Opinion
01-21-00437-CV
01-04-2022
IN RE JASON FREDERICK SIEBOLD, Relator
Original Proceeding on Petition for Writ of Mandamus
Panel consists of Justices Goodman, Rivas-Molloy, and Farris.
MEMORANDUM OPINION
PER CURIAM
Relator Jason Frederick Siebold complains in his petition for writ of mandamus that Respondent, the Honorable Elaine H. Palmer, abused her discretion by signing an order reinstating the underlying case after the trial court's plenary power expired.
The underlying case is Heriberto Quiroz and Aurora Rubio de Quiroz v. Jason Frederick Siebold, Cause No. 2018-55788, pending in the 215th District Court of Harris County, Texas, the Honorable Elaine H. Palmer presiding.
We conditionally grant the relief sought.
Background
On August 24, 2016, Relator Jason Frederick Siebold ("Relator") and Real Parties in Interest Heriberto Quiroz and Aurora Rubio de Quiroz ("Real Parties") were involved in a motor-vehicle accident. Real Parties sued Relator on August 17, 2018, alleging negligence and negligence per se. Relator filed his original answer on September 24, 2018.
After Real Parties failed to appear at a case management conference and failed to submit a scheduling order, Respondent dismissed the case for want of prosecution on November 20, 2018. The following day, Real Parties filed a verified motion to reinstate, which they set for hearing. On December 6, 2018, Respondent granted the motion to reinstate and issued an agreed docket control order.
On March 10, 2020, the trial court again dismissed the case for want of prosecution after Real Parties failed to attend a docket call. Real Parties filed a second verified motion to reinstate on March 12, 2020. The record does not reflect whether the motion to reinstate was set for hearing or submission or whether the trial court signed any order on the motion. More than a year later, on May 12, 2021, Real Parties filed a third verified motion to reinstate and set it for submission on May 24, 2021. On May 13, 2021, prior to the submission date and before Relator filed a response, Respondent granted the motion, reinstated the case, and issued a new docket control order.
Real Parties' third verified motion to reinstate and supporting verification appear to be the same motion and verification filed a year earlier on March 12, 2020. The third motion and supporting verification are both dated March 12, 2020.
Relator filed the instant writ for mandamus asserting Respondent abused her discretion in granting Real Parties' third motion to reinstate because the trial court's plenary power expired nearly a year before, on June 23, 2020. This Court requested Real Parties to submit a response to Relator's petition for writ of mandamus, but Real Parties failed to do so.
Discussion
A. Standard of Review
Mandamus relief is appropriate when the trial court abuses its discretion and the relator has no adequate remedy by appeal. Silguero v. State, 287 S.W.3d 146, 148 (Tex. App.-Corpus Christi 2009, orig. proceeding) (citing In re AutoNation, Inc., 228 S.W.3d 663, 667 (Tex. 2007) (orig. proceeding)). An abuse of discretion occurs if there is "a clear failure by the trial court to analyze or apply the law correctly." Silguero, 287 S.W.3d at 148 (citing Walker v. Packer, 827 S.W.3d 833, 839 (Tex. 1992) (orig. proceeding)). Mandamus relief is available "when a trial court issues an order after its plenary power has expired." In re Brookshire Grocery Co., 250 S.W.3d 66, 68 (Tex. 2008) (orig. proceeding) (citing In re Sw. Bell Tel. Co., 35 S.W.3d 602, 605 (Tex. 2000) (orig. proceeding)). "Limited deference" is given to the trial court's analysis when the mandamus proceeding stems from the interpretation of legal rules. Id.
B. Applicable Law
Texas Rule of Civil Procedure 165a governs dismissals for want of prosecution and reinstatements. Rule 165a states in pertinent part:
3. Reinstatement. A motion to reinstate shall set forth the grounds therefor and be verified by the movant or his attorney. It shall be filed with the clerk within 30 days after the order of dismissal is signed or within the period provided by Rule 306a. A copy of the motion to reinstate shall be served on each attorney of record and each party not represented by an attorney whose address is shown on the docket or in the papers on file. The clerk shall deliver a copy of the motion to the judge, who shall set a hearing on the motion as soon as practicable. The court shall notify all parties or their attorneys of record of the date, time and place of the hearing.
The court shall reinstate the case upon finding after a hearing that the failure of the party or his attorney was not intentional or the result of conscious indifference but was due to an accident or mistake or that the failure has been otherwise reasonably explained.
In the event for any reason a motion for reinstatement is not decided by signed written order within seventy-five days after the judgment is signed, or, within such other time as may be allowed by Rule 306a, the motion shall be deemed overruled by operation of law. If a motion to reinstate is timely filed by any party, the trial court, regardless of whether an appeal has been perfected, has plenary power to reinstate the case until 30 days after all such timely filed motions are overruled, either by a written and signed order or by operation of law, whichever occurs first.Tex. R. Civ. P. 165a(3).
Rule 306a, entitled "Periods to Run from Signing of Judgment," addresses situations where, among other things, parties do not receive notice of judgment or when judgments nunc pro tunc are signed. The rule does not apply to the circumstances here.
C. The Motions to Reinstate
Relator does not complain about the trial court's first order of reinstatement on December 6, 2018. Rather, the threshold issue in this case turns on the trial court's dismissal for want of prosecution on March 10, 2020, and Respondent's disposition of Real Parties' second verified motion for reinstatement filed two days later on March 12, 2020.
The record does not reflect whether Real Parties' second motion to reinstate was set for hearing or submission. The record is also devoid of any express ruling on the motion "within seventy-five days" after the trial court signed its order of dismissal on March 10, 2020. Thus, Real Parties' second motion to reinstate was overruled by operation of law on May 26, 2020. See Tex. R. Civ. P. 165a(3) ("In the event for any reason a motion for reinstatement is not decided by signed written order within seventy-five days after the judgment is signed . . . the motion shall be deemed overruled by operation of law."). And the trial court's plenary power expired thirty days later, on June 25, 2020. Id. ("If a motion to reinstate is timely filed by any party, the trial court . . . has plenary power to reinstate the case until 30 days after all such timely filed motions are overruled, either by a written and signed order or by operation of law, whichever occurs first.").
Seventy-five days after the March 10, 2020 judgment of dismissal is May 24, 2020, a Sunday. And Monday, May 25, 2020, was a holiday. Thus, pursuant to Texas Rule of Civil Procedure 4, Real Parties' second motion to reinstate was overruled by operation of law on Tuesday, May 26, 2020. See Tex. R. Civ. P. 4 (explaining in computation of time, if time period ends on Saturday, Sunday, or legal holiday, "the period runs until the end of the next day which is not a Saturday, Sunday, or legal holiday").
Almost a year after the trial court's plenary power expired, Real Parties filed their third verified motion to reinstate on May 12, 2021. On May 13, 2021, Respondent granted the motion, reinstated the case, and issued a new docket control order. Because the trial court's plenary power expired on June 25, 2020, Respondent's May 13, 2021 order of reinstatement is void. See Walker v. Harrison, 597 S.W.2d 913, 915 (Tex. 1980) (orig. proceeding) (["T]he time limits provided in rule 165a are mandatory and jurisdictional and . . . orders of reinstatement entered after their expiration are void."); In re Valliance Bank, 422 S.W.3d 722, 729 (Tex. App.-Fort Worth 2012, orig. proceeding) ("Because the trial court signed the order of reinstatement after its plenary power had expired, we hold that the order of reinstatement is void and of no legal effect."); In re Boglia, L.L.C., No. 01-11-00891-CV, 2011 WL 13385443, at *1 (Tex. App.-Houston [1st Dist.] Dec. 22, 2011, orig. proceeding) (mem. op.) ("A reinstatement order rendered after the expiration of the trial court's plenary power is void."). Respondent abused her discretion in reinstating the case and mandamus is thus warranted. Estate of Howley By & Through Howley v. Haberman, 878 S.W.2d 139, 140 (Tex. 1994) (orig. proceeding) ("When a trial court erroneously reinstates a case after the expiration of the court's plenary jurisdiction, mandamus will issue."); cf. In re Sw. Bell Tel. Co., 35 S.W.3d at 605 (mandamus was appropriate because trial court's order setting aside transfer order after plenary power had expired was void and constituted abuse of discretion).
To the extent Respondent assumed her plenary power was extended by the Texas Supreme Court's emergency orders regarding the Covid-19 state of disaster, which allow courts to "modify or suspend any and all deadlines and procedures, whether prescribed by a statute, rule, or order," she erred. The language in the Supreme Court's emergency orders
giving a court the power to modify or suspend "deadlines and procedures" presupposes a pre-existing power or authority over the case or the proceedings. A court may extend a deadline or alter a procedure that would otherwise be part of the court proceedings. It does not suggest that a court can create jurisdiction for itself where the jurisdiction would otherwise be absent or that a judge could create authority to preside over proceedings over which the judge would otherwise be barred from presiding.In re State ex rel. Ogg, 618 S.W.3d 361, 364 (Tex. Crim. App. 2021) (orig. proceeding); see also Quariab v. El Khalili, No. 05-20-00979-CV, 2021 WL 960646, at *1 (Tex. App.-Dallas Mar. 15, 2021, no pet.) (mem. op.) (holding that because trial court had lost jurisdiction over case, it could not avail itself of court's emergency orders to reinstate case and noting that "the language in the emergency orders . . . 'does not suggest that a court can create jurisdiction for itself where the jurisdiction would otherwise be absent[.]'") (quoting In re State ex rel. Ogg, 618 S.W.3d at 364).
Conclusion
We conditionally grant mandamus relief and direct Respondent to vacate her May 13, 2021 order of reinstatement. A writ will issue only if the trial court does not comply. All pending motions are dismissed as moot.