Hecker v. Wal-Mart Stores, Inc.

United States Court of Appeals,

Fifth Circuit.

No. 94-20067

Summary Calendar.

Nancy E. HECKER and John Hecker, Plaintiffs-Appellants,

v.

WAL-MART STORES, INC., Defendant-Appellee.

Oct. 4, 1994.

Appeal from the United States District Court for the Southern
District of Texas.

Before DUHÉ, WIENER and STEWART, Circuit Judges.

PER CURIAM:

Nancy Hecker challenges the district court's dismissal of her

suit as time-barred. We reverse and remand.

BACKGROUND

Hecker filed suit in Texas state court complaining that on

July 8, 1991, Wal-Mart's negligence caused her to slip and fall in

the Wal-Mart store and suffer personal injuries. Hecker mailed her

complaint to the state court clerk's office on or about July 1,

1993. On July 7, the clerk's office informed her that the check

enclosed for the filing fee was insufficient and that an additional

$20 was required. On July 9, one day after the applicable two-year

statute of limitations had run, the clerk's office received the

additional amount and marked the complaint filed. About a month

later, Wal-Mart removed the case to federal court and moved to

dismiss it as time-barred. The district court granted the motion.

This appeal followed.

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 DISCUSSION

It is undisputed that the applicable Texas statute of

limitations required that Hecker file her personal injury suit with

the state clerk by July 8, 1993. V.T.C.A. Civ.Prac. & Rem.Code §

16.003 (person must bring personal injury claim not later than two

years after the day the cause of action accrues); Texas Rules

Civ.Proc., Rule 22 (suit is commenced by filing petition in the

office of the clerk). The question before us is whether tendering

documents without the proper filing fees constitutes filing. Texas

case law provides a clear answer.

The longstanding rule in Texas is 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." Standard Fire Ins. Co. v. LaCoke, 585 S.W.2d 678,

680 (1979); see also Arndt v. Arndt, 709 S.W.2d 281, 282

(Tex.App.—Houston [14th Dist.] 1986, no writ) (per curiam).

Furthermore, an instrument is deemed filed even if it is tendered

without the appropriate filing fee. Arndt, 709 S.W.2d at 282

(examining language in statute governing filing fees and holding

that paying fees is not a condition precedent to filing); see also

Port Distrib. Corp. v. Fritz Chem. Co., 775 S.W.2d 669, 670

(Tex.App.—Dallas 1989, writ dism'd by agr.) (noting that clerk's

refusal to file-stamp a document because filing fee was not

attached was improper). In light of this clear precedent, we must

conclude that Hecker's suit was filed when received by the clerk

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and thus timely.

CONCLUSION

The district court's dismissal of Hecker's complaint is

REVERSED and this matter is REMANDED.

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