OPINION
For nearly three years now, as part of a modernization effort mandated by the Texas Supreme Court, the courts of this state have undergone a slow but steady transition from paper filings to electronic filings in civil cases. As part of this transition, service rules have changed, and now in most civil cases, all filings must go through the Office of Court Administration’s electronic clearinghouse, known as the Electronic Filing Manager (EFM). This case, which arose during the beginning of this transition period, deals with a plaintiffs attempts to serve pro se defendants electronically with a motion for summary judgment.
Appellants Joe Manny Cruz and Haydee Cruz appeal the trial court’s denial of their bill of review challenging a summary judgment granted in favor of Alejandro Sanchez. The Cruzes contend Sanchez never served them with the summary judgment motion, nor did they ever receive notice of the summary judgment hearing that terminated the underlying case. Sanchez maintains that he attempted to serve the motion electronically both through EFM and at an email address that ultimately turned out not to belong to Appellants. He also asserts that any defective electronic service on his part should be excused by, among other reasons, the Cruzes’ failure to provide an adequate email address in the first place.
For the following reasons, we will reverse and render judgment on a bill of review in favor of the Cruzes.
BACKGROUND
Sanchez Sues the Cruzes for Defamation
This bill of review case has its genesis in a defamation action tied to an employment
Following his termination, Sanchez sued Haydee Cruz and her husband Joe, alleging that the Cruzes had made defamatory statements to the investigator as part of a wide-ranging conspiracy against him orchestrated by various prominent townspeople. The case was docketed in the 210th District Court as Cause No. 2012-DCV-06506. In their pro se answer, which contained a counterclaim for defamation against Sanchez, the Cruzes stated that their address was 196 San Elizario in Clint, Texas (the Home address). It is undisputed that while they resided at that address, the Cruzes knew they could not receive mail at that address. Instead, the Cruzes, like many residents of Clint, had received mail at a separate P.O. Box for a number of years. The Cruzes never provided that P.O. Box address to the opposing side or the trial court during the course of litigation. When asked why the Cruzes never listed the P.O. Box address on court filings, Joe Cruz testified that he did not think he needed to do so, since he received jury duty notices at the P.O. Box and believed that the county already had his mailing address. The Cruzes did not hire an attorney to assist them in their defense of the defamation suit.
Trial Court Dismisses Cruzes’ Counterclaims for Want of Prosecution
On April 25, 2014, more than seventeen months after Sanchez filed his defamation case, the trial court- issued a notice of intent to dismiss the case for want of prosecution due to a lack of activity. The trial court set a status conference for May 6, 2014. Notice of this conference was mailed to the Cruzes’ home address and returned as undeliverable. On May 6, the trial court reset the status conference to May 21, 2014, and again mailed notice of the change to the Cruzes’ home address. The notice was again returned for insufficient address. On May 21, 2014, the trial court set a “Summary Judgment Hearing” for July 16, 2014, although no party had filed for summary judgment at that time. Again, the trial court mailed notice to the Cruzes’ home address, and again, the notice was returned as undeliverable. On May 22, 2014, the trial court dismissed the Cruzes’ counterclaims against Sanchez. Notice of the dismissal was sent to the Cruzes’ home address and then returned for insufficient address. Sanchez’s claims against the Cruzes remained outstanding.
Sanchez Attempts to Serve Motion for Summary Judgment Electronically
Following dismissal of the counterclaims, Sanchez filed for summary judgment on his remaining claims on June 25, 2014. In support of his motion, Sanchez relied on numerous “deemed admissions” from the Cruzes that were contained in
■At the bill of review hearing, Haydee Cruz testified that the Gmail account on the Certificate of Service was not her email address, and noted that the email address 'on Certificate of Service misspelled her first name as “hydee”' with no “á.” She denied receiving any notice of any summary judgment hearing. She also denied ever registering her actual email address—a student account hosted by El Paso Community College—-with EFM. Joe Cruz testified that he did not- have an email address at the tithe, and- also denied ever - receiving notice of any summary judgment motion.
The trial court held a summary judgment hearing on July 16, 2014. Five days later, Sanchez submitted an affidavit to the trial court relating to attorney’s fees incurred. It is undisputed that Sanchez never served this affidavit on thé Cruzes, electronically or otherwise. After receiving this affidavit, the trial court, on July 22, set another summary judgment hearing for July 30, but later changed its mind and instead rendered summary judgment before that hearing on July 25, 2Q14, awarding Sanchez damages, pre- and post-judgment interest, and attorney’s fees. The trial court attempted to provide notice via mail one last time to the Cruzes’ home address. As with the previous attempts, notice was returned undelivered.
Cruzes File a Bill of Review
The Cruzes maintain that they were not aware of the judgment until' February 2015, when they attempted to get a car loan and were told that an abstracted judgment for $250,000 appeared oh their credit report. On February 3, 2015, the El Paso County Sheriffs Department attempted to enforce a writ of execution against the Cruzes. They obtained counsel and, on April 1, 2015, filed for a stay and a bill of review seeking to re-open proceedings in the Sanchez defamation suit.
After a hearing, the trial court denied the Cruzes’ bill of review. This appeal followed.
DISCUSSION
In Issue One, the Cruzes urge us to grant their bill of review overturning the summary judgment because there is no evidence Sanchez properly served the motion on them, and because they never received the'hearing notices sent by the trial court. Sanchez counters that the trial court properly denied the bill of review because the Cruzes’ failure to receive service of the motion or subsequent hearing notices from the trial coui-t stemmed from their own fault or negligence.
Standard of Review and Applicable Law
“A bill of review is an' independent action to set aside a judgment that is no longer appealable or subject to challenge by a motion for new trial.” Wembley Inv. Co. v. Herrera,
Ordinarily, a claimant seeking a bill of review must establish three things; (1) a meritorious defense to the underlying cause of action; (2) which the plaintiff was prevented from making due to the opposing party’s fraud, accident, or wrongful act; (3) unmixed with the plaintiffs own fault or negligence. Mabon, Ltd. v. Afri-Carib Enters., Inc.,
Due process requires that parties receive notice “reasonably calculated, under the circumstances, to apprise interested parties of the pendency of the action and afford them the opportunity to present their objections.” Wimpy v. Motel 6 Op., L.P.,
Analysis
Both parties agree that the outcome of this case hinges on whether the record supports the finding that the Cruzes’ fault or negligence caused the summary judgment to be rendered against them without their notice. Ultimately, our inquiry on this point boils down to two questions. First, was the Cruzes’ failure to receive electronic service of Sanchez’s motion for summary judgment the result of their own fault or negligence? If not, was the initial defect in Sanchez’s service cured by the trial court’s subsequent mailed notices of a summary judgment hearing and the entry of judgment when those notices never actually reached the Cruzes?
The answer to both questions is no.
Was the Cruzes’ failure to receive electronic service of Sanchez’s motion for summary judgment their own fault?
We turn to the first question at hand.
Tex.R.Civ.P. 21a deals with service and notice requirements for pleadings, including motions for summary judgment. In 2014, a new version of Tex.R.Cxv.P. 21a took effect as the Texas court system began transitioning from paper filings toward electronic filing in civil cases. See Tex.Sup.Ct., Order Adopting Texas Rules of Civil Procedure 21c and Amendments to Texas Rules of Civil Procedure 4, 21, 21a, and 502.1, etc., Misc. Docket No. 13-9128, 76 Tex.B.J. 809-12 (Aug. 16, 2013)( adopted in accordance with Misc. Docket No. 12-9206 and Mise. Docket No. 13-9092).
Tex.R.Civ.P. 21a(a)(l) provides that a document “must be served electronically through the electronic filing manager if the email address of the party or attorney to be served is on file with the electronic filing manager.” 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.” Tex. R.CivP. 21a(a)(2). “Electronic service is complete on transmission of the document to the serving party’s electronic filing service provider. The electronic filing manag
“Receipt is an element of service.” Strobel v. Marlow,
The certificate of service on the motion for summary judgment is presumptively valid and binding as prima facie evidence of receipt unless challenged. TexR.CivP. 21a(e). Because the Cruzes have challenged the certificate of service, we must examine the evidence to determine whether the Cruzes had actual or constructive notice of the summary judgment motion. According to the certificate of service, Sanchez employed two alternative methods of service in this ease: service through EFM and service by email. On this record, Sanchez cannot establish that he used either method in a manner that was reasonably calculated to successfully provide notice.
First, Sanchez never showed that the Cruzes did or could have received his electronic filing through EFM. The Cruzes denied being registered with EFM, and Sanchez offered no affirmative evidence— such as proof that the Cruzes had registered with EFM or the receipt automatically generated by his electronic filing service provider—that would controvert their assertion. See Mathis,
As for service by email, Sanchez apparently conceded at a bill of review hearing that the email address he attempted to serve the motion at was incorrect.
Given that both forms of service failed, and given than Sanchez never alternatively served the Cruzes or attempted contact with the Cruzes, Sanchez cannot establish facts that would allow us to impute constructive notice onto the Cruzes, either. Constructive notice comes into play where “a party has fully complied with the notice requirements set forth in Tex.R.Civ.P. 21a and 166a, yet fails to establish actual receipt of notice upon [the] opposing party or counsel[,]” Gonzales v. Surplus Ins. Srvs.,
Sanchez insists that despite his own shortcomings in serving the motion electronically and his failure to prove the essential element of receipt, the trial court could still have denied the bill of review by determining that the Cruzes were’ at fault for Sanchez’s failure to properly serve the summary judgment motion, as the Cruzes breached a continuing obligation to the court to update their email address. We disagree. While Sanchez is correct that “pro se litigants are not exempt from the rules of procedure[,]” Wheeler v. Green,
Finally, Sanchez cites numerous cases in which courts have held that a party’s failure to update a 'mailing address constitutes negligence in the bill of review context, and he urges us to affirm the bill of review denial based on the fact that the Cruzes listed a mailing address at which they could not receive mail. But the mailing address argument is a red herring, because here Sanchez did not attempt to serve the motion for summary judgment by mail; he attempted service electronically. And while Sanchez insinuates that he attempted service electronically because -he knew previous attempts at mail service had failed, that does not change the fact that Sanchez’s failure to correctly dispatch notice of the motion for summary judgment using' the method he chose was the supervening cause of the Cruzes’ failure to receive notice. If the. serving party never actually serves the receiving party, the receiving party is entitled to a bill of review as.a matter of law. See Saint v. Bledsoe,
We sympathize with the trial court’s frustrations in this case. The actions of both litigants in this case, combined with the push toward mandatory electronic filing, put the trial court in an unenviable position. The Cruzes, as pro se litigants, fell into a procedural gap. But this gap was not unforeseen. On the contrary, the drafters of the amended Rule 21a planned for a situation like this one, in which a party is not registered to receive service through EFM. Rule 21a specifically provides that “[i]f the email address of the party or attorney to be served is not on file imth the electronic filing manager, the document may be served on that party or attorney under subparagraph (2)[,]” i.e., “in person, [by] mail, by commercial delivery service, by fax, by email, or by such other manner as the court in its discretion may direct.” [Emphasis added]. Tex. R.CivP. 21a(a)(l)-(2). While Sanchez filed his motion for summary judgment while the electronic filing transition was underway, the then-new rule clearly did not foreclose alternate methods of service. Had service via electronic means been unavailable, Sanchez had other options at his disposal to achieve proper service, including requesting substitute service. But simply stating that he sent the document to an email address he wrongly but in good faith believed belonged to the Cruzes and dispatching process into the digital ether, hoping it meets its intended target, is not enough to effectuate service.
In sum, the Cruzes’ failure to receive notice of the supimary judgment motion resulted solely from Sanchez’s failure to properly serve the motion electronically. Sanchez cannot establish actual electronic service, nor can he show that the Cruzes had constructive notice and were merely attempting to dodge or selectively accept service. The Crazes have established they are presumptively entitled to bill of review relief. See Mahon, Ltd.,
Did the Trial Court’s Attempt to Mail Notice of the Hearing to the Cruzes Vitiate the Taint of Sanchez’s Initial Failure to Properly Serve the Cruzes?
One final wrinkle remains. While Sanchez did not properly attempt to serve the Cruzes with a copy of the motion for summary judgment in compliance with Rule 21a, the trial court did attempt to send out two separate notices of the hearing to the Cruzes’ home address before rendering summary judgment. The trial court also sent a copy of the judgment to the home address, to no avail. See Tex. R.CivP. 306a. Were these notices sufficient to cure Sanchez’s initial defective service attempts, impute constructive notice
We hold they were not.
“The right to summary judgment exists only in compliance with Texas Rule of Civil Procedure 166a.” Tanksley,
We emphasize that this case presents a unique fact scenario. Had this been a bill of review challenging the sufficiency of the notices the trial court mailed out with respect to the dismissal for want of prosecution hearing, this case may have very well turned out differently. Compare Saint,
Issue One is sustained.
CONCLUSION
The Cruzes have established that they are entitled to a bill of review as a matter of law. The judgment of the trial court is reversed, and we render judgment granting the Cruzes’ bill of review and re-opening Trial Cause JSTo. 2012-DCV-06506.
Hughes, J., Not Participating
Notes
. Because the Cruzes’ bill of review is aimed at reversing the summary judgment granted in Sanchez’s favor and maltes no mention of their previously-dismissed counterclaim, we do not construe the Cruzes’ bill of review as seeking reinstatement of their counterclaim against Sanchez.
. E-filing became mandatory in the Texas Supreme Court and in the courts of appeals on January 1, 2014. E-filing became mandatory “in all non-juvenile civil cases in the district courts, statutory county courts, constitutional county courts and statutory probate courts” on the following staggered scheduled:
• Courts in counties with a population of 500,000 or more: January 1, 2014
• Courts in counties with a population of ■ 200,000 to 499,999: July 1, 2014
• Courts in counties with a population of 100,000 to 199,999: January 1, 2015
• Courts in counties with a population of 50,000 to 99,999: July 1, 2015
• Courts in counties with a population of 20,000 to 49,999: January 1, 2016
• Courts in counties with a population less than 20,000: July 1, 2016
See Tex.Sup.Ct., Amended Order Requiring Electronic Filing in Certain Courts, Mise. Docket No. 15-9048 (Mar. 10, 2015), available online http://www.txcourts.gov/AlL ArchivecLDocuments/SupremeCourl/ AdministrativeOrders/miscdocket/13/ 13909200. at pdf. Given that El Paso County has a population of more than 500,000, e-filing became mandatory in civil cases in El Paso County, including those filed in the 210th District Court, on January 1, 2014.
. MR. CHACON: You and I, when we were the—with talking about why they weren't here. And I told them that I would try to look up another way of serving them, which would be like the electronic sense. I’m going to try it through that and I did send it to them through the electronic deal. I did some research. I got an e-mail that looked like them—like theirs, and if they’ve got a notice, they come here.
You just—it was sent. It was not received because I tried to send it to a different address. I don’t recall. I know the certificate of service says that I sent it via e-mail and I attempted to get theirs, but we were always ready to give more time for it they appeared. And it was sent to them, but, I mean, it was— I don’t recall if it was sent to them via mail to that address, but I know that it was—we attempted to send it to them through some way that we looked for, which was the e-mail.
THE COURT: But, I mean, you agree that that was not done?
MR. CHACON: I did send it, Judge.
THE COURT: Sent it where?
MR. CHACON: Through the e-mail provided, Judge.
THE COURT: Which was the wrong e-mail.
MR. CHACON: Which was the wrong e-mail, but because I didn’t know any other address—
THE COURT: But hold on a minute. Where did you come up with that e-mail address?
MR. CHACON: I did—I had an investigator research it. I don't exactly recall how [4 R.R. 47-48],
, In the frequently asked questions section of the eFileTexas.gov Web site, one of the questions is "Can I use eFileTexas.gov if I am a pro per or pro se?” Answer: "Yes, pro se parties are eligible to use an EFSP for e-filing. However, it is not mandatory they do so.” See Office of Court Administration, eFileTexas.gov, Frequently Asked Questions, http://www.efile texas.gov/faqs.htm (last visited Jan. 31, 2017).
. Tex.Civ.Prac. & Rem.Code Ann. § 30.015(a)(West 2015) provides that "[i]n a
. El Paso County Local Rule 1.02 states:
RULE 1.02 PARTIES PROCEEDING PRO SE:
ANY NATURAL PERSON PROCEEDING ON HIS/HER OWN BEHALF WITHOUT AN ATTORNEY SHALL BE EXPECTED TO READ AND FOLLOW THESE LOCAL RULES, THE TEXAS RULES OF CIVIL PROCEDURE, THE TEXAS RULES OF CIVIL EVIDENCE, THE TEXAS RULES OF CRIMINAL EVIDENCE, THE TEXAS CODE OF CRIMINAL PROCEDURE AND THE TEXAS RULES OF APPELLATE PROCEDURE, AS MAY BE APPROPRIATE IN THE PARTICULAR CASE. FAILURE TO COMPLY MAY BE SANCTIONED OR PUNISHED IN ACCORDANCE WITH APPLICABLE PROVISIONS OF ALL OF THESES RULES. PRO SE PARTIES SHALL BE RESPONSIBLE FOR PROVIDING THE CLERK WITH CURRENT ADDRESSES AND TELEPHONE. NUMBERS, AND SHALL ALSO BE RESPONSIBLE FOR PROVIDING COPIES OF ALL PAPERS FILED TO ALL OTHER PARTIES OR ATTORNEYS. SUCH FILED PAPERS SHALL ALWAYS CONTAIN THE CURRENT ADDRESS AND PHONE NUMBER OF THE PRO' SE PARTY. THE CLERKS OF THE COURT SHALL PROVIDE A PRO SE PARTY A COPY OF THIS RULE 1.02 AT THE TIME A PETITION OR AN ANSWER IS FILED. See El Paso Cty. Loc.R. 1.02, http://www. epcounty.com/councilofjudges/documents/ partl.pdf. There is no obligation created by this Rule requiring a pro se party to furnish an email address,
. See Order Adopting Texas Rules of Civil Procedure 21c and Amendments to Texas Rules of Civil Procedure 4, 21, 21a, and 502.1, etc., Mise. Docket No. 13-9128, 76 TexB.J. 809-12.