Opinion filed August 3, 2023
In The
Eleventh Court of Appeals
__________
No. 11-22-00054-CV
__________
JACY GATES, Appellant
V.
DENISE MCDONALD AND DIANA DOBBINS, Appellees
On Appeal from the 42nd District Court
Coleman County, Texas
Trial Court Cause No. CV20-01034
OPINION
This appeal arises from the second phase of the parties’ partition proceedings.1
Appellant, Jacy Gates, filed objections to the report of the commissioners.
1
Appellant also appealed the trial court’s first partition decree. We considered the merits of
Appellant’s contentions in that appeal and have today affirmed the trial court’s judgment. See Gates v.
McDonald, No. 11-21-00190-CV (Tex. App.—Eastland Aug. 3, 2023, no pet. h.) (mem. op.).
Appellees, Denise McDonald and Diana Dobbins, filed a response to Appellant’s
objections wherein they asserted that his objections were untimely. The trial court
entered a final judgment and partition decree wherein it found that Appellant’s
objections were untimely.
Appellant brings two issues on appeal. In his first issue, he contends that the
trial court erred by proceeding and entering the final judgment and second partition
decree given the timely filing of his objections and jury demand. In his second issue,
Appellant contends that the trial court erred by not granting his motion for new trial.
We reverse and remand.
Background Facts
Our opinion in Cause No. 11-21-00190-CV, released today, thoroughly
recites the facts that concern the parties’ underlying partition dispute. Therefore,
this opinion only recites the facts that are pertinent to the issues that we must address
in this appeal.
Appellees filed suit to partition in kind certain real property located in
Coleman County that is jointly owned by them and Appellant. The trial court entered
a decree of partition (the first partition decree) which (1) determined that the property
was susceptible to partition in kind, (2) set out each party’s interest in the property,
and (3) appointed commissioners to partition the property pursuant to the trial court’s
decree.
Although Appellant appealed and challenged the first partition decree, the
second phase of the partition case continued. Ultimately, the commissioners
submitted a report recommending how the property should be partitioned. The
primary issue in this case is whether Appellant’s objections to the commissioners’
report were timely filed.
2
Appellees’ attorney electronically submitted the commissioners’ report to the
district clerk on the afternoon of September 22, 2021. However, the district clerk
did not affix a file mark on the commissioners’ report showing that it was filed on
September 22. Instead, the clerk affixed a file mark that indicated that the
commissioners’ report was filed on September 23:
The file date of September 23 remained undisturbed for the next several days,
including through October 23, which was the thirtieth day after September 23, and
through October 25, the date on which Appellant filed his objections to the report. 2
Appellant asserted in his objections that (1) the commissioners’ report was
materially erroneous and/or unequally and unjustly partitioned the property and,
2
October 23, 2021 was a Saturday.
3
alternatively, (2) the commissioners’ report was untimely because he had filed an
appeal (Cause No. 11-21-00190-CV referenced above) to challenge the first partition
decree and was awaiting a ruling from our court in that appeal. Appellant sought a
jury trial on his objections.
On November 3, 2021, Appellees filed their response to Appellant’s
objections, asserting that the commissioners’ report was actually filed on
September 22, because that is the date that Appellees’ attorney electronically
submitted the commissioners’ report. Appellees requested the entry of a final decree
of partition based upon their contention that Appellant’s objections to the
commissioners’ report were untimely.
A hearing on Appellants’ response was set for November 23, 2021. However,
Appellant’s attorney did not appear for the hearing. On November 23, the trial court
entered its final judgment and partition decree wherein it determined that
Appellant’s objections were untimely. The trial court affirmed and adopted the
commissioners’ report and ordered that the property be partitioned consistent with
the recommendations set forth in the report.
On December 23, 2021, Appellant filed a motion for new trial and,
alternatively, a motion to set aside and motion to reconsider. Appellant’s motion
was ultimately overruled by operation of law. See TEX. R. CIV. P. 329b(c). This
appeal followed.
Analysis
A partition case consists of two decrees that are both final and appealable.
Griffin v. Wolfe, 610 S.W.2d 466, 466 (Tex. 1980). In the first decree, the trial court
determines the following: (1) the share or interest of each owner in the property that
the owners seek to divide, (2) all questions of law or equity that may affect title, and
4
(3) whether the property in dispute is subject to partition or sale. TEX. R. CIV. P. 760,
761, 770; Ellis v. First City Nat’l Bank, 864 S.W.2d 555, 557 (Tex. App.—Tyler
1993, no writ.). Further, the trial court is required to appoint three or more
disinterested persons as commissioners who shall partition the property in dispute
pursuant to the trial court’s decree; the trial court may also provide directions to the
commissioners as may be necessary and appropriate. See TEX. R. CIV. P. 760, 761.
With respect to the second decree, which is the focus of Appellant’s challenge
in this appeal, the commissioners “shall proceed to partition the real estate described
in the decree of the court, in accordance with the directions contained in such decree
and with the provisions of law and these rules.” TEX. R. CIV. P. 766. After the
partition is completed, the commissioners must submit, under oath, a written report
to the trial court.3 TEX. R. CIV. P. 769. Within thirty days after the commissioners
file their report, any party to the partition suit may file objections with the trial court.
TEX. R. CIV. P. 771.
Appellant asserts in his first issue that the trial court erred by overruling his
objections to the commissioners’ report without conducting a jury trial on his
objections. The resolution of this issue turns on the timeliness of his objections. In
this regard, Appellant’s failure to appear for the hearing on Appellees’ response to
his objections is of no consequence because the timeliness question turns on the
documents in the clerk’s record.
“Texas Rule of Civil Procedure 771 sets forth the procedures and timelines
for objections and states that a trial on any objections is mandatory[.]” Williams v.
Mai, 471 S.W.3d 16, 19 (Tex. App.—Houston [1st Dist.] 2015, no pet.); see Green v.
3
Rule 769 requires the commissioners’ report to be under oath. Here, the commissioners’ report
was not under oath. However, Appellant does not complain of this omission.
5
Marek, No. 03-01-00502-CV, 2002 WL 722164, at *1 (Tex. App.—Austin Apr. 25,
2002, no pet.) (not designated for publication) (“Rule 771 contemplates a ‘trial on
the issues’ when a party to a partition action has objections to the commissioners’
report.”). Thus, a trial is mandatory if objections are timely filed to the
commissioners’ report. See Williams, 471 S.W.3d at 19; Redden v. Hickey, 308
S.W.2d 225, 229 (Tex. App.—Waco 1957, writ ref’d n.r.e.). The right to a trial on
timely-filed objections includes the right to a jury trial if requested. Redden, 308
S.W.2d at 229.
Rule 769 of the Texas Rules of Civil Procedure sets out the requirements for
the substance of the commissioners’ report. Williams, 471 S.W.3d at 18; see TEX. R.
CIV. P. 769. It also sets out the procedures by which the commissioners and the clerk
must abide. Williams, 471 S.W.3d at 18. With respect to the clerk’s responsibilities,
the rule requires that “[t]he clerk shall immediately mail written notice of the filing
of the [commissioners’] report to all parties.” TEX. R. CIV. P. 769. Here, the clerk
did not send written notice of the filing of the commissioners’ report to the parties.
However, Appellant does not complain of the omission of the clerk sending notice
of the filing of the commissioners’ report. 4
4
The use of “shall” in Rule 769 indicates that the clerk has a mandatory duty to immediately mail
written notice of the filing of the commissioners’ report. Section 21.049 of the Texas Property Code
contains a similar requirement with respect to condemnation proceedings. See TEX. PROP. CODE ANN.
§ 21.049 (West 2014). In John v. State, the Texas Supreme Court determined that Section 21.049 sets out
a mandatory duty for the clerk to follow, and that the applicable period for filing objections is tolled until
the clerk sends the required notice. 826 S.W.2d 138, 139–41 (Tex. 1992). In this regard, the court noted
that “[w]hen a statute provides the method by which notice shall be given in a particular instance, the notice
provision must be followed with reasonable strictness.” Id. at 141 n. 4. The San Antonio Court of Appeals
reached the same result in Oncor Elec. Delivery Co. LLC v. Schunke, No. 04-13-00067-CV, 2013 WL
6672494, at *3 (Tex. App.—San Antonio Dec. 18, 2013, pet. dism’d) (mem. op.). The court concluded
that the fact that Oncor had actual notice of the filing in Schunke was of no consequence because the clerk
had a mandatory duty to mail the required notice. Id.
6
Even though the clerk did not mail notice of the filing of the commissioners’
report, the clerk affixed a file mark on the commissioners’ report indicating that the
report was filed on September 23. The file mark is the memorandum of the clerk of
the date of a document’s filing. Pruitt v. State, 49 S.W. 366, 366 (Tex. 1899). Until
corrected, the date of the file mark is conclusive evidence of the date of filing. Id.
As summarized by a legal treatise, “[t]he memorandum of the date of filing, affixed
by the clerk or judge, is not conclusive where its error is shown by evidence received
on that issue, but it does control unless it is amended, if erroneous, pursuant to a
formal order of court.” 2 ROY W. MCDONALD & ELAINE A. GRAFTON CARLSON,
TEXAS CIVIL PRACTICE § 7:29 (2d. ed. 2022) (footnote omitted).
The September 23 date of filing, as reflected by the clerk’s file mark, remained
unchanged for the thirty-day period following the filing of the commissioners’
report, and it extended through the date Appellant filed his objections to the
commissioners’ report. On November 3, Appellees filed their response asserting an
earlier filing date for the commissioners’ report—September 22—because that is the
date that their counsel electronically transmitted it to the electronic filing service
provider.
On November 23, two months after the date of filing of the commissioners’
report, the trial court determined that Appellant’s objections were untimely. In doing
so, the trial court did not expressly change the date of filing of the commissioners’
report.5 As a result, for the purpose of this appeal, we consider that the trial court
implicitly changed the date of filing to September 22 in its final judgment entered
on November 23.
As reflected in the bookmarks of the clerk’s record, the date of filing of the commissioners’ report
5
remains September 23.
7
Appellees cite Rule 21(f)(5) of the Texas Rules of Civil Procedure in support
of their argument that the commissioners’ report was filed on September 22. This
rule for electronic filing provides as follows:
Timely Filing. Unless a document must be filed by a certain time of
day, a document is considered timely filed if it is electronically filed at
any time before midnight (in the court’s time zone) on the filing
deadline. An electronically filed document is deemed filed when
transmitted to the filing party’s electronic filing service provider[.]
TEX. R. CIV. P. 21(f)(5). Appellees rely on the second sentence of this provision to
assert that the commissioners’ report was filed on September 22, because that is
when their attorney transmitted it to the electronic filing service provider.
Appellees’ reliance on Rule 21(f)(5) is certainly understandable because it is
undisputed that their attorney electronically transmitted the commissioners’ report
on September 22.6 And this interpretation is consistent with the traditional principle
that “an instrument is deemed in law filed at the time it is left with the clerk,
regardless of whether or not a file mark is placed on the instrument and regardless
of whether the file mark gives some other date of filing.” See Standard Fire Ins.
Co. v. LaCoke, 585 S.W.2d 678, 680 (Tex. 1979). “The purpose of this rule is to
protect a diligent party from being penalized by the errors and omissions of the court
clerk.” Id.
Appellant responds to Appellees’ reliance on Rule 21(f)(5) by asserting that
“[s]urely a party is allowed to rely upon the clerk’s file-mark date in calculating a
dead-line based upon the date of filing.” Appellant cites In re Smith, for the
proposition that “the term ‘filed’ has a different meaning when viewed from the
6
Appellees’ attorney also electronically served the commissioners’ report on Appellant’s attorney
on September 22.
8
perspective of the clerk.” 270 S.W.3d 783, 786 (Tex. App.—Waco 2008) (orig.
proceeding). In this regard, the court in Smith noted that the clerk physically files a
document by indorsing a file mark on it, recording it in the clerk’s file docket, and
maintaining the document in the clerk’s file for the suit. Id.
There are two problems in this case that bear upon fundamental fairness and
due process that must be afforded to the parties in the lawsuit. First, despite the fact
that Rule 21(f)(5) provides that “[a]n electronically filed document is deemed filed
when transmitted to the filing party’s electronic filing service provider,” the clerk
did not use the date of September 22 on her file mark. Instead, she dated the file
mark with the date of September 23. 7 Irrespective of the reason why, the
commissioners’ report, in and of itself, reflected that it was filed on September 23.
We respectfully disagree with the dissent’s belief that, in the age of electronic
filing, the file mark is of “no consequence.” We first note that in its description of
“how does e-filing work,” the frequently asked questions section of eFileTexas.gov
states that the trial court clerk provides “an electronic timestamp notification” to the
filer when a document is accepted for filing. Frequently Asked Questions,
https://www.efiletexas.gov/faqs.htm (last visited August 1, 2023). Thus, e-filing
contemplates the continued use of a file mark. With respect to a partition
proceeding, the clerk has a mandatory duty to notify the parties of the filing of the
commissioners’ report. The closest thing that the clerk did to comply with this
requirement was to affix a file mark on the commissioners’ report and, in doing so,
the clerk indicated that the commissioners’ report was filed on September 23. See
Pruitt, 49 S.W. at 366.
7
This court is advised by its own clerk’s office that in efileTexas.gov, the clerk had the option of
placing the date of September 22 on the file mark on the commissioners’ report because that was the date
it was sent to the electronic filing service provider.
9
The second problem arises from the fact that the file date on the
commissioners’ report remained September 23 for the next several days, including
through the thirty-day period following either September 22 or September 23. At
best, the date of filing was not corrected until November 23. As noted in Pruitt, until
the date of the file mark is corrected, it remains conclusive evidence of the date of
filing. 49 S.W. at 366. As applied to the facts in this case, this principle justifies
Appellant’s reliance on the file date of September 23 at the time he filed his
objections to the commissioners’ report.
The touchstone of due process is fundamental fairness. In re B.L.D., 113
S.W.3d 340, 352 (Tex. 2003) (citing Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18,
24 (1981)). It would be fundamentally unfair for a filing which appeared to be timely
at the time it was filed to be rendered untimely after-the-fact because the date of
filing that the clerk placed on the commissioners’ report was later changed. As noted
in LaCoke, the purpose of the “deemed” filing date rule “is to protect a diligent party
from being penalized by the errors and omissions of the court clerk.” LaCoke, 585
S.W.2d at 680. Rule 21(f)(5) uses similar language pertaining to a “deemed” filing,
indicating that Rule 21(f)(5) is a rule of protection to the filing party. But here,
Appellees are not invoking Rule 21(f)(5) to protect them as the filers of the
commissioners’ report. Instead, they are using the deemed filing rule to cut short a
responsive filing deadline after the deadline had already passed. We conclude that
the use of Rule 21(f)(5) in this manner is inconsistent with the purpose of the deemed
filing rule and it is inconsistent with the requirements of due process.
At the time that Appellant filed his objections to the commissioners’ report,
the file mark of the commissioners’ report stated that it was filed on September 23.
Until the date of filing was corrected to a different date, Appellant was permitted to
10
rely on the date shown on the file mark. See Pruitt, 49 S.W. at 366. Thus,
Appellant’s objections to the commissioners’ report were timely.
Appellees assert in the alternative that even if Appellant’s objections were
timely filed, he is not entitled to a remand because his objections have no merit.
They contend that Appellant’s objections are insufficient because he only alleged
that the report was “materially erroneous and/or it unequally and unjustly partitions
the property” without specifying how the report was erroneous or creates an unequal
and unjust partition.
We first note that Appellant’s objections tracked the language of Rule 771:
“If the report be found to be erroneous in any material respect, or unequal and unjust,
the same shall be rejected.” TEX. R. CIV. P. 771. Appellees do not cite any authority
for the proposition that objections to a commissioners’ report must be stated with
any degree of specificity. Instead, they cite the burden at trial that Appellant would
bear. In this regard, the party who objects to the report bears the burden to prove
that the report is materially erroneous or that the partition is unequal and unjust.
Bowman v. Stephens, 569 S.W.3d 210, 221 (Tex. App.—Houston [1st Dist.] 2018,
no pet.); Ellis, 864 S.W.2d at 557. In the absence of contrary authority, we conclude
that objections that track the language of Rule 771 are sufficient.
Finally, Appellant also objected in the alternative to the commissioners’ report
on the basis of the pendency of the appeal from the first partition decree. Our
disposition today in Cause No. 11-21-00190-CV wherein we affirmed the first
partition decree renders moot Appellant’s objection to the commissioners’ report
based on the pendency of the other appeal.
We sustain Appellant’s first issue. Appellant is entitled to a trial on his
objection that the commissioners’ “report is materially erroneous and/or it unequally
11
and unjustly partitions the property.” Because of our disposition on Appellant’s first
issue, we do not reach his second issue.
This Court’s Ruling
The trial court’s final judgment and second partition decree is reversed, and
this cause is remanded for further proceedings consistent with this opinion.
JOHN M. BAILEY
CHIEF JUSTICE
August 3, 2023
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
(Trotter, J., dissenting with opinion)
12