in Re Martin Carlos Aboytes ( 2023 )

Petition for Writ of Mandamus Conditionally Granted and Memorandum
Opinion filed February 16, 2023.
In The
Fourteenth Court of Appeals
NO. 14-22-00812-CV
IN RE MARTIN CARLOS ABOYTES, Relator
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
County Civil Court at Law No. 2
Harris County, Texas
Trial Court Cause No. 1173308
MEMORANDUM OPINION
On November 1, 2022, relator Martin Carlos Aboytes filed a petition for writ
of mandamus in this court. See Tex. Gov’t Code Ann. § 22.221; see also Tex. R.
App. P. 52. In the petition, relator asks this court to compel the Honorable Jim F.
Kovach, presiding judge of the County Civil Court at Law No. 2 of Harris County,
to vacate his October 12, 2022 order reinstating the underlying case. We
conditionally grant the petition.1
BACKGROUND
Ameyia Jackson sued Carlos Aboytes for damages allegedly sustained in a car
accident. After granting two continuances, the trial court set this case for trial for
the two-week period beginning August 15, 2022, with the pre-trial hearing on
August 12, 2022. The Order for Jury Trial Setting, Scheduling & Notice of Intent
to Dismiss stated: “FAILURE TO APPEAR AT PRETRIAL BY VIDEO
CONFERENCE WILL RESULT IN THE CASE BEING DISMISSED FOR WANT
OF PROSECUTION.” Neither Jackson nor her counsel appeared at the August 12,
2022 pretrial hearing, and the trial court signed the order dismissing the case the
same day.
On September 19, 2022, Jackson filed a verified motion to reinstate,
contending that the failure to attend the pretrial conference was not intentional for
done with conscious disregard but was the result of a mistake or an accident. Jackson
further claimed that she had been diligently prosecuting the case as she had fully
participated in discovery and formal mediation. Relator responded that the trial
court did not have jurisdiction to reinstate the case because Jackson’s motion was
not timely filed and she had not shown the court that she had diligently prosecuted
the case. The trial court signed the order reinstating the case on October 12, 2022.
Relator brings this mandamus challenging the trial court’s order reinstating the case.
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We requested a response to the petition from real party in interest, but she did not file
one.
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STANDARD OF REVIEW
Ordinarily, to be entitled to mandamus relief, relator must establish that (1)
the trial court abused its discretion; and (2) no adequate remedy by appeal exists.
See In re Christianson Air Conditioning & Plumbing, LLC, 639 S.W.3d 671, 681
(Tex. 2022) (orig. proceeding). A trial court clearly abuses its discretion if it reaches
a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error
of law or if it clearly fails to analyze the law correctly or apply the law correctly to
the facts. In re H.E.B. Grocery Co., L.P., 492 S.W.3d 300, 302‒03 (Tex. 2016)
(orig. proceeding) (per curiam); In re Cerberus Capital Mgmt. L.P., 164 S.W.3d 379,
382 (Tex. 2005) (orig. proceeding) (per curiam). A relator need not show that it
does not have an adequate remedy by appeal when the complained-of order is void.
In re Sw. Bell. Tel. Co., 35 S.W.3d 602, 605 (Tex. 2000) (orig. proceeding) (per
curiam).
ANALYSIS
When a plaintiff’s lawsuit is dismissed for want of prosecution, the only
available remedy is a motion for reinstatement. Jarrell v. Bergdorf, 580 S.W.3d 463,
466 (Tex. App.—Houston [14th Dist.] 2019, no pet.). If a case is dismissed for want
of prosecution, the party seeking reinstatement must file a verified motion to
reinstate within 30 days after the date on which the order of dismissal was signed.
Tex. R. Civ. P. 165a(3); In re Montemayor, 2 S.W.3d 542, 545 (Tex. App.—San
Antonio 1999, orig. proceeding). Rule 306a of the Texas Rules of Civil Procedure
provides a procedure to modify the post-judgment timetables so that the time begins
on the date that the party or the party’s counsel first received notice or acquired
actual knowledge of the signing of the judgment more than 20, but less than 90, days
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after it was signed. Jarrell, 580 S.W.3d at 467 (citing Tex. R. Civ. P. 306a(4), (5));
Montemayor, 2 S.W.3d at 545.
Jackson filed her motion to reinstate 38 days after the trial court had signed
the order of dismissal. Jackson did not invoke the Rule 306a procedure or otherwise
assert that she had first received notice of the dismissal order more than 20, but less
than 90, days after the trial court signed the order. The trial court’s plenary power
expired 30 days after the date of the October 12, 2022 order. The time limits
provided in Rule 165a are mandatory and jurisdictional and an order of reinstatement
entered after the expiration of the relevant time limits is void. Walker v. Harrison,
597 S.W.2d 913, 915 (Tex. 1980) (orig. proceeding). Jackson did not timely file her
motion to reinstate and the trial court’s order reinstating the case is void.
We conclude that the trial court abused its discretion by reinstating the case.
Because the order is void, relator need not show that he does not have an adequate
remedy by appeal. See Sw. Bell. Tel. Co., 35 S.W.3d at 605.
CONCLUSION
Relator has established that he is entitled to mandamus relief. Accordingly,
we conditionally grant relator’s petition for writ of mandamus and instruct the trial
court to vacate its October 12, 2022 order reinstating the underlying case. We are
confident the trial court will act in accordance with this opinion and the writ will
issue only if the trial court fails to comply. We lift our January 11, 2023 stay.
PER CURIAM
Panel consists of Justices Christopher and Justices Bourliot and Wilson.
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