Brian Roberts D/B/A Lakeshore Marine Construction, LLC v. Lynn O. Surls ( 2016 )

NO. 12-15-00281-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
BRIAN ROBERTS D/B/A LAKESHORE § APPEAL FROM THE 392ND
MARINE CONSTRUCTION, LLC,
APPELLANT
V. § JUDICIAL DISTRICT COURT
LYNN O. SURLS,
APPELLEE § HENDERSON COUNTY, TEXAS
MEMORANDUM OPINION
Brian Roberts d/b/a Lakeshore Marine Construction, LLC filed this restricted appeal from
a default judgment granted Lynn O. Surls. The trial court granted the default judgment three
days after its reinstatement of the case, which had been dismissed for want of prosecution.
Roberts argues that the trial court had lost plenary power to reinstate the case or render the
subsequent default judgment. We reverse and dismiss.
BACKGROUND
The relevant events may be summarized as follows:
February 22, 2013 Surls files suit against Roberts alleging breach of contract,
breach of warranty, and fraud.
February 20, 2015 The District Clerk sends Surls notice that the case is set for
dismissal on the April 2, 2015 dismissal docket.
April 2, 2015 The trial court dismisses the case for want of prosecution and
notice is sent to Surls.
May 18, 2015 The trial court reinstates the case on its own motion. No motion
for reinstatement was filed by Surls.
May 21, 2015 The trial court grants default judgment against Roberts in the
amount of $30,509.95 and $2,000 in attorney’s fees.
November 18, 2015 Roberts files a notice of restricted appeal.
RESTRICTED APPEAL
To prevail on his restricted appeal, Roberts must establish that (1) he filed notice of the
restricted appeal within six months after the judgment was signed, (2) he was a party to the
underlying lawsuit, (3) he did not participate in the hearing that resulted in the judgment
complained of and did not timely file any post-judgment motions or requests for findings of fact
and conclusions of law, and (4) error is apparent on the face of the record. See Alexander v.
Lynda’s Boutique, 134 S.W.3d 845, 848 (Tex. 2004). Only the fourth requisite is at issue here.
JURISDICTION
In his sole issue, Roberts contends that during the thirty days following the trial court’s
signing of the order of dismissal, Surls filed no motion that would serve to extend the trial
court’s plenary power. Therefore, the trial court had no jurisdiction to reinstate the case or to
grant default judgment.
Applicable Law
The date a judgment or order is signed determines the beginning of the periods prescribed
by the Texas Rules of Civil Procedure for the trial court’s plenary power to grant a new trial or to
vacate, modify, correct, or reform a judgment or order. TEX. R. CIV. P. 306a(1). A trial court
retains jurisdiction over a case for a minimum of thirty days after signing a final judgment. TEX.
R. CIV. P. 329b(d); Lane Bank Equip. Co. v. Smith S. Equip., Inc., 10 S.W.3d 308, 310 (Tex.
2000). The period of plenary power may be extended by timely filing an appropriate
post-judgment motion. Lane Bank, 10 S.W.3d at 310. The filing of a motion for new trial or a
motion to modify, correct, or reform the judgment within the initial thirty day period extends the
trial court’s jurisdiction up to an additional seventy-five days, depending on when or whether the
trial court acts on the motions. Id.; see TEX. R. CIV. P. 329b(e), (g).
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When a case has been dismissed for want of prosecution, the trial court’s initial thirty
days of plenary power may also be extended by filing a verified motion to reinstate setting forth
the grounds therefor within thirty days after the order of dismissal is signed or within the period
provided by Rule 306a. TEX. R. CIV. P. 165a(3). An unverified motion to reinstate, although
filed within thirty days of the order of dismissal, will not serve to extend the court’s plenary
power beyond the thirty days following the signing of the order of dismissal. McConnell v.
May, 800 S.W.2d 194, 194 (Tex. 1990) (orig. proceeding) (per curiam). A trial court can
reinstate a case on its own initiative within thirty days after dismissal. Tex. Dep’t of Pub. Safety
v. Deck, 954 S.W.2d 108, 111-12 (Tex. App.—San Antonio 1997, no writ); Neese v. Wray, 893
S.W.2d 169, 170 (Tex. App.—Houston [1st Dist.] 1995, no writ).
Discussion
Surls maintains that, under Rule 165a(3), the trial court had seventy-five days from its
order of dismissal to reinstate the case. He seeks support for his position in language from the
opinion in In re Wal-Mart Stores, Inc. that ‘[r]ule 165a(3) requires that a case be reinstated by
signed written order within seventy-five days after the judgment is signed.” 20 S.W.3d 734, 740
(Tex. App.—El Paso 2000, orig. proceeding). In Wal-Mart, the trial court had signed a written
order dismissing the case for want of prosecution. Id. at 737. Almost immediately, the trial
judge made an oral pronouncement reinstating the case. Id. However, the trial court did not
render a signed order vacating the prior signed order of dismissal. Id. Unlike the instant case,
the extent of the trial court’s plenary power was not an issue in Wal-Mart. The question was
whether the trial court’s oral pronouncement was effective to reinstate the case. Id.
In both cases cited by the Wal-Mart court, verified motions for reinstatement had been
timely filed within thirty days of their dismissal for want of prosecution as required by Texas
Rule of Civil Procedure 165a(3). Emerald Oaks Hotel/Conference Ctr., Inc. v. Zardenetta, 776
S.W.2d 577, 578 (Tex. 1989) (orig. proceeding) (per curiam); Intercity Mgmt. Corp. v.
Chambers, 820 S.W.2d 811, 812 (Tex. App.–Houston [1st Dist.] 1991, orig. proceeding [leave
denied]). This effectively extended the trial court’s plenary power seventy-five days from the
date the judgment was signed. See TEX. R. CIV. P. 165a(3). In both cases, the trial court’s
docket sheet indicated that the motions to reinstate had been granted shortly after they were filed.
Zardenetta, 776 S.W.2d at 578; Chambers, 820 S.W.2d at 813. However, in neither case did the
trial court, within seventy-five days of the date of judgment, render a signed written order
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reinstating the case as required by the rule. Therefore, the reinstatement orders signed after the
expiration of the court’s extended period of plenary power were held ineffective. Zardenetta,
776 S.W.2d at 578; Chambers, 820 S.W.2d at 813.
It is clear that under Rule 165a(3), the trial court’s thirty day plenary power following an
signed order of dismissal is extended to seventy-five days only by the filing of a verified motion
to reinstate. Surls filed no motion of any kind within thirty days of the signing of the dismissal
order. In the absence of any motion extending the trial court’s initial thirty day period of plenary
power following the signing of the dismissal order on April 2, 2015, its plenary power expired
May 2, 2015. Therefore, the trial court had no jurisdiction to reinstate the case on May 18, 2015,
or to grant default judgment against Roberts on May 21, 2015. Roberts’s sole issue is sustained.
DISPOSITION
Having sustained Roberts’s sole issue, we reverse the judgment of the trial court and
dismiss the cause.
BILL BASS
Justice
Opinion delivered April 13, 2016.
Panel consisted of Hoyle, J., Neeley, J., and Bass, Retired J., Twelfth Court of Appeals, sitting by assignment.
(PUBLISH)
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COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
APRIL 13, 2016
NO. 12-15-00281-CV
BRIAN ROBERTS D/B/A LAKESHORE MARINE CONSTRUCTION, LLC,
Appellant
V.
LYNN O. SURLS,
Appellee
Appeal from the 392nd District Court
of Henderson County, Texas (Tr.Ct.No. 2013B-0205)
THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, because it is the opinion of this Court that there was error
in the trial court’s judgment, it is ORDERED, ADJUDGED and DECREED by this Court that
the judgment of the trial court be reversed and the trial court cause be dismissed; and that all
costs of this appeal be, and the same are, adjudged against the Appellee, LYNN O. SURLS, for
which let execution issue; and that this decision be certified to the court below for observance.
Bill Bass, Justice.
Panel consisted of Hoyle, J., Neeley, J. and Bass, Retired J., Twelfth Court of Appeals,
sitting by assignment.
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