                             NUMBER 13-19-00143-CV

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG

POPPINGFUN, INC.,                                                           Appellant,

                                              v.

INTEGRACION DE MARCAS, S.A. DE C.V.,                                          Appellee.


                    On appeal from the 131st District Court
                          of Bexar County, Texas.


                                       ORDER
Before Chief Justice Contreras and Justices Benavides and Longoria
                         Order Per Curiam

       This cause is before the Court after abatement and remand regarding the

timeliness of this appeal. The gravamen of the issue before the Court concerns whether

technical e-filing problems caused the late filing of appellant’s motion to reconsider.

Having received the trial court’s order on remand, supplemental records, and letter briefs

from the parties, we reinstate this appeal.
                                      I. BACKGROUND

       On December 5, 2018, the trial court signed an order granting summary judgment

in favor of appellee. On January 7, 2019, appellant filed a verified motion to reconsider

the summary judgment and a motion to deem its motion to reconsider timely filed “due to

technical difficulties with the Texas efile website, which prevented the undersigned from

filing the motion for reconsideration on January 4, 2019.” See TEX. R. CIV. P. 329b(a).

Appellant’s verified motion stated, in relevant part:

       1.     On the evening of January 4, 2019, the undersigned attempted
              numerous times to file its motion for reconsideration with Texas efile,
              which repeatedly failed to allow POPPINGFUN to file the motion into
              the existing case, cause no. 2018CI18028.

       ....

       3.     The undersigned followed the instructions as given on the website
              for filing, i.e., all parties were re-entered, including Plaintiff, as
              directed, but the website would not allow the undersigned to proceed
              to the filing stage of the procedure.

       4.     The undersigned attempted to confirm the parties in order to file, but
              the website kept discarding POPPINGFUN as a party Defendant,
              and instead kept recording it as a party Plaintiff, and still would not
              allow the undersigned to file the motion.

       5.     The undersigned spent approximately 40 minutes attempting to file
              its motion to reconsider in the existing case before contacting a
              private vendor (My File Runner) to ask its assistance with filing the
              motion. The representative replied that if the undersigned was not
              allowed to perform this function, they would not be able to do it either,
              commenting that certain courts were not enabled to file post-
              judgment motions electronically, despite the directive to file court
              papers electronically.

       6.     The Texas Efile website recommended filing the post-judgment
              motion as a new case if a court was not set up to accept post-
              judgment motions in an existing but disposed of case.


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       7.     After trying a few more times to file the motion into the existing case,
              the undersigned finally filed the motion as a new matter, at
              approximately 8:53 PM, January 4, 2019, approximately one hour
              after first logging on to file the motion.

       8.     On Monday, January 7, 2019, the undersigned received notice from
              the clerk of court that the filing had been rejected as it was filed as a
              new case.

       9.     Having no way to correct the envelope to allow the motion to remain
              as submitted on January 4, 2019, the undersigned requested a
              detailed report from Texas Efile of the various attempts to
              electronically file the motion, the attempts to re-enter the parties as
              directed, and for a showing not only of the lengthy amount of time
              the undersigned tried unsuccessfully to file the motion into the
              existing case under the correct event, but also the end result that
              POPPINGFUN still came out designated as a Plaintiff, along with two
              other non-named Plaintiffs along with lntegraci6n de Marcos, S.A. de
              C.V., and no Defendant in the matter.

       10.    The undersigned contacted the District Clerk of Bexar County, who
              was unable to assist, as the Texas Efile website is maintained and
              administered by private vendor Tyler Technologies.

       11.    The undersigned was later contacted by Texas Efile, which advised
              that it could not generate a report showing a party’s attempts to efile,
              how long it had been logged on, or the activities conducted by a party
              in attempting to efile.

       12.    After speaking with the clerk of court several times on Monday
              morning, the undersigned was able to file the motion.

              WHEREFORE, POPPINGFUN, INC. respectfully requests this Court
       enter its order deeming POPPINGFUN’s motion for reconsideration as
       timely filed, allowing the motion to be considered on its merits, and for such
       other relief deemed necessary or just.

       The trial court denied appellant’s motion for reconsideration of the summary

judgment, however, the clerk’s record did not indicate that the trial court ruled on

appellant’s motion to deem the motion for reconsideration as timely filed. Appellant thus

requested that we allow jurisdictional briefing or “for an appropriate resolution to this issue

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to preserve appellate review,” and appellee, in contrast, contended that we lack

jurisdiction over the appeal based on the untimeliness of the appellant’s motion to

reconsider. See TEX. R. APP. P. 26.1.

       We abated and remanded this case for further proceedings regarding whether the

motion to reconsider was timely filed. The trial court held a hearing on remand on July

31, 2019. At the hearing, the parties and trial court discussed the foregoing issues.

Counsel for appellee argued that the trial court implicitly denied appellant’s motion to

deem the motion for reconsideration as timely filed when it denied appellant’s motion for

reconsideration itself. Counsel for appellee also argued that the appellate rules pertaining

to extensions of time regarding efiling do not apply to errors made by counsel in

attempting to efile documents. In response, counsel for appellant detailed the efforts

made to timely file the motion for reconsideration and noted that appellant had filed a

verified motion detailing the specific efforts made to timely efile the motion for

reconsideration.

       On August 5, 2019, the trial court denied appellant’s motion to deem its motion to

reconsider as timely filed. On September 13, 2019, the trial court entered the following

findings of fact and conclusions of law:

       FlNDINGS OF FACT:

       1.     On December 5, 2018, the Court entered Final Summary Judgment
              (“Judgment”) in this case in favor of Plaintiff Integracion de Marcas,
              S.A. de C.V. (“Plaintiff”) after a full hearing on the matter in which
              both parties were represented by counsel.

       2.     On January 9, 2019, Defendant PoppingFun, Inc. (“Defendant”) filed
              its Verified Motion to Deem as Timely Filed, Its Motion to Reconsider,


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     Alter, Amend or Otherwise Grant Relief from Judgment (“Motion to
     Deem”).

3.   The Motion to Deem subsequently was set for hearing but not ruled
     on by the Court because Defendant’s counsel failed to appear at the
     scheduled hearing.

4.   On July 8, 2019, in PoppingFun, Inc. v. Integracion de Marcas, S.A.
     de C.V., No. 13-19-00143-CV, the Thirteenth Court of Appeals
     issued an Order of Abatement directing this Court to conduct a
     hearing on the Motion to Deem and to prepare and file findings and
     an order thereon.

5.   This Court heard the Motion to Deem on July 31, 2019.

6.   Under Texas Rule of Civil Procedure 329b(a), the deadline for
     Defendant to file a motion for new trial or to modify, correct or reform
     the Judgment was “within thirty days” after the Judgment was signed.

7.   January 4, 2019 was the thirtieth day after the Judgment was signed
     and, therefore, was Defendant’s deadline to move for a new trial or
     to modify, correct or reform the Judgment.

8.   Defendant did not file its motion for new trial, namely the Motion for
     Relief from Judgment and for Reconsideration of the Order Granting
     Summary Judgment in Plaintiff’s Favor (“Motion for Relief from
     Judgment”), until January 7, 2019.

9.   At the hearing on the Motion to Deem, Defendant failed to provide
     the Court any proof of a system outage or technical failure affecting
     the filing system on January 4, 2019.

CONCLUSIONS OF LAW:

1.   Defendant did not meet the legal requirement set forth in Texas Rule
     of Civil Procedure 21(f)(6) and Texas Rule of Appellate Procedure
     9(c)(5) to show that the untimely filing of the Motion for Relief from
     Judgment was due to “a technical failure or a system outage.”

2.   Defendant’s failure to meet the January 4, 2019 deadline was not
     due to a technical failure or system outage.




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       3.     In accordance with Texas Rule of Civil Procedure 329b, the Court’s
              plenary power to grant a new trial or to modify, correct or reform the
              Judgment expired at 11:59 p.m. on January 4, 2019.

       Pursuant to our order of abatement, appellant and appellee subsequently filed

letter briefs pertaining to the trial court’s ruling and the timeliness of the motion to

reconsider. Appellant reiterated the arguments previously made in its motion to deem the

motion for reconsideration timely filed and discussed case law pertaining to efiling errors.

In contrast, appellee argued that the trial court’s order denying appellant’s request is

supported by the record and there are several reasons why this Court should conclude it

lacks jurisdiction over the appeal. Appellee contends that appellant failed to preserve

error by failing to obtain a ruling on the motion to deem prior to initiating the appeal; that

appellant has failed to satisfy the requirements of the appellate rules because there was

no technical failure or system outage because the late filing was due to attorney

negligence or mistake which is not excused by the appellate rules; and appellee has

suffered severe prejudice as a result of appellant’s actions because appellant has resisted

efforts to collect on the judgment at issue.

                             II. APPLICABLE LAW AND ANALYSIS

       “The Texas Supreme Court’s overarching policy in approaching the unintentional

errors of counsel is that cases should be decided on the merits rather than on a procedural

default, when possible.” Tex. Dep’t of Aging & Disability Servs. v. Mersch, 418 S.W.3d

736, 742 (Tex. App.—Houston [1st Dist.] 2013, no pet.) (citing Marino v. King, 355 S.W.3d

629, 634 (Tex. 2011) (“Constitutional imperatives favor the determination of cases on

their merits rather than on harmless procedural defaults.”)). “The electronic filing and


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service rules should not become a trap for the unwary when no harm is done.” Mersch,

418 S.W.3d at 742. Both the Texas Rules of Civil Procedure and the Texas Rules of

Appellate Procedure contain provisions authorizing a party to seek appropriate relief from

the court if an electronically-filed document is untimely due to a technical failure or a

system outage. See TEX. R. CIV. P. 21(f)(6)4; TEX. R. APP. P. 9.2(c)(5); see also Krajca

v. Caum, No. 01-16-00057-CV, 2017 WL 2471102, at *3 (Tex. App.—Houston [1st Dist.]

June 8, 2017, pet. denied). If the missed deadline is one imposed by the rules of civil

procedure, “the filing party must be given a reasonable extension of time to complete the

filing.” TEX. R. CIV. P. 21(f)(6); see also TEX. R. APP. P. 9.2(c)(5) (If a document is untimely

due to a technical failure or a system outage, the filing party may seek appropriate relief

from the court.”).

       Given the foregoing, we conclude that the trial court erred in refusing to deem the

motion for reconsideration timely filed. By verified motion, counsel for appellant provided

detailed factual allegations establishing that there were technical difficulties in timely filling

the motion for reconsideration. Because cases should be decided on the merits rather

than technical default, we conclude that these allegations suffice to establish that the

appellant’s motion for reconsideration was untimely “due to a technical failure” as

contemplated by the rules. See TEX. R. CIV. P. 21(f)(6); TEX. R. APP. P. 9.2(c)(5); Mersch,

418 S.W.3d at 742. Thus, the trial court erred in refusing to grant a reasonable extension

of time, until January 7, 2019, to file the motion for reconsideration. Accordingly, we hold

that this appeal was timely filed, and briefing shall proceed on the merits in accordance

with the appellate rules. Pending motions, if any, are dismissed as moot.


                                                7
      IT IS SO ORDERED.

                                 PER CURIAM


Delivered and filed the
18th day of October, 2019.




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