First Court of Appeals holds service on pro se of MSJ via email address on file with court was proper service

Glenn Herbert Johnson v. Harris County, et al., 01-18-00783-CV, (Tex. App – Hou [1st Dist.], Feb. 27, 2020)

This is an inverse condemnation case where the First Court of Appeals affirmed the granting the defendants’ motion for summary judgment. However, it will be of interest mostly to litigators as the central issue is proper service on a pro se by email during litigation.

Johnson (pro se) alleged that Harris County’s tax sale of his property constituted a taking. The County filed a traditional and no-evidence motion for summary judgment, to which Johnson did not respond. The trial court granted the motion. Johnson filed a post-judgment motion arguing that he did not receive notice of the MSJ or hearing, but listed a different email address for notice. The County submitted evidence it served Johnson via the electronic filing email he had on file with the court.  The trial court denied Johnson’s post-judgment motion and Johnson appealed.

The court first noted that Johnson failed to provide a single citation to the record in his brief and therefore waived any arguments. When an appellate issue is unsupported by argument or lacks citation to the record or legal authority, nothing is presented for review.  However, the court went on to say that even if he had cited to the record, he could not prevail.  The County’s MSJ was filed twenty-eight days before the date of submission and was therefore timely filed.  A nonmovant has the right to minimum notice of the summary judgment hearing. Id. “Proper notice to the nonmovant of the summary judgment hearing is a prerequisite to summary judgment.” Rule 21a deals with service and notice requirements for pleadings, including motions for summary judgment.  Pro se litigants are not required to participate in the electronic service program.  However, the Rule also states that if no email address is on file with the electronic filing manager, the document “may be served in person, mail, by commercial delivery service, by fax, by email, or by such other manner as the court in its discretion may direct.” “A certificate by a party or an attorney of record . . . shall be prima facie evidence of the fact of service.” Notice properly sent pursuant to Rule 21a raises a presumption that notice was received.  No evidence in the record indicates Johnson attempted to change the email address on file with the court or to the attorney in charge for the County. Pursuant to Texas Rule of Civil Procedure 57, Johnson was required to designate an email address if he had one.  Harris County used the designated email address and Johnson presented no evidence of a change. Therefore, Johnson did not overcome the presumption that Harris County properly served him and that he received Harris County’s motion and notice via email service.   Finally, to defeat a no-evidence MSJ, a non-movant must file a response. Here, Johnson did not.  The MSJ was affirmed.

If you would like to read this opinion click here. Panel consists of Justices Lloyd, Kelly, and Landau. Reversed and Remanded. Memorandum Opinion by Justice Lloyd. Docket page with attorney information can be found here.