Glenn Herbert Johnson v. Harris County, Harris County Education Department, the Port of Houston Authority of Harris County, the Harris County Flood Control District, the Harris County Hospital District, the City of Houston, the Houston Independent School District, and the Houston Community College System. ( 2020 )

Affirmed and Majority and Concurring Opinions filed September 29, 2020.
In The
Fourteenth Court of Appeals
NO. 14-18-00784-CV
GLENN HERBERT JOHNSON, Appellant
V.
HARRIS COUNTY, HARRIS COUNTY DEPARTMENT OF EDUCATION,
THE PORT OF HOUSTON AUTHORITY OF HARRIS COUNTY, THE
HARRIS COUNTY FLOOD CONTROL DISTRICT, THE HARRIS
COUNTY HOSPITAL DISTRICT, THE CITY OF HOUSTON, THE
HOUSTON INDEPENDENT SCHOOL DISTRICT, AND THE HOUSTON
COMMUNITY COLLEGE SYSTEM, Appellees
On Appeal from the 190th District Court
Harris County, Texas
Trial Court Cause No. 2017-71003
MAJORITY OPINION
Appellant/plaintiff Glenn Herbert Johnson appeals the trial court’s final
summary judgment, asserting in a single appellate issue that the trial court erred in
denying a post-judgment motion in which he asserted that he did not receive notice
of the defendants’ summary-judgment motion or of the submission of the motion.
Because Johnson did not submit any evidence to the trial court rebutting the
presumption that he received proper notice of these two events, the trial court did
not err, and we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Acting pro se, Johnson filed a petition in the trial court seeking equitable-
bill-of-review relief against appellees/defendants Harris County, City of Houston,
Houston Independent School District, Houston Community College System, Harris
County Department of Education, the Port of Houston Authority of Harris County,
the Harris County Flood Control District, and the Harris County Hospital District
(collectively, the “Governmental Entities”). The Governmental Entities filed a
motion for summary judgment and a notice of submission for that motion.
Johnson did not file a response, and the trial court signed a final summary-
judgment order granting the summary-judgment motion.
Within thirty days of the trial court’s final judgment, Johnson filed a motion
in which he asserted that the Governmental Entities did not give him notice of the
filing of their summary-judgment motion or the submission of their motion to the
trial court for a ruling. Johnson did not submit any evidence in support of his
motion. The trial court denied Johnson’s motion. Johnson, again acting pro se,
has timely appealed.
II. ISSUES AND ANALYSIS
A. Does this court have appellate jurisdiction?
The Governmental Entities assert that this court lacks appellate jurisdiction
because on appeal Johnson challenges only the trial court’s order denying his post-
judgment motion, which is an interlocutory and non-appealable order. The
Governmental Entities are correct that the order denying Johnson’s motion is an
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interlocutory order. Nonetheless, even though Johnson challenges only the trial
court’s denial of his post-judgment motion, this court has jurisdiction to review this
post-judgment ruling. See Phillips v. Discover Bank, No. 14-12-00487-CV, 2013
WL 5230755, at *1–2 (Tex. App.—Houston [14th Dist.] Aug. 15, 2013, no pet.)
(mem. op); In re Magana, No. 14-13-00563-CV, 2013 WL 3771298, at *1 (Tex.
App.—Houston [14th Dist.] July 18, 2013 [mand. denied], orig. proceeding) (mem.
op.); Torres v. Torres, No. 14-12-00436-CV, 2013 WL 776278, at *1–3 (Tex.
App.—Houston [14th Dist.] Feb. 28, 2013, no pet.) (mem. op.); Gammill v.
Fettner, 297 S.W.3d 792, 797–98, 801–02 (Tex. App.—Houston [14th Dist.] 2009,
no pet.).
Johnson entitled his motion “Motion for Rehearing of Defendant Harris
County, et al.’s Motion for Summary Judgment,” but we give effect to the
substance of the motion, not its title or form. See State Bar of Tex. v. Heard, 603
S.W.2d 829, 833 (Tex. 1980). In the motion, Johnson did not seek a second
hearing on an issue determined in the trial court’s summary-judgment order.
Instead, Johnson raised a new issue in the motion — the Governmental Entities’
purported failure to give him notice of their summary-judgment motion and its
submission to the trial court for a ruling. In his motion, Johnson asked the trial
court to set aside its summary-judgment order based on this alleged lack of notice
so that Johnson could submit a summary-judgment response and the parties could
relitigate the merits of the Governmental Entities’ summary-judgment motion.
Thus, the substance of Johnson’s motion was a motion for new trial. See Finley v.
J.C. Pace, Ltd., 4 S.W.3d 319, 320 (Tex. App.—Houston [1st Dist.] 1999, no pet.).
Though it may seem counter-intuitive because the filing of the motion and
the ruling usually occur post-judgment, a party’s timely appeal from a final
judgment gives the court of appeals jurisdiction to review the trial court’s denial of
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a timely motion for new trial, even if the appealing party asserts on appeal that the
trial court erred in denying the motion for new trial but does not assert that the trial
court erred in rendering the final judgment. See Phillips, 2013 WL 5230755, at
*1–2; In re Magana, 2013 WL 3771298, at *1; Torres, 2013 WL 776278, at *1–3;
Gammill, 297 S.W.3d at 797–98, 801–02. Johnson’s notice of appeal suffices to
invoke this court’s appellate jurisdiction over the trial court’s final summary
judgment. Though Johnson filed his notice of appeal more than ninety days after
final judgment, under the Supreme Court of Texas’s holding in Verburgt v. Dorner,
the law deemed that Johnson had filed a motion for extension of time to file a
notice of appeal. See 959 S.W.2d 615, 617 (Tex. 1997). This court granted
Johnson’s motion for extension of time to file a notice of appeal; so, Johnson’s
notice of appeal was timely. See id. Johnson’s timely appeal from the trial court’s
final summary-judgment order gives this court appellate jurisdiction to review the
trial court’s denial of Johnson’s timely motion for new trial, even though Johnson
has not challenged the trial court’s ruling on the Governmental Entities’ summary-
judgment motion. See Phillips, 2013 WL 5230755, at *1–2; In re Magana, 2013
WL 3771298, at *1; Torres, 2013 WL 776278, at *1–3; Gammill, 297 S.W.3d at
797–98, 801–02; Finley, 4 S.W.3d at 320; Chapman, 781 S.W.2d at 315.
Johnson does not assert that at the time the trial court granted summary
judgment the court knew or had notice that the Governmental Entities had not
given Johnson notice of the filing of their summary-judgment motion and the
submission of their motion for a ruling. Johnson does not assert that in the absence
of a response, the Governmental Entities did not establish their entitlement to
summary judgment based on their motion. If a non-movant proves in its motion
for new trial that the non-movant had no notice of the summary-judgment motion
and submission until after the trial court granted summary judgment, this proof
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does not establish that the trial court erred in granting a summary-judgment motion
in which the movant showed its entitlement to judgment as a matter of law and
nothing indicated that the non-movant did not receive notice. Thus, Johnson
challenges the trial court’s denial of his motion for new trial but has not alleged
that the trial court erred in granting the summary-judgment motion. If this court
were to conclude that the trial court erred in denying Johnson’s motion for new
trial, we would reverse the trial court’s judgment, but that remedy does not mean
that Johnson has challenged the trial court’s ruling on the summary-judgment
motion.
B. Did the trial court err in denying Johnson’s motion for new trial?
On appeal, Johnson complains that the trial court erred in denying his
motion because the Governmental Entities did not give Johnson notice of the filing
of their summary-judgment motion or the submission of their motion to the trial
court for a ruling. Though Johnson alleged in his motion that the Governmental
Entities did not give him notice of the filing of their summary-judgment motion or
the submission of their motion to the trial court for a ruling, the law presumes that
a trial court will grant summary judgment only after proper notice to the parties.
See Modelist v. Deutsche Bank Nat. Trust Co., No. 14-10-00249-CV, 2011 WL
3717010, at *2 (Tex. App.—Houston [14th Dist.] Aug. 25, 2011, no pet.) (mem.
op.). To rebut this presumption, Johnson had the burden to show affirmatively a
lack of notice by submitting evidence to the trial court refuting this presumption.
See id.
The Governmental Entities contend that they properly served Johnson with
the motion and notice of submission via his email address on file with the trial
court. A document filed electronically under Texas Rule of Civil Procedure 21
“must be served electronically through the electronic filing manager if the email
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address of the party or attorney to be served is on file with the electronic filing
manager.” Tex. R. Civ. P. 21a(a)(1). But pro se litigants are not required to
participate in the electronic service program, and thus a pro se litigant’s email
address may not be on file with the electronic filing manager. See Johnson v.
Harris Cnty., No. 01-18-00783-CV, 2020 WL 930835, at *3 (Tex. App.—Houston
[1st Dist.] Feb. 27, 2020, no pet.) (mem. op.). If a document is not filed
electronically or if a document is filed electronically and the email address of the
party to be served is not on file with the electronic filing manager, the document
may be served by fax, by email, or by such other manner as the court in its
discretion may direct. See Tex. R. Civ. P. 21a(a); Johnson, 2020 WL 930835, at
*3.
The rules required Johnson to designate an email address on his pleadings.
See Tex. R. Civ. P. 57 (“A party not represented by an attorney shall sign his
pleadings, state his address, telephone number, email address, and, if available, fax
number.”); Johnson, 2020 WL 930835, at *4. He did so. The certificate of service
shows that the Governmental Entities served Johnson by email to the email address
he provided in his pleadings. Johnson does not dispute that the Governmental
Entities served him at this email address. Instead, Johnson contends that he told
opposing counsel that communications should be sent to another email address.
The record includes no evidence of this communication. Moreover, the record does
not show that Johnson provided a different email address to the trial court.
The certificate of service in the summary-judgment motion and the notice of
submission of the motion raised a presumption that the Governmental Entities
served each document and that Johnson received each document. See Tex. R. Civ.
P. 21a(e); Mathis v. Lockwood, 166 S.W.3d 743, 745 (Tex. 2005); Approximately
$14,980.00 v. State, 261 S.W.3d 182, 186 (Tex. App.—Houston [14th Dist.] 2008,
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no pet.). To rebut the presumption of receipt, Johnson had the burden to present
evidence showing that he did not receive the summary-judgment motion and the
notice of submission. See Modelist, 2011 WL 3717010, at *2; Approximately
$14,980.00, 261 S.W.3d at 186. In the absence of any proof to the contrary, the
presumption has the force of a rule of law. See Modelist, 2011 WL 3717010, at *2;
Approximately $14,980.00, 261 S.W.3d at 186. Johnson submitted no evidence to
the trial court in support of his motion for new trial; therefore, Johnson failed to
rebut the presumption of proper service, receipt, and notice. See Modelist, 2011
WL 3717010, at *2; Approximately $14,980.00, 261 S.W.3d at 186. In the absence
of any evidence rebutting these presumptions, we conclude the trial court did not
err in denying Johnson’s motion for new trial. See Modelist, 2011 WL 3717010, at
*2; Approximately $14,980.00, 261 S.W.3d at 186.
Our concurring colleague asserts that in analyzing Johnson’s sole issue, we
ignore binding precedent from this court. We do not; instead, we heed the
admonition that “[e]verything should be made as simple as possible,
but not simpler.”1 Johnson does not cite this court’s opinion in Ramey v. Bank of
Am., N.A. or assert that it applies to today’s case. See No. 14-11-01109-CV, 2013
WL 84922 (Tex. App.—Houston [14th Dist.] Jan. 8, 2013, no pet.) (mem. op.).
Nor does Johnson assert that he has shown good cause to file a late summary-
judgment response.
In Modelist v. Deutsche Bank Nat. Trust Co., the appellant asserted that the
trial court abused its discretion in denying his motion for new trial on the ground
that the appellees did not give him notice of the hearing on their summary-
judgment motion, and the appellees did not serve him with a copy of their motion.
1
This aphorism has been attributed to Albert Einstein. See THE ULTIMATE QUOTABLE EINSTEIN
475 (Alice Calaprice ed., 2011).
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See Modelist, 2011 WL 3717010, at *2. This court determined that the appellant
had not submitted evidence rebutting the presumption of notice, and this court
concluded that the trial court did not abuse its discretion by rejecting the
appellant’s lack-of-notice arguments. See id. This court did so without addressing
whether the appellant had shown good cause or whether the appellant had satisfied
the legal standard applicable to a request to file a late summary-judgment response.
See id.
According to our concurring colleague, this court’s precedent in Ramey
requires this panel to address whether Johnson showed good cause to file a late
summary-judgment response. See post at 1–3; Ramey, 2013 WL 84922, at *2–3.
After concluding that the appellants in Ramey had not submitted any evidence
supporting their contention that they received notice of the summary-judgment
motion and hearing, the Ramey court gratuitously determined whether the
appellants had shown good cause to file a late summary-judgment response, even
though the appellants had not asked the trial court for leave to file a late response
and even though the appellants did not argue good cause on appeal. See Ramey,
2013 WL 84922, at *1–3. This obiter dictum in Ramey does not obligate us to
address whether Johnson showed good cause to file a late summary-judgment
response, nor does it stop us from keeping the analysis as simple as possible by
following this court’s precedent in Modelist. See id.; Modelist, 2011 WL 3717010,
at *2. Even if there were a conflict between Modelist and Ramey (and there is not),
the Modelist precedent would be binding and prevail over Ramey because the
Ramey court did not distinguish or purport to apply the Modelist precedent, and
because research does not reveal a decision from a higher court or this court sitting
en banc that is on point and contrary to the Modelist precedent. See Burnett v.
Sharp, 328 S.W.3d 594, 597–98 (Tex. App.—Houston [14th Dist.] 2010, no pet.).
Because Johnson did not submit any evidence in the trial court rebutting the
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presumptions of proper service, receipt, and notice, we can conclude that the trial
court did not err in denying Johnson’s motion for new trial, without addressing
whether Johnson showed good cause to file a late summary-judgment response.
See Modelist, 2011 WL 3717010, at *2; Approximately $14,980.00, 261 S.W.3d at
186. Johnson’s sole appellate issue lacks merit. So, we overrule the issue and
affirm the trial court’s judgment.
/s/ Kem Thompson Frost
Chief Justice
Panel consists of Chief Justice Frost and Justices Christopher and Bourliot
(Bourliot, J., concurring).
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