The Dallas Court of Appeals has, once again, confirmed that "strict compliance" with rules governing service of process is required. See my prior posts on the subject here and here. In this case, the district clerk served an out-of-state defendant via certified mail, return receipt requested. But while the return of service bore the district clerk’s stamp
Service
Are Some Local Rules in Jeopardy?
By Byron Henry on
Posted in Opinions & Judgments
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. …
A trap for the unwary: service by fax
By Mike Northrup on
Posted in Opinions & Judgments
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.
Notice Defect Precludes Summary Judgment
By David Oliveros on
Posted in Opinions & Judgments, Summary Judgment
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…
Notice of Service After Case Dismissed for Want of Prosecution
By David Oliveros on
Posted in Opinions & Judgments
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.…