Diane Cummings and Everett Cummings v. Heidi Billman, Carole Billman, and Bradley Billman

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-20-00034-CV
___________________________
DIANE CUMMINGS AND EVERETT CUMMINGS, Appellants
V.
HEIDI BILLMAN, CAROLE BILLMAN, AND BRADLEY BILLMAN, Appellees
On Appeal from the 431st District Court
Denton County, Texas
Trial Court No. 18-1841-431
Before Sudderth, C.J.; Kerr and Wallach, JJ.
Opinion and Order by Chief Justice Sudderth
OPINION AND ORDER
I. Introduction
This is an issue of first impression that arises under facts unique to the
electronic filing system that was established to comply with the Texas Supreme
Court’s Order Requiring Electronic Filing in Certain Courts, an order that mandates
electronic filing of documents in all civil cases filed in district courts in Texas. See
Supreme Court of Tex., Order Requiring Electronic Filing in Certain Courts, Misc.
Docket No. 12-9206 (Tex. Dec. 11, 2012). We are asked to decide whether the timely
transmittal of a motion to reinstate that is subsequently canceled by the sender before
the clerk “files” it is sufficient to extend the appellate deadline for filing a notice of
appeal under Texas Rule of Appellate Procedure 26.1(a).
We hold that even if the cancellation of the efiling transaction worked to
withdraw the motion to reinstate for purposes of extending the trial court’s plenary
power, it did not affect the extension of the appellate deadline that the transmittal of
the motion initially triggered. Consequently, the notice of appeal of Appellants Diane
and Everett Cummings was due on January 9, 2020, and we may extend that deadline
because they provided a reasonable explanation for failing to file it by the January 9
due date in their motion for an extension of time to file their notice of appeal. See
Tex. R. App. P. 10.5(b), 26.3 (providing for up to a 15-day extension of time to file a
notice of appeal). We grant their motion, order the notice of appeal timely filed, and
continue the appeal.
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II. Background
On November 11, 2019, thirty-one days after the trial court signed a final order
dismissing this case for want of prosecution, Appellants timely submitted their motion
to reinstate the case through eFileTexas.gov, the official electronic filing system for
Texas courts.1 See Tex. R. Civ. P. 165a. According to the electronic filing records,
however, three days after the motion was filed, the filing was “canceled” by
Appellants’ trial counsel. In the interim, the Denton County District Clerk never
officially “filed” the motion to reinstate.
Appellants electronically filed a second motion to reinstate on December 4,
which was marked as “filed” by the district clerk at 4:04 p.m. that same day.2 On
January 22, 2020, the 103rd day after the final order was signed, Appellants filed their
notice of appeal.
1
Although a motion to reinstate ordinarily must be filed within 30 days of the
final order to be considered timely, Appellants’ motion was timely submitted on the
31st day because the 30th day fell on Veteran’s Day, a state holiday. See Tex. R. Civ.
P. 4 (providing that if the due date falls on a Saturday, Sunday, or legal holiday, the
due date is extended to “the end of the next day which is not a Saturday, Sunday, or
legal holiday”).
2
Because the document transmitted on November 11 was never filed by the
district clerk, we have no record of its contents. However, Appellants contend—and
for purposes of this appeal we accept as true—that the motion transmitted on
November 11, 2019, was “the same, identical motion” as the one filed on December
4, 2019.
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III. Discussion
A timely-filed notice of appeal is required in order to invoke the appellate
court’s jurisdiction. Tex. R. App. P. 25.1(b), 26.1; Verburgt v. Dorner, 959 S.W.2d 615,
617 (Tex. 1997); Nat’l Transmission v. Boltz, No. 02-09-00378-CV, 2009 WL 5064578, at
*1 (Tex. App.—Fort Worth Dec. 23, 2009, no pet.) (per curiam) (mem. op.) (stating
that the deadline to file a notice of appeal is “mandatory and jurisdictional”). There is
no question that Appellants’ original November 11 motion to reinstate was
transmitted timely. See Tex. R. App. P. 26.1(a)(3). The question we must answer is
what effect, if any, the cancellation of the November 11 efiling transaction has on the
calculation of appellate deadlines.
Appellants argue that the motion to reinstate transmitted on November 11
operated to extend the due date for their notice of appeal to 90 days from the date the
final order was signed. See id. (providing that a notice of appeal is due “within 90 days
after the judgment is signed if any party timely files . . . a motion to reinstate”). If
Appellants’ contention is correct, then their notice of appeal was due on January 9,
2020, a deadline that could be extended to January 24 upon a reasonable explanation
for its tardiness. See Tex. R. App. P. 10.5(b)(2), 26.3; Verburgt, 959 S.W.2d at 617. But
if Appellants are mistaken, and the November 11 motion did not extend the due date
for their notice of appeal, then their notice of appeal was due on November 11, a
deadline that could not be extended beyond November 26. See City of Lancaster v. Tex.
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Nat. Res. Conservation Comm’n, 935 S.W.2d 226, 228 (Tex. App.—Austin 1996, writ
denied).
Citing Jamar v. Patterson to support their contention that the time to file the
notice of appeal was extended, Appellants argue that on November 11, when they
transmitted the motion to reinstate to eFileTexas, the motion was deemed filed on
that day regardless of whether the district clerk stamped it as filed or not. 868 S.W.2d
318, 319 (Tex. 1993) (holding that “the date of filing is when the document is first
tendered to the clerk”). Jamar, having been decided long before electronic filing was
envisioned, is not squarely on point with the facts here, although the underlying
rationale expressed in the cases it cites is instructive as to the supreme court’s policy
that continues today “to construe rules reasonably but liberally, when possible, so that
the right to appeal is not lost by creating a requirement not absolutely necessary from
the literal words of the rule.” Id. More instructive, however, is Texas Rule of Civil
Procedure 21(f)(5), which provides that “[a]n electronically filed document is deemed
filed when transmitted to the filing party’s electronic filing service provider.” Tex. R.
Civ. P. 21(f)(5).
Rule 21(f)(5) is the electronic equivalent of the mailbox rule—that a document
is considered filed when it is deposited into an official United States Postal Service
mailbox, not when the clerk receives it in the mail3—that used to apply to attorneys
Using the mailbox rule, a document is considered timely filed if: (1) it is
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mailed to the clerk on or before the last day it is due, and (2) it arrives at the clerk’s
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when they filed documents in the old-fashioned way and still applies to pro se parties
who are exempt from the current electronic filing mandate. 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.” Id. (emphasis added). Similar to the
mailbox rule, Rule 21(f)(5) provides that at the moment when Appellants’ counsel
transmitted the motion to reinstate through eFileTexas, that document was “deemed
filed.” Id. Unlike the mailbox rule, Rule 21(f)(5) has no requirement that the clerk
actually receive the document within any particular period of time. See id. And, under
the eFileTexas system, when a transaction is canceled prior to the clerk’s acceptance
and official filing of a document, the document will be removed from the clerk’s
intake portal. To analogize with the mailbox rule, the canceling of an electronic
transaction is the equivalent of a party reaching into the inbox on a clerk’s desk and
retrieving an envelope that the clerk has received in the mail but has not yet
processed.4
office within ten days. See Tex. R. Civ. P. 5. The document must be sent by first-class
mail in a properly addressed and stamped envelope, and the envelope must bear a
United States Postal Service postmark, which is prima facie evidence of the date of
mailing, or, barring that, an uncontroverted affidavit may be provided to establish the
date of the mailing. Id.; Lofton v. Allstate Ins. Co., 895 S.W.2d 693, 693–94 (Tex. 1995)
(per curiam).
4
Although such practice would be unheard of in the context of hard copies and
the mailbox rule, the eFileTexas system allows for this. And such a provision makes
sense. In the instantaneous, click-of-a-button electronic filing world, it is all too easy
to accidentally transmit the wrong file. When such an accident occurs, a filer should
be afforded a limited opportunity to snap back the erroneously transmitted document
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Here, Appellants’ motion to reinstate was canceled three days after the
document was transmitted and prior to the district clerk’s official processing and file-
stamping of the document. Appellants offer no explanation for why the transaction
was canceled, except to suggest that the blame belongs with the district clerk.5 But
the record provided by the district clerk reveals that the cancellation occurred at the
behest of Appellant’s counsel, or at least someone using his eFileTexas credentials:
before it officially becomes a part of public record. The question here is whether the
invoking of the snap-back option nullifies the transaction for purposes of the timely
filing of a notice of appeal under the Texas Rules of Appellate Procedure.
5
In their Notice of Timely Filing of Motion for Reinstatement filed in the trial
court, Appellants state, “For reasons unknown, the District Clerk of Denton County
failed to act on the submitted electronic filing.” Appellants made a similar statement
in their Motion to Extend the Time for the Filing of the Notice of Appeal filed in our
court: “For reasons unknown, the District Clerk completely ignored that electronic
filing.” Although at first blush it may appear that Appellants are claiming that the
cancellation of the transaction was a mystery to them, a careful reading of these
statements reveals otherwise. While Appellants state that the reason for the district
clerk’s failure to “act on” the motion was unknown to them, they do not claim that
the reason for the cancellation itself was unknown to them. As to why the transaction
was canceled, Appellants are silent.
7
The technology is new, and there are no cases on point. But because the
supreme court has provided guidance to us with regard to the effect of withdrawing a
motion for new trial, we can draw an analogy. In Rogers v. Clinton, the supreme court
held that when a party withdraws its timely-filed motion for new trial, the extension of
the trial court’s plenary power is nullified, and the deadlines for plenary-power
extension revert back as if no motion for new trial was ever filed. 794 S.W.2d 9, 11
(Tex. 1990) (orig. proceeding). In Rogers, the defendant orally withdrew his motion
for new trial prior to the hearing on the motion. Id. at 10. Over the defendant’s
objection, the trial court considered and granted the motion. Id. The supreme court
held that the trial court could not order a new trial when the motion for new trial had
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been withdrawn and more than 30 days had passed since the judgment was signed. Id.
at 11. In other words, the withdrawal of a timely-filed motion for new trial acts to
divest the trial court of the extended plenary power that the motion provides. See id.;
see also In re Dilley ISD, 23 S.W.3d 189, 191 (Tex. App.—San Antonio 2000, orig.
proceeding) (“If a party withdraws a motion for new trial, the period of time for the
trial court’s plenary power reverts back to thirty days from the date the judgment is
signed.”), abrogated in part by In re Schmitz, 285 S.W.3d 451 (Tex. 2009) (orig.
proceeding).
The holding in Rogers was premised upon the idea that a party has the right to
prosecute or defend its own case:
We have held repeatedly that []a plaintiff’s right to nonsuit of its
own action exists at the moment a motion is filed, and that the only
requirement is the mere filing of the motion with the clerk of the court.[]
Analogously, a defendant’s right to file a motion for new trial must
certainly carry with it the right to withdraw that motion at any time before
it is heard. A defendant must have the right to control his own defense.
794 S.W.2d at 11 (citations omitted). Here, by canceling the filing of their motion to
reinstate, Appellants exercised their right to control the prosecution of their own
lawsuit. While Rogers would suggest that the trial court lost plenary power in this case
when Appellants effectively withdrew their motion to reinstate by canceling the efiling
transaction, that is not what we are called upon to decide. We must decide what
effect the withdrawal, or cancellation, of the motion to reinstate had on the appellate
deadlines.
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Extensions on plenary power and extensions on appellate deadlines usually
walk hand-in-hand. But this is not necessarily so. Because they are governed by two
different rules—plenary power extensions by Texas Rule of Civil Procedure 329b(e)
and appellate deadline extensions by Texas Rule of Appellate Procedure 26.1(a)—the
two may part company and travel different paths. For example, as our sister court has
explained, just because a request for findings of fact and conclusions of law will
extend the deadline for filing a notice of appeal under Rule 26.1(a) does not mean that
the request will also extend a trial court’s plenary power under Rule 329b. See In re
Gillespie, 124 S.W.3d 699, 703 (Tex. App.—Houston [14th Dist.] 2003, orig.
proceeding). To make that determination, one must be guided by the law and the
plain language of the applicable rules. See id.
Texas Rule of Appellate Procedure 26.1(a) provides that the deadline for filing
a notice of appeal is extended to “90 days after the judgment is signed if any party
timely files . . . a motion to reinstate under Texas Rule of Civil Procedure 165a.” Tex.
R. App. P. 26.1(a). Under Texas Rule of Civil Procedure 21(f)(5), Appellants’ motion
to reinstate was “deemed filed when transmitted” to eFileTexas. Tex. R. Civ. P.
21(f)(5). Under the plain language of the applicable rules, Appellants’ motion to
reinstate, whether canceled or not, extended the appellate deadlines.
While Rogers might suggest that the cancellation of the efiling transaction would
operate to withdraw the motion for purposes of plenary power under Rule 329b, the
holding in Rogers does not address the extension of appellate deadlines under Rule
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26.1(a). Because it is not our place to extend Rogers beyond its holding and because
we are mindful that we should be vigilant to ensure that we do not “creat[e] a
requirement not absolutely necessary from the literal words of the rule,” Jamar, 868
S.W.2d at 319, we hold that when Appellants transmitted their motion to reinstate to
eFileTexas, it was deemed filed for purposes of Rule 26.1(a) such that the deadline for
filing Appellants’ notice of appeal was extended to 90 days after the judgment was
signed. We further hold that the later cancellation of that efiling transaction did not
operate to revert the due date of Appellants’ notice of appeal back to 30 days after the
judgment was signed.
In their motion for an extension of time to file their notice of appeal,
Appellants explain that they failed to file their notice of appeal on the 90th day due to
an erroneous calculation of the appellate deadlines. Pursuant to Rule 10.5, we may
extend that deadline upon a reasonable explanation for the need for the extension.
See Tex. R. App. P. 10.5(b). “Reasonable explanation” has been defined as “any
plausible statement of circumstances indicating that failure to file within the
[specified] period was not deliberate or intentional, but was the result of inadvertence,
mistake or mischance.” Hone v. Hanafin, 104 S.W.3d 884, 886 (Tex. 2003) (per curiam)
(quoting Meshwert v. Meshwert, 549 S.W.2d 383, 384 (Tex. 1977)). The reason offered
by Appellants—a mistake in calendaring—fits within this definition. Because
Appellants have offered a reasonable explanation for their failure to file their notice of
appeal by the January 9 deadline, we grant their motion.
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IV. Conclusion
Based on our analysis above, we hold that Appellants’ notice of appeal filed on
January 22, 2020, was timely filed, and we continue the appeal.
/s/ Bonnie Sudderth
Bonnie Sudderth
Chief Justice
Delivered: February 27, 2020
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