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Texas Dept. of Aging and Disability Services v. Mersch

Court of Appeals of Texas, First District, Houston

December 10, 2013

TEXAS DEPARTMENT OF AGING AND DISABILITY SERVICES, Appellant
v.
Carol MERSCH, Appellee.

Page 737

Darius R. Porter, Houston, TX, for Appellant.

Burton G. Manno, Daniel W. Jackson, The Jackson Law Firm, Houston, TX, for Appellee.

Panel consists of Chief Justice RADACK and Justices BLAND and HUDDLE.

OPINION

JANE BLAND, Justice.

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. DADS explained

Page 738

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."

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 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 ...


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