in Re: Priscila Briseno ( 2022 )

Conditionally Grant and Opinion Filed December 14, 2022
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-22-01174-CV
IN RE PRISCILA BRISENO, Relator
Original Proceeding from the County Court at Law No. 4
Dallas County, Texas
Trial Court Cause No. CC-22-00330-D
MEMORANDUM OPINION
Before Justices Myers, Nowell, and Goldstein
Opinion by Justice Nowell
In this original proceeding, relator Priscila Briseno asks that we issue a writ
of mandamus ordering the respondent trial court judge to vacate her September 12,
2022 Order Granting Reinstatement. After reviewing the petition and the mandamus
record, we conclude the trial court lacked plenary power to reinstate the case, and
the court’s order reinstating the case is void. Therefore, relator is entitled to
mandamus relief, and we conditionally grant the writ of mandamus.
On January 21, 2022, real party in interest, Nathaniel Vite, sued Briseno for
personal injuries allegedly sustained after a car accident. Three days later, the trial
court issued a letter to Vite’s counsel stating the case was set for dismissal on June
13, 2022, pursuant to rule 165a. See TEX. R. CIV. P. 165a (Dismissal for Want of
Prosecution). On June 21, 2022, the trial court signed an order of dismissal for want
of prosecution.
On July 20, 2022, Vite filed a motion to reinstate, which states his counsel
inadvertently failed to appear at the dismissal setting due to accident or mistake and
his failure to appear was not intentional or the result of conscious indifference;
rather, he asserted, his failure to appear was “due to a calendaring error.” Counsel
attached a document titled “Verification in Support of Plaintiff’s Motion to Reinstate
After Dismissal for Want of Prosecution,” which states:
My name is Hazim Mandavia. I am at least 18 years of age and
of sound mind. I am personally acquainted with the facts alleged in
Plaintiff’s Motion to Reinstate After Dismissal for Want of
Prosecution. I hereby swear that the statements in support of Plaintiff’s
Motion to Reinstate After Dismissal for Want of Prosecution are true
and correct.
The purported verification does not reflect it was made in the presence of an
authorized officer such as a notary public. Following a hearing, the trial court issued
its Order Granting Reinstatement.
Briseno then filed this petition for writ of mandamus complaining about the
trial court’s September 12 Order. Although this Court requested responses from real
party in interest and respondent, no responses were filed.
Generally, to obtain mandamus relief, a relator must show the trial court
abused its discretion and she has no adequate appellate remedy. In re Prudential Ins.
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Co., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding). “A trial court abuses
its discretion by entering a void order, and the relator need not establish lack of an
adequate appellate remedy to obtain mandamus relief.” In re Mikooz Mart, No. 05-
19-01355-CV, 2019 WL 6696035, at *1 (Tex. App.—Dallas Dec. 9, 2019, orig.
proceeding) (mem. op.) (citing In re Sw. Bell Tel. Co., 35 S.W.3d 602, 605 (Tex.
2000) (orig. proceeding)). “Mandamus is an available remedy to set aside a
reinstatement order signed after the trial court’s plenary power expires.” Id. (citing
In re Dansby, 583 S.W.3d 838, 840 (Tex. App.—Dallas 2019, orig. proceeding); In
re S. Mgmt. Servs., Inc., No. 05-19-00653-CV, 2019 WL 3244492, at *1 (Tex.
App.—Dallas July 19, 2019, orig. proceeding) (mem. op.)).
A party must file a motion to reinstate within thirty days of the judgment
dismissing the case for want of prosecution. See TEX. R. CIV. P. 165a(3). The motion
must set forth the grounds to reinstate, and the motion must be verified by the movant
or his attorney. See TEX. R. CIV. P. 165a(3). However, when a party fails to verify
its motion to reinstate, the trial court’s jurisdiction to reinstate the case expires thirty
days after the judgment is signed. See McConnell v. May, 800 S.W.2d 194, 194 (Tex.
1990) (orig. proceeding) (granting mandamus relief to set aside order reinstating
case more than thirty days after dismissal on unverified motion). “Any action taken
by a trial court after it loses plenary power is void.” In re Mikooz Mart, 2019 WL
6696035, at *2 (citing Pipes v. Hemingway, 358 S.W.3d 438, 445 (Tex. App.—
Dallas 2012, no pet.)).
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In this proceeding, Briseno argues the trial court did not have jurisdiction to
enter the September 12 Order because, among other reasons, Vite’s motion to
reinstate was not verified, the trial court’s plenary power was not extended, and the
order to reinstate was void when the trial court entered it more than 30 days after
entry of the order of dismissal for want of prosecution. We agree.
Verification is “[a] formal declaration made in the presence of an authorized
officer, such as a notary public, by which one swears to the truth of the statements
in the document.” In re Dobbins, 247 S.W.3d 394, 397 (Tex. App.—Dallas 2008,
orig. proceeding) (quoting Andrews v. Stanton, 198 S.W.3d 4, 8 (Tex. App.—El Paso
2006, no pet.)). Although Vite’s counsel attached a page titled “Verification in
Support of Plaintiff’s Motion to Reinstate After Dismissal for Want of Prosecution”
to the motion, the purported verification was not made in the presence of an
authorized officer, such as a notary public. See id. Because the motion to reinstate
was not verified, it did not extend the trial court’s plenary power beyond thirty days.1
See In re Valliance Bank, 422 S.W.3d 722, 728 (Tex. App.—Fort Worth 2012, no
pet.); see also TEX. R. CIV. P. 165a(3); McConnell, 800 S.W.2d at 194. Accordingly,
the trial court signed the September 12 order of reinstatement after its plenary power
expired, and the order of reinstatement is void. See In re Mikooz Mart, 2019 WL
6696035, at *2.
1
The purported verification also does not meet the requirements of section 132.001 of the civil practice
and remedies code. See Tex. R. Civ. Prac. & Rem. Code. § 132.001.
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We conditionally grant Briseno’s petition for writ of mandamus and order the
trial court to set aside its September 12 Order Granting Reinstatement. The writ will
issue only in the event the trial court fails to do so within thirty days of the date of
this opinion.
/Erin A. Nowell//
221174f.p05 ERIN A. NOWELL
JUSTICE
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