Opinion issued December 10, 2013.




                                    In The

                             Court of Appeals
                                    For The

                         First District of Texas
                           ————————————
                            NO. 01-13-00021-CV
                          ———————————
    TEXAS DEPARTMENT OF AGING AND DISABILITY SERVICES,
                        Appellant
                                      V.
                        CAROL MERSCH, Appellee


                  On Appeal from the 344th District Court
                          Chambers County, Texas
                 Trial Court Case Nos. CV25849 & CV26248



                                OPINION

      Through mistakes in interpreting and executing local electronic service

rules, the Texas Department of Aging and Disability Services (DADS) managed to

timely file a response to a motion for summary judgment, but untimely serve it.
DADS explained its mistakes in an affidavit from the legal staff entrusted with

service of the filing and rectified the faulty service as soon as it was brought to its

attention—well before the summary–judgment hearing.            The trial court struck

DADS’ response as untimely and granted summary judgment. Because DADS

proffered an unrebutted explanation demonstrating good cause for its errant service

and no harm would have resulted in considering the motion and response on the

merits, the trial court abused its discretion in striking the response. We reverse and

remand.

                                    Background

      DADS is the permanent guardian of the Reverend John Stout, an

incapacitated person residing in Chambers County, Texas, and his estate.

Reverend Stout is an ordained Presbyterian minister. In 1968, Stout founded the

Apollo Prayer League, a Christian ministry focused on prayer and support for

American astronauts. Through the League, Captain Edgar Mitchell and other

Apollo astronauts brought the League’s microform Bibles with them in their

spaceships during various NASA missions. See 1st Book on the Moon – the Bible,

THE STARS   AND   STRIPES, Mar. 30, 1971, at 7 (recounting history of a number of

Apollo Prayer League Bibles). These space–traveled Bibles became known as the

“Lunar Bibles.”



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        Mersch approached Stout to interview him about the Lunar Bibles, in the

hope of publishing a book. As Mersch researched the book, she developed a

friendship with Stout. In a declaratory judgment action filed in Tulsa County,

Oklahoma, Mersch claimed that Stout gifted her with four of the Lunar Bibles, and

provided her with ten others to place in museums. She also claimed that Stout

gave her his files, containing photographs, news articles, and other memorabilia

related to the Apollo Prayer League.          Mersch self–published a book entitled

Apostles of Apollo to tell the story of Stout and the Lunar Bibles.

        As Stout’s guardian, DADS demanded return of the Bibles and memorabilia,

claiming that Stout did not gift them to Mersch or that, if he did, Stout lacked the

capacity to do so. After Mersch refused its demand, DADS sued Mersch in

Chambers County district court, seeking a declaratory judgment that the Lunar

Bibles and memorabilia in Mersch’s possession belong to Stout. DADS also sued

Mersch for breach of fiduciary duty, conversion, and trespass, and for violating the

Texas Theft Liability Act. The case was scheduled for trial on November 26,

2012.

        Course of proceedings

        Mersch moved for summary judgment on the claims against her, and she had

the motion set for hearing twenty–one days later, on October 9, 2012. At the time,

the Chambers County District Courts had a set of Texas Supreme Court–approved

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local rules for electronic filing and service. See Tex. Sup. Ct., Approval of Local

E–Filing Rules for the District Courts of Chambers County, Misc. Docket No. 09-

9096 (Jun. 15, 2009). Part 4 of the rules, entitled “Filing Mechanics,” observes

that “Filers do not electronically file documents directly with the district clerk.

Rather, filers indirectly file a document with the district clerk by electronically

transmitting the document to an electronic filing service provider (EFSP)[,] which

then electronically transmits the document . . . to the district clerk.” Chambers

(Tex.) Dist. Ct. Loc. R. 4.1(c).

          The filing mechanics part of the local rule also addresses the time of

filing:

          Upon sending an electronically–transmitted document to a filer’s
          EFSP, the filer is deemed to have delivered the document to the
          clerk and, subject to Rule 4.3(h) [(payment of the applicable fee)],
          the document is deemed to be filed. If a document is electronically
          transmitted to the filer's EFSP and is electronically transmitted on
          or before the last day for filing the same, the document, if received
          by the clerk not more than ten days tardily, shall be filed by the
          clerk and deemed filed in time. A transmission report by the filer
          to the filer’s EFSP shall be prima facie evidence of date and time of
          transmission.

Chambers (Tex.) Dist. Ct. Loc. R. 4.3(b).          The rules further provide that

“Electronic service shall be complete upon transmission of the document by the

filer to the party at the party’s email address.” Chambers (Tex.) Dist. Ct. Loc.




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R. 5.2(a). But unlike the rule for filing, which provides for timely filing any time

of the day, the local rule for timely service is different:

         When electronic service is complete after 5:00 p.m. (recipient’s
         time), then the date of service shall be deemed to be the next day
         that is not a Saturday, Sunday, or legal holiday.

Chambers (Tex.) Dist. Ct. Loc. R. 5.2(c).

      At 6:06 p.m. on October 2, 2012—a week before the summary–judgment

hearing—a DADS legal assistant electronically filed DADS’ summary–judgment

response, using an EFSP known as Filerunner.com. Under the rules, the response

was timely filed with the clerk of the court. DADS’ legal assistant mistakenly

thought, however, that by identifying Mersch’s attorney as a “Service Party” in the

electronic filing and by electronically serving the filing contemporaneously with

the electronic filing, her actions would result in timely electronic service to

Mersch’s counsel. They did not. In reality, DADS had accomplished nothing in

the way of service. Mersch’s counsel had no affiliation with Filerunner.com and

had not authorized it to accept service on his behalf.

      The following morning (October 3), as a courtesy, DADS faxed to Mersch’s

counsel a copy of DADS’ confirmation receipt, which indicated that a summary–

judgment response had been filed and Mersch’s counsel was a service party. After

5:00 p.m., the day after he received the faxed courtesy confirmation, Mersch’s

counsel faxed a letter to DADS, noting that he did not receive the response and
                                            5
requesting that DADS send him a copy. Upon arriving at work the following

morning and learning that she had not properly served the response, DADS’ legal

assistant immediately faxed a copy to Mersch’s counsel, just after 10:00 a.m.

      The day before the summary–judgment hearing, Mersch moved to strike

DADS’ response as untimely served. Mersch also filed objections to DADS

summary–judgment evidence. On the day of the summary–judgment hearing,

DADS filed an amended certificate of service, indicating that its service was made

by facsimile on October 5, 2012, rather than electronically on October 2, 2012.

DADS also filed an affidavit from its legal assistant, in which she explained that

she had been charged with “the timely filing of legal documents to courts and

opposing parties,” and that she had intended to timely serve the response and

follow “protocol” “in accordance with Tex. R. Civ. P. 21a.”

      At the summary–judgment hearing, DADS explained why its service of its

summary–judgment response was untimely and referred the court to its legal

assistant’s affidavit. The trial court struck DADS’ response and granted summary

judgment.




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                                       Discussion

       Standard of Review and Applicable Law

       We review a trial court’s order to strike a late–served summary–judgment

response as we would review a trial court’s ruling on a motion for leave to file

one—for an abuse of discretion. Carpenter v. Cimarron Hydrocarbons Corp., 98

S.W.3d 682, 686 (Tex. 2002).

       A trial court should grant a motion for leave to file a late summary–

judgment response if the non–movant shows (1) good cause and (2) no undue

prejudice. Wheeler v. Green, 157 S.W.3d 439, 442 (Tex. 2005) (citing Carpenter,

98 S.W.3d at 687–88). A non–movant establishes good cause if it shows that its

failure to timely respond was not intentional or the result of conscious indifference,

but was the result of an accident or mistake. Id. Undue prejudice depends on

whether filing a late response will delay trial or significantly hamper the opposing

party’s ability to prepare for it. Id. at 443.

       Analysis

       DADS’ counsel committed two mistakes. First, counsel committed a legal

mistake by attempting to electronically serve Mersch at 6:06 pm on October 2,

2012. Under the vagaries of the then–existing county e–filing rules, electronic

service completed after 5:00 p.m. was deemed to take place the next day, even


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though a filing made at that time was timely. Chambers (Tex.) Dist. Ct. Loc.

R. 5.2(c) (“[w]hen electronic service is complete after 5:00 p.m. (recipient’s time),

then the date of service shall be deemed to be the next day.”). Because DADS’

attempted electronic service was deemed by local rule to take place six days, rather

than seven days, before the summary–judgment hearing, even a successfully

completed electronic service would have been untimely.           See TEX. R. CIV.

P. 166a(c) (requiring a response to a motion for summary judgment to be filed and

served seven days before the hearing).

      Second, counsel committed a technical mistake by attempting to

electronically serve Mersch, but failing due to a misunderstanding of the interface

between electronic filing service providers and legal counsel for parties that must

be served. DADS proffered the filing confirmation summary that listed Mersch’s

attorney as the service party. As proof of good cause, the legal assistant explained

in her affidavit that she mistakenly believed, based on the filing summary, that she

had electronically served Mersch’s attorney. Her statement that she served the

response on October 2 is supported by a copy of the courtesy confirmation that she

transmitted by fax to Mersch’s counsel the next day.         Upon learning of her

mistake, she immediately rectified it.

      Mersch contends that the facts here are analogous to the facts in Carpenter,

and thus the trial court was within its discretion to strike DADS’ response. In

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Carpenter, the Texas Supreme Court held that a defendant failed to satisfy the

good–cause prong when counsel offered a bare assertion that he had

“miscalendared” the response date and gave no further explanation. Carpenter, 98

S.W.3d at 688.

      But DADS’ offered more than a bare assertion that it had made a mistake.

At the hearing, DADS proffered a detailed explanation for its error: the filing

summary listed Mersch’s attorney as the “Service Party,” and DADS’ legal

assistant wrongly relied on it. DADS acknowledged that its service “was outside

the rules,” but noted that DADS quickly rectified the mistake once Mersch’s

counsel apprised DADS of it. Bungled as DADS’ service was, Mersch never

contended that it was intended to be that way. These circumstances demonstrate

that DADS’ service error was not intentional or the result of conscious

indifference.

      Allowing DADS’ late response would not have delayed trial or hampered

Mersch’s ability to prepare for it, and Mersch does not contend that it would.

Mersch received DADS’ response on October 5, four days before the summary–

judgment hearing, and could have received it even sooner had counsel not waited

until after business hours of the day after receiving the courtesy fax to notify

DADS that DADS had not in fact electronically served it. Moreover, the delay

occasioned was that commensurate with a mailed response: it is likely that Mersch

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would have received DADS’ response around the same time if DADS had mailed

the response on the evening of October 2, a proper method under Texas Rule of

Civil Procedure 21a, rather than attempting electronic service. See TEX. R. CIV.

P. 21a (service is complete on the day document is placed in the mail). By adding

three days to the prescribed period, Texas Rule of Civil Procedure 21a assumes

that the mailing process can last three days. See TEX. R. CIV. P. 21a.

      Notably, in her motion to strike, Mersch did not contend that the delay in

receiving the response deprived her of necessary preparation time. On appeal,

Mersch argues that, other than rectifying its service, DADS did nothing to establish

that allowing the late response would not cause Mersch undue prejudice, and that

DADS should have moved for a continuance of the summary–judgment hearing.

But Mersch never asserted any claim of prejudice, and she proceeded as movant on

her motion with no delay to her hearing. See In re M.N., 262 S.W.3d 799, 804

(Tex. 2008) (finding record supported a finding of no undue prejudice where the

party opposing the late filing did not claim it would be prejudiced). The trial date

was not imminent, and it was the method of service—not any delay in receipt—

that caused the issue: if DADS’ legal assistant had mailed the response at a United

States Post Office, even after 5:00 p.m., service would have been timely—even

though service by mailing could have occasioned a later receipt of DADS’

response than resulted here. See TEX. R. CIV. P. 21a; see also Lee v. Palo Pinto

                                         10
Cnty., 966 S.W. 2d 83, 85 (Tex. App.—Eastland 1998) (summary–judgment

response is timely served if placed in mail seven days before hearing), pet. denied

per curiam, 988 S.W.2d 739 (Tex. 1998); Holmes v. Ottawa Truck, Inc., 960 S.W.

2d 866, 869 (Tex. App.—El Paso 1997, pet. denied) (same); see also Davis Family

Blanco Rd. Prop. Trust v. Canyon Creek Estates Homeowners Ass’n, No. 04-09-

00007-CV, 2009 WL 3382232, at *3 (Tex. App.—San Antonio Oct. 21, 2009, no

pet.) (mem. op.) (“Service . . . in a technical sense is incidental where the main

purpose of obtaining the appearance of all parties and their participation is

accomplished.”) (quoting Hill v. W.E. Brittain, Inc., 405 S.W.2d 803, 807 (Tex.

Civ. App.—Fort Worth 1966, no writ)).

      The circumstances here more closely resemble those in M.N. than those in

Carpenter. In M.N., the Texas Supreme Court held that a defendant whose counsel

explained a calendaring mistake, without objection from the other side as to any

prejudice, should be afforded relief from it. M.N., 262 S.W.3d at 804. Similarly

here, DADS’ counsel explained the service mistake without an objection about

prejudice, and it proffered a supporting affidavit and fax transmission at the

hearing to demonstrate that its error was not intentional or the result of conscious

indifference. The mistakes in service occurred in a new area for practitioners,

ungoverned by statewide rules. The Texas Supreme Court has since mandated the

adoption of uniform statewide electronic filing and service rules. See Tex. Sup.

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Ct., Order Requiring Electronic Filing in Certain Courts, Misc. Docket No. 12-

9206 (Dec. 11, 2012). That mandate was prompted in part by the confusion

engendered with “the decentralized nature of the current system and accompanying

local e–filing rules.” Id. at 2–3. Under the proposed new rules, service is complete

on the day the document is transmitted to the electronic filing service provider,

regardless of the hour or minute. See Tex. Sup. Ct., Order Adopting Texas Rule of

Civil Procedure 21c and Amendments to Texas Rules of Civil Procedure 4, 21,

21a, and 502.1, Texas Rules of Appellate Procedure 6 and 9, and the Supreme

Court Order Directing the Form of the Appellate Record in Civil Cases, Misc.

Docket No. 13-9128, at 7 (Aug. 16, 2013) (draft circulated for public comment;

proposed effective date Jan. 1, 2014) (“Electronic service is complete on

transmission of the document to the serving party’s electronic filing service

provider.”).

      Finally, 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. See 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.”); Milestone Operating,

Inc. v. ExxonMobil Corp., 388 S.W.3d 307, 310 (Tex. 2012) (reversing default

judgment and noting court’s policy that “adjudication on the merits is preferred”)

                                        12
(quoting Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 86 (Tex. 1992));

Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 784 (Tex. 2005)

(reiterating that appellate rules “are designed to resolve appeals on the merits, and

we must interpret and apply them whenever possible to achieve that aim”);

Gallagher v. Fire Ins. Exch., 950 S.W.2d 370, 370–71 (Tex. 1997) (reiterating

commitment to ensuring that courts do not unfairly apply rules of appellate

procedure to avoid addressing meritorious claims); Crown Life Ins. Co. v. Estate of

Gonzalez, 820 S.W.2d 121, 121–22 (Tex. 1991) (stating that procedural rules

should be “liberally construed so that the decisions of the courts of appeals turn on

substance rather than procedural technicality”).     The Chambers County Local

Rules themselves counsel leniency as their “guiding interpretation.” Chambers

(Tex.) Dist. Ct. Loc. R. 7.2: (“Rule Guiding Interpretation. These rules shall be

liberally construed so as to avoid undue prejudice to any person using the

electronic filing system or sending or receiving electronic service in good faith.”)

(emphasis added). The electronic filing and service rules should not become a trap

for the unwary when no harm is done.

                                    Conclusion

         Because DADS established that it did not intentionally commit the

electronic service mistakes that it made, and no undue prejudice would have

resulted from forgiving them, the trial court abused its discretion in striking

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DADS’ summary–judgment response.               See M.N., 262 S.W.3d at 804

(distinguishing Carpenter and holding no abuse of discretion in granting a motion

to extend when defendant’s counsel explained mistake); Wheeler, 157 S.W.3d at

442 (distinguishing Carpenter and holding trial court abused discretion in refusing

to grant new trial because pro se litigant erred in determining when service occurs).

We therefore reverse the summary judgment and remand the case for further

proceedings.




                                              Jane Bland
                                              Justice

Panel consists of Chief Justice Radack and Justices Bland and Huddle.




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