## In the Court of Appeals Second Appellate District of Texas

at Fort Worth

____ _______________________ No. 02

- 20

- 00034

- CV

___ _________

_______________

On Appeal from the 431st District Court Denton County, Texas Trial Court No. 18

- 1841

- 431

Before S u dderth, C.J. ; Kerr and Wallach , JJ. Opinion and Order by Chief Justice Sudderth 

### D IANE 

### C UMMINGS AND 

### E VERETT 

### C UMMINGS 

### , Appellants

V



### . H EIDI 

### B ILLMAN 

### , C AROLE 

### B ILLMAN 

### , AND 

### B RADLEY 

### B ILLM A N 

### , Appellees2 OPINION AND ORDER
I. Introduction
This is a n issue of fir st impression that aris es under fact s unique to the
electronic fil

ing system that was established to comply with the Texas Supr e me Court ’ s Order Requiring Electronic Filing in Certain Courts , an order that mand ate s electronic filing of documents in all civ il cases filed in distr ic t courts i n Texas

. See Supreme Court of Tex., Order R equiring Electronic Filing in Certain Courts, Mi sc. Docket No. 12

- 920 6 (Tex. Dec. 11, 2012 )

. W e are asked to decide whether the ti mely
transmittal of a m otion to reinstate that is subsequently cancel ed by the sender before
the clerk “ files ” it is sufficient to extend the appellate dead line f or filing a notice of appeal under Texas Rule of Appellate Procedure 26.1(a).
We hold that e ven if the cancellatio n of the efil ing t ransacti on worked to
with draw the motion to reinstate for purposes of extendi ng the trial court ’ s plenary
p ower , it did no t a ffect th e extension of the appellate de adline that the transmi ttal of
the motion initially triggered. Consequent ly, the notice of appeal of Appellants Diane and Everett Cummings was due on Janua ry 9, 2020 , a nd we may extend that deadline because they p rovided a r easonable explanation for failing to file it by the January 9
due date in their mo t

ion for an extension o f time to file their notice of appeal

. See Tex. R. App. P. 10.5(b), 26.3 (providing for up to a 15

- day extension of time to file a notice o f appeal

)

. W e grant their motion , or der the n otice of appeal timely filed, and
continue the a ppeal.3 II. Back ground
On November 11, 2019, thirty

- one days after t he trial court signed a final order dismissing this case for want of prosecution, Appellant s timely subm itted their motio n to reins tate the case through eFileTexas.gov , the official elec t ronic filing syst e m for
Texas courts

. 1 See Tex. R. Civ. P. 165a. A ccording to the electronic filing records,
howe ver, three days after the motion was filed, the filing was “ canceled ” by Appellant s ’ trial counsel. In the int erim , the Dento n County Distr i ct Clerk never

o f ficially “ filed ” th e motion to reinstate

. Appellants electronically filed a second motion to reins tate o n December 4,
which was marked as “ filed ” by the d is trict c lerk at 4:04 p.m. that same day

. 2 On Janua r y 22, 2020, the 1 03 rd day a fter the final order was signed, Appellants filed their

n otice of a ppeal.

1 Although a motion to re instate ordinarily must be filed within 30 days of the fi nal order to be co nsidered timely , Ap pellant s ’ mo tion was t i mely submitted on the 31st day because the 30th day fell on Veteran ’ s Day, a state holiday. See Tex. R. C iv. P. 4 (providin g that if the d ue date falls on a Saturday, Sun day , or legal holiday, th e due da te is extended to “ the end of the ne x t day whi ch is not a Saturday, Sunday , or legal holiday ” )

.

2 Because the document transmitted on November 11 was never filed b y the d istr ict c lerk, we h ave no record of its contents. However, App ellants conte nd

— and for purposes of this appeal we accept as true

— that th e m oti on transmi tted on November 11 , 2019, was “ the same, identical motion ” as the one filed on December 4 , 2019

.4 III. Discussion A timely

- filed notice of appeal is required in order to invoke the appe llate

court ’ s jurisdiction. Tex. R. A p p. P. 25.1(b) , 26 .1; Verburgt v. Dorne r , 959 S.W.2d 615, 617 (Tex. 1997) ; Nat ’

l Transmission v. Boltz

, No. 0 2

- 09

- 00 3 78

- CV, 2009 WL 5064578, at *1 (Tex. App.

— Fort Worth Dec. 23, 2009, no pet.) (per curiam) (mem. op.) ( stating
tha t the deadline to file a n o t ice of appeal is “ mandatory and jurisdictional ” ). There is no question that Appellants ’ original November 11 motion to reinstate was

transm itted timely. See T ex. R. App. P. 26.1(a)(3). The question we must answer i s what effe ct, if any , the cancel latio n of the November 11 e filing transaction ha s on the
cal culation of a ppellate deadlines. Appellants argue t hat the motion to reinstate transmitted on November 11 operated to extend the due date for their notic e of appeal to 9 0 days from the dat e t he
fi n al order was sign ed. See id. (providing that a notice of appeal is due “ within 90 days after the judgment is signed if any party timely files . . . a motion to reinstate ” )

. If Appellants ’ contention is corr ect, then their noti ce of appeal was due o n Jan u ary 9, 2020, a de adline that could be extended to January 24 upon a r easonable explanation
for its tardiness. See Tex. R. App. P. 10.5(b) (2), 26.3 ; Verburgt , 959 S.W.2d at 617

. But if Appellants are mistaken , an d th e No vember 11 motion did not exte nd th e due date
for the ir notice of appeal, then their notice of appeal was due on Novemb er 11, a deadline that coul d not be extend ed beyond November 26

. See City of Lancaster v. Tex

.5

Nat

. Res

. Conser

vation Comm ’

n , 93 5 S.W

. 2d 226, 22 8 ( Tex. App.

—

A ustin 19 9 6 , w r it
den ied ).
Cit ing Jamar v. Patterson to suppo rt their contention that the time to file the notice of appeal was extended, Ap pellants argue that on November 11, when they
transmitted the motion to rei nstate to eFile Texas , the motion was deemed filed on that day reg ardle s s of w hether the d istrict c lerk stamp ed it as filed or not. 868 S.W.2d
318 , 319 (Tex. 1993) (

holding that “ th e date of filing is when the document is first
tendered to the c ler k ” )

. J amar , h a ving bee n decided long before el ectronic fi ling was envisioned , i s not squarely on point with the facts here , although the un derlying

r ationale expressed in the cases it cites is instructive as to the s upreme c ourt ’ s policy that continues today “ to construe r ules reasonably but lib erally, whe n possible, so that

t he ri gh t to appeal is n ot lost by creating a requirement not absol utely necessary from
the literal words of the ru le

. ” Id

. More instructive , however, is Texas Rule of Civil
Procedur e 21(f) (5 ) , which provi des that “ [ a] n ele ctronical ly filed document is de emed
fi led when tra nsmi tted to t he filing party ’ s electronic filing service provider

. ” Tex. R. Civ. P. 21(f

)(5). Rule 21(f)(5) is the electronic equivalent of the mailbox rule

— that a document
is consider ed filed when it i s deposited into an official Un i ted S ta tes P ostal S ervi ce mailbox , not when the clerk receives it in the mail 3

— that used to apply to attorneys

3 Using the mailbox rul e, a document is considered time ly f iled if : (1) it is
m ailed to the cl erk on o r before the la st day it is due, an d (2) it a rrive s at the clerk ’s6

when t hey file d documents in t he old

- fashio ned way and still applies to pro se parties
who are exempt from t he cu rrent elect ronic fil ing mandate. Rul e 21(f)(5) provide s that “ [ a ] n electronic ally filed document is deemed filed when transmitted to the filing
part y ’ s electronic filing service provide r. ” Id. (emphasis added). Similar to the
mailbox r ule , Rule 21(f) (5 ) provides t hat at the moment whe n App el lants ’ counsel

t ransmitted the motion to reinstate through eFileTexas, that document was “ deemed
filed

. ” Id

. Unlike the mailbox rule, Rule 21(f)(5) has no requirement that the clerk

a ctually r eceiv e the document wit hin any par ticular period of tim e . S ee id. And , under the eFileTexas system, when a transaction is cancel ed prior to the clerk ’ s accept ance and official filing of a document, the docum ent will be removed from the clerk ’ s intake portal

. To anal ogize with the mailbo x rule, the cancel ing of a n electronic

trans action is the equ ivalent of a party reaching into the inbox on a clerk ’ s desk and retrieving an envelope that the clerk ha s received in the mail but ha s n ot yet processed

. 4

office within ten days. See Tex. R. Civ. P. 5. The docu ment must be sent by first

- cl ass mail in a properl y addressed and stamped envelope , and the envelope must bea r a United Stat es Post a l Service p ostm ark, which is prima facie evidence of the date of maili ng , or, ba rring that, an uncontroverted affidavit may be provided to establish th e date of t he m ailing. I

d. ; L oft on v. Allstate Ins

. Co. , 895 S.W .2d 693, 693

– 94 ( Tex. 1 995) (per curiam

)

.
4 Altho ugh s uch practice would be unheard of in the context of hard copies and th e mailbox rule , the eFileTexas system allows for this . And such a provision m akes
sense. I n the instantaneous, cli ck

- of

- a

- b utton e lectronic filin g world, i t is al l too e a sy to accidenta lly tran smit the wrong f ile. When such an accident occurs, a filer should be afforded a limited opportunity to snap back the erroneousl y transmitt ed document7

Here, Appe llants ’ mot

ion to reinstate w as cancel ed three da ys af ter the
document w as transmitted and prior to the district clerk ’ s official processing and file

stam ping of the document . A ppellants offer no explana tion for why the transaction
was canceled , except to sugges t t hat the blame belon gs with the d istrict c ler k

. 5 But

t he recor d provided by the district clerk reveals that the cancellation occurred a t the
beh est of Appellant ’ s counsel , or at least someo ne using his eFileTexas cred entials :

be fore it officially becomes a par t of pub lic record

. The question here is wheth e r the invoking of the s nap

- back option nullifies the tra nsaction for purposes of the timely filing of a notice of appeal under the Texas Rules of Appellate Procedure

.

5 In their Notice of Timely Filing of Moti on for Reins tatemen t filed in the trial court , Appellants state, “For reasons unknown, the District Clerk of Dent on County failed to a ct o n the submi tte d electronic filing

. ” A ppellants made a simila r statement in th eir Moti on to Extend the Time for the Fi ling of the Notice of Appeal filed in our court : “For reasons u nknown, th e Dis trict Clerk co m pletely ignored tha t electronic fili ng . ” Although at first b lush it may appear that Appellants are claiming th at the cancellation of the transaction w as a myster y to them , a careful r eading of these st atements re veals otherwise. W h i le Ap pellants s tate that the reason for the d istrict clerk ’ s f ail ure to “ act on ” the m otion was unkn own to th em, they do not claim that the reason for t he cancellation itself was unknown to t hem. As to why the transaction was cancel ed , Appellant s are silent.8

The technology is new, and t here are no cases o n point. But becaus e the

su p reme court has provided guidance to us with regard to the effect of withdrawing a motion for new trial , we can draw an a nalogy

. In Rogers v. Clinton , the supreme court
held that when a party withdr aws its ti mely

- fil ed motion f or new trial, the ex tensi on of
the t rial co urt ’ s plenary power is nullified , and the deadlines for plenary

- power extension re vert back as if no motion for n ew trial was ever filed. 794 S.W.2d 9, 11 (Tex. 1990 ) (orig. proceedin g). In Rogers , the defendant o rally withdrew hi s m otion
fo r new trial pri or to the hearing on the motion. Id. at 10. Over the defendant ’ s objection, the tria l court considered and granted the motion. Id. T he supreme court
held that the trial court cou ld not order a new t rial when t he m otion for new trial had9

b een withd rawn and more than 30 days ha d passed since the judgment was signed. Id.
at 11. In other words, the withdrawal of a time ly

- filed motion for new trial acts to d ivest the trial court of t he extended plenary po wer th at th e mo tion provide s . See id. ;

see also In re Dil

ley ISD , 23 S.W.3d 189, 191 (Tex. App.

— S an Antonio 2000 , orig. proceeding

) ( “ I f a party withdraws a motion for new trial, the period of time for the
trial court ’ s plenary power reverts back to thirt y days from the date the judgment i s sig ned

. ” ) , abrogated in part by In re Schmitz , 285 S.W.3d 451 (Tex. 2009) (orig. proceeding)

. The holdi ng in Roger

s was premised upon the idea that a party has the right to
prosecute or defend its own case :

We have held repeatedly tha t [] a plaintiff ’ s ri gh t t o n onsuit of its
o wn action exi sts at the momen t a motion is filed, and that the only requirement is the mere fi ling of the motion with the clerk of the court. [] Analogously, a defendant ’ s righ t to file a motion for new trial must certainly carr

y wit h it th e right to withd

raw that motion at any time before it is heard. A defendant must have the right t o control his own defense.
794 S.W.2d at 11 (citations omitted). Here, by cancel ing the fili ng of their motion to reinstate, Appe llants exer cised the ir ri ght to control the prosecution of their own
lawsuit. While Rogers would suggest that the trial cour t lost plena ry power in this case
when Appella nts effectively withdrew their motion to reinsta te by canceling the ef iling

trans acti on, that is not what we a re called upon to decide. We must decide what
effect th e withdraw al , or cancel l ation, of the motion to reinstate had on t he appellate
deadlines.10

Extensions on plenary power and extensions on ap pellate deadlines u sually
walk h and

- i n

- hand

. B ut this is not n ecess arily s o. Because t hey are governed by two
different rules

—

plenar y power extensions by Texas Rule of Ci vil Pro c e dure 329 b ( e)

a nd appellate deadline extensions by Te xas Rule of Ap pellate P rocedure 26.1(a)

— the

two may par t company and travel di fferent pat h s . Fo r example, as ou r sister court has explained , just because a request for findings of fact an d conclusions of l aw will

ext end the d eadline f

or filing a notice of appeal under Rule 26.1 (a) does not mean that the req ue st will a lso extend a trial court ’ s ple na ry power under R ule 329b

. See In re Gillespie , 124 S.W.3d 699, 703 (Tex. App.

— Houston [14 th Dis t.] 2003 , orig

. proceedin g)

. To mak e that de termination, one mus t be guided by the law and the plain language of the a p plicable rul es . See i d

. Texas Rule of Appellate Proce dure 2 6.1(a) provides that the deadline for filing
a notic e of appeal is extended to “ 90 days after the jud gmen t is signed if a ny party timely files . . . a m otion to reinstate under Texas Rule of Ci vil Proc edur e 165a. ” Tex. R. App . P. 26 .1( a). Under Te xas Rule of Civil Procedure 21(f)(5) , Appellan ts ’ motion
to reinstate was “ deemed filed when transmitted ” to eFileTex as. Tex. R. Civ. P. 21(f)(5). U nder the plain lan gua ge of the applicable rules, A ppellant s ’ m otion to
reinstate , whethe r canceled or not, ex tended the appellate de adlines.
While Rogers might suggest that the cancellation of the ef iling transaction would
operate to wit hdraw the m otion for purposes of plen ary power un der Rule 329b , t he
h olding i n Ro

gers does not address the ex tension of appella te deadline s un der R ule11

26.1 (a). Because it is not our place to extend Rogers beyond its holding and because

we are mindful that we should be vigilant to ensure that we do not “ creat [e] a requireme nt not a bsol utely necessary from the l it eral words of the rule, ” Jamar , 868
S.W.2d at 319 , we hold that when Appellants transmitted their motion to reinstate to
eF i leTexas , it was deemed filed for purposes of Rule 26.1(a) su ch that the deadline for filing Appellan ts ’ notice of appeal wa s exten de d to 90 days a fter the ju dgment was signed . W e further ho ld that the later cancel l ation of that efiling transaction did not operate to revert the due date of Appellants ’ notice of app e al ba ck to 30 days after the ju dgment w as s igned.
In their m o tion fo r an extension o f time to file their notice of appeal, Appellants explain that they failed to file their notice of appeal on the 9 0 th da y due to

a n erroneous calculation o f the a ppellat e deadlines

. Pur suant t o Rule 1 0.5, we may extend th at deadline upon a reasonable expl anation for the n eed for the extension.
See Tex. R. App. P. 10.5 (b)

. “ R e asonable explanation ” has been defined as “ any plausible statement of circumstances indicating that failure to file within the [ specif ied] period was not deli berate o r intentional, but was the result of inadvertence,
mistake or mischance. ” Hone v. Hanafin , 104 S.W.3d 884, 886 (Tex. 200 3) (per curiam) (quoting Meshwert v. M

eshwert , 549 S.W.2d 383, 384 (Tex. 1977) )

. The reaso n of fered by Appella nts

— a mis take in calendaring

— fits wi t hin this defini tion

. Because Appellants have offered a reasonable explanation for their failure to file their notice of appeal by t he January 9 deadline, we grant their m otion.12 IV. Conclusion
Based o n our an alysis above, w e hol d that Appellant s ’ n otic e of appeal file d on January 22 , 20 20 , was timely filed , and we continue the appeal.

/ s / Bonnie Sudderth Bonn ie Suddert h Chief Justice
Delivered: Feb ruary 27, 2020