Court of Appeals of Texas, Fifth District, Dallas
IN RE MIKOOZ MART AND SYED ASIM RAZA RIZVI, Relators
Original Proceeding from the 191st Judicial District Court
Dallas County, Texas Trial Court Cause No. DC-18-14482
Justices Myers, Molberg, and Nowell
Mikooz Mart and Syed Asim Raza Rizvi, filed a petition for
writ of mandamus contending the trial court abused its
discretion by reinstating this case after its plenary power
had expired. After reviewing the petition, the response from
the real party in interest, and the mandamus record, we
conclude the trial court lacked plenary power to reinstate
the case, and the court's order reinstating the case is
void. Therefore, relators are entitled to mandamus relief,
and we grant the writ instanter.
party in interest, Olivia Romero, sued relators alleging
premises liability because she slipped and fell in their
store. The trial court dismissed the case for want of
prosecution on February 27, 2019. Real party did not file a
motion to reinstate or notice of appeal within thirty days.
Nor did she file a notice of restricted appeal.
August 7, 2019, 161 days after the trial court signed the
judgment dismissing the suit for want of prosecution, real
party filed "Plaintiff's Verified Motion to Extend
Post-Judgment Deadlines and Reinstate." Real party
asserted in the motion that she and her counsel did not
receive notice of the judgment until July 29, 2019, 152 days
after the signing of the judgment, when real party's
counsel visited the Dallas County District Clerk's
website. She also stated, "Plaintiff files this Motion
to Extend during the Court's plenary power over the
judgment pursuant to Tex.R.Civ.P. 306a(5)." On September
20, 2019, 205 days after the judgment, the trial court
granted the motion and ordered that the case was
is an available remedy to set aside a reinstatement order
signed after the trial court's plenary power expires.
In re Dansby, 583 S.W.3d 838, 840 (Tex. App.-Dallas
2019, orig. proceeding); In re S. Mgmt. Servs.,
Inc., No. 05-19-00653-CV, 2019 WL 3244492, at *1 (Tex.
App.-Dallas July 19, 2019, orig. proceeding) (mem. op.).
Generally, to be entitled to mandamus relief, a relator must
show both that the trial court has clearly abused its
discretion and that relator has no adequate appellate remedy.
In re Nationwide Ins. Co. of Am., 494 S.W.3d 708,
712 (Tex. 2016) (orig. proceeding). If the trial court lacked
subject-matter jurisdiction over the underlying proceeding,
then the order is void. In re Ashton, 266 S.W.3d
602, 604 (Tex. App.-Dallas 2008, orig. proceeding). A trial
court abuses its discretion by entering a void order, and the
relator need not establish lack of an adequate appellate
remedy to obtain mandamus relief. In re Sw. Bell Tel.
Co., 35 S.W.3d 602, 605 (Tex. 2000) (orig. proceeding).
a party must file a motion to reinstate within thirty days of
the judgment dismissing the case for want of prosecution.
Tex.R.Civ.P. 165a(3). If the trial court does not rule on the
motion, then it is overruled by operation of law seventy-five
days after the judgment is signed. Id. If a party
timely files a motion to reinstate, then the trial court
"has plenary power to reinstate the case until 30 days
after all such timely filed motions are overruled, either by
a written and signed order or by operation of law, whichever
occurs first." Id. "Any action taken by a
trial court after it loses plenary power is void."
Pipes v. Hemingway, 358 S.W.3d 438, 445 (Tex.
App.-Dallas 2012, no pet.).
Civil Procedure 306a(4) and (5) provides a procedure for
extending the trial court's plenary power to consider a
motion to reinstate. See Tex. R. Civ. P. 165a(3),
306a(4), (5). This rule applies when the movant and the
movant's attorney did not receive notice of the signing
of the judgment nor acquire actual knowledge of the judgment
within twenty days after the signing of the judgment but did
receive notice or acquire knowledge of the judgment within
ninety days of the judgment. Id. 306a(4), (5);
Levit v. Adams, 850 S.W.2d 469, 470 (Tex. 1993) (per
curiam) ("[N]otice received after the 90th day is simply
not covered by the Rule.") If the party proves the date
it received notice or acquired knowledge of the judgment was
within twenty to ninety days of the signing of the judgment,
then the time for filing the post-judgment motions and the
trial court's plenary power to rule on the motions run
from the date of notice or knowledge. Tex.R.Civ.P. 306a(4),
party stated in her motion to reinstate that her attorney
received notice of the judgment on July 29, 2019, which was
152 days after the signing of the judgment. Because real
party did not receive notice within ninety days of the
judgment, Rule 306a(4), (5) did not apply to real party and
did not extend the time for real party to file her motion for
reinstatement of the case. See Levit, 850 S.W.2d at
470 ("The actual knowledge acquired by Levit on the 91st
day after dismissal did not suffice under Rule 306a(4) to
restart the trial court's jurisdiction to entertain a
motion to reinstate."). Therefore, the trial court's
plenary power to reinstate the case expired on March 29,
2019, thirty days after the signing of the final
judgment. Tex.R.Civ.P. 329b(d).
trial court signed the order granting real party's motion
to reinstate after its plenary power had expired. Therefore,
the order was void and constituted an abuse of discretion.
See In re Sw. Bell, 35 S.W.3d at 605. Because the
order was void, relators need not show they lacked an
adequate appellate remedy. See id.
party argues she and her attorney did not receive notice that
the case was set for hearing on the dismissal docket or
notice that the trial court had signed the final judgment.
See Tex. R. Civ. P. 165a(1) (trial court clerk
required to send notice of dismissal hearing and notice of
judgment of dismissal to each party or attorney);
id. 306a(3) (trial court clerk required to send
notice of signing of final judgment to each party or
attorney). She argues that to uphold the dismissal of this
case despite her lack of notice of the dismissal hearing and
of the signing of the judgment would violate her
constitutional right to due process and be an abuse of
discretion by this Court. However, the cases real party cites
demonstrate she had potential avenues to obtain reinstatement
of the case other than a Rule 306a(4) motion and motion to
reinstate, including a restricted appeal and a bill of
review. See Dickerson v. Sonat Expl. Co., 975 S.W.2d
339 (Tex. App.-Tyler 1998, pet. denied) (restricted appeal);
Gutierrez v. Lone Star Nat'l Bank, 960 S.W.2d
211 (Tex. App.-Corpus Christi-Edinburg 1997, pet. denied)
(bill of review); see also Tex. R. App. P. 30
(restricted appeal). Real party's lack of notice of the
dismissal hearing and of the judgment does not create an
exception to the deadlines in Rule 306a. See Tex. R.
Civ. P. 165a(1) (trial court clerk's failure to send
notices of dismissal hearing or of dismissal for want of
prosecution "shall not affect any of the periods
mentioned in Rule 306a except as provided in that
rule"). Real party's arguments do not show that the
trial court had jurisdiction to reinstate the case.
grant relators' petition for writ of mandamus and order
that the writ of mandamus issue instanter. We vacate the
trial court's September 20, 2019 reinstatement order. We