, he contends that the trial court erred by proceeding and entering the final judgment and second partition decree given the timely filing of his objections and jury demand. In his second issue, Appellant contends that the trial court erred by not granting his motion for new trial. We reverse and remand.
Background Facts
Our opinion in Cause No. 11-21-00190-CV, released today, thoroughly recites the facts that concern the parties’ underlying partition dispute. Therefore, this opinion only recites the facts that are pertinent to the issues that we must address in this appeal.
Appellees filed suit to partition in kind certain real property located in Coleman County that is jointly owned by them and Appellant. The trial court entered a decree of partition (the first partition decree) which (1) determined that the property was susceptible to partition in kind, (2) set out each party's interest in the property, and (3) appointed commissioners to partition the property pursuant to the trial court's decree.
Although Appellant appealed and challenged the first partition decree, the second phase of the partition case continued. Ultimately, the commissioners submitted a report recommending how the property should be partitioned. The primary issue in this case is whether Appellant's objections to the commissioners’ report were timely filed.
Appellees’ attorney electronically submitted the commissioners’ report to the district clerk on the afternoon of September 22, 2021. However, the district clerk did not affix a file mark on the commissioners’ report showing that it was filed on September 22. Instead, the clerk affixed a file mark that indicated that the commissioners’ report was filed on September 23: CV20-01034
Filed 9/23/2021 8:20 AM Darlene Huddle-Boyd, District Clerk Coleman County, Texas Sandy Mayes
August 30, 2021
RE: Cause No. CV20-01034 Decree of Partition
To Whom it May Concern:
As ordered by the presiding judge in the partition case between plaintiffs Denise McDonald and Diana Dobbins and defendant Jacy Gates, we as appointed commissioners, Michael Taylor, Josh Hale, and Bill Henning, have partitioned the subject property as follows:
Denise McDonald (37.5%)
21.60 ac out of B.B.B.&C. R.R. Co Survey 23, Abstract 72, Block 2 Subdivision of S.J.&C.D. Lewis Pasture (See attached survey)
Diana Dobbins (37.5%)
16.6 ac out of B.B.B.&C. R.R. Co Survey 23, Abstract 72, Block 2 Subdivision of S.J.&C.D. Lewis Pasture (See attached survey)
Jacy Gates (25%)
13.84 ac out of B. B.B.&C. R.R. Co Survey 23, Abstract 72, Block 2 Subdivision of S.J.&C.D. Lewis Pasture (See attached survey)
If any other information or documentation is needed, please contact one of the commissioners.
The file date of September 23 remained undisturbed for the next several days, including through October 23, which was the thirtieth day after September 23, and through October 25, the date on which Appellant filed his objections to the report.
October 23, 2021 was a Saturday.
Appellant asserted in his objections that (1) the commissioners’ report was materially erroneous and/or unequally and unjustly partitioned the property and, alternatively, (2) the commissioners’ report was untimely because he had filed an appeal (Cause No. 11-21-00190-CV referenced above) to challenge the first partition decree and was awaiting a ruling from our court in that appeal. Appellant sought a jury trial on his objections.
On November 3, 2021, Appellees filed their response to Appellant's objections, asserting that the commissioners’ report was actually filed on September 22, because that is the date that Appellees’ attorney electronically submitted the commissioners’ report. Appellees requested the entry of a final decree of partition based upon their contention that Appellant's objections to the commissioners’ report were untimely.
A hearing on Appellants’ response was set for November 23, 2021. However, Appellant's attorney did not appear for the hearing. On November 23, the trial court entered its final judgment and partition decree wherein it determined that Appellant's objections were untimely. The trial court affirmed and adopted the commissioners’ report and ordered that the property be partitioned consistent with the recommendations set forth in the report.
On December 23, 2021, Appellant filed a motion for new trial and, alternatively, a motion to set aside and motion to reconsider. Appellant's motion was ultimately overruled by operation of law. See TEX. R. CIV. P. 329b(c). This appeal followed.
Analysis
A partition case consists of two decrees that are both final and appealable. Griffin v. Wolfe , 610 S.W.2d 466, 466 (Tex. 1980). In the first decree, the trial court determines the following: (1) the share or interest of each owner in the property that the owners seek to divide, (2) all questions of law or equity that may affect title, and (3) whether the property in dispute is subject to partition or sale. TEX. R. CIV. P. 760, 761, 770 ; Ellis v. First City Nat'l Bank , 864 S.W.2d 555, 557 (Tex. App.—Tyler 1993, no writ.). Further, the trial court is required to appoint three or more disinterested persons as commissioners who shall partition the property in dispute pursuant to the trial court's decree; the trial court may also provide directions to the commissioners as may be necessary and appropriate. See TEX. R. CIV. P. 760, 761.
With respect to the second decree, which is the focus of Appellant's challenge in this appeal, the commissioners "shall proceed to partition the real estate described in the decree of the court, in accordance with the directions contained in such decree and with the provisions of law and these rules." TEX. R. CIV. P. 766. After the partition is completed, the commissioners must submit, under oath, a written report to the trial court. TEX. R. CIV. P. 769. Within thirty days after the commissioners file their report, any party to the partition suit may file objections with the trial court. TEX. R. CIV. P. 771.
Rule 769 requires the commissioners’ report to be under oath. Here, the commissioners’ report was not under oath. However, Appellant does not complain of this omission.
Appellant asserts in his first issue that the trial court erred by overruling his objections to the commissioners’ report without conducting a jury trial on his objections. The resolution of this issue turns on the timeliness of his objections. In this regard, Appellant's failure to appear for the hearing on Appellees’ response to his objections is of no consequence because the timeliness question turns on the documents in the clerk's record.
" Texas Rule of Civil Procedure 771 sets forth the procedures and timelines for objections and states that a trial on any objections is mandatory[.]" Williams v. Mai , 471 S.W.3d 16, 19 (Tex. App.—Houston [1st Dist.] 2015, no pet.) ; see Green v. Marek , No. 03-01-00502-CV, 2002 WL 722164, at *1 (Tex. App.—Austin Apr. 25, 2002, no pet.) (not designated for publication) (" Rule 771 contemplates a ‘trial on the issues’ when a party to a partition action has objections to the commissioners’ report."). Thus, a trial is mandatory if objections are timely filed to the commissioners’ report. See Williams , 471 S.W.3d at 19 ; Redden v. Hickey , 308 S.W.2d 225, 229 (Tex. App.—Waco 1957, writ ref'd n.r.e.). The right to a trial on timely-filed objections includes the right to a jury trial if requested. Redden , 308 S.W.2d at 229.
Rule 769 of the Texas Rules of Civil Procedure sets out the requirements for the substance of the commissioners’ report. Williams , 471 S.W.3d at 18 ; see TEX. R. CIV. P. 769. It also sets out the procedures by which the commissioners and the clerk must abide. Williams , 471 S.W.3d at 18. With respect to the clerk's responsibilities, the rule requires that "[t]he clerk shall immediately mail written notice of the filing of the [commissioners’] report to all parties." TEX. R. CIV. P. 769. Here, the clerk did not send written notice of the filing of the commissioners’ report to the parties. However, Appellant does not complain of the omission of the clerk sending notice of the filing of the commissioners’ report.
The use of "shall" in Rule 769 indicates that the clerk has a mandatory duty to immediately mail written notice of the filing of the commissioners’ report. Section 21.049 of the Texas Property Code contains a similar requirement with respect to condemnation proceedings. See Tex. Prop. Code Ann. § 21.049 (West 2014). In John v. State , the Texas Supreme Court determined that Section 21.049 sets out a mandatory duty for the clerk to follow, and that the applicable period for filing objections is tolled until the clerk sends the required notice. 826 S.W.2d 138, 139–41 (Tex. 1992). In this regard, the court noted that "[w]hen a statute provides the method by which notice shall be given in a particular instance, the notice provision must be followed with reasonable strictness." Id. at 141 n. 4. The San Antonio Court of Appeals reached the same result in Oncor Elec. Delivery Co. LLC v. Schunke , No. 04-13-00067-CV, 2013 WL 6672494, at *3 (Tex. App.—San Antonio Dec. 18, 2013, pet. dism'd) (mem. op.). The court concluded that the fact that Oncor had actual notice of the filing in Schunke was of no consequence because the clerk had a mandatory duty to mail the required notice. Id.
Even though the clerk did not mail notice of the filing of the commissioners’ report, the clerk affixed a file mark on the commissioners’ report indicating that the report was filed on September 23. The file mark is the memorandum of the clerk of the date of a document's filing. Pruitt v. State , 92 Tex. 434, 49 S.W. 366, 366 (1899). Until corrected, the date of the file mark is conclusive evidence of the date of filing. Id. As summarized by a legal treatise, "[t]he memorandum of the date of filing, affixed by the clerk or judge, is not conclusive where its error is shown by evidence received on that issue, but it does control unless it is amended, if erroneous, pursuant to a formal order of court." 2 ROY W. MCDONALD & ELAINE A. GRAFTON CARLSON , TEXAS CIVIL PRACTICE § 7:29 (2d. ed. 2022) (footnote omitted).
The September 23 date of filing, as reflected by the clerk's file mark, remained unchanged for the thirty-day period following the filing of the commissioners’ report, and it extended through the date Appellant filed his objections to the commissioners’ report. On November 3, Appellees filed their response asserting an earlier filing date for the commissioners’ report—September 22—because that is the date that their counsel electronically transmitted it to the electronic filing service provider.
On November 23, two months after the date of filing of the commissioners’ report, the trial court determined that Appellant's objections were untimely. In doing so, the trial court did not expressly change the date of filing of the commissioners’ report. As a result, for the purpose of this appeal, we consider that the trial court implicitly changed the date of filing to September 22 in its final judgment entered on November 23.
As reflected in the bookmarks of the clerk's record, the date of filing of the commissioners’ report remains September 23.
Appellees cite Rule 21(f)(5) of the Texas Rules of Civil Procedure in support of their argument that the commissioners’ report was filed on September 22. This rule for electronic filing provides as follows:
Timely Filing. Unless a document must be filed by a certain time of day, a document is considered timely filed if it is electronically filed at any time before midnight (in the court's time zone) on the filing deadline. An electronically filed document is deemed filed when transmitted to the filing party's electronic filing service provider[.]
TEX. R. CIV. P. 21(f)(5). Appellees rely on the second sentence of this provision to assert that the commissioners’ report was filed on September 22, because that is when their attorney transmitted it to the electronic filing service provider. Appellees’ reliance on Rule 21(f)(5) is certainly understandable because it is undisputed that their attorney electronically transmitted the commissioners’ report on September 22. And this interpretation is consistent with the traditional principle that "an instrument is deemed in law filed at the time it is left with the clerk, regardless of whether or not a file mark is placed on the instrument and regardless of whether the file mark gives some other date of filing." See Standard Fire Ins. Co. v. LaCoke , 585 S.W.2d 678, 680 (Tex. 1979). "The purpose of this rule is to protect a diligent party from being penalized by the errors and omissions of the court clerk." Id.
Appellees’ attorney also electronically served the commissioners’ report on Appellant's attorney on September 22.
Appellant responds to Appellees’ reliance on Rule 21(f)(5) by asserting that "[s]urely a party is allowed to rely upon the clerk's file-mark date in calculating a dead-line based upon the date of filing." Appellant cites In re Smith , for the proposition that "the term ‘filed’ has a different meaning when viewed from the perspective of the clerk." 270 S.W.3d 783, 786 (Tex. App.—Waco 2008) (orig. proceeding). In this regard, the court in Smith noted that the clerk physically files a document by indorsing a file mark on it, recording it in the clerk's file docket, and maintaining the document in the clerk's file for the suit. Id.
There are two problems in this case that bear upon fundamental fairness and due process that must be afforded to the parties in the lawsuit. First, despite the fact that Rule 21(f)(5) provides that "[a]n electronically filed document is deemed filed when transmitted to the filing party's electronic filing service provider," the clerk did not use the date of September 22 on her file mark. Instead, she dated the file mark with the date of September 23. Irrespective of the reason why, the commissioners’ report, in and of itself, reflected that it was filed on September 23.
This court is advised by its own clerk's office that in efileTexas.gov, the clerk had the option of placing the date of September 22 on the file mark on the commissioners’ report because that was the date it was sent to the electronic filing service provider.
We respectfully disagree with the dissent's belief that, in the age of electronic filing, the file mark is of "no consequence." We first note that in its description of "how does e-filing work," the frequently asked questions section of eFileTexas.gov states that the trial court clerk provides "an electronic timestamp notification" to the filer when a document is accepted for filing. Frequently Asked Questions , https://www.efiletexas.gov/faqs.htm (last visited August 1, 2023). Thus, e-filing contemplates the continued use of a file mark. With respect to a partition proceeding, the clerk has a mandatory duty to notify the parties of the filing of the commissioners’ report. The closest thing that the clerk did to comply with this requirement was to affix a file mark on the commissioners’ report and, in doing so, the clerk indicated that the commissioners’ report was filed on September 23. See Pruitt , 49 S.W. at 366.
The second problem arises from the fact that the file date on the commissioners’ report remained September 23 for the next several days, including through the thirty-day period following either September 22 or September 23. At best, the date of filing was not corrected until November 23. As noted in Pruitt , until the date of the file mark is corrected, it remains conclusive evidence of the date of filing. 49 S.W. at 366. As applied to the facts in this case, this principle justifies Appellant's reliance on the file date of September 23 at the time he filed his objections to the commissioners’ report.
The touchstone of due process is fundamental fairness. In re B.L.D. , 113 S.W.3d 340, 352 (Tex. 2003) (citing Lassiter v. Dep't of Soc. Servs. , 452 U.S. 18, 24, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981) ). It would be fundamentally unfair for a filing which appeared to be timely at the time it was filed to be rendered untimely after-the-fact because the date of filing that the clerk placed on the commissioners’ report was later changed. As noted in LaCoke , the purpose of the "deemed" filing date rule "is to protect a diligent party from being penalized by the errors and omissions of the court clerk." LaCoke , 585 S.W.2d at 680. Rule 21(f)(5) uses similar language pertaining to a "deemed" filing, indicating that Rule 21(f)(5) is a rule of protection to the filing party. But here, Appellees are not invoking Rule 21(f)(5) to protect them as the filers of the commissioners’ report. Instead, they are using the deemed filing rule to cut short a responsive filing deadline after the deadline had already passed. We conclude that the use of Rule 21(f)(5) in this manner is inconsistent with the purpose of the deemed filing rule and it is inconsistent with the requirements of due process.
At the time that Appellant filed his objections to the commissioners’ report, the file mark of the commissioners’ report stated that it was filed on September 23. Until the date of filing was corrected to a different date, Appellant was permitted to rely on the date shown on the file mark. See Pruitt , 49 S.W. at 366. Thus, Appellant's objections to the commissioners’ report were timely.
Appellees assert in the alternative that even if Appellant's objections were timely filed, he is not entitled to a remand because his objections have no merit. They contend that Appellant's objections are insufficient because he only alleged that the report was "materially erroneous and/or it unequally and unjustly partitions the property" without specifying how the report was erroneous or creates an unequal and unjust partition.
We first note that Appellant's objections tracked the language of Rule 771 : "If the report be found to be erroneous in any material respect, or unequal and unjust, the same shall be rejected." TEX. R. CIV. P. 771. Appellees do not cite any authority for the proposition that objections to a commissioners’ report must be stated with any degree of specificity. Instead, they cite the burden at trial that Appellant would bear. In this regard, the party who objects to the report bears the burden to prove that the report is materially erroneous or that the partition is unequal and unjust. Bowman v. Stephens , 569 S.W.3d 210, 221 (Tex. App.—Houston [1st Dist.] 2018, no pet.) ; Ellis , 864 S.W.2d at 557. In the absence of contrary authority, we conclude that objections that track the language of Rule 771 are sufficient.
Finally, Appellant also objected in the alternative to the commissioners’ report on the basis of the pendency of the appeal from the first partition decree. Our disposition today in Cause No. 11-21-00190-CV wherein we affirmed the first partition decree renders moot Appellant's objection to the commissioners’ report based on the pendency of the other appeal.
We sustain Appellant's first issue. Appellant is entitled to a trial on his objection that the commissioners’ "report is materially erroneous and/or it unequally and unjustly partitions the property." Because of our disposition on Appellant's first issue, we do not reach his second issue.
This Court's Ruling
The trial court's final judgment and second partition decree is reversed, and this cause is remanded for further proceedings consistent with this opinion.
( Trotter, J., dissenting with opinion)
DISSENTING OPINION
W. STACY TROTTER, JUSTICE
The Texas Rules of Civil Procedure provide a framework for the filing of documents, and the calculation of related responsive deadlines, in civil cases. TEX. R. CIV. P. 2. Central to the disposition of this appeal is the application of Rule 21(f)(5) —the electronic filing rule. See TEX. R. CIV. P. 21(f)(5). My colleagues and I do not agree as to the proper application of this rule.
This appeal originates from the second phase of the parties’ underlying partition proceedings. Appellant contends here that the trial court erred when it (1) overruled his objections to the commissioners’ report (which the trial court concluded were untimely) and thereafter signed the second final judgment and second partition decree and (2) did not grant his motion for new trial. Because I conclude that the trial court neither erred nor abused its discretion in either respect, I would affirm its judgment.
Appellant also appealed and challenged the trial court's first partition decree. Today we affirmed the trial court's judgment in that appeal. See Gates v. McDonald , No. 11-21-00190-CV, 2023 WL 4937518 (Tex. App.—Eastland Aug. 3, 2023, no pet. h.) (mem. op.).
I. Factual Background
This court's opinion in Cause No. 11-21-00190-CV thoroughly outlines the facts that concern the parties’ underlying partition dispute; therefore, I will only discuss the facts that are pertinent to the issues that Appellant has raised in this appeal.
Denise McDonald and Diana Dobbins, Appellees, filed suit against Jacy Gates, Appellant, to partition in kind certain real property located in Coleman County; the property is jointly owned by the parties to this appeal. After the first phase of the partition action concluded, the trial court signed a decree of partition (the first partition decree) which, inter alia , (1) determined that the property was susceptible to partition in kind, (2) set out each party's interest in the property, and (3) appointed commissioners to partition the property pursuant to the trial court's decree.
Although Gates challenged the first partition decree in Cause No. 11-21-00190-CV referenced above, the second phase of the partition action continued. The appointed commissioners later submitted a report, as they must, recommending how the property should be partitioned. This report was electronically filed with the trial court on September 22, 2021; therefore, the deadline to file objections to the commissioners’ report was Friday, October 22, 2021. See TEX. R. CIV. P. 771. The trial court clerk subsequently placed a file stamp of September 23 on the report. Rather than relying on the electronic filing date to calculate the deadline to object to the report, as he should have, Appellant instead relied on the trial court clerk's subsequent file-stamp and filed his objections on Monday, October 25, 2021.
In Appellant's objections, he stated, generally, that (1) the commissioners’ report was materially erroneous and/or it unequally and unjustly partitioned the property and (2) the commissioners’ report was untimely because he had filed an appeal (Cause No. 11-21-00190-CV) to challenge the final judgment and partition decree that the trial court signed after the conclusion of the first phase of the partition action and was awaiting a ruling from this court in that appeal.
Appellees filed a response to Appellant's objections and contended that, because the commissioners’ report was filed on September 22, 2021, Appellant's objections were untimely; therefore, he had waived his right to a trial of the contested issues. Pursuant to Appellees’ request, a hearing was scheduled before the trial court to address Appellant's objections to the commissioners’ report; the hearing date was November 23, 2021. Neither Appellant nor his trial counsel appeared at this hearing. The trial court thereafter signed its second final judgment on November 23, 2021, wherein it found, among other things, that Appellant's objections to the commissioners’ report were untimely. Further, the trial court affirmed and adopted the commissioners’ report and ordered that the property be partitioned consistent with the recommendations set forth in the report.
Appellant filed a motion for new trial and, alternatively, a motion to set aside and motion to reconsider on December 23, 2021, and Appellees filed their response to Appellant's motions on January 11, 2022. Appellant's motion for new trial was eventually overruled by operation of law. See TEX. R. CIV. P. 329b(c).
II. Discussion
The Texas Rules of Civil Procedure set forth a two-phase process for the partition of real property. See TEX. R. CIV. P. 756 – 771. A partition action consists of two judgments and partition decrees that the trial court enters after the completion of each phase, both of which are appealable. Griffin v. Wolfe , 610 S.W.2d 466, 466 (Tex. 1980) (per curiam). In the first phase, which addresses the susceptibility of the property to be partitioned, the trial court determines (1) the share or interest of each owner in the property that the owners seek to divide, (2) all questions of law or equity that may affect title to the property, and (3) whether the property is subject to partition or sale. TEX. R. CIV. P. 760, 761, 770 ; Williams v. Mai , 471 S.W.3d 16, 18 (Tex. App.—Houston [1st Dist.] 2015, no pet.) ; Ellis v. First City Nat'l Bank , 864 S.W.2d 555, 557 (Tex. App.—Tyler 1993, no writ.). Further, the trial court is required to appoint three or more disinterested persons as commissioners who shall partition the property in dispute pursuant to the trial court's order; the trial court may also provide directions to the commissioners as may be necessary and appropriate. See TEX. R. CIV. P. 760, 761 ; Williams , 471 S.W.3d at 18.
With respect to the second phase of the partition process, the commissioners "shall proceed to partition the real estate described in the decree of the court, in accordance with the directions contained in such decree and with the provisions of law and these rules." TEX. R. CIV. P. 766. Next, the commissioners must submit, under oath, a written report to the trial court that includes their recommendations as to how the property should be partitioned. TEX. R. CIV. P. 769. Within thirty days after the commissioners’ report is filed, any party to the partition action may file objections to the report with the trial court. TEX. R. CIV. P. 771 ; see also Russell as Trustee of Jennifer McGough Russell Trust v. McGough as Trustee of John Michael McGough Trust , No. 11-19-00270-CV, 2021 WL 3557574, at *2–3 (Tex. App.—Eastland Aug. 12, 2021, no pet.) (mem. op.).
A party who objects to the commissioners’ report bears the burden to prove that the report is materially erroneous or that the recommended partition is unequal and unjust. Bowman v. Stephens , 569 S.W.3d 210, 221 (Tex. App.—Houston [1st Dist.] 2018, no pet.) ; Ellis , 864 S.W.2d at 557. If the trial court overrules the filed objections, it may then confirm the report in a second judgment. Russell , 2021 WL 3557574, at *3 ; Bowman , 569 S.W.3d at 222 ; Ellis , 864 S.W.2d at 557. However, if the trial court finds that (1) the report is materially erroneous in any respect or (2) the recommended partition is unequal and unjust, it must reject the report and appoint a new panel of commissioners to partition the land. TEX. R. CIV. P. 771 ; see Bowman , 569 S.W.3d at 222 ; Williams , 471 S.W.3d at 18 ; Ellis , 864 S.W.2d at 557. It is Appellant's challenge to the trial court's second judgment and second partition decree that is the focus of this appeal.
A. Trial Court's Second Final Judgment – Timeliness of Objections to Report
In his first issue, Appellant asserts that because his objections to the commissioners’ report were timely filed, the trial court erred when it overruled his objections to the report and thereafter signed its second final judgment and second partition decree. As I discuss below, Appellant is misguided in his assertion.
There is no ambiguity in the rule: Appellant had thirty days from the date that the commissioners’ report was filed with the trial court to file his objections to the report. TEX. R. CIV. P. 771. Here, it is undisputed that the commissioners’ report was electronically filed with the trial court on September 22, 2021. Nevertheless, Appellant argues that the trial court clerk's subsequent file stamp notation on the report controls; therefore, Appellant maintains, the report should be deemed "filed" on that date. However, under the Texas Rules of Civil Procedure, an electronically filed document is considered filed when the document is successfully transmitted to the filing party's electronic filing service provider, unless the document is transmitted on weekends or a legal holiday. TEX. R. CIV. P. 21(f)(5)(A) ; see also Hall v. Lewis , 639 S.W.3d 197, 207 (Tex. App.—Houston [1st Dist.] 2021, no pet.) ; NA Land Co. v. State , 624 S.W.3d 671, 674–75 (Tex. App.—Houston [14th Dist.] 2021, no pet.) ; Cummings v. Billman , 629 S.W.3d 297, 299–303 (Tex. App.—Fort Worth 2020, no pet.) ; Nevarez Law Firm v. Investor Land Servs., L.L.C. , 610 S.W.3d 567, 570–71 (Tex. App.—El Paso 2020, no pet.) (op. on reh'g); High Rev Power, L.L.C. v. Freeport Logistics, Inc. , No. 05-13-01360-CV, 2016 WL 6462392, at *3 (Tex. App.—Dallas Oct. 31, 2016, no pet.) (mem. op.). It then logically follows that any responsive deadline that would pertain to an electronically filed document must be calculated from the date that the document is electronically filed.
Appellees’ trial counsel electronically filed the commissioners’ report with the trial court on September 22, 2021. This was accomplished when the report was successfully transmitted to the electronic filing service provider for Appellees’ trial counsel. The accompanying certificate of service shows that electronic service of the report's filing was also simultaneously issued to counsel for all parties to this action. Thus, under Rule 21(f)(5), the report was filed on September 22, 2021, not on September 23, 2021, as Appellant suggests. As such, and because the report was not transmitted and served on a weekend or legal holiday, the deadline to file objections to the commissioners’ report was Friday, October 22, 2021, not Monday, October 25, 2021, as Appellant contends.
The majority rejects the "date of filing" interpretation I espouse, based, in part, on the concept of due process. The Due Process Clause of the United States Constitution prevents the government from depriving a person of his or her "property without due process of law." U.S. CONST. amend. XIV, § 1 ; see also TEX. CONST. art. 1, § 19 ("No citizen of this State shall be deprived of ... property ... except by the due course of the law of the land."). "It is well settled that these words ‘require that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case.’ " Mitchell v. MAP Res., Inc. , 649 S.W.3d 180, 188–89 (Tex. 2022) (quoting Mullane v. Cent. Hanover Bank & Tr. Co. , 339 U.S. 306, 313, 70 S.Ct. 652, 94 L.Ed. 865 (1950) ).
My interpretation of Rule 21(f)(5) does not infringe on any of Appellant's due process rights. Rule 5 of the Texas Rules of Civil Procedure provides that after the expiration of a deadline, the trial court may, upon motion, permit a late filing, if the movant shows good cause for the failure to act. TEX. R. CIV. P. 5 ; see also Carpenter v. Cimarron Hydrocarbons Corp. , 98 S.W.3d 682, 686, 688 (Tex. 2002) ; HBA East, LTD. v. JEA Boxing Co., Inc. , 796 S.W.2d 534, 538 (Tex. App.—Houston [1st Dist.] 1990, writ denied). This rule provides a litigant with a "bailout" when, as in this case, necessary objections are not timely filed. Here, Appellant never filed any such motion or made any attempt to establish good cause or to explain why his objections were untimely; nor did he request leave to file delinquent objections. Appellant and his trial counsel also failed to appear at the hearing that was scheduled before the trial court to address Appellant's objections.
Due process has been afforded to Appellant. Without question, a party, who upon learning that a deadline has passed, may petition the trial court for leave to submit a delinquent filing. Appellant had the opportunity to avail himself of that avenue, however, he chose not to do so. As such, Appellant's failure to pursue this avenue does not constitute a denial of his due process rights.
Appellant argues that the purpose of Rule 21(f)(5) is to protect e-filers from missing a filing deadline based on an electronic error or a related mishap that results in the filing not being "technically" filed on the date it was transmitted under the rule. Therefore, Appellant maintains, Rule 21(f)(5) should not be used to punish him, and he should be allowed to rely upon the trial court clerk's manual file stamp date in calculating the required deadline to file his objections to the commissioners’ report. Appellant's argument is flawed. The provisions of Rule 21(f) are neither a trap nor are they designed to punish e-filers, as Appellant suggests. Rather, the supreme court's intention when it promulgated Rule 21(f) was to create a uniform method for litigants to electronically file documents in civil cases that is consistent with the court's mandate. See TEX. R. CIV. P. 21 cmt. 2013 ( Rule 21(f) —electronic filing —became effective January 1, 2014, in compliance with the supreme court's mandate for the electronic filing of all documents in civil cases). Further, and importantly, neither party contends, and there is no evidence, that (1) any error, mishap, or "glitch" occurred during the process by which the commissioners’ report was transmitted to the parties’ counsel and filed with the clerk or (2) any party to this dispute was unaware that the report had been successfully transmitted and electronically filed.
Although the title of Rule 21 is "Filing and Serving Pleadings and Motions," Rule 21(f) was adopted in 2014 to specifically govern the "new wave" procedure— electronic filing —that the courts and litigants would be required to utilize to file and serve anything that is associated with a pending civil case. However, unlike the limited categories to which Rule 21(a)-(e) apply—to any pleading, plea, motion, or application to a court for an order—the scope of Rule 21(f) is clearly much broader—the procedures outlined in Rule 21(f) apply to the electronic filing of all documents. This distinction is significant and compelling.
For purposes of filing, after a document is electronically filed any subsequent "file stamp" that the trial court clerk notates on the same document is of no consequence. Why? Because the document is deemed to be filed when it is successfully transmitted to the filing party's electronic filing service provider, which occurs at the exact moment that the filer engages the "send button." Indeed, the purpose and intent of the electronic filing rules and procedures would be rendered meaningless if, after a document has been electronically filed, a manual "file stamp" that is subsequently notated on the same e-filed document by the trial court clerk becomes determinative of the document's actual date and time of filing. Contrary to Appellant's assertion, a later notated "file stamp" by the trial court clerk creates confusion and does not determine the actual date and time that the document was filed. To conclude otherwise would be tantamount to ignoring the plain and intended meaning of Rule 21(f)(5).
The majority disagrees with what I have expressed in the preceding paragraph and refers to eFileTexas.gov to support their belief that e-filing procedures contemplate the continued use of a clerk's "file mark." I respectfully disagree with my colleagues’ conclusion. The "frequently asked questions" section to which the majority alludes, and which pertains to a clerk's duty in connection with e-filed documents, contains this statement:
Clerks Accept or Reject Submissions
Court clerks receive the electronically filed documents and associated fees for processing and acceptance, review the documents, accept the filings or return them for correction, and provide an electronic timestamp notification to the filer for the accepted documents.
Frequently Asked Questions , https://www.efiletexas.gov/faqs.htm (last visited August 1, 2023) (emphasis added). Notably, this commentary clearly states that a clerk "accept[s] the filings " and then provides "an electronic timestamp notification to the filer for the accepted documents" (emphasis added). Read as a whole, the clerk's timestamp acts only as a notification of the acceptance of the document by the trial court, not of the document's filing. All electronically transmitted documents would have already been filed before reaching the "hands of the clerk." Therefore, the clerk's only remaining duties are to receive, review, and then either accept or reject the filing. Nothing in the above commentary indicates that the clerk files the document. Why? Because the document has already been filed, electronically.
Rule 21, as titled, designates the procedures to follow and the deadlines that must be met when filing and serving certain matters; however, Rule 21(f)(5), when invoked, may also trigger responsive deadlines. Therefore, the deadline for Appellant to file his objections to the commissioners’ report under Rule 771 was triggered and commenced on September 22, 2021, at the exact moment the report— a document under Rule 21(f)(5) —was electronically transmitted to the electronic filing service provider for Appellee's trial counsel. See TEX. R. CIV. P. 21(f)(5), 771. Because the mandated electronic filing procedures were utilized in this instance, in calculating the proper deadline to file his objections, Appellant's erroneous reliance on the subsequent "file stamp" that the trial court clerk notated on the report cannot save him. Moreover, the interpretation of Rule 21(f)(5) advanced by Appellant, with which I disagree, would lead to confusion and greater uncertainty for litigants when calculating filing deadlines—the result being the use and consideration of two different dates to juggle when attempting to calculate when a timely filing occurs and when the next applicable deadline would commence.
Rule 769 of the Texas Rules of Civil Procedure requires that the commissioners’ report must be filed with the trial court. This occurred here. Rule 769 also requires that the trial court clerk "shall immediately mail written notice of the filing of the report to all parties" (emphasis added). Unfortunately, this did not occur. The majority emphasizes the trial court clerk's obligations under this rule and that Appellant's deadline to file his objections to the commissioners’ report would arguably be tolled until the clerk has complied with Rule 769. See Oncor Elec. Delivery Co., LLC v. Schunke , No. 04-13-00067-CV, 2013 WL 6672494 (Tex. App.—San Antonio Dec. 18, 2013, pet. dism'd) (mem. op.). I agree that the trial court clerk's responsibilities are clearly defined. However, despite the clerk's failure to comply with her mandatory duty, and unlike the appellant in Oncor , because Appellant (Gates) did not raise an issue on appeal, or in the trial court below, as to how this oversight and clerical error could have potentially affected the disposition of this appeal, this circumstance cannot be considered or addressed here. See Tex. R. App. P. 33.1.
As Appellant points out in his brief, prior to the adoption of the existing e-filing procedures, a document was deemed "filed" when it was delivered to and in the actual, physical possession of the clerk's office. See Standard Fire Ins. Co. v. LaCoke , 585 S.W.2d 678, 680 (Tex. 1979) ("that an instrument is deemed in law filed at the time it is left with the clerk, regardless of whether or not a file mark is placed on the instrument and regardless of whether the file mark gives some other date of filing"). However, times have changed. Rule 21(f)(5) is the electronic equivalent of the mailbox rule and, because of today's advanced technology that will continue to evolve and the implementation of the mandated electronic filing procedures, Rule 21(f)(5) controls in this instance. Similar to the application of the mailbox rule, Rule 21(f)(5) provides that a document is deemed filed "at the moment" it is successfully transmitted to the filing party's electronic service provider (here Appellees’ trial counsel), irrespective of when the document is in "the hands" of the trial court clerk. For this filing to be effective, there is no requirement that the trial court clerk must actually receive the electronically filed document within a prescribed time period. In other words, when or if the trial court clerk receives the filed document is of no consequence because the document is deemed to be filed when it is successfully submitted to an electronic filing service provider, as the report was in this case, not when it is received by the trial court clerk. See Hall , 639 S.W.3d at 207–08 ; NA Land , 624 S.W.3d at 674 ; Cummings , 629 S.W.3d at 300.
It is also noted that, when Appellant filed his motion for new trial, he relied on Rule 21(f)(5) when he claimed that his motion was timely filed—Appellant's motion was electronically transmitted to the trial court clerk and counsel for the parties on December 23, 2021, but the clerk did not notate a file stamp to it until December 27, 2021. Certainly, Appellant's motion for new trial would not have been timely filed if the trial court had relied on the clerk's file stamp date. Appellant cannot rely on Rule 21(f)(5) only when it suits him to do so in one instance and then claim ignorance of its application when the result does not benefit him.
The dilemma here is not the method that was used to file the commissioners’ report. Rather, it is Appellant's failure to accurately calculate the correct deadline to file his objections. Contrary to Appellant's arguments, and to some extent the majority's conclusion, the application of Rule 21(f)(5) in this instance is neither punitive, unreasonable, nor is it designed to dilute the concept of "fundamental fairness." Therefore, I conclude that the trial court did not err when it overruled Appellant's untimely objections to the commissioners’ report and thereafter signed its second final judgment and second partition decree. The record here does not support Appellant's arguments. Accordingly, I would overrule Appellant's first issue. Because the majority holds otherwise, I respectfully dissent.
B. Motion for New Trial
In his second issue, Appellant asserts that the trial court erred when it did not grant his motion for new trial because his failure to appear at the November 23, 2021, hearing is excusable and can be readily explained. The majority did not address this issue, and in light of their holding on Appellant's first issue it would not be necessary for them to do so. However, because I would overrule Appellant's first issue, I will discuss Appellant's second issue.
In Texas, a judgment rendered against a defaulted party should be set aside and a new trial granted when the defaulted party files a motion for new trial and, with supporting evidence , establishes that (1) the failure to appear at the hearing or trial was not intentional or the result of conscious indifference, but was the result of an accident or mistake, (2) the motion sets up a meritorious defense, and (3) granting the motion will occasion no delay or otherwise injure the plaintiff. Craddock v. Sunshine Bus Lines, Inc. , 134 Tex. 388, 133 S.W.2d 124, 126 (1939) ; see also Ivy v. Carrell , 407 S.W.2d 212, 213–14 (Tex. 1966) (the rule set out in Craddock is applicable to a motion for new trial which seeks to set aside a default judgment based on a party's failure to appear for trial).
We review a trial court's refusal to grant a motion for new trial for an abuse of discretion. Dolgencorp of Tex., Inc. v. Lerma , 288 S.W.3d 922, 926 (Tex. 2009). When a defaulted party moves for a new trial and meets all three elements of the Craddock test, a trial court abuses its discretion if it fails to grant a new trial. Id.
1. Failure to Appear the Result of Conscious Indifference
In determining whether a party's failure to appear was due to intentional conduct or conscious indifference, the reviewing court must focus on the defendant's knowledge and conduct. In re R.R. , 209 S.W.3d 112, 115 (Tex. 2006) (per curiam) ; Director, State Employees Workers’ Comp. Div. v. Evans , 889 S.W.2d 266, 269 (Tex. 1994). Consciously indifferent conduct occurs when "the defendant knew it was sued but did not care." Fid. & Guar. Ins. Co. v. Drewery Constr. Co. , 186 S.W.3d 571, 575 (Tex. 2006) (per curiam). In this regard, it has been held that a pattern of ignoring deadlines and warnings received from the opposing party is tantamount to conscious indifference. Levine v. Shackelford, Melton & McKinley, L.L.P. , 248 S.W.3d 166, 168–69 (Tex. 2008) (per curiam) ; Hayward v. Gomez , 663 S.W.3d 790, 797 (Tex. App.—Texarkana 2023, no pet. h.) ; Dodd v. Savino , 426 S.W.3d 275, 288 (Tex. App.—Houston [14th Dist.] 2014, no pet.).
Generally, some excuse, although it may not necessarily be a good one, is sufficient to show that a defendant's failure to appear was not because he did not care, i.e., the defendant's conduct was not consciously indifferent. In re R.R. , 209 S.W.3d at 115 ; Fidelity , 186 S.W.3d at 576 (citing Craddock , 133 S.W.2d at 125 ). Nevertheless, forgetfulness alone is insufficient to satisfy the first Craddock element. Sutherland v. Spencer , 376 S.W.3d 752, 755 (Tex. 2012). Further, situations where the attorney's conduct reached the level of conscious indifference generally involved circumstances where evidence was presented that the movant's attorney either was aware of the impending default or repeatedly ignored deadlines or communications. Take 5 LLC v. Smith , No. 05-22-00390-CV, 2023 WL 1229028, at *6 (Tex. App.—Dallas Jan. 31, 2023, no pet.) (mem. op.) (citing Cervantes v. Cervantes , No. 03-07-00381-CV, 2009 WL 3682637, at *8 (Tex. App.—Austin Nov. 5, 2009, no pet.) (mem. op.) ).
Appellant had the burden to present uncontroverted factual assertions which, if true, would negate consciously indifferent conduct. Milestone Operating, Inc. v. ExxonMobil Corp. , 388 S.W.3d 307, 310 (Tex. 2012) ; Sutherland , 376 S.W.3d at 755. Appellant argues that he and his trial counsel did not appear at the November 23, 2021, hearing because his trial counsel inadvertently failed to calendar the hearing setting. However, in his motion, Appellant offered no factual explanation for the alleged calendaring error from which the trial court could have determined that Appellant or his trial counsel's failure to appear was the result of an accident or mistake, rather than conscious indifference. Rather, Appellant advanced only a global, bare assertion to justify his and his trial counsel's failure to appear at the hearing. To his detriment, Appellant did not present any evidence —a necessary requirement to obtain the relief he requested in the trial court and now on appeal— to either support this assertion or to explain the reasons for the alleged calendaring error. See Carpenter , 98 S.W.3d at 688 (the trial court did not err when it denied defendant's motion for new trial, which was not accompanied by any supporting affidavits or other evidence, based upon trial counsel's bare assertion, without explanation, that he had "mis-calendared" the due date for the response to the motion for summary judgment); Tex. Petroleum Land Mgmt., LLC v. McMillan , 641 S.W.3d 831, 849 (Tex. App.—Eastland 2022, no pet.) (no explanation or evidence offered by the movant to demonstrate good cause for failing to timely respond).
Further, Appellees argue, and Appellant has not disputed, that Appellant's trial counsel exhibited a pattern of ignoring deadlines, including the deadline to file timely objections to the commissioners’ report. Appellant's trial counsel also repeatedly ignored communications from others. Appellees’ trial counsel notified Appellant's trial counsel, via separate e-mail/e-filing service transmissions, of (1) the November 23, 2021, hearing setting and (2) the filing of the commissioners’ report. However, and despite the receipt of these notices and filings, Appellant has failed to explain the reasons for his trial counsel's delays in opening the e-mail service notifications that were provided with the transmitted hearing notice and the e-filed commissioners’ report—Appellant's trial counsel did not even open the hearing notice e-mail service notification until after the scheduled time for the November 23 hearing had passed and he opened the e-mail service notification that accompanied the e-filed commissioners’ report twenty-nine days after it was served and the day before Appellant's objections were due to be filed. See Carpenter , 98 S.W.3d at 688 (the movant did not investigate the circumstances that had caused the filing deadline to pass until after the hearing on the motion).
In this case, Appellant's bare and unexplained assertion—his trial counsel's alleged inadvertent conduct—that his or his trial counsel's failure to appear at the November 23, 2021, hearing was due to his trial counsel's calendaring error, without more, is insufficient to satisfy his burden as to the first Craddock element. Moreover, Appellant has presented no evidence to support his assertion. But this assertion, when combined with the pattern and proclivity of Appellant's trial counsel to miss critical deadlines and ignore communications, shows that the conduct here rises to the level of conscious indifference. Consequently, I would conclude that Appellant has failed to satisfy the first Craddock element.
Calendaring errors, tardiness, or failing to appear for scheduled court proceedings seems to be the norm for Appellant's trial counsel. We have encountered similar issues with Appellant's trial counsel—he did not appear for oral argument at the time that argument was scheduled. Ironically, this "mishap" occurred in the companion appeal that we have released today (see footnote 1) for which he offered the same excuse that he asserts and relies on here—a calendaring oversight.
2. Meritorious Defense
Even assuming that Appellant established the first Craddock element, he cannot establish the second element. The second Craddock element requires that the defendant "set up" a meritorious defense. Craddock , 133 S.W.2d at 126. A meritorious defense is one that, if true, would result in a different outcome if a new trial is granted, although it need not be a totally opposite result. L'Arte De La Mode, Inc. v. Neiman Marcus Grp. , 395 S.W.3d 291, 296 (Tex. App.—Dallas 2013, no pet.) ; Jaco v. Rivera , 278 S.W.3d 867, 873 (Tex. App.—Houston [14th Dist.] 2009, no pet.). To satisfy this element, a defendant must do more than merely allege that he has a meritorious defense; rather, the defendant's motion (1) must allege facts which in law would constitute a defense to the cause(s) of action asserted by the plaintiff, and (2) must be supported by affidavits or other evidence that provide prima facie proof that the defendant has, in fact, a meritorious defense. Dolgencorp , 288 S.W.3d at 928 ; Ivy , 407 S.W.2d at 214. Once these requirements are satisfied, controverting evidence offered by the nonmovant should not be considered. Dolgencorp , 288 S.W.3d at 928 (citing Ivy , 407 S.W.2d at 214 ).
In his motion for new trial, Appellant alleges, globally, that he "has a meritorious defense to the entry of the Judgment, as generally indicated in Paragraph 6 above." Paragraph 6 in Appellant's motion also globally alleges as a defense that his objections to the commissioners’ report were timely filed. However, as discussed above, I believe that Appellant's objections were not timely filed. Therefore, this assertion, even if true or proven, would not constitute a meritorious defense. Apart from this generalized statement, Appellant alleges no facts that would constitute a meritorious defense to the entry of the trial court's second final judgment—such as by stating that his objections to the commissioners’ report are a meritorious defense and addressing the bases for why he claims that the commissioners’ report is materially erroneous, the partition is unequal and unjust, or both. See Ellis , 864 S.W.2d at 557.
Nor did Appellant submit any affidavits or other evidence with his motion, as is required, that would provide prima facie proof that he has any meritorious defense to the entry of the trial court's second final judgment. This is significant because the failure to submit any evidence whatsoever to support his meritorious defense assertion is fatal to Appellant's argument on appeal. See Djomo v. Tchengwe , No. 01-20-00581-CV, 2022 WL 2836805, at *2 (Tex. App.—Houston [1st Dist.] July 21, 2022, no pet.) (mem. op.) (holding that a movant does not satisfy the second Craddock element if his motion contains only conclusory statements and is not supported by affidavits or other evidence); Kapur v. U.S. Bank Nat'l Ass'n as Trustee for Holders of CIM Trust 2017-3 Mortgage-Backed Notes, Series 2017-3 , No. 14-19-00842-CV, 2021 WL 388475, at *5 (Tex. App.—Houston [14th Dist.] Feb. 4, 2021, no pet.) (mem. op.) (holding that the movant did not satisfy the second Craddock element when his motion for new trial only challenged defective service and did not provide any evidence to support his other alleged defenses); One Thousand Four Hundred Thirty-Seven Dollars ($1,437.00) in United States Currency v. State , 587 S.W.3d 422, 430 (Tex. App.—San Antonio 2019, no pet.) (holding that a movant does not satisfy the second Craddock element if the motion contains only bare assertions and unsupported conclusions); Chapple v. Hall , No. 05-18-01209-CV, 2019 WL 2482628, at *2 (Tex. App.—Dallas June 14, 2019, no pet.) (mem. op.) (holding that a movant does not satisfy the second Craddock element when no affidavits or other evidence are submitted to support the allegations of a meritorious defense).
Appellant's motion for new trial contains only sparse, bare, conclusory, and unexplained assertions that have no evidentiary support. Further, his failure to sufficiently allege a basis for the relief that he requests and to provide any evidence to support such assertions are critical deficiencies. Thus, I would conclude that Appellant's motion fails to satisfy the second Craddock element.
It is also noted that Appellant did not request a hearing on his motion and thus made no effort to present evidence to the trial court to support his global assertions and to develop the record for appellate review.
Because I would conclude that Appellant has not satisfied the first and second Craddock elements, it is not necessary to discuss whether he has satisfied the third Craddock element. Accordingly, I would overrule Appellant's second issue.
III. Conclusion
For the reasons stated above, I conclude that the trial court did not err or abuse its discretion in any respect, as Appellant suggests. Therefore, I would affirm the trial court's judgment.