Jacy Gates v. Denise McDonald and Diana Dobbins ( 2023 )

Opinion filed August 3, 2023
In The
Eleventh Court of Appeals
__________
No. 11-22-00054-CV
__________
JACY GATES, Appellant
V.
DENISE MCDONALD AND DIANA DOBBINS, Appellees
On Appeal from the 42nd District Court
Coleman County, Texas
Trial Court Cause No. CV20-01034
DISSENTING OPINION
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. 1 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.
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
1
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 (Tex. App.—
Eastland Aug. 3, 2023, no pet. h.) (mem. op.).
2
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).
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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.).
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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
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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
6
Res., Inc., 649 S.W.3d 180, 188–89 (Tex. 2022) (quoting Mullane v. Cent. Hanover
Bank & Tr. Co., 339 U.S. 306, 313 (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
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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
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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
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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. 2 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.
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
2
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.
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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
11
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., 133 S.W.2d 124, 126 (Tex. 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.12
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.)).
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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
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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. 3 Consequently, I would conclude that
Appellant has failed to satisfy the first Craddock element.
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
Calendaring errors, tardiness, or failing to appear for scheduled court proceedings seems to be the
3
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.
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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
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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.4 Thus, I would conclude that
Appellant’s motion fails to satisfy the second Craddock element.
4
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.
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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.
W. STACY TROTTER
JUSTICE
August 3, 2023
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
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