Court of Appeals of Texas, Ninth District, Beaumont
GWENALYN WESTBROOK, AS ADMINISTRATOR OF THE ESTATE OF ERNEST WESTBROOK, Appellant
HEIRS OF DAVID CROCKETT AND MARVIN WHITEHEAD, Appellees
Submitted on February 21, 2018
Appeal from the 1st District Court Jasper County, Texas Trial
Cause No. 26673
Kreger, Horton, and Johnson, JJ.
appeal concerns a dispute regarding the validity of certain
conveyance documents purporting to convey title to a parcel
of land. The original lawsuit was filed in 2005 by Ernest
Westbrook ("Ernest") against the Heirs of David
Crockett ("Heirs"), and then assigned cause number
26, 673. The Heirs filed a counterclaim against Ernest and a
third-party claim against Marvin Whitehead
("Marvin") in 2009. Thereafter, Marvin filed an
answer, asserting a general denial. Ernest also filed an
answer, which asserted a general denial to the counterclaim.
In Ernest's answer, he also asserted that the
counterclaim was barred by res judicata and collateral
estoppel, but he did not reference any particular legal
proceeding. Ernest died in March of 2010, and Gwenalyn
Westbrook ("Gwenalyn"), as Administrator of
Ernest's estate, pursued the claim for Ernest's
filed a second supplemental petition on March 19, 2015, in
which she asserted claims against Marvin for breach of
contract and fraud. Gwenalyn sought actual and punitive
damages, attorney's fees and costs, and requested that
the court award her a constructive trust on the property.
According to the second supplemental petition (hereinafter
"the petition"), Marvin had agreed to pay $125, 000
to purchase the property at issue, but he stopped making
payments after having paid approximately $24, 000. The
petition further alleges that Marvin "removed the
original contract and attached a new contract to the previous
signature page, which stated that [Ernest] Westbrook had
previously received all consideration for this
transaction." Gwenalyn asserted a fraud claim and
alleged that Marvin had committed fraud by "writing a
new contract and attaching the signature page from a previous
contract between [Marvin] and [Ernest], and filed it of
record in the Jasper County Deed records" but Marvin
had not paid in full and does not own the property. On
February 3, 2017, the trial court signed a take-nothing
judgment against the plaintiff, from which Gwenalyn then
filed a notice of appeal.
appellate record reflects that on March 7, 2013, the trial
court signed an Order of Dismissal in cause number 26, 673,
On this the 7[th] day of March, 2013, came on to be
considered the above entitled and numbered cause, as provided
by the Texas Rules of Civil Procedure and the Rules of
Procedure of the Second Administrative Judicial District; it
is ordered that the same is in all things dismissed at the
cost of Plaintiff(s). Signed this 7[th] day of March, 2013.
clerk's docket also reflects that the entire cause was
dismissed for want of prosecution.
March 25, 2013, Gwenalyn filed an unverified motion to
reinstate, alleging that the parties had been attempting to
mediate. Marvin filed an objection to the motion to reinstate
on May 2, 2013, alleging that "[m]ore than two years
have elapsed since discovery has been substantially complete
in this case and Plaintiffs have not set this matter for
trial." On July 15, 2013, the trial court signed an
order stating, in relevant part, "[t]he parties shall
mediate the case and if mediation is unsuccessful, then the
case shall be set for trial within one (1) year of May 3,
court has plenary power to reinstate a case on its own motion
within thirty days after it signs an order of dismissal for
want of prosecution. See Tex. R. Civ. P. 165a(3),
(4); Neese v. Wray, 893 S.W.2d 169, 170 (Tex.
App.-Houston [1st Dist.] 1995, no writ)
(recognizing trial court has plenary power to reinstate case
within thirty days of dismissal even in absence of motion to
reinstate). If a motion to reinstate is not decided by a
written, signed order within seventy-five days after the
judgment dismissing the case is signed, it is deemed
overruled by operation of law. Tex.R.Civ.P. 165a(3);
Davis v. Smith, 227 S.W.3d 299, 303 n.2 (Tex. App.-
Houston [1st Dist.] 2007, no pet.). In the event the trial
court fails to sign a written order of reinstatement during
its 105-day plenary power, the judgment becomes final.
See Tex. R. Civ. P. 165a(3); Emerald Oaks
Hotel/Conference Ctr., Inc. v. Zardenetta, 776 S.W.2d
577, 578 (Tex. 1989) (orig. proceeding); Davis, 227
S.W.3d at 303.
Supreme Court of Texas has stated that an unverified motion
to reinstate does not extend the trial court's plenary
jurisdiction or the time in which to file a notice of appeal.
McConnell v. May, 800 S.W.2d 194, 194 (Tex. 1990)
(orig. proceeding) (granting mandamus relief to set aside
order reinstating case more than thirty days after dismissal
on unverified motion); see also In re K.M.L., 443
S.W.3d 101, 110 (Tex. 2014); Guest v. Dixon, 195
S.W.3d 687, 688 (Tex. 2006); Butts v. Capitol City
Nursing Home, Inc., 705 S.W.2d 696, 697 (Tex. 1986).
After the trial court's plenary power expires, it can
take no further action on the case. See Tex. R. Civ.
P. 329b(d). The time limits provided in Rule 165a are
mandatory and jurisdictional; orders of reinstatement entered
after the expiration of the trial court's plenary power
are void. See In re Dickason, 987 S.W.2d 570, 571
(Tex. 1998) (orig. proceeding) (trial court's order
granting new trial signed after expiration of plenary power
had expired was void); Walker v. Harrison, 597
S.W.2d 913, 915 (Tex. 1980); Harris Cty. v. Miller,
576 S.W.2d 808, 809 (Tex. 1979) (orig. proceeding);
Danforth Mem'l Hosp. v. Harris, 573 S.W.2d 762,
763 (Tex. 1978) (orig. proceeding); N-S-W Corp. v.
Snell, 561 S.W.2d 798, 798-99 (Tex. 1977) (orig.
proceeding); In re Valliance Bank, 422 S.W.3d 729,
732-33 (Tex. App.-Fort Worth 2013, no pet.) (orig.
proceeding); United Residential Props., L.P. v.
Theis, 378 S.W.3d 552, 557 (Tex. App.-Houston [14th
Dist.] 2012, no pet.).
appellate record reflects that Gwenalyn's motion to
reinstate was not verified, and under Rule 165a, her motion
did not extend the plenary power of the trial court.
See Tex. R. Civ. P. 165a(3), (4);
McConnell, 800 S.W.2d at 194. Therefore, the trial
court's plenary power over the cause ended thirty days
after the order of dismissal was entered, on April 6, 2013.
See Tex. R. Civ. P. 165a(3). As a result, the trial
court lacked jurisdiction to enter the July 15, 2013 order
purporting to reinstate the case. In re Dickason,
987 S.W.2d at 571. Moreover, even if Gwenalyn's motion to
reinstate had been verified, her motion was overruled by
operation of law and the judgment dismissing the case became
final. See Tex. R. Civ. P. 165a(3); Emerald Oaks
Hotel, 776 S.W.2d at 578; Davis, 227 S.W.3d at
303. Appellant argues that the March 7, 2013 order of
dismissal only dismissed that portion of the lawsuit
pertaining to claims between Ernest and the Heirs. Appellant
further argues that the caption for the order of dismissal,
which reads "Ernest Westbrook vs. Heirs of David
Crockett[, ]" controls. We disagree.
March 7, 2013 order by its express terms ordered cause number
26, 673 "in all things dismissed[.]" The
parties' rights and interests are determined by the
decretal portion of a trial court's order or judgment,
and not by any recitals preceding the decretal language.
See In re Thompson, ...