Gwenalyn Westbrook, as Administrator of the Estate of Ernest Westbrook v. Heirs of David Crockett and Marvin Whitehead ( 2018 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-17-00073-CV
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GWENALYN WESTBROOK, AS ADMINISTRATOR OF
THE ESTATE OF ERNEST WESTBROOK, Appellant
V.
HEIRS OF DAVID CROCKETT AND
MARVIN WHITEHEAD, Appellees
On Appeal from the 1st District Court
Jasper County, Texas
Trial Cause No. 26673
MEMORANDUM OPINION
This 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
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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 estate.
Gwenalyn 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
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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.
The appellate record reflects that on March 7, 2013, the trial court signed an
Order of Dismissal in cause number 26,673, which stated
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.
The clerk’s docket also reflects that the entire cause was dismissed for want of
prosecution.
On 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, 2013.”
A trial 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
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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.
The 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
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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.).
The 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.
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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.
The 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, 991 S.W.2d 527, 531 (Tex. App.—
Beaumont 1999, no pet.) (orig. proceeding).1
Accordingly, we have no choice but to dismiss the appeal for want of
jurisdiction. See Tex. R. App. P. 42.3(a).
APPEAL DISMISSED.
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LEANNE JOHNSON
Justice
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On March 25, 2013, Gwenalyn filed an unverified motion to reinstate her
claim against Whitehead after the dismissal, and Whitehead opposed the
reinstatement. Accordingly, it appears that Gwenalyn and Whitehead both
understood the order of dismissal included a dismissal of her claims against
Whitehead.
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Submitted on February 21, 2018
Opinion Delivered May 17, 2018
Before Kreger, Horton, and Johnson, JJ.
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