It is common for litigators to receive a large volume of email each day, and most people can relate to the experience of having overlooked an email. In Red Bluff, LLC v. Tarpley, a state appellate court held that an email notice that a judgment has been signed constitutes actual notice of judgment, even if the email is unread. ABA Litigation Section leaders caution that it is necessary to have a system in place to ensure every email is read and relevant deadlines are calendared.
A nursing assistant sued her employer for personal injuries she allegedly sustained when she placed her leg under a falling bariatric patient to break his fall. After a jury returned a $7.1 million verdict for the nursing assistant, the trial court entered judgment on the verdict. When it signed the judgment, the trial court used the proposed judgment the employer’s counsel submitted.
The trial court signed the judgment on February 4, 2022. It was undisputed that the trial court clerk did not send the parties immediate notice of the judgment by first-class mail as was required under Texas Rule of Civil Procedure 306. But the post-judgment deadlines started to run the date the judgment was signed unless neither the employer nor its counsel acquired “actual knowledge of the order” within 20 days of the trial court’s signing.
On February 8, 2022, the Harris County District Clerk sent an e-notice that a judgment had been signed in the case. The notice was delivered by email to the employee and employer’s respective counsel. Defense counsel stated under oath that he did not open the email and did not recall seeing it until after the employee’s attorney mentioned it to him in March 2022.
The trial court held that defense counsel acquired actual knowledge of the signing of the judgment when he received the email from the court on February 8. Because defense counsel received actual notice of the signing of the judgment within 20 days after the judgment was signed, the motion to reset post-judgment deadlines was denied.
The Court of Appeals for the Fourteenth District of Texas agreed and held actual knowledge of the judgment existed upon receipt of the email notice in defense counsel’s inbox. Knowledge of the contents of the judgment was not required to create actual knowledge of judgment.
In Tarpley, the dissenting justice explained that the initial email notice concerning the judgment was an “unread email.” The unread email contained notice that a judgment had been signed, but it did not include a copy of the judgment. Under these facts, the dissenting justice would have held there was no evidence that defense counsel received “actual knowledge” of the judgment when the email was delivered to counsel’s inbox.
The dissent noted that while the majority opinion was consistent with three prior appellate decisions, there was a fourth precedent in which the intermediate appellate court held counsel’s receipt of an email to which a judgment was attached did not provide actual notice of judgment when the record showed the email was never opened. As of this writing, the state supreme court had not addressed this conflict among the intermediate appellate courts.
“In view of the local rules of the trial court, if actual knowledge was not satisfied by the email notice in this case, the rule could operate to extend deadlines indefinitely,” explains Edward A. Marod, West Palm Beach, FL, cochair of the Litigation Section’s Professional Liability Litigation Committee. “The dissent is looking out for his brother lawyer, but the rules are the rules,” notes Marod.
“It’s unfortunate that the deadlines were missed, but counsel’s oversight does not stop the clock from running on appellate deadlines,” remarks Tiffany Rowe, Washington, DC, former cochair of the Section’s Professional Liability Litigation Committee. “Lawyers have a fiduciary duty to their clients,” reminds Rowe. To argue “the email provides no more than constructive knowledge is misplaced given the heightened duty of the attorney-client relationship,” Rowe adds.
An attorney “has a duty to find a way to be aware of incoming communications,” explains Marod. For example, a firm’s “IT department can set up an automatic forward of every court email to an associate or office clerk who will open and read it” to ensure relevant deadlines are calendared, suggests Marod. “Some jurisdictions allow counsel to designate a secondary recipient of each attorney’s official correspondence from the court,” adds Marod. “Electronic notices should be received by more than one individual,” agrees Rowe.
Going a step further, “all lawyers, whether at large firms or in solo practice, should have a second individual that follows all court dates, deadlines, and filings,” counsels Rowe. In other words, “cases should be double-calendared” she states. Best practices would have attorneys put “a system in place at the firm to comply with the rules” of the courts in which they practice, concludes Marod.
