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The NEVAREZ LAW FIRM, P.C., Appellant, v. INVESTOR LAND SERVICES, L.L.C., Horizon Growth Properties, L.L.C., Dennis Ardizzoni, Terry McLachlan, and Ian Martin d/b/a Discount Land Exchange, d/b/a Investorland Services, Appellees.
OPINION ON MOTION FOR REHEARING
Appellant Nevarez Law Firm, PC, (Nevarez), has filed a Motion for En Banc Reconsideration Without a Rehearing of our Memorandum Opinion, dated June 26, 2020, in which we dismissed this appeal for want of jurisdiction.1 We grant Nevarez' motion, withdraw the Memorandum Opinion and Judgment dated June 26, 2020, and reinstate this appeal.
The central issue in this rehearing is whether Nevarez timely filed a motion for new trial 2 in the trial court that would serve to extend the appellate timetable for timely filing a notice of appeal (NOA). See Tex.R.App.P. 26.1(a)(1) (an NOA is timely if it is filed within thirty days of the trial court's final judgment or within ninety days of said judgment if a motion for new trial is timely filed in the trial court); Tex.R.Civ.P. 329b (a motion for new trial must be filed within thirty days of the trial court's judgment to be effective). In this case, Nevarez filed its NOA on April 6, 2020. If Nevarez timely filed its motion for new trial, then the NOA filed here was also timely and we have appellate jurisdiction; if not, the NOA was untimely, and we must dismiss this appeal for want of jurisdiction. See Gilani v. Kaempfe, 331 S.W.3d 879, 879 (Tex.App.—Dallas 2011, no pet.) (dismissing appeal for want of jurisdiction after concluding that appellant's motion for new trial filed thirty-one days after signing of judgment was untimely and failed to extend appellate timetable).
To be timely filed, and also operate to extend the time to file a notice of appeal from thirty days to ninety days, any motion for new trial or other judgment-altering motion must have been filed by the thirtieth day after judgment. Tex.R.Civ.P. 329b; Tex.R.App.P. 26.1(a)(1). Here, the trial court entered its judgment on February 4, 2020. Thus, the deadline to file the motion for new trial fell on March 5, 2020.3 However, in this case, Nevarez asserted in its NOA filed with this Court that the motion for new trial was filed on March 6, 2020, one day after the thirty-day deadline. Based on this assertion, the Clerk of this Court sent Nevarez a letter with notice that it appeared to the Court that the NOA filed on April 6, 2020, was not timely filed. In a verified response, Nevarez urged that its motion for new trial was timely filed on March 6, 2020. The response from Nevarez included a copy of the motion for new trial which reflected a time stamp of filing with the district clerk's office on March 6, 2020, at 9:29 a.m. We dismissed the case based on our assessment that the record showed that Nevarez had filed its motion for new trial on March 6, 2020, or thirty-one days after the trial court's judgment dated February 4, 2020.
Nevarez subsequently moved for reconsideration of our dismissal decision based on it having provided erroneous information when responding to this Court's letter inquiring about the timeliness of the NOA. Nevarez attached documentation to its motion and clarified that it had made an error and the motion for new trial was in fact “submitted” on March 5, 2020, at 4:51 p.m., through eFileTexas. Nevarez further asserted that the e-filing proof of submission, which it also attached, confirmed that the motion for new trial was timely filed with the “El Paso County -- County Clerk,” on March 5, 2020, at 5:51:30 p.m. Based on these documents, which were not submitted to the Court on original hearing, Nevarez argued that the motion for new trial was timely because it was e-filed before midnight on March 5, 2020. See Tex.R.Civ.P. 21(f)(5) (absent any other superseding deadline, a document is considered timely filed if it is electronically filed at any time before midnight in the court's time zone on the day of the filing deadline).
In response, Investor Land Services, L.L.C. (Appellee), submitted a response with exhibits arguing that “the filing envelope presented to this Court as evidence of a timely filing was a misfiled filing with the wrong clerk and was rejected.” Appellee claimed it had received notification from eFileTexas, on March 6, 2020, at 8:21 a.m., that Nevarez' motion for new trial had been rejected by the El Paso County Clerk's Office. As shown by the email notice sent to counsel for Appellee, the motion for new trial filing by Nevarez was returned with notification that the document had been returned for being “Addressed to Wrong Clerk/Location,” and included a return comment stating “Please Resubmit with Fees. Thank you for E-Filing/CRamirez.”
Appellee argued that Nevarez' motion for new trial had been rejected because it was filed with the wrong clerk. Appellee urged that because the underlying case fell within the concurrent jurisdiction of district courts and county courts in El Paso, the filing should have been submitted to the El Paso County District Clerk's Office not the El Paso County Clerk's Office. Appellee also pointed out that while ordinarily the El Paso County Clerk is the entity responsible for receiving filings on behalf of the El Paso County Courts at Law, by virtue of a statutory provision in the Texas Government Code, the El Paso District Clerk serves as the entity responsible for receiving El Paso County Courts at Law filings in cases in which the jurisdiction of the county courts and district courts of El Paso County overlap. See Tex.Gov't Code Ann. § 25.0732(f). And although this case was assigned to the County Court at Law No. 3 of El Paso County, as a technical matter, the lawsuit involved a claim over which the county courts and the district courts of El Paso County had overlapping jurisdiction. As such, Appellee argued, the filing that Nevarez made was ineffective under Tex.Gov't Code Ann. § 25.0732(f) because the motion should have been filed with the District Clerk and not the County Clerk, and by the time Nevarez properly filed the motion for new trial with the District Clerk the morning of March 6, the deadline for filing the motion had already passed, making the filing untimely under Tex.R.Civ.P. 329b, and thus, Nevarez was not able to extend the appellate timetable under Tex.R.App.P. 26.1(a)(1).
Nevarez subsequently replied that he did not refile the motion, but that he resubmitted a motion that had already been filed in accordance with the instructions of the El Paso County Clerk, meaning that his submission of March 5, 2020, through eFileTexas, was timely and effective and that the subsequent submission was made to correct an error in form in accordance with the clerk's instructions. Included with its reply, Nevarez attached a proof of submission dated March 6, 2020, showing that a fee payment was made as requested and its motion for new trial was successfully submitted to the El Paso County Clerk.
Relevant to this case, Rule 21(f)(5)(A) of the Texas Rules of Civil Procedure provides that “An electronically filed document is deemed filed when transmitted to the filing party's electronic filing service provider, except: (A) if a document is transmitted on a Saturday, Sunday, or legal holiday, it is deemed filed on the next day that is not a Saturday, Sunday, or legal holiday; and․” Tex.R.Civ.P. 21(f)(5)(A). Here, the evidence attached to the motion for rehearing shows that Nevarez timely submitted the motion for a new trial to the electronic filing service provider (EFSP) on Thursday, March 5, 2020. However, the document was not only rejected for insufficient fee but also it was routed to the County Clerk. By statute, the District Clerk was the proper receiving clerk for the county court under the circumstances. The issue before this Court, then, is whether the return of the document by the County Clerk for it to be routed to the District Clerk, and also the need for payment of the required fee, constituted a break in the chain of filing such that the resubmission of the motion for new trial to the district clerk constituted a “new filing” that was untimely.
Two additional subparts of Rule 21 of the Texas Rules of Civil Procedure are relevant to these circumstances. Rule 21(f)(6) provides: “If a document is untimely due to a technical failure or a system outage, the filing party may seek appropriate relief from the court. If the missed deadline is one imposed by these rules, the filing party must be given a reasonable extension of time to complete the filing.” Tex.R.Civ.P. 21(f)(6). Moreover, a clerk “may not refuse to file a document that fails to conform with this rule. But the clerk may identify the error to be corrected and state a deadline for the party to resubmit the document in a conforming format.” Tex.R.Civ.P. 21(f)(11).
In In re Barr, a litigant timely filed a motion for new trial through the EFSP but the clerk's office returned the filing because of an insufficient fee payment and other errors. The clerk's office instructed the litigant to resubmit the motion with the correct fee amount and with the errors corrected by a date certain, and the litigant refiled the motion with the proper fee and with the errors corrected in accordance with the clerk's instructions one day after the motion was due under the Texas Rules of Civil Procedure. See In re Barr, No. 05-19-00511-CV, 2019 WL 2082468, at *1 (Tex.App.—Dallas May 13, 2019, orig. proceeding) (mem. op.). The Dallas Court of Appeals, opining that the “electronic filing and service rules should not become a trap for the unwary when no harm is done” and that the rules of civil procedure “promote the resolution of cases on their merits rather than procedural defaults resulting from clerical or technical mistakes,” found that the filing was timely because it was made in accordance with the clerk's instructions. Id., at *2.
Here, as in In re Barr, we find that Nevarez' resubmission of an otherwise timely filed document through the EFSP in accordance with the clerk's instructions—that is, to correct a fee deficiency and formal routing defect—does not render the filing of the document untimely. So long as the document is refiled in accordance with the clerk's instructions and by the deadline set by the clerk, the effective date of the filing is deemed as the first date the document was transmitted to the filing party's electronic filing service provider unless said date falls on a Saturday, Sunday, or legal holiday, in which case it is deemed filed on the next day that is not a Saturday, Sunday, or legal holiday. Tex.R.Civ.P. 21(f)(5) (“An electronically filed document is deemed filed when transmitted to the filing party's electronic filing service provider ․”); see also In re Barr, 2019 WL 2082468, at *1.
We are further bolstered in this conclusion by the fact that the error here was procedural and clearly not jurisdictional. This was not a case where, for example, the district court had exclusive subject-matter jurisdiction, the county court lacked subject-matter jurisdiction, and thus the filing of a document with the county clerk instead of the district clerk was ineffective due to jurisdictional failure. Compare Tex. Bd. of Law Examiners v. Little, No. 03-09-00342-CV, 2009 WL 5149950, at *2-*3 (Tex.App.—Austin Dec. 31, 2009, no pet.) (mem. op.) (dismissal required where litigant filed appeal of administrative decision to county court when district court had exclusive jurisdiction). Rather, the district courts and the county courts had overlapping jurisdiction over this lawsuit, meaning that the filling of a pleading with one clerk who usually accepts filings for the county courts at law when a statute specifies the filing must be made with the district clerk is a procedural error that does not affect jurisdiction. See Schumann v. City of Schertz, 100 S.W.3d 361, 367 (Tex.App.—San Antonio 2002, no pet.) (filing of condemnation petition with county clerk when statute required filing with the district clerk was a procedural error and not a jurisdictional defect where county court at law had concurrent jurisdiction with district court over a condemnation proceeding).
Since the motion for new trial was timely submitted to the EFSP, since the errors in fee deficiency and routing information were corrected in accordance with the clerk's instructions, and since the filing error was not of the type that would deprive the trial court of jurisdiction due to the overlap in jurisdiction between the county courts at law and the district courts, the motion for new trial filing was timely after being shown to be properly corrected. See Tex.R.Civ.P. 21(f)(5)-(6). We determine that the El Paso County Clerk, who is ordinarily the agent for the county courts at law in El Paso, returned the filing as the result of a formal defect that prevented the procedural processing of a matter over which the county court at law system had overlapping jurisdiction with the district court system, meaning that the “chain” was not broken for purposes of calculating the date of filing. Compare Little, 2009 WL 5149950, at *2-*3 (case erroneously filed in county court was subject to dismissal rather than transfer to district court because county court had no jurisdiction over claim ab initio and thus had no jurisdiction to do anything other than dismiss the case).
In sum, the electronic filing of the motion for new trial on March 5, 2020, corrected on March 6, 2020, constituted a valid and timely filed motion for new trial that extended the appellate timetable from thirty days to ninety days from the date of the judgment. As such, the NOA in this case was timely filed within the extended timetable. Accordingly, we grant the motion for rehearing, withdraw our Memorandum Opinion and Judgment dated June 26, 2020, and reinstate this appeal.
The record on appeal is now due thirty days from the date of this opinion reinstating this appeal.
1. In courts of appeals with more than three justices, a motion for en banc reconsideration is reviewed by the entire court per Tex.R.App.P. 49.7. Because we are a court composed of only three justices, however, such a motion is not available nor necessary. Thus, we construe Nevarez' motion as a motion for rehearing per Tex.R.App.P. 49.1.
2. Although the motion filed in the trial court is captioned “Plaintiff's Motion to Reconsider, Motion to Modify, Motion to Correct, Motion to Reform, Motion to Vacate, Motion to Set Aside, Motion to Reopen, Motion to Reinstate, and Motion for New Trial,” it is, in essence, a motion for new trial. For brevity and clarity, we will shorten its title and refer to this motion as a “motion for new trial.”
3. In computing time, the day of an event after which a designated period begins to run is not included when computing a period prescribed by the Rules, but the last day of the period is included. See Tex.R.App.P. 4.1(a).
GINA M. PALAFOX, Justice
Response sent, thank you
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Docket No: No. 08-20-00094-CV
Decided: September 22, 2020
Court: Court of Appeals of Texas, El Paso.
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