Reverse and Render : Texas Appellate Lawyer & Attorney : Cowles & Thompson Law Firm : Court of Appeals, Texas Supreme Court

The Dallas Court of Appeals recently held that local rules that are inconsistent with the TRCP are not enforceable.  The case involved a summary judgment response that was supposedly filed and served seven days prior to the summary judgment hearing.  The trial court struck the response for failure to comply with Dallas Local Rule 2.05.  Local Rule 2.05 requires that documents relating to matters set within seven days of filing must be served in a manner to ensure receipt by the opposing party the same day the papers are filed.  The opinion does not mention how the document was filed or served.  Relying on TRCP 3a, the court of appeals held that Local Rule 2.05 was not enforceable to the extent it mandates a different "type of service than that prescribed by rule 21a."

Does Local Rule 2.05 really require a "different type of service"?  It seems to do no more than ensure that in the event a party hand delivers a response or reply to the court, it will deliver the documents to its opponent in a similar manner thus avoiding the situation in which the court receives a document and has time to review it prior to the hearing but the opposing party does not.  I thought the Texas Supreme Court reviewed and approved local rules?  If so, why?  The court's opinion in Esty v. Beal Bank S.S.B. can be found at this link.  Other local rules may be affected as discussed below. 

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Civil Procedure Rule 21a allows a party to add three (3) days to any prescribed response period when service of the initial document is accomplished by mail or fax.  But not necessarily, according to the El Paso Court of Appeals--at least not when another method of service is also used.

In Amaya v. Enriquez, Amaya filed her expert report in her medical malpractice suit against Dr. Enriquez.  Amaya first served the report on counsel for Enriquez by fax.  Later that day Amaya also served the report on counsel for Enriquez by hand-delivery.  Taking advantage of his statutory right to object to Amaya's report, Dr. Enriquez filed a motion to dismiss, objecting to the report.  Dr. Enriquez's objection was filed more than the 21 days allowed for by statute.   He relied upon Civil Procedure Rule 21a to argue that he was entitled to an additional 3 days to his time period because Amaya had served the report on him by fax.

The court of appeals rejected Dr. Enriquez's argument, reasoning that the 3-day extension is provided only in connection with mail service and fax service and since Dr. Enriquez had also been served by hand-delivery, the court concluded "there is no logical reason to give the party an additional three days."   The court then remanded the case to the trial court.  The court's opinion may be found at this link.

It is unclear whether Dr. Enriquez may have argued that he should be exempt from this judicially-crafted rule given that it was a case of first impression or whether he argued that the court of appeals should have chosen the longer period for response over the shorter to ensure the  "just, fair, equitable and impartial adjudication of rights of litigants" protected by Civil Procedure Rule 1.

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In Shaw v. Radionic Industries, Inc., the plaintiff moved for summary judgment against the pro se defendant on a claim for a suit on a sworn account. The court set a hearing for the motion on April 2, 2007. Later, the plaintiff sent a transmittal letter dated March 22, 2007 to the defendant to inform him of the hearing. The letter did not contain a certificate of service.

Did the defendant receive proper notice?

The trial court did grant the summary judgment, but the Dallas Court of Appeals later overturned the judgment in a restricted appeal. Because summary judgment is such a harsh remedy, the court scrutinized the record and discovered that the plaintiff was dilatory in sending the notice of hearing letter.  As a result, the defendant only received 11 days notice of the hearing.  But Tex. R. Civ. P. 166a(c) requires that the non-movant receive notice 21 days before the hearing. So the court reversed the summary judgment and remanded the case back to the trial court for further proceedings.

Because the untimely notice was sufficient to overturn the judgment, the court did not reach the other complaints regarding service. One involved the lack of a certificate of service in the letter. Incidentally, if a party sends notice of a hearing by way of a transmittal letter as oppposed to a completed fiat, notice may be defective unless the letter contains a certificate of service.  See Tex. R. Civ. P. 21a.

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A plaintiff sued a defendant for breach of contract. Instead of serving the defendant, the plaintiff served the Secretary of State. As the time for answering lapsed, the trial court sent notice of dismissal to the parties (according to Texas Rule 165a ) warning them of dismissal if no answer was filed by a specified deadline.

When the deadline passed with no answer, the court dismissed the case for want of prosecution. After the dismissal, the defendant's attorney received notice that the Secretary of State had been served with the underlying lawsuit. A few days later, the court reinstated the suit sua sponte and eventually entered a default judgment in the plaintiff's favor.

Was the defendant properly served?

The Fifth Court of Appeals, in DC Controls, Inc. v. UM Capital, L.L.C., explained that service after a case has been dismissed for want of prosecution is defective. Because the defendant did not receive notice until after the court dismissed the suit, regardless of the fact that the court reinstated the suit days later, the Court of Appeals held that service was defective and an error apparent on the face of the record, and thus reversed the default judgment and remanded the case for further proceedings.

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