IN RE: JACK H. MERINO

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Court of Appeals of Texas, Houston (14th Dist.).

IN RE: JACK H. MERINO, Relator

NO. 14-17-00805-CV

Decided: January 09, 2018

Panel consists of Chief Justice Frost and Justices Boyce and Jewell. (Boyce, J., majority).

CONCURRING OPINION

This case highlights an opportunity for the Supreme Court of Texas to eliminate a trap in the procedural rules that has vexed Texas litigants and trial courts for many years. Camouflaged in the text of Texas Rule of Civil Procedure 306a(4), the trap ensnared the real party in interest and the trial court in this mandamus proceeding. Though the high court resolved the procedural question in rule 306a(4) years ago, the court did not change the text of the rule, so even today parties and trial courts fall prey to the rule's word trap.

Texas Rule of Civil Procedure 306a(4) states:

No notice of judgment. If within twenty days after the judgment or other appealable order is signed, a party adversely affected by it or his attorney has neither received the notice required by paragraph (3) of this rule nor acquired actual knowledge of the order, then with respect to that party all the periods mentioned in paragraph (1) shall begin on the date that such party or his attorney received such notice or acquired actual knowledge of the signing, whichever occurred first, but in no event shall such periods begin more than ninety days after the original judgment or other appealable order was signed. 1

The text of this rule lacks clarity as to whether the rule applies to parties who first have knowledge or notice of a judgment more than 90 days after the judgment but within 120 days after the judgment.

The first three intermediate courts of appeals to address this issue concluded that rule 306a(4) applies to these parties.2 Under this interpretation of the rule, if a party first has notice or knowledge of the judgment more than 20 days after the judgment and within 90 days, then the time periods begin on the date that the party first has notice or knowledge of the judgment.3 If a party first has notice or knowledge of the judgment more than 90 days after the judgment, the time periods begin running on the ninetieth day.4 In 1993, in Levit v. Adams, the Supreme Court of Texas disapproved of these cases, holding instead that rule 306a(4) does not apply to these parties and that the rule applies only to parties who first have knowledge or notice of a judgment more than 20 days after the judgment but within 90 days after the judgment.5 Thus, rule 306a(4) does not toll any time period as to a party who first has notice or knowledge of the judgment more than 90 days after the judgment, and these parties have no ability to file a timely motion for new trial.6

The high court reaffirmed the Levit holding in 2006.7 Though the legal controversy is gone, the rule's problematic language is not.8

In the 24 years since the Levit court's opinion, the Supreme Court of Texas has not changed the text of rule 306a(4). Even though the supreme court officially settled the controversy two decades ago, the rule book still contains the text that spawned the confusion. So, parties and courts, with rule books in hand, continue to spend time and resources struggling over the correct interpretation of rule 306a(4).9

Litigants and courts would benefit from a clearer statement in rule 306a(4). Some who read the text of the rule conclude that the rule's wording is clear and that the rule applies to a party who first has notice or knowledge of the judgment more than 90 days after the judgment and within 120 days after the judgment. If these readers were to put down their rule books and go on to do legal research, they likely would find the Levit case and learn the correct interpretation under Texas law. But, as a practical matter, many rely on the rule's text alone. Those who do tend to fall into the trap.

Although parties are presumed to know the law, those who defy this legal fiction and go no further than what they believe is unambiguous text might plunge into the gap between their interpretation and rule 306a(4)'s Levit meaning. In today's case, the record reflects Ivory Carter and its counsel concluded that rule 306a(4) applied to Ivory Carter even though Ivory Carter first had notice or knowledge of the judgment 111 days after the judgment. Ivory Carter filed its motion for new trial asserting that the motion was timely under rule 306a(4), and the respondent trial judge agreed and granted the motion for new trial.

In cases in which the trial court lacked subject-matter jurisdiction or there was a complete lack of service of process that violated due process, the party should have recourse to an equitable bill of review or a collateral attack on the judgment. Yet, sometimes due to a party's or counsel's confusion over rule 306a(4)'s meaning — or a trial judge's incorrect interpretation of rule 306a(4)'s text — a party may not file a restricted appeal within six months after the judgment, and in some cases a restricted appeal may be the party's only effective remedy.

The best way to protect parties' rights to appeal is to revise rule 306a(4) to state clearly that the rule applies only to parties who first have knowledge or notice of a judgment more than 20 days after the judgment but within 90 days after the judgment. This revision would ensure that parties do not lose their rights to appeal because they (or their counsel) unwittingly interpret rule 306a(4) as expanding the timetables to file post-judgment motions in circumstances in which the party first had knowledge or notice of a judgment more than 90 days after the judgment but within 120 days of the judgment.

Courts and practitioners (and pro se litigants) ought to be able to pick up a rule book and glean the meaning of a rule from the text alone. Yet, unless the high court revises rule 306a(4) to make the text clearer, trial courts and litigants will need both a rule book and legal research to avoid falling into the trap. The lack of clarity costs litigants time and money, and, in some cases, appellate rights.10 Making the rule's text reflect the court-given interpretation would make our courts more user-friendly, an important goal given today's growing numbers of pro se litigants who must navigate the justice system without the benefit of legal training.

In sum, the easy fix for the problem that spurred today's mandamus proceeding is to amend rule 306a(4) so that it clearly reflects Levit's meaning. Doing so would remove the ambiguity that trapped both the real party in interest and the trial judge in today's case and prevent others from making the same costly mistake.

The majority correctly applies the high court's binding precedent in this case, and I join fully in the majority's opinion and the court's judgment.

FOOTNOTES

1.   Tex. R. Civ. P. 306a(4).

2.   See Levit v. Adams, 850 S.W.2d 469, 470 (Tex. 1993) (per curiam).

3.   See Levit v. Adams, 841 S.W.2d 478, 482–83 (Tex. App.—Houston [1st Dist.] 1992), rev'd, 850 S.W.2d 469 (Tex. 1993); Pope v. Moore, 729 S.W.2d 125, 127–28 (Tex. App.—Dallas 1987, writ ref'd n.r.e.); Looney v. Gibraltar Savings Ass'n, 695 S.W.2d 336, 340 (Tex. App.—Amarillo 1985, no writ).

4.   See Levit, 841 S.W.2d at 482–83; Pope, 729 S.W.2d at 127–28; Looney, 695 S.W.2d at 340.

5.   See Levit, 850 S.W.2d. at 469–70.

6.   See Tex. R. Civ. P. 329b; Levit, 850 S.W.2d. at 469–70.

7.   See In re Lynd Co., 195 S.W.3d 682, 684 n.2 (Tex. 2006).

8.   See Tex. R. Civ. P. 306a(4).

9.   See, e.g., Nawar v. Thompson, No. 04-17-00217-CV, 2017 WL 3270342, at *1 (Tex. App.—San Antonio Aug. 2, 2017, no pet.) (mem. op.); In re Integras Capital Recovery LLC, No. 05-15-00362-CV, 2015 WL 1730200, at *2 (Tex. App.—Dallas Apr. 15, 2015, orig. proceeding) (mem. op.); In re Estate of Hardie. No. 04-14-00786-CV, 2015 WL 1393392, at *1 (Tex. App.—Dallas Mar. 25, 2015, no pet.) (mem. op.); Molina v. Moreno, No. 13-14-00416-CV, 2014 WL 6602412, at *3 (Tex. App.—Corpus Christi Nov. 20, 2014, no pet.) (mem. op.).

10.   Amendments to the rules, and the “confusing nature” of the rules governing post-judgment motions and trial and appellate timetables have led at least one law professor to urge the Supreme Court of Texas to reorganize and simplify the post-judgment-motions section of the Texas Rules of Civil Procedure. See William V. Dorsaneo, III, History of Texas Civil Procedure, 65 BAYLOR L. REV. 713, 792 (2013).

Kem Thompson Frost Chief Justice

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