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

O P I N I O N

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. 
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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. 
5

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 
6

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 
8

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 
10

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 
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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. 
12

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”) 
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(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.