in Re: Aurora Loan Services ( 2005 )

                              NUMBER 13-05-541-CV

                         COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG

                                 IN RE: AURORA LOAN SERVICES

                                  On Petition for Writ of Mandamus

                               MEMORANDUM OPINION

                     Before Justices Hinojosa, Yañez, and Rodriguez

                            Memorandum Opinion by Justice Yañez

Relator, Aurora Loan Services, has filed a petition for writ of mandamus complaining that the Honorable Daniel Robles, presiding judge of County Court at Law No. 3, Cameron County, Texas, abused his discretion in reinstating the lawsuit of the real party in interest, Carlos Moran.  We conditionally grant relief.

                                                                    Background

On April 7, 2005, the trial court dismissed a wrongful foreclosure case for want of prosecution.  On April 20, 2005, Moran filed an unverified motion to reinstate and motion for trial setting.  On May 31, 2005, the trial court entered an order setting these motions for hearing on June 15, 2005.  On June 15, 2005, the trial court granted Moran=s motion to reinstate.

By original proceeding filed on August 24, 2005, Aurora Loan Services contends that Moran=s unverified motion failed to extend the trial court=s plenary jurisdiction, and accordingly, the trial court lacked jurisdiction when it reinstated this case.  This Court requested and received a response to the petition from Moran.  Moran contends that a motion to reinstate is not required to be verified under rule 165a.  See Tex. R. Civ. P. 165a (governing dismissals for want of prosecution).

                                                                     Mandamus

If the trial court erroneously reinstates a case after it loses jurisdiction, the ruling can be challenged by mandamus.  Estate of Howley v. Haberman, 878 S.W.2d 139, 140 (Tex. 1994); In re Garcia, 94 S.W.3d 832, 834 (Tex. App.BCorpus Christi 2002, orig. proceeding); see, e.g., City of McAllen v. Ramirez, 875 S.W.2d 702, 704-05 (Tex. App.BCorpus Christi 1994, orig. proceeding) (trial court erroneously granted unverified motion).  

                                                                       Analysis

A trial court has plenary power to reinstate a case within thirty days of dismissal for want of prosecution.  Tex. R. Civ. P. 165a(3), (4); Neese v. Wray, 893 S.W.2d 169, 170 (Tex. App.BHouston [1st Dist.] 1995, no writ).  A verified motion to reinstate filed within thirty days of dismissal extends plenary power for the same amount of time as would a motion for new trial.  Tex. R. Civ. P. 165a(3), (4); McConnell v. May, 800 S.W.2d 194, 194 (Tex. 1990) (orig. proceeding).

In this case, Moran=s motion to reinstate was not verified and did not include affidavits.  Rule 165a expressly provides that a motion to reinstate Ashall set forth the grounds therefor and be verified by the movant or his attorney.@  Tex. R. Civ. P. 165a(3).  An unverified motion is a nullity and does not extend the trial court's plenary jurisdiction or the deadlines for perfecting an appeal.  McConnell, 800 S.W.2d at 194; Garcia, 94 S.W.3d at 834.  Therefore, the trial court's plenary jurisdiction expired because Moran did not file a verified motion within thirty days after the order of dismissal.  McConnell, 800 S.W.2d at 194; Garcia, 94 S.W.3d at 834.  Accordingly, the trial court had no authority to grant the motion for reinstatement more than thirty days after the dismissal.

                                                                     Conclusion

The trial court lacked jurisdiction to reinstate the case. We conditionally grant the petition for writ of mandamus. The writ will only issue if the trial court refuses to withdraw its order reinstating the case.

PER CURIAM

Memorandum opinion delivered and filed

this the 28th day of November, 2005.