Opinion
01-22-00156-CV
09-07-2023
DEMETRA MOORE, Appellant v. DARRELL GENE CARDER, Appellee
On Appeal from the 164th District Court Harris County, Texas Trial Court Case No. 2020-23143
Panel consists of Chief Justice Adams and Justices Kelly and Goodman. Chief Justice Adams, dissenting.
ORDER
Gordon Goodman, Justice, Acting for the Court
Demetra Moore has filed two motions. In one motion, she seeks an extension of time to file motions for rehearing and en banc reconsideration. In the second motion, she asks us to recall or stay our July 7, 2023 mandate. Both motions are premised on her counsel's inadvertent failure to notice this court's opinion and judgment, which resulted in his failure to timely move for rehearing or en banc reconsideration. Because the merits of these motions turn on circumstances that have arisen on appeal and the record is not developed enough to decide these motions on the merits, we abate this appeal and remand this cause to the trial court to hold an evidentiary hearing and make certain proposed findings of fact, as explained below.
Background
We issued our opinion and judgment on April 27, 2023. No party timely sought rehearing or en banc reconsideration. Our mandate issued on July 7, 2023.
On July 17, 2023, Moore filed her two motions seeking relief from our mandate and an extension of time. In her motion seeking relief from our mandate, Moore explains that her appellate counsel received the court's electronic notice of the issuance of our April 27, 2023 opinion and judgment but inadvertently overlooked this notice due to the unusually high volume of e-mails he received in late April. Moore's appellate counsel has made an affidavit in which he attests to his inadvertence, explaining that he was then involved in two multi-district litigations that involved thousands of parties and which generated dozens of e-mail notices on a daily basis. Moore's appellate counsel further attests that he did not become aware that we had rendered judgment until July 7, 2023, when our court's mandate issued. Citing authority that stands for the proposition that the constitutional right to due process requires relief from deadlines when a court fails to provide the parties with notice of a final order, Moore asks us to grant her an extension of time to file motions for rehearing and en banc reconsideration and recall or stay our mandate.
Moore filed a second motion to recall the mandate on July 18. This motion appears to be identical to the one she filed the previous day. Accordingly, we treat her two motions to recall the mandate as a single motion, both of which we address together in this order.
See Simon v. Dillard's, Inc., 86 S.W.3d 798, 800 (Tex. App.-Houston [1st Dist] 2002, no pet.); see also Roy W. McDonald, Elaine A. Grafton Carlson, McDonald & Carlson Texas Civil Practice § 12.6, "Effect of lack of notice or judgment or order" (2022).
Darrell Gene Carder has filed a response, in which he contends that we lack subject-matter jurisdiction to withdraw or modify our judgment due to the expiration of our plenary power. On this basis, Carder requests that we deny Moore's motion to recall or stay our mandate. He also contends that Moore's due process rights are not implicated, as she concedes she received notice of our judgment. Subject to these objections, Carder represents that he otherwise is unopposed to Moore's request for an extension of time to file a motion seeking rehearing or en banc reconsideration.
Subject-Matter Jurisdiction
As subject-matter jurisdiction is a threshold issue, we address it first. We hold that this court has subject-matter jurisdiction to address both of Moore's motions.
When, as here, no party has timely moved for rehearing or en banc reconsideration, our plenary power over our judgment expires 60 days after judgment. TEX. R. APP. P. 19.1(a). In this instance, that date was June 26, 2023. It is undisputed that Moore filed her motions 11 days after this period of time expired.
But lack of plenary power is not an obstacle in this particular case, because another rule of appellate procedure vests us with the subject-matter jurisdiction to address the kind of notice-related claims Moore makes in her motions. The rule in question is Rule 4.5 of the Texas Rules of Appellate Procedure, which provides:
(a) Additional Time to File Documents. A party may move for additional time to file a motion for rehearing or en banc reconsideration in the court of appeals, a petition for review, or a petition for discretionary review, if the party did not-until after the time expired for filing the document-either receive notice of the judgment or order from the clerk or acquire actual knowledge of the rendition of the judgment or order.
(b) Procedure to Gain Additional Time. The motion must state the earliest date when the party or the party's attorney received notice or acquired actual knowledge that the judgment or order had been rendered. The motion must be filed within 15 days of that date but in no event more than 90 days after the date of the judgment or order.
(c) Where to File.
(1) A motion for additional time to file a motion for rehearing or en banc reconsideration in the court of appeals must be filed in and ruled on by the court of appeals in which the case is pending.
(2) A motion for additional time to file a petition for review must be filed in and ruled on by the Supreme Court.
(3) A motion for additional time to file a petition for discretionary review must be filed in and ruled on by the Court of Criminal Appeals.
(d) Order of the Court. If the court finds that the motion for additional time was timely filed and the party did not-within the time for filing the motion for rehearing or en banc reconsideration, petition for review, or petition for discretionary review, as the case may be-receive the notice or have actual knowledge of the judgment or order, the court
must grant the motion. The time for filing the document will begin to run on the date when the court grants the motion.TEX. R. APP. P. 4.5.
Rule 4.5 is the appellate analogue of Rule 306a(4)-(5) of the Texas Rules of Civil Procedure. Like the trial-court rule, Rule 4.5 allows a party to reinvoke our plenary power within 90 days of the judgment when the party disputes notice. See TEX. R. APP. P. 4.5(b) (allowing party who disputes notice to file motion for additional time no later than 90 days after judgment); Moore Landrey, L.L.P. v. Hirsch & Westheimer, P.C., 126 S.W.3d 536, 543 (Tex. App.-Houston [1st Dist.] 2003, no pet.) (indicating that both Rules 4.5(b) and 306a(4) allow party disputing notice to reinvoke plenary power of court no later than 90 days after judgment).
Moore filed her motions premised on lack of notice on July 17, 2023, which was 81 days after our April 27, 2023 judgment. Having filed her motions within 90 days of the judgment and claiming she only became aware of the judgment on July 7, 2023, when our mandate issued, Moore has reinvoked our plenary power. See TEX. R. APP. P. 4.5(b) (requiring motion for additional time to be filed within 15 days of when party or her attorney received notice or acquired actual notice of judgment but in no event more than 90 days after judgment). We have subject-matter jurisdiction to address Moore's claim that she lacked notice due to inadvertence.
Abatement and Remand
In Moore's motion to recall or stay this court's mandate, her appellate counsel concedes that the clerk of this court provided notice of the court's judgment. But her appellate lawyer makes representations about his receipt of this notice that appear to be contradictory. Early in the motion, counsel states that he failed to receive the clerk's notice due to "a technical malfunction" beyond his control. Then, later in the motion, counsel states he "did not receive the notice because of an inadvertent error," explaining that he "inadvertently overlooked" the electronic notice of the judgment "due to an uncharacteristically high volume of electronic correspondence and notices being delivered to counsel during the time period of late April" 2023 resulting from his involvement in multi-district and other litigation, "causing dozens of email notices to be generated daily." Appellate counsel disclaims conscious indifference.
Counsel also submitted an affidavit in support of the motion to recall or stay the mandate. In his affidavit, counsel omits any mention of a technical malfunction. He attests that though the record reflects that notice of the judgment was sent to him by e-mail the same day judgment was rendered, he "did not receive the notice because of inadvertent error." He represents he was "unaware" of the judgment because he "overlooked" the notice and was "unaware" of the judgment "due to an uncharacteristically high volume of electronic correspondence and notices being delivered to [his] e-mail during the time period of late April of 2023." As stated in the motion, counsel attests that he "was involved in two multi-district lawsuits featuring thousands of active parties, causing dozens of email notices to be generated daily during the time period of late April of 2023." Counsel further attests he only learned of the judgment on July 7, 2023, when he received the court's mandate.
Neither the motion nor the affidavit address when and how Moore herself, as opposed to her counsel, first became aware of the court's judgment. See TEX. R. APP. P. 4.5(a), (d) (indicating that dispositive issue is whether and when "the party" received notice or acquired actual knowledge of the rendition of judgment); see also TEX. R. APP. P. 4.5(b) (indicating that whether and when counsel, as party's agent, received notice or acquired actual knowledge is relevant to party's awareness).
As the motion to recall or stay the mandate and its supporting affidavit are ambiguous and the facts as to notice and actual knowledge of the court's judgment are underdeveloped, the evidence does not provide a factual basis on which we can grant the requested relief. See TEX. R. APP. P. 4.5(a) (allowing party to move for additional time to seek rehearing and en banc reconsideration "if the party did not- until after the time expired for filing the document-either receive notice of the judgment or order from the clerk or acquire actual knowledge of the rendition of the judgment or order"). While we could deny the relief Moore seeks on this basis, we are reticent to rule in the absence of a fully developed record because lack of notice implicates fundamental fairness and the due process rights of litigants. "In the spirit of fairness and equity," we thus "will abate the appeal and remand the case to the trial court so it may hold an evidentiary hearing and make proposed findings of fact" concerning notice and actual knowledge of this court's entry of judgment. See Peavy v. Tex. Home Mgmt., 16 S.W.3d 104, 105 (Tex. App.-Houston [1st Dist.] 2000, order) (per curiam) (abating and remanding when party's motion was too conclusory to satisfy standard for additional time articulated in TEX. R. APP. P. 4.5(a)).
In particular, we direct the trial court to make proposed findings of fact regarding:
1. whether and, if so, when Moore's counsel received electronic or other notice of this court's April 27, 2023 judgment;
2. whether and, if so, when Moore herself, as opposed to her counsel received electronic or other notice of this court's April 27, 2023 judgment;
3. regardless of whether Moore's counsel received notice from the clerk of this court, when and how he acquired actual knowledge of the rendition of this court's April 27, 2023 judgment; and
4. regardless of whether Moore herself, as opposed to her counsel, received notice from the clerk of this court, when and how she acquired actual knowledge of the rendition of this court's April 27, 2023 judgment.
The trial court shall have a court reporter record the hearing. See Peavy, 16 S.W.3d at 105. Moore shall pay both the clerk and court reporter for preparing the record of the hearing. See id. A supplemental clerk's record including the trial court's written proposed findings of fact and the reporter's record of the hearing shall be filed with our court clerk no later than 60 days from this order's date. See id.
This appeal is abated, treated as a closed case, and removed from this court's active docket. See id. The appeal will be reinstated on this court's active docket either when the supplemental clerk's record and the supplemental reporter's record are filed with this court or 61 days from the date of this order, whichever occurs first. See id. If Moore does not request a hearing in the trial court and work with the clerk and court reporter to ensure that these supplemental records are timely filed, we will deny her motions for additional time and to recall or stay the mandate. See id. We will also consider an appropriate motion to reinstate the appeal filed by either party. See id. If the supplemental clerk's record and supplemental reporter's record are timely filed, we will review the record of the hearing and the trial court's proposed findings of fact and make a final determination on Moore's motions. See id.
Conclusion
We abate this appeal and remand this cause to the trial court as set forth above.
It is so ORDERED.
DISSENT TO ORDER
Terry Adams Chief Justice
I must respectfully dissent. The underpinning of the majority's disposition is Rule 4.5 of the Texas Rules of Appellate Procedure-"No Notice of Judgment or Order of Appellate Court; Effect on Time to File Certain Documents." Under this rule, a court of appeals must grant additional time to file a motion for rehearing or en banc reconsideration if the court finds that the party did not-until after the time expired for filing a motion for rehearing or en banc reconsideration-receive notice of the judgment or order in question from the court of appeals or acquire actual knowledge of the judgment or order. TEX. R. APP. P. 4.5(d).
The court must also find that the motion invoking Rule 4.5 was timely filed. Id.
To be timely, a Rule 4.5 motion must be filed within 15 days "of the earliest date" that the party received notice of the judgment or order from the court of appeals or acquired actual knowledge of that judgment or order-but in no event more than 90 days after the date of the judgment or order. Id. 4.5(b), (d); see Simon v. Dillard's, Inc., 86 S.W.3d 798, 800 (Tex. App.-Houston [1st Dist.] 2002, no pet.) ("The motion for extension [under Rule 4.5] must be filed within 15 days of the date the party received notice or acquired actual knowledge that judgment had been rendered.").
As acknowledged by the majority, Moore states in her motion and accompanying affidavit that her appellate counsel received this Court's notice of judgment by email on April 27, 2023. But, according to Moore, her counsel did not obtain actual knowledge of the contents of that notice email until July 7, 2023-the date this Court's mandate issued-because her counsel "inadvertently overlooked" the April 27 email until that later date. Thus, "the earliest date" that Moore either received notice of this Court's judgment or obtained actual knowledge of the judgment was April 27, 2023.
Based on these admitted facts, and the plain language of Rule 4.5(b), Moore had to file her motion within 15 days of the "earliest" of these two dates-which was May 12, 2023. Moore, however, did not file her motion until July 17, 2023.
The majority suggests that a Rule 4.5 motion is timely filed if it is filed "within 90 days of the judgment." That, however, disregards the rest of the words in the same sentence of Rule 4.5(b). TEX. R. APP. P. 4.5(b); see Huston v. U.S. Bank Nat'l Assoc., 359 S.W.3d 679, 681 (Tex. App.-Houston [1st Dist.] 2011, no pet.) ("[a rule of procedure] must be read as a whole to ascertain its intent" and its clear language construed "according to its literal meaning").
When the plain language of Rule 4.5(b) is read as a whole, it provides that the 15-day deadline to timely file a Rule 4.5 motion is triggered by "the earliest date" that the party received notice of the judgment or order from the court of appeals or acquired actual knowledge of the judgment or order1 and that the motion must be filed within the required 90 days of the date of the decision of the court of appeals; even if that is sooner than 15 days of receiving notice or obtaining actual knowledge. This prevents the rule from being completely open-ended.
For example, if the "earliest date" that a party received notice or acquired actual knowledge of a judgment or order was the 80th day after the date of the judgment or order, the Rule 4.5 motion would have to be filed within 10 days, by the 90th day. On the other hand, if that "earliest date" was more than 90 days after the date of the judgment, the rule would be inapplicable. See Nawar v. Thompson, No. 04-17-00217-CV, 2017 WL 3270342, at *1-2 (Tex. App.-San Antonio 2017, no pet.) (mem. op.) (citing Levit v. Adams, 850 S.W.2d 469, 470 (Tex. 1993) (construing substantially similar language in Texas Rule of Civil Procedure 306a(4) and Texas Rule of Appellate Procedure 4.2(a)(1)).
Consequently, a Rule 4.5 motion must satisfy all of subsection (b) in order for it to be timely filed.
Here, Moore's motion fails to do so. Although Moore's motion was filed within 90 days of the date of this Court's judgment, it was filed over two months after the 15-day deadline had passed and is clearly untimely. As a result, this Court lacks authority as a matter of law to make any disposition here under the auspices of Rule 4.5. I therefore respectfully dissent and would deny Moore's motions in all things.