in Re Saundra Lee Micklos ( 2006 )

Amended Petition for Writ of Mandamus Granted on Rehearing; Memorandum Opinion dated February 7, 2006 Withdrawn, and Memorandum Opinion on Rehearing filed June 29, 2006

Amended Petition for Writ of Mandamus Granted on Rehearing; Memorandum Opinion dated February 7, 2006 Withdrawn, and Memorandum Opinion on Rehearing filed June 29, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-05-01236-CV

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IN RE SAUNDRA LEE MICKLOS, Relator

ORIGINAL PROCEEDING

WRIT OF MANDAMUS

M E M O R A N D U M  O P I N I O N  O N  R E H E A R I N G

Relator Saundra Lee Micklos seeks a writ of mandamus ordering respondent, the Honorable Martha Hill Jamison, presiding judge of the 164th District Court, Harris County, Texas, to vacate her order of October 3, 2005, overruling relator=s plea to the jurisdiction and motion to vacate the order reinstating the underlying personal injury suit.  See Tex. Gov=t Code Ann. ' 22.221 (Vernon 2004); see also Tex. R. App. P. 52.1.  We issued a memorandum opinion on February 7, 2006 denying relator=s requested relief because her mandamus petition failed to comply with the Rules of Appellate Procedure.  We granted relator=s motion for rehearing and leave to file an amended petition.  On rehearing, we withdraw our memorandum opinion of February 7, 2006 and issue this memorandum opinion in its place, granting relator=s amended petition for writ of mandamus.

Background

This original proceeding stems from a personal injury suit filed by real party, Marcie Nettles, against relator in May of 2004.  On September 10, 2004, the trial court signed an order dismissing the case for want of prosecution.  Real party filed a verified motion to reinstate pursuant to Texas Rule of Civil Procedure 165a on October 18, 2004,^[1] which the trial court granted by order dated January 3, 2005 (the AJanuary 3 order@).  In June of 2005, relator filed a combined plea to the jurisdiction and motion to vacate the January 3 order (the Aplea@), claiming the trial court=s plenary power had expired prior to that date.  In response to the plea, real party=s attorney asserted for the first time that he had not received notice of the dismissal from the clerk of the court, but had learned of the dismissal on October 4, 2004;  and therefore, the filing deadlines for the motion to reinstate had begun to run on October 4 pursuant to Texas Rule of Civil Procedure 306a.  Relator=s plea was overruled by order dated October 3, 2005 (the AOctober 3 order@).

Standard of Review 

To be entitled to mandamus relief, a relator must show that the trial court committed a clear abuse of discretion and there is no adequate remedy by appeal.  In re Ford Motor Co., 165 S.W.3d 315, 317 (Tex. 2005) (orig. proceeding); In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135B36 (Tex. 2004) (orig. proceeding).  A trial court abuses its discretion when it fails to correctly apply the law.  Ford Motor, 165 S.W.3d at 317; Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding).  If a trial court erroneously reinstates a case after its plenary power has expired, there is no adequate remedy by appeal and mandamus will issue.  Estate of Howley v. Haberman, 878 S.W.2d 139, 140 (Tex. 1994) (orig. proceeding) (per curiam);  In re Bokeloh, 21 S.W.3d 784, 793 (Tex. App.CHouston [14th Dist.] 2000, orig. proceeding).

Discussion

In her amended petition, relator argues the trial court=s plenary power expired prior to the January 3 order because: (1) real party=s verified motion to reinstate was not timely filed under Rule 165a; and (2) relator failed to comply with the procedures set forth in Rule 306a(5) to extend the trial court=s plenary power for filing that motion.   

A party seeking reinstatement of a case dismissed for want of prosecution must file a verified motion to reinstate, generally within thirty days after the dismissal order was signed; in the absence of such a timely motion, the trial court=s plenary jurisdiction expires thirty days after dismissal.  See Tex. R. Civ. P. 165a(3); Mem=l Hosp. of Galveston County v. Gillis, 741 S.W.2d 364, 365 (Tex. 1987) (per curiam); In re Montemayor, 2 S.W.3d 542, 545 (Tex. App.CSan Antonio 1999, orig. proceeding); see also Tex. R. Civ. P. 329b(f). Here, the verified motion to reinstate was filed on October 18, 2004, thirty-eight days after the dismissal order was signed on September 10, 2004.  See Tex. R. Civ. P. 4, 21a.  Real party does not dispute that her motion to reinstate was filed more than thirty days after the dismissal order was signed, but contends^[2] that the motion to reinstate should be construed as a Rule 306a motion, extending the trial court=s plenary power and rendering the motion timely.   

As relevant to this case, if a party adversely affected by a judgment does not receive the required notice or acquire actual knowledge of it within twenty days after it is signed, then the period of the trial court=s plenary power to vacate the judgment begins on the earlier of the dates on which the party received notice or acquired actual knowledge, respectively.  Tex. R. Civ. P. 306a(4). However, in order to establish the application of this time period, the adversely affected party is required to prove in the trial court, on sworn motion, the date on which notice or actual knowledge of the judgment was received or acquired more than twenty days after it was signed.  Tex. R. Civ. P. 306a(5); In re Montemayor, 2 S.W.3d at 545.  Compliance with Rule 306a(5) is jurisdictional, and unless a party establishes that he had no notice or knowledge of the judgment in accordance with that rule, the trial court=s plenary jurisdiction is not extended by Rule 306a(4).  Grondoma v. Sutton, 991 S.W.2d 90, 91B92 (Tex. App.CAustin 1998, pet. denied); see Gillis, 741 S.W.2d at 365B66.

In this case, real party=s attorney asserts that the timetables for determining the court=s plenary power began October 4, 2004, the date he received actual knowledge of the dismissal, because the motion to reinstate should be construed as a Rule 306a motion.  However, the motion to reinstate fails to even mention, let alone provide proof of, the date that either real party or her attorney received notice, or acquired actual knowledge, of the dismissal.^[3]  Although real party expressly complained in her motion to reinstate that she was not timely notified of the court=s intent to dismiss the case, she did not mention any lack of notice of the dismissal order nor allege that actual knowledge of it was acquired more than twenty days after the dismissal order was signed until after the January 3 reinstatement order was entered (in response to relator=s plea).  See Tex. R. Civ. P. 306a(5).  Further, there is no record of any hearing being conducted on the motion to reinstate, and the January 3 order does not suggest that the date on which real party had received notice or acquired knowledge of the dismissal had been considered.  See id.; Gillis, 741 S.W.2d at 365B66.  Because neither the motion to reinstate nor anything else in our record up to the January 3 order satisfies any of the requirements of Rule 306a(5), we have no basis to treat it as a motion complying with those requirements.    

Real party also relies on her response to relator=s plea, filed in July of 2005, approximately nine months after the motion to reinstate was filed and six months after the January 3 reinstatement order was signed, to satisfy Rule 306a.  However, to adopt this argument, we would have to conclude that a Rule 306a(5) showing of late acquisition of actual knowledge could somehow relate back to the January 3 order and thereby extend the trial court=s plenary power to January 3 after the fact.  Although we are to liberally construe the Rules of Civil Procedure, we can find no authority or rationale to support such a construction of the rules, and we are not free to disregard their plain language.  See Tex. R. Civ. P. 1; Beam v. A.H. Chaney, Inc., 56 S.W.3d 920, 923  (Tex. App.CFort Worth 2001, pet. denied) (stating that liberal construction does not require ignoring the rule).

In sum, because real party=s motion to reinstate was untimely and she did not establish that the timetables under Rule 306a(4) applied, the trial court=s plenary power was not extended, and the January 3 reinstatement order was signed outside of the trial court=s plenary power, rendering that order void.  See Tex. R. Civ. P. 165a(3); Howley, 878 S.W.2d at 140; see also In re Dickason, 987 S.W.2d 570, 571 (Tex. 1998); Gillis, 741 S.W.2d at 365; In re Bokeloh, 21 S.W.3d at 793B94. Accordingly, we conditionally grant the writ of mandamus.^[4]

/s/        Richard H. Edelman

Justice

Amended Petition for Writ of Mandamus Granted and Memorandum Opinion on Rehearing filed June 29, 2006.

Panel consists of Justices Fowler, Edelman, and Guzman.  (Fowler, J. concurs in result only.)

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^[1]           The certificate of service for the motion to reinstate reflects that it was served on relator on October 5, 2004, but its cover letter to the clerk=s office is dated October 18, 2004, and the motion is file-stamped October 22, 2004. During oral argument, real party acknowledged that the motion was, in fact, mailed on October 18.

^[2]           Real party did not file a response to the petition or amended petition, but did present arguments during oral submission.

^[3]           See Tex. R. Civ. P. 306a(5); Gillis, 741 S.W.2d at 365B66 (declining to construe a motion to reinstate as a 306a motion because, in part, the movant failed to allege that she had no notice or knowledge of the dismissal order within twenty days). 

^[4]           Writ will issue only if the trial court fails to comply with this opinion.