Court of Appeals of Texas, Fifth District, Dallas
Proceeding from the 44th Judicial District Court Dallas
County, Texas Trial Court Cause No. DC-14-07813
Justices Francis, Evans, and Whitehill.
original proceeding, relator complains the trial court's
order reinstating the case is void because the order was
issued outside the trial court's plenary period. We
conditionally grant the writ.
underlying case was filed in 2014 and involves the partition
of real property among eleven parties. Relator has a 25%
interest in the property as the heir to a decedent whose
estate is in probate court. Relator was a named defendant in
the underlying case but did not appear until January 13,
2017. The underlying case was originally dismissed for want
of prosecution on February 13, 2015 and was reinstated on
March 27, 2015. The order of dismissal states the court
dismissed the case for want of prosecution "pursuant to
Texas Rules of Civil Procedure 165a and the Court's
inherent power" because plaintiff "failed to take
certain actions specified by the Court" and "failed
to appear at a scheduling conference" set for February
13, 2015. The scheduling conference referenced in the order
was scheduled by the trial court in an "Order Setting
Scheduling Conference and Notice of Policies." The Order
Setting Scheduling Conference ordered the parties or their
appear for a scheduling conference to address those matters
stated in [rules 166, 190, and 192] on the following date and
time: February 13, 2015 @9:00 a.m., or alternatively
dismissal for want of prosecution for failure to
comply with the Courts [sic] order for the submission and
entrance of a scheduling order. The Court prefers that
counsel submit an agreed Scheduling Order in lieu of
attending the scheduling conference hearing. Upon receipt of
the signed order, the hearing will be cancelled.
Order Setting Scheduling Conference also stated that the
parties should use the court's attached forms when filing
an agreed scheduling order and explained the procedure for
verifying those forms:
Requests for variations from the attached forms, even if
agreed, must be made at the scheduling conference. Failure to
attend the scheduling conference may result in the entry of
an order of dismissal for want of prosecution or other
parties in interest failed to appear at the February 13, 2015
scheduling conference, and the trial court dismissed the case
for want of prosecution the same day. The real parties in
interest filed an unverified motion to reinstate the case on
March 2, 2015. The court entered an order reinstating the
case on March 27, 2015. The "agreed judgment"
appointed a receiver to sell the real property and also
rendered a default judgment against relator for failure to
appear.Thereafter, the receiver notified the court
that she intended to sell the property. The trial judge
signed the receiver's report to confirm the sale of the
real property. Relator then appeared in the case and moved
the trial court to vacate the March 27, 2015 reinstatement
order and all subsequent orders. Relator contends the March
27, 2015 reinstatement order is void because the court signed
the order outside the plenary period. Relator seeks a writ of
mandamus ordering the trial court to vacate the reinstatement
order and all subsequent orders.
Court has mandamus jurisdiction to order the trial court to
vacate void orders, and the doctrine of laches will not bar a
mandamus proceeding seeking to vacate void orders. In re
Choice! Energy, L.P., 325 S.W.3d 805, 810 (Tex.
App.-Houston [14th Dist.] 2010, orig. proceeding) (laches is
not applicable when the order subject to the mandamus
proceeding is void).
trial court's authority to dismiss for want of
prosecution stems from two sources: (1) Rule 165a of the
Texas Rules of Civil Procedure, and (2) the court's
inherent power. See Veterans' Land Bd. v.
Williams, 543 S.W.2d 89, 90 (Tex. 1976); Bevil v.
Johnson, 157 Tex. 621, 625, 307 S.W.2d 85, 87 (1957).
Rule 165a enables a trial court to dismiss when a plaintiff
fails to appear for any scheduled hearing or trial of which
the party had notice, or when the case is not disposed of
within the time periods set by the Texas Supreme Court.
Tex.R.Civ.P. 165a(1), (2). The common law also vests the
trial court with the inherent power to dismiss when a
plaintiff fails to prosecute his or her case with due
diligence. Villarreal v. San Antonio Truck &
Equip., 994 S.W.2d 628, 630 (Tex. 1999). Regardless of
which vehicle the trial court uses to dismiss the case for
want of prosecution, however, the plaintiff must first be
provided with notice and an opportunity to be heard. See
Tex.R.Civ.P. 165a(1) ("Notice of the court's
intention to dismiss and the date and place of the dismissal
hearing shall be sent by the clerk to each attorney of
record...."); Villarreal, 994 S.W.2d at 630.
motion to reinstate must be verified and filed with the clerk
within 30 days of the signing of the order of dismissal.
McConnell v. May, 800 S.W.2d 194, 194 (Tex. 1990). A
timely filed and verified motion to reinstate will extend the
trial court's plenary power. Tex.R.Civ.P. 165a(3). Filing
a proper motion to reinstate has the same effect on appellate
deadlines and the court's plenary power as the filing of
a motion for new trial. Butts v. Capitol City Nursing
Home, Inc., 705 S.W.2d 696, 697 (Tex. 1986). But if a
motion to reinstate is not verified, or is not timely, it
does not extend the deadlines or the trial court's
plenary power. McConnell, 800 S.W.2d at 194
(unverified motion to reinstate does not extend the trial
court's plenary power). Orders signed after the trial
court loses plenary power are void. In re Florance,
377 S.W.3d 837, 839 (Tex. App.-Dallas 2012, orig.
proceeding); Malone v. Hampton, 182 S.W.3d 465, 468
(Tex. App.-Dallas 2006, no pet.) (citing State ex rel.
Latty v. Owens, 907 S.W.2d 484, 486 (Tex. 1995) (per
undisputed that the motion to reinstate was not verified and
did not, therefore, extend the court's plenary power.
See, e.g. McConnell, 800 S.W.2d at 194
(conditionally granting writ to vacate void reinstatement
order where motion to reinstate was not verified). The trial
court signed the dismissal order on February 13, 2015. The
trial court's plenary power expired March 15, 2015 -
thirty days after the dismissal order was signed.
Tex.R.Civ.P. 165a(3), 306a, 329b. To extend the trial
court's plenary period beyond March 15, 2015, the real
parties in interest were required to file a verified motion
to reinstate on or before March 15, 2015. The motion they
filed was not verified. Because the real parties in interest
did not file a verified motion to reinstate within thirty
days of the signing of the order of dismissal, the trial
court's jurisdiction to reinstate the case expired on
March 15, 2015. See McConnell, 800 S.W.2d at 194.
The March 27, 2015 order reinstating the case and all orders
signed after that date are void.
real parties in interest argue the lack of verification is
irrelevant because the trial court's Order Setting
Scheduling Conference did not provide notice that their
claims could be dismissed for want of prosecution under the
trial court's inherent authority. The real parties
maintain the trial court could only dismiss the case for
failure to submit a scheduling order. They also argue they
did not have notice of the possibility of dismissal because
they did not receive the Order Setting Scheduling Conference.
We disagree with the real parties' arguments. Rule 165a
requires a party to file a verified motion to reinstate
within thirty days of the date the dismissal order is signed.
The real parties filed a motion to reinstate within thirty
days but it was not verified. The motion, therefore, did not
extend the trial court's plenary period. Further, notice
was not lacking here. The Order Setting Scheduling Conference
provided two bases for dismissing the case, the dismissal
order states the trial court was dismissing the case for both
reasons, and the ...