in Re New Hampshire Insurance Co. ( 2012 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00281-CV
IN RE NEW HAMPSHIRE RELATOR
INSURANCE CO.
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ORIGINAL PROCEEDING
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MEMORANDUM OPINION1
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Relator New Hampshire Insurance Co. seeks a writ of mandamus ordering
the trial court to vacate its March 17, 2011 order,2 which vacated its December
30, 2009 order dismissing the underlying suit for want of prosecution. Relator
contends that the trial court’s plenary power over its December 30 dismissal
1
See Tex. R. App. P. 47.4.
2
We requested a response from real party in interest Magellan
Reinsurance Company, Ltd., but a response was not filed.
order had expired when, fifteen months later, it signed the March 17 order
reinstating the case.
The law is well-settled that a trial court possesses plenary jurisdiction over
a dismissal order for thirty days or—if a timely, verified motion to reinstate is
filed—for thirty days after the motion to reinstate is ruled on or is overruled by
operation of law. See Tex. R. Civ. P. 165a(3), (4); McConnell v. May, 800
S.W.2d 194, 194 (Tex. 1990) (orig. proceeding) (explaining that a verified motion
to reinstate filed within thirty days of dismissal extends plenary power for the
same amount of time as a motion for new trial); Neese v. Wray, 893 S.W.2d 169,
170 (Tex. App.––Houston [1st Dist.] 1995, no writ) (recognizing that a trial court
possesses plenary jurisdiction to reinstate a case within thirty days of dismissal
order even in the absence of motion to reinstate). If no written order of
reinstatement is signed during the trial court’s plenary power, the order of
dismissal becomes final. See, e.g., McConnell, 800 S.W.2d at 194 (holding that
“since Blanchard did not file a verified motion to reinstate within 30 days of the
signing of the order of dismissal, the trial court’s jurisdiction to reinstate the case
expired”); Emerald Oaks Hotel/Conference Ctr., Inc. v. Zardenetta, 776 S.W.2d
577, 578 (Tex. 1989) (orig. proceeding) (holding that because no written order of
reinstatement was signed during the trial court’s plenary power, “the judgment of
dismissal became final, terminating the trial court’s plenary power”); cf. In re
Brookshire Grocery Co., 250 S.W.3d 66, 68 (Tex. 2008) (orig. proceeding)
(“Mandamus relief is appropriate when a trial court issues an order after its
2
plenary power has expired.”); Clewis v. Safeco Ins. Co. of America, 287 S.W.3d
197, 203 (Tex. App.—Fort Worth 2009, no pet.) (explaining that “[w]hen the trial
court loses plenary power over a judgment, it also generally lacks the authority to
vacate the judgment”).
A few additional facts exist here. First, prior to signing the December 30,
2009 dismissal order, the trial court had signed an order abating the underlying
case.3 And second, real party in interest alleged—in a motion for reinstatement
filed approximately one year after the dismissal order—that it did not receive
notice of the dismissal order. Neither of these facts, however, cause the trial
court to retain plenary jurisdiction over a case it had dismissed over a year
earlier. See, e.g., Gnatt v. Getz, No. 14-10-00003-CV, 2011 WL 1849085, at *5
(Tex. App.––Houston [14th Dist.] May 12, 2011, no pet.) (mem. op.) (involving
inadvertent dismissal following abatement and holding that trial court possessed
authority to sign dismissal order while case was abated); In re Gen. Motors
Corp., 296 S.W.3d 813, 820–21, 825–26 (Tex. App.––Austin 2009, orig.
proceeding) (involving inadvertent dismissal following abatement, alleged lack of
notice of dismissal, and reinstatement, holding that trial court’s action in
inadvertently dismissing the case during the abatement was not a void act so that
the dismissal was not subject to being vacated by the trial court after the
expiration of its plenary power, and holding also that “even if a party does not
3
The abatement was not based on a bankruptcy filing.
3
receive actual notice or acquire actual knowledge of the entry of an order
dismissing a case for want of prosecution, the trial court’s plenary power over the
case ends no later than the 120th day after the order of dismissal is signed”).
Because the trial court lacked plenary power on March 17, 2011 to vacate
the dismissal order it had signed on December 30, 2009, we conditionally grant
the writ of mandamus. The writ will issue only if the trial court refuses to vacate
and to set aside its March 17, 2011 order within ten (10) days of the issuance of
this opinion.4
PER CURIAM
PANEL: WALKER, DAUPHINOT, and MEIER, JJ.
DELIVERED: August 13, 2012
4
This court’s stay of the trial court proceedings previously granted will
remain in effect until the trial court complies with our opinion.
4