Opinion
01-22-00156-CV
01-18-2024
DEMETRA MOORE, Appellant v. DARRELL GENE CARDER, Appellee
On Appeal from the 164th District Court Harris County, Texas Trial Court Case No. 2020-23143
Panel consists of Chief Justice Adams and Justices Kelly and Goodman.
ORDER
Gordon Goodman, Justice, Acting for the Court
Demetra Moore has filed a motion to extend the time to file motions for rehearing and en banc reconsideration as well as a motion to recall our mandate. Subject to our decision on these motions, Moore has also filed a motion for en banc reconsideration. For the reasons set forth below, we deny Moore's motions to extend the time to file motions for rehearing and en banc reconsideration and to recall our mandate. Our decision today moots Moore's untimely motion for en banc reconsideration, which we therefore dismiss for lack of subject-matter jurisdiction.
Background
By split decision, we previously concluded that the record was not developed enough to decide Moore's motions on the merits, abated the appeal, and remanded this cause to the trial court to hold an evidentiary hearing and make certain proposed findings of fact. See Moore v. Carder, No. 01-22-00156-CV, 2023 WL 5923323 (Tex. App.-Houston [1st Dist.] Sept. 7, 2023, order). The trial court held a hearing and made proposed findings of fact, a supplemental clerk's record and reporter's record has since been filed with this court, and we have reinstated the appeal for the purpose of deciding Moore's two motions on the merits based on the evidence.
Discussion
We issued our opinion and judgment on April 27, 2023. No party timely sought rehearing or en banc reconsideration. Our mandate issued on July 7, 2023.
On July 17, 2023, Moore filed her motions seeking relief from our mandate and an extension of time. Under most circumstances, when, as here, no party has timely moved for rehearing or en banc reconsideration, our plenary power over our judgment expires 60 days after judgment. Tex.R.App.P. 19.1(a). In this instance, that date was June 26, 2023. Moore filed her two motions 11 days after this date.
Moore filed a second motion to recall the mandate on July 18. This motion appears to be identical to the one she filed the previous day. Accordingly, we treat her two motions to recall the mandate as a single motion, both of which we address together in this order.
Moore's attorney further stated he did not receive the notice contained in the email until much later (July 7, 2023)-because he "inadvertently overlooked" the email. An assertion of inadvertence, however, has no impact the operation of Rule 4.5. See Peavy v. Tex. Home Mgmt., Inc., 16 S.W.3d 104, 105 n.1 (Tex. App.-Houston [1st Dist.] 2000, no pet.) ("Under Rule 4.5, a party and its counsel must demonstrate that they did not receive notice of the appellate judgment until after the deadline for filing the document. It is insufficient for a party and its counsel to state that they were merely unaware of the notice's contents.").
But the usual rule regarding the expiration of our plenary power may not apply when a party claims that she did not receive notice of our judgment in time to seek rehearing or en banc reconsideration. Moore claims lack of notice in her motions.
Lack of notice under these circumstances is governed by Rule 4.5 of the Texas Rules of Appellate Procedure. This rule provides:
(a) Additional Time to File Documents. A party may move for additional time to file a motion for rehearing or en banc reconsideration in the court of appeals, a petition for review, or a petition for discretionary review, if the party did not-until after the time expired for filing the document-either receive notice of the judgment or order from the clerk or acquire actual knowledge of the rendition of the judgment or order.
(b) Procedure to Gain Additional Time. The motion must state the earliest date when the party or the party's attorney received notice or acquired actual knowledge that the judgment or order had been rendered. The motion must be filed within 15 days of that date but in no event more than 90 days after the date of the judgment or order.
(c)Where to File.
(1) A motion for additional time to file a motion for rehearing or en banc reconsideration in the court of appeals must be filed in and ruled on by the court of appeals in which the case is pending.
(2) A motion for additional time to file a petition for review must be filed in and ruled on by the Supreme Court.
(3) A motion for additional time to file a petition for discretionary
review must be filed in and ruled on by the Court of Criminal Appeals.
(d) Order of the Court. If the court finds that the motion for additional time was timely filed and the party did not-within the time for filing the motion for rehearing or en banc reconsideration, petition for review, or petition for discretionary review, as the case may be-receive the notice or have actual knowledge of the judgment or order, the court must grant the motion. The time for filing the document will begin to run on the date when the court grants the motion.Tex. R. App. P. 4.5.
Rule 4.5 is the appellate analogue of Rule 306a(4)-(5) of the Texas Rules of Civil Procedure. And, like the trial-court rule, Rule 4.5 requires a movant to establish when the party, not just her lawyer, first became aware of the judgment to obtain relief. See Moore, 2023 WL 5923323, at *3 (holding that dispositive issue under Rule 4.5 is whether and when party received notice or acquired actual knowledge of rendition of our judgment and that counsel's receipt of notice or acquisition of knowledge is relevant to party's awareness, inasmuch as counsel is party's agent); see also Nance v. Evandale Indep. Sch. Dist., No. 09-05-00221-CV, 2005 WL 2271599, at *1-2 (Tex. App.-Beaumont Sept. 15, 2005, no pet.) (mem. op.) (noting that, among other reasons, party was not entitled to relief under trial-court rule, given that she only established when her lawyer first became aware of appellate judgment but made no showing as to her own notice or actual knowledge of judgment).
Moore's motions did not state or offer proof as to when she, as opposed to her lawyer, received notice or acquired knowledge of our court's judgment. In part, we abated and remanded so that she could introduce evidence on these matters. She did so, and based on the evidence, the trial court made the following proposed findings:
1.Moore did not receive electronic notice of our April 27, 2023 judgment because only her lawyer in this suit receives case-related notices; and
2.Moore first learned of our judgment on July 7, 2023, the date our mandate issued, by calling our clerk's office to inquire about the status of the appeal.
Respectfully, we cannot accept the second of these proposed findings. The testimony Moore gave at the trial court's evidentiary hearing contradicts the second proposed finding and shows that Moore most likely knew about our judgment not long after its issuance, and therefore did not seek relief within 15 days of learning of the judgment, as required by Rule 4.5 of the Texas Rules of Appellate Procedure.
The record is not bereft of any evidence that Moore first learned of our judgment on July 7, 2023. Moore testified that this was the date when she first learned of the judgment. According to Moore, she found out about our judgment by calling our clerk's office to ask about the appeal's status. She did not recall with whom she spoke. Afterward, she immediately contacted her lawyer by telephone.
However, the great weight and preponderance of Moore's testimony contradicts the preceding version of events. Moore testified that she routinely contacted our clerk's office to inquire about the status of her appeal. Specifically, Moore stated she would "periodically call" our clerk's office "about two or three times a week to see what's going on" in her appeal. Moore elaborated that she called on Tuesdays and Thursdays because one of the clerks told her that those are the days on which our court issues judgments. We note that this information is accurate.
Picking up on the significance of Moore's routine contact with our clerk's office, the trial court asked Moore when she began telephoning our clerk's office. Moore indicated that she began calling no later than April 2023. Moore suggested it was possible that she'd done so earlier but she could not recall if this was the case. Given Moore's expression of uncertainty, the trial court followed up by asking whether Moore had made any telephone calls to our clerk's office before the July 7, 2023 call. Moore replied, "Okay. Now, I can understand that question. Yes, I have. Yes, ma'am, I have." Then this exchange between the judge and Moore took place:
Q. Okay. And when did you-if you recall, when did you start making those calls[?]
A. That's what I can't recall. I know it was this year but I don't know exactly the month . . . .
Q. Okay. So prior [t]o July 7, 2023, you know you made other calls but you don't recall when those dates were. Is that correct?
A. Yes, ma'am, that's correct. Because I don't be writing them down.
Q. Okay. Did you say on or about July 7, 2023, did you, say, make a call, maybe two weeks or a month before? What was your habit?
A. I probably did. I probably did.
Q. What was your habit? Did you usually call every couple of weeks? Did you usually call-
A. Every week-two or three times a week. . . .
Moore's unambiguous testimony that she telephoned our clerk's office about the status of her appeal at least twice a week, on Tuesdays and Thursdays, perhaps more often, makes her claim to have only learned of our judgment via the last of these telephone calls on July 7, 2023, the same day our mandate issued, implausible.
Admittedly, Moore did later state she was unsure as to time period in which she placed these calls. She also indicated that the clerks would not necessarily answer her questions. Specifically, soon after the preceding exchange between the trial court and Moore occurred the following exchange took place between them:
Q. So you found out around July 7, 2023. Although, the ruling was April 27, 2023. So between April and July, do you know if you made any calls to the Court of Appeals or to-
A. Now, that you're bringing that up, Judge, I'm not understanding how it was around about that time. I don't know. Sometime-but sometimes they don't tell me stuff. Sometimes they tell me I have a lawyer and they won't answer my questions, too, Judge.
But once again Moore's explanations are implausible in light of her own testimony. According to her, she called about the appeal's status routinely-more than once a week for some undefined period of time. This period of time had to have been before July 7, 2023, because she says she learned about the judgment that day and thus would not have called to inquire about the appeal's status after that date. But Moore now claimed that she simply did not know-couldn't recall-whether she made any of these telephone calls between April and July 2023. Her testimony in this regard is implausible because it seemingly invites the factfinder to conclude, without any explanation, that she routinely called the clerk's office during some remote period of time but stopped doing so during the critical timeframe after April 27, when doing so would have inevitably divulged that her appeal had been decided. And while Moore said that the clerks sometimes would not answer her questions, she did not testify that she ever asked about her appeal's status only to have a clerk refuse to tell her whether or not our court had issued a judgment in her appeal.
We are mindful of the advantage the trial court enjoys in evaluating the credibility of witnesses, like Moore, given the trial court's ability to view the testimony of the witnesses in person. But Rule 4.5 uncharacteristically vests the factfinding authority on this issue in our court, not in the trial court. See Tex. R. App. P. 4.5(c)(1) (stating that "motion for additional time to file a motion for rehearing or en banc reconsideration in the court of appeals must be filed in and ruled on by the court of appeals in which the case is pending"); Tex.R.App.P. 4.5(d) (specifying that our court "must grant the motion" for additional time to seek rehearing or en banc reconsideration if this "court finds" the motion was timely filed and the filing party did not receive notice or acquire actual knowledge of our judgment within the time for filing motion for rehearing or en banc reconsideration); Peavy v. Tex. Home Mgmt., 48 S.W.3d 211, 212-13 (Tex. App.-Houston [1st Dist.] 2000, order) (per curiam) (reciting that court had reviewed transcript of evidentiary hearing held by trial court and adopting trial court's findings under Rule 4.5). Here, in light of Moore's testimony as a whole, which is inconsistent, we find her claim that she first learned of our court's judgment on July 7, 2023 too implausible to credit.
Moreover, we note that even if we were to defer to the trial court's evaluation of Moore's credibility, her testimony would remain insufficient to invoke Rule 4.5. Under Rule 4.5, the movant bears the burden of establishing when she first received notice or acquired actual knowledge of our judgment. See Tex. R. App. P. 4.5(b) (requiring motion to "state the earliest date when the party or the party's attorney received notice or acquired actual knowledge that the judgment" was rendered); Simon v. Dillard's, Inc., 86 S.W.3d 798, 800 (Tex. App.-Houston [1st Dist.] 2002, order) (per curiam) (stating that party moving for additional time under Rule 4.5 must demonstrate that he did not receive notice or acquire knowledge of judgment until after deadline to seek rehearing). Moore's eventual representation that she did not know whether she telephoned our clerk's office in the period after we rendered judgment but before we issued our mandate does not establish whether she did so or not. Her testimony in this regard amounts to a disclaimer or knowledge, not testimony that she did not telephone during this timeframe. This uncertain testimony is not enough to carry Moore's burden to show the earliest date she acquired actual knowledge of our judgment.
Conclusion
We deny Moore's motion to extend the time to file motions for rehearing and en banc reconsideration. We likewise deny her motion to recall our mandate.
The denial of the preceding two motions moots her subsequently filed motion for en banc reconsideration. Because this motion was filed after the expiration of our plenary power and Moore is not entitled to relief under Rule 4.5, our court lacks the subject-matter jurisdiction to consider the motion. We therefore dismiss Moore's untimely motion for en banc reconsideration for lack of subject-matter jurisdiction.
It is so ORDERED.
Chief Justice Adams, concurring in part and dissenting in part.
CONCURRENCE IN PART AND DISSENT IN PART TO ORDER
Terry Adams Chief Justice
Because I again disagree with how the majority interprets Texas Rule of Appellate Procedure 4.5, I must respectfully dissent. See Moore v. Carder, No. 01-22-00156-CV, 2023 WL 5923323, at *4 (Tex. App.-Houston [1st Dist.] Sept. 7, 2023, order) (Adams, C.J., dissenting). I would dismiss the motion for extension of time for lack of jurisdiction and dismiss the motion to recall the mandate as moot. I agree with dismissing the motion for en banc reconsideration, but disagree with the path traveled to get here.
Rule 4.5-"No Notice of Judgment or Order of Appellate Court; Effect on Time to File Certain Documents"-provides that a party may obtain additional time to file a motion for rehearing or en banc reconsideration if either the party or the party's attorney first received notice or acquired actual knowledge of the appellate judgment after the prescribed time period. TEX. R. APP. P. 4.5 (a)-(b).
As a result, and as this Court has previously recognized, a motion invoking Rule 4.5 must show that the party or the party's attorney first (1) received notice of the underlying judgment from the court of appeals, or (2) acquired actual knowledge of the judgment, after the time expired for filing a motion for rehearing or en banc reconsideration. See id.; Peavy v. Tex. Home Mgmt., Inc., 16 S.W.3d 104, 105 n.1 (Tex. App.-Houston [1st Dist.] 2000, no pet.).
Additionally, the motion must be filed within 15 days of "the earliest date" of these events-but in no event more than 90 days after the date of the judgment. TEX. R. APP. P. 4.5(b).
Here, this Court's judgment issued on April 27, 2023. Moore's deadline to file a motion for rehearing and/or en banc reconsideration was therefore May 12, 2023. See TEX. R. APP. P. 49.1, 49.5. Moore did not file anything. And the Court's mandate issued on July 7, 2023.
Ten days later, on July 17, 2023, Moore filed a motion seeking to invoke Rule 4.5. The motion included the affidavit of Moore's attorney. Moore asserted in the motion that "July 7, 2023 [is] the date on which [she] and her counsel received actual knowledge of the entry of this Court's judgment." And, as the majority acknowledges, Moore's attorney admitted in his affidavit that he was provided with an email notice from this Court about the judgment on April 27, 2023-the day the judgment issued.1
Because Moore's attorney admitted that he received the email notice from the Court before the time expired for filing a motion for rehearing and/or en banc reconsideration, Rule 4.5 could not be triggered at all. The Court's plenary power then expired on June 26, 2023, without Moore filing anything. See TEX. R. APP. P. 19.1(a).
Moore's motion was silent about whether she received the notice of the judgment before she acquired actual knowledge of it. But, as detailed, that makes no difference here.
Therefore, this Court lacked authority after June 26, 2023 to make any rulings in this case as a matter of law-except to dismiss for lack of jurisdiction. We now do that for the en banc motion, and I concur in that disposition. But because our plenary power expired months ago, I must dissent from the denial of the motions for extension of time and to recall the mandate. They likewise should be dismissed for lack of jurisdiction.
In that regard, the majority departs from the plain language of Rule 4.5. As referenced above, this Court has previously recognized that a motion under Rule 4.5 must show when the party and the party's attorney first received notice of the judgment from the appellate court or acquired actual knowledge of the judgment. See Peavy, 16 S.W.3d at 105.
The majority here now recasts Rule 4.5 to focus only on the party. According to the majority, the "dispositive issue under Rule 4.5 is whether and when [the] party received notice or acquired actual knowledge of [the] rendition of our judgment and that counsel's receipt of notice or acquisition of knowledge is relevant to [the] party's awareness, inasmuch as counsel is party's agent," citing Moore, 2023 WL 5923323, at *3 (emphasis added).
Under this rationale, any earlier notice or actual knowledge by the party's attorney will have no impact, or very little impact, on whether Rule 4.5 is invoked. This interpretation will cause much of the language in Rule 4.5 to have no meaning, which courts are cautioned not to do. See Ford Motor Co. v. Garcia, 363 S.W.3d 573, 579 (Tex. 2012) ("When construing rules of procedure, we apply the same rules of construction that govern the interpretation of statutes. We first look to the plain language of the rule and construe it according to its plain or literal meaning."); see also Long v. Castle Tex. Prod. Ltd. P'ship., 426 S.W.3d 73, 81 (Tex. 2014) ("[Courts] must interpret statutes and rules of procedure to give them effect.").
As support for its interpretation of Rule 4.5, the majority cites to Nance v. Evandale Independent School District, No. 09-05-00221-CV, 2005 WL 2271599, at *1-2 (Tex. App.-Beaumont Sept. 15, 2005, no pet.) (mem. op.), and includes the following parenthetical: "(noting that, among other reasons, party was not entitled to relief under trial-court rule, given that she only established when her lawyer first became aware of appellate judgment but made no showing as to her own notice or actual knowledge of judgment)."
In Nance, the appellant sought to invoke the trial court equivalent of appellate Rule 4.5, Texas Rule of Civil Procedure 306a. Like appellate Rule 4.5(b), Rule 306a(5) states "the party adversely affected is required to prove . . . the date on which the party or [her] attorney first either received a notice of the judgment or acquired actual knowledge of the [judgment] and that this date was more than twenty days after the judgment was signed." Id. at *1 (emphasis added) (quoting TEX. R. CIV. P. 306a(5)).
Texas Rule of Civil Procedure 306a has substantially similar language to Texas Rule of Appellate Procedure 4.5.
The appellant in Nance contended that Rule 306a could be triggered if either the party or the party's attorney did not receive the notice or acquire actual knowledge of a judgment within the specified time period. Id. The Nance court rejected that interpretation and explained that, "[u]nder the plain language of the rule, a party seeking a new judgment date must establish the first occurring of four possible events: (1) the party receives notice, (2) the party acquires knowledge, (3) counsel receives notice, and (4) counsel acquires knowledge." Id. (emphasis added). The same is true for Rule 4.5.
But the appellant in Nance only provided evidence showing that her attorney obtained notice and actual knowledge of the judgment past the specified time period. Stated differently, the appellant in Nance presented only favorable evidence (regarding her attorney) that would trigger the rule-she provided no evidence (regarding herself) that might show earlier dates and preclude operation of the rule. That failure led to dismissal of the appeal for want of jurisdiction. Id. at *2
Our Court faced a similar situation in Peavy v. Texas Home Management, Inc., where the appellee sought to invoke Rule 4.5. The appellee asserted that its counsel did not receive timely notice of our judgment, but made no showing of when it (the party) obtained notice and actual knowledge of the judgment. Peavy, 16 S.W.3d at 105.
Stated differently, the appellee in Peavy, like the appellant in Nance, provided only favorable evidence (regarding its attorney) that would trigger Rule 4.5-the appellee provided no evidence (regarding itself) that might show earlier dates and preclude operation of the rule. Thus, neither Nance nor Peavy supports the proposition that "the dispositive issue under Rule 4.5 is whether and when [the] party received notice or acquired actual knowledge of rendition of our judgment."
Instead of dismissing for lack of jurisdiction, the Peavy court remanded for a determination of when the appellee itself received notice and acquired actual knowledge of our judgment-and whether that date prevented Rule 4.5 from being triggered. Id.
Here, Moore also only provided evidence about when her attorney received notice from the Court about the judgment; but, in contrast to Nance and Peavy, that evidence was unfavorable to Moore and precluded the operation of Rule 4.5 as a matter of law. Nothing could change that result here.
Accordingly, for these reasons, I concur with the majority's dismissal of Moore's motion for en banc reconsideration for lack of jurisdiction, but disagree with the majority's interpretation and application of Texas Rule of Appellate Procedure 4.5. I therefore must further dissent from the majority's denial of Moore's motion to extend time and motion to recall the mandate, as these motions should also be dismissed for lack of jurisdiction.
Chief Justice Adams, concurring in part and dissenting in part.