Texas G&S Investments, Inc. D/B/A Texas Money Exchange v. Constellation NewEnergy, Inc.

Reversed and Remanded and Opinion filed March 5, 2015.

In The

Fourteenth Court of Appeals

NO. 14-14-00145-CV

TEXAS G&S INVESTMENTS, INC. D/B/A TEXAS MONEY EXCHANGE,
Appellant
V.
CONSTELLATION NEWENERGY, INC., Appellee

On Appeal from the County Civil Court at Law No. 4
Harris County, Texas
Trial Court Cause No. 1023611

OPINION
In this opinion we consider whether a party made a bona fide attempt to
invoke appellate jurisdiction by timely submitting to its electronic filing service
provider a motion for new trial that was not accepted by the clerk’s office and then
filing a notice of appeal within ninety days after rendition of judgment. We also
address the legal sufficiency of the evidence offered to support the trial court’s
post-answer default judgment. Concluding that we have jurisdiction over the
appeal and that the evidence is legally insufficient, we reverse and remand for a
new trial.

I. FACTUAL AND PROCEDURAL BACKGROUND

Appellee/plaintiff Constellation Newenergy, Inc. filed a petition asserting a
breach-of-contract claim against appellant/defendant Texas G&S Investments, Inc.
d/b/a Texas Money Exchange. In its petition, Constellation alleged that Texas
G&S breached an electricity contract by failing to buy electricity before the term of
the contract expired. Texas G&S filed an answer contesting the claim.

Texas G&S did not appear for trial. Though the trial court called the case to
trial, Constellation did not submit any evidence. The trial court granted
Constellation’s motion for post-answer default judgment. A few days later,
Constellation filed two affidavits in the clerk’s record.

The trial court signed a final post-answer default judgment on November
25, 2013. About three weeks later, on December 18, Texas G&S submitted to its
electronic service provider a document, the substance of which was a motion for
new trial. The Harris County Clerk rejected the document. Constellation filed a
response to the motion for new trial and Texas G&S filed a reply. After Texas
G&S filed its reply, the trial court informed Texas G&S that no motion for new
trial was on file. Texas G&S immediately filed a motion for new trial and the
Harris County Clerk accepted it after the deadline for filing a motion for new trial
had expired. The trial court denied the motion for new trial. Texas G&S filed a
notice of appeal the following month.

II. ANALYSIS

A. Appellate Jurisdiction

Constellation asserts that we lack jurisdiction over this appeal because Texas
2
G&S did not timely file its notice of appeal. Texas G&S’s notice of appeal was
timely only if it timely filed its motion for new trial, thereby extending its deadline
to file its notice of appeal from thirty days to ninety days. See Tex. R. App. P.
26.1.

Given the Christmas holiday, the deadline to file a motion for a new trial
was December 26, 2013 (the “Filing Deadline”). Eight days before the Filing
Deadline, Texas G&S sent a document to its electronic service provider, ProDoc.
The ProDoc receipt described the document as a “Motion for New Trial.” Texas
G&S’s attorney filed an affidavit stating that the document sent to the electronic
service provider was a motion for new trial. The receipt obtained by Texas G&S’s
counsel listed the document’s current status as “filed.” Although Texas G&S
timely submitted the document to its electronic filing service provider, the Harris
County Clerk rejected the document.

According to Texas G&S, the Harris County Clerk rejected the filing
because the motion contained as attachments a proposed order and a proposed
order setting hearing. Constellation filed a response to the motion and Texas G&S
replied. After the response and reply were filed, on January 30, 2014, the trial
court advised Texas G&S that it did not have on file the motion for new trial.
Texas G&S immediately filed the motion along with a motion to consider the
motion for new trial timely filed. The trial court denied the motion for new trial
and did not explicitly rule on the motion to consider the motion timely filed. Texas
G&S then filed its notice of appeal on February 13, 2014. Texas G&S’s notice of
appeal was timely filed if Texas G&S timely filed its motion for new trial and
extended the timetable for a notice of appeal to ninety days. But, if Texas G&S’s
motion for new trial was not timely filed, then Texas G&S’s notice of appeal was
not timely filed and this court lacks jurisdiction. See Tex. R. App. P. 26.1.

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 A court of appeals has jurisdiction over any appeal in which the appellant
files an instrument in a bona fide attempt to invoke the appellate court’s
jurisdiction. Verburgt v. Dorner, 959 S.W.2d 615, 616 (Tex. 1997). Appellate
courts are to construe the Texas Rules of Appellate Procedure reasonably, yet
liberally, so that the right to appeal is not lost by imposing requirements not
absolutely necessary to effect the purpose of a rule. Id. Texas courts have
determined, under a liberal construction of the rules of appellate procedure, that an
individual has filed an instrument in a bona fide attempt to invoke the appellate
court’s jurisdiction in some instances where an individual filed a defective
document. See Verburgt, 959 S.W.2d at 617 (holding that appellate courts imply
motion for extension of time to file notice of appeal); Maxfield v. Terry, 888
S.W.2d 809, 811 (Tex. 1994) (holding that court of appeals erred in finding it
lacked jurisdiction over appeal despite party’s failure to perfect separate appeals
from separate orders rendered in same probate proceeding); City of San Antonio v.
Rodriguez, 828 S.W.2d 417 (Tex. 1992) (holding that failure to put correct cause
number on cost bond does not deprive appellate court of jurisdiction); Grand
Prairie Indep. Sch. Dist. v. Southern Parts Imports, 813 S.W.2d 499, 500 (Tex.
1991) (dismissing appeal is improper if appellant timely files document in bona
fide attempt to invoke the appellate court’s jurisdiction).

The Supreme Court of Texas promulgated rules of civil procedure to
standardize and govern electronic filings. These rules took effect on January 1,
2014. They were not in effect at the time Texas G&S filed its motion for new
trial.1 Harris County Local Rule of the County Courts concering the Electronic

1
Under the new rules, the clerk may not refuse to file non-conforming documents, but
must identify the error to be corrected and state a deadline for the party to resubmit the document
in a conforming format. See Tex. R. Civ. P. 21(f)(11).

4
Filing of Court Documents 4.3,2 entitled “Time Document is Filed,” provides:

(a) A filer may electronically transmit a document through an EFSP3
to TexasOnline 24 hours per day each and every day of the year,
except during brief periods of state-approved scheduled
maintenance which will usually occur in the early hours of Sunday
morning.
(b) Upon sending an electronically-transmitted document to a filer’s
EFSP, the filer is deemed to have delivered the document to the
county clerk and, subject to Rule 4.3(h), 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 county clerk not
more than ten days tardily, shall be filed by the county 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.
(c) On receipt of a filer’s document, the filer’s EFSP must send the
document to TexasOnline in the required electronic file format
along with an indication of the time the filer sent the document to
the EFSP and the filer’s payment information. TexasOnline will
electronically transmit to the filer an “acknowledgement” that the
document has been received by TexasOnline. The
acknowledgement will note the date and time that the
electronically-transmitted document was received by TexasOnline.
(d) Upon receiving a document from a filer’s EFSP, TexasOnline shall
electronically transmit the document to the county clerk. If the
document was not properly formatted, TexasOnline will transmit a
warning to the filer’s EFSP.
(e) Not later than the first business day after receiving a document
from TexasOnline, the county clerk shall decide whether the
document will be accepted for filing. The county clerk shall accept
the document for filing provided that the document is not
2
For the sake of convenience, these rules hereinafter will be referred to as the Harris
County Local Rules for County Courts. The version of the local rules quoted in this opinion was
in effect in December 2013.
3
An “EFSP” is the defined term in the Harris County Local Rules for County Courts for
an electronic filing service provider.

5
Filing of Court Documents 4.3,2 entitled “Time Document is Filed,” provides:

(a) A filer may electronically transmit a document through an EFSP3
to TexasOnline 24 hours per day each and every day of the year,
except during brief periods of state-approved scheduled
maintenance which will usually occur in the early hours of Sunday
morning.
(b) Upon sending an electronically-transmitted document to a filer’s
EFSP, the filer is deemed to have delivered the document to the
county clerk and, subject to Rule 4.3(h), 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 county clerk not
more than ten days tardily, shall be filed by the county 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.
(c) On receipt of a filer’s document, the filer’s EFSP must send the
document to TexasOnline in the required electronic file format
along with an indication of the time the filer sent the document to
the EFSP and the filer’s payment information. TexasOnline will
electronically transmit to the filer an “acknowledgement” that the
document has been received by TexasOnline. The
acknowledgement will note the date and time that the
electronically-transmitted document was received by TexasOnline.
(d) Upon receiving a document from a filer’s EFSP, TexasOnline shall
electronically transmit the document to the county clerk. If the
document was not properly formatted, TexasOnline will transmit a
warning to the filer’s EFSP.
(e) Not later than the first business day after receiving a document
from TexasOnline, the county clerk shall decide whether the
document will be accepted for filing. The county clerk shall accept
the document for filing provided that the document is not
2
For the sake of convenience, these rules hereinafter will be referred to as the Harris
County Local Rules for County Courts. The version of the local rules quoted in this opinion was
in effect in December 2013.
3
An “EFSP” is the defined term in the Harris County Local Rules for County Courts for
an electronic filing service provider.

5
the document was delivered to the clerk when Texas G&S transmitted the
document to the electronic filing service provider and the document was deemed
filed. Texas G&S has provided its receipt from ProDoc, along with an affidavit
stating that the motion for new trial was filed on December 18, a date before the
Filing Deadline. Although the Harris County Clerk rejected the document based
on a formatting error, in these unique circumstances, and under a liberal
construction of the rules designed to avoid prejudice associated with electronic
filing, we conclude that Texas G&S’s actions constituted a bona fide attempt to
invoke appellate jurisdiction. See Blankenship v. Robins, 878 S.W.2d 138, 139
(Tex. 1994) (holding that filing a motion for new trial in the wrong cause number
and then filing a notice of appeal were actions constituting a bona fide attempt to
invoke appellate court jurisdiction); Hernandez v. Koch Machinery Co., 16 S.W.3d
48, 56 (Tex. App.—Houston [1st Dist.] 2000, pet. denied) (same). Accordingly,
Texas G&S’s notice of appeal was timely filed. We have jurisdiction over this
appeal.

B. Legal Sufficiency of the Evidence

In its third issue, Texas G&S asserts that the trial court erred in granting
Constellation’s post-answer default judgment because the evidence is legally
insufficient to support a liability finding and damages award.4 The failure to
appear is considered neither an abandonment of the defendant’s answer nor an
implied confession of any issues. Stoner v. Thompson, 578 S.W.2d 679, 682 (Tex.
1979). In the context of a post-answer default, a judgment cannot be rendered on
the pleadings. Id. The plaintiff still must offer evidence and prove its case.
Paradigm Oil, Inc. v. Retamco Operating, Inc., 372 S.W.3d 177, 183 (Tex. 2012);
4
In a non-jury case, a party may challenge the legal sufficiency of the evidence for the
first time on appeal. See Tex. R. App. P. 33.1(d); Briones v. Brazos Bend Villa Apartments, 438
S.W.2d 808, 815 (Tex. App.—Houston [14th Dist.] 2014, no pet.).

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In re E.M.W., No. 14-10-00964-CV, 2011 WL 5314525, at *4 (Tex. App.—
Houston [14th Dist.] Nov. 3, 2011, no pet.) (mem. op.) (holding that plaintiff still
must offer evidence and prove plaintiff’s case as in a judgment following a
contested trial).

We review the legal sufficiency of the evidence supporting a post-answer
default judgment under the same standard of review governing the legal
sufficiency of the evidence at a contested trial. When reviewing the legal
sufficiency of the evidence, we consider the evidence in the light most favorable to
the challenged finding and indulge every reasonable inference that would support
it. City of Keller v. Wilson, 168 S.W.3d 802, 823 (Tex. 2005). We are to credit
favorable evidence if a reasonable factfinder could and disregard contrary evidence
unless a reasonable factfinder could not. See id. at 827. We must determine
whether the evidence at trial would enable reasonable and fair-minded people to
find the facts at issue. See id. The factfinder is the only judge of witness credibility
and the weight to give to testimony. See id. at 819.
In its petition, Constellation sued Texas G&S for breach of contract as a
result of Texas G&S’s alleged failure to accept electricity deliveries at various
locations and its alleged failure to pay for electricity supplied before switching its
service to another provider. Constellation alleged that Texas G&S owed it
$381.04, plus interest and late fees, for services provided on Texas G&S’s open
account and $64,102.38, plus accrued interest and late fees, in losses resulting from
Texas G&S’s failure to accept electricity delivery at various locations. In its
petition Constellation also sought to recover attorney’s fees.

To establish a breach of contract, a party must show: (1) a valid contract
existed, (2) the party performed or tendered performance, (3) the defendant
breached the contract, and (4) the plaintiff sustained damages as a result of the

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breach. Abraham & Company, Inc. v. Smith, No. 14-03-00163-CV, 2004 WL
210570 at *2 (Tex. App.—Houston [14th Dist.] Feb. 5, 2004, no pet.) (mem. op.).

The reporter’s record indicates that the trial court did not hear any evidence
on the date of the trial resulting in the post-answer default judgment. The trial
court cannot render judgment on the pleadings. See Stoner, 578 S.W.2d at 682. In
addition to the pleadings, the clerk’s record contains two affidavits that were filed
after the date of the trial. One affidavit, from Constellation’s attorney, relates to
attorney’s fees. The other affidavit is from the manager of pricing for
Constellation, Mathew Motsinger, who states that the material terms of the
agreement between the parties are attached to the affidavit as Exhibits
A and B. But, there are no affidavit attachments in the clerk’s record. We need
not determine whether we can consider Motsinger’s affidavit in the clerk’s record
as evidence to sustain the post-answer default judgment because even if we could
consider it, the affidavit does not contain all of the material terms of agreement.
See T.O. Stanley Boot Co., Inc. v. Bank of El Paso, 847 S.W.2d 218, 221 (Tex.
1992) (holding that there was legally insufficient evidence of a breach of contract
when the evidence did not contain all of the material terms of the agreement).

We conclude that the evidence is legally insufficient to support the post-
answer default judgment. Therefore, we sustain Texas G&S’s second issue and
remand for a new trial. 5 See Dolgencorp of Texas, Inc. v. Lerma, 288 S.W.3d 922,
930 (Tex. 2009) (holding that the proper disposition is to reverse and remand a
case involving a post-answer default judgment supported by legally insufficient
evidence rather than to render judgment); Brown v. Ogbolu, 331 S.W.3d 530, 535
(Tex. App.—Dallas 2011, no pet.) (same).
5
Given our disposition of Texas G&S’s third issue, we need not address Texas G&S’s
second issue because even if we were to sustain Texas G&S’s second issue, that action would
not afford Texas G&S any greater relief than a new trial.

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In re E.M.W., No. 14-10-00964-CV, 2011 WL 5314525, at *4 (Tex. App.—
Houston [14th Dist.] Nov. 3, 2011, no pet.) (mem. op.) (holding that plaintiff still
must offer evidence and prove plaintiff’s case as in a judgment following a
contested trial).

We review the legal sufficiency of the evidence supporting a post-answer
default judgment under the same standard of review governing the legal
sufficiency of the evidence at a contested trial. When reviewing the legal
sufficiency of the evidence, we consider the evidence in the light most favorable to
the challenged finding and indulge every reasonable inference that would support
it. City of Keller v. Wilson, 168 S.W.3d 802, 823 (Tex. 2005). We are to credit
favorable evidence if a reasonable factfinder could and disregard contrary evidence
unless a reasonable factfinder could not. See id. at 827. We must determine
whether the evidence at trial would enable reasonable and fair-minded people to
find the facts at issue. See id. The factfinder is the only judge of witness credibility
and the weight to give to testimony. See id. at 819.
In its petition, Constellation sued Texas G&S for breach of contract as a
result of Texas G&S’s alleged failure to accept electricity deliveries at various
locations and its alleged failure to pay for electricity supplied before switching its
service to another provider. Constellation alleged that Texas G&S owed it
$381.04, plus interest and late fees, for services provided on Texas G&S’s open
account and $64,102.38, plus accrued interest and late fees, in losses resulting from
Texas G&S’s failure to accept electricity delivery at various locations. In its
petition Constellation also sought to recover attorney’s fees.

To establish a breach of contract, a party must show: (1) a valid contract
existed, (2) the party performed or tendered performance, (3) the defendant
breached the contract, and (4) the plaintiff sustained damages as a result of the

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