Opinion
13-23-00305-CV
08-23-2023
IN RE JOHN GEORGE MAST
On Petition for Writ of Mandamus.
Before Chief Justice Contreras and Justices Benavides and Longoria
MEMORANDUM OPINION
See Tex. R. App. P. 52.8(d) ("When denying relief, the court may hand down an opinion but is not required to do so. When granting relief, the court must hand down an opinion as in any other case."); id. R. 47.4 (distinguishing opinions and memorandum opinions).
Relator John George Mast filed a petition for writ of mandamus asserting that the trial court abused its discretion by reinstating the underlying case after the expiration of its plenary power. We conditionally grant the petition for writ of mandamus.
This original proceeding arises from trial court cause number 17-07-81262-D in the 377th District Court of Victoria County, Texas; however, the reinstatement order at issue in this petition for writ of mandamus was signed by the Honorable Kemper Stephen Williams, who ordinarily presides over the 135th District Court of Victoria County. See id. R. 52.2.
I. Background
On July 10, 2017, real party in interest Jennifer Adcock filed suit against Mast and others for personal injuries that she incurred in an automobile accident. According to Adcock's pleadings, she was traveling northbound on U.S. Highway 77 behind Mast's vehicle when Mast lost consciousness and his vehicle decelerated. In response, Adcock reduced her vehicle's speed. Adcock's vehicle was rear-ended by Amy Nicole Smith, who was driving a car owned by Delaney Jeffers. Adcock pleaded a negligence cause of action against Mast and Smith and negligent entrustment against Jeffers.
Neither Smith nor Jeffers are parties to this original proceeding.
On February 20, 2019, the trial court issued notice that the case was set to be heard on the court's dismissal docket on March 8, 2019. The trial court's notice required the parties to appear with proposed pretrial orders or show cause why the case should not be dismissed. Adcock appeared at the dismissal hearing on March 8, 2019, and the trial court signed a pretrial order setting the case for trial on December 9, 2019. On December 2, 2019, Adcock filed an agreed motion for a continuance of the trial setting. The trial court granted Adcock's agreed motion and set the case for trial on March 25, 2020, then issued an amended order setting the case for trial on March 23, 2020. On March 18, 2020, Adcock filed a second agreed motion for continuance and request for a new docket control order. The trial court did not issue a ruling on this motion, but the case did not proceed to trial.
On April 1, 2021, the trial court again issued notice that the case was set for hearing on the dismissal docket on April 23, 2021. As before, the court's notice required the parties to appear with proposed pretrial orders or show cause why the case should not be dismissed. Adcock's counsel failed to appear at the dismissal hearing on April 23, 2021. On April 26, 2021, the trial court signed an order dismissing the case for want of prosecution.
On September 8, 2022, Adcock filed a motion to reinstate the case, but did not set the motion for hearing. In this motion, Adcock asserted that her counsel did not receive notice of the trial court's April 26, 2021 order dismissing the case for want of prosecution. According to this motion, Adcock's "counsel's firm name changed and became effective on January 8, 2019," and its "email, telephone and fax numbers remained the same," but "the [firm's] address changed in April 2019." The motion to reinstate provided that Adcock's "counsel did not miss the deadline for purposes of delay but by inadvertence," and requested the court to reinstate the case "in the interest of justice, not for prejudice or delay." Adcock's motion to reinstate was supported by a verification supplied by Adcock's counsel in which he stated that the facts therein were "true and correct based either upon information and belief and/or personal knowledge." Although Adcock's counsel updated the firm's address in the signature block of their filings beginning in December 2019, Adcock's counsel did not file a change of address with the trial court. The record shows that the clerk's notice of the April 26, 2021 dismissal, which was mailed to counsel's former address, was returned to the district clerk with the designation "RETURN TO SENDER[,] NO MAIL RECEPTACLE[,] UNABLE TO FORWARD." On September 12, 2022, the trial court granted Adcock's motion and reinstated the case.
Although it is not germane to the disposition of this original proceeding, we note that the verification fails to state positively and unequivocally that the facts alleged are true and within the personal knowledge of the affiant. See Humphreys v. Caldwell, 888 S.W.2d 469, 470 (Tex. 1994) (orig. proceeding) (per curiam); Twist v. McAllen Nat. Bank, 294 S.W.3d 255, 260 (Tex. App.-Corpus Christi-Edinburg 2009, no pet.).
The order of dismissal states that the trial court considered Adcock's motion to reinstate "after considering the motion, oral arguments, and the applicable law." Mast asserts that the trial court did not hold a hearing on the motion to reinstate. Texas Rule of Civil Procedure 165a requires the trial court to hold a hearing on a motion to reinstate following a dismissal for want of prosecution. See Tex. R. Civ. P. 165a(3) (stating that the trial "shall set a hearing on the motion as soon as practicable," and following the hearing, "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").
On July 10, 2023, Mast filed this original proceeding. By one issue, Mast asserts that the trial court erred by granting Adcock's motion to reinstate because its plenary power had expired, rendering the order of reinstatement void. According to Mast, the trial court dismissed this case for want of prosecution on April 26, 2021; no plenary power-extending motions were filed within thirty days; the trial court's plenary power expired on May 27, 2021; Adcock filed a motion to reinstate on September 8, 2022; and the trial court reinstated the case on September 12, 2022, over fifteen months after its plenary power expired.
This Court requested Adcock, or any others whose interests might be directly affected by the relief sought, to file a response to the petition for writ of mandamus. See Tex. R. App. P. 52.4, 52.8. By response, Adcock contends that this Court should deny Mast's request for mandamus relief because he delayed filing his petition for writ of mandamus. Adcock further asserts that this case presents "a textbook case of a clerical mistake that caused rendition of a judgment based upon the mushy and imprecise notion of 'want of prosecution.'" Adcock thus contends that the trial court did not abuse its discretion in reinstating the case because she was unaware of the dismissal "due to an official mistake."
II. Mandamus
Mandamus is an extraordinary and discretionary remedy. See In re Allstate Indem. Co., 622 S.W.3d 870, 883 (Tex. 2021) (orig. proceeding); In re Garza, 544 S.W.3d 836, 840 (Tex. 2018) (orig. proceeding) (per curiam); In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 138 (Tex. 2004) (orig. proceeding). The relator must ordinarily show that: (1) the trial court abused its discretion, and (2) the relator lacks an adequate remedy on appeal. In re USAA Gen. Indem. Co., 624 S.W.3d 782, 787 (Tex. 2021) (orig. proceeding); In re Prudential Ins. Co. of Am., 148 S.W.3d at 135-36; Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992) (orig. proceeding).
When a trial court issues an order "beyond its jurisdiction," mandamus is proper because such an order is void ab initio. In re Panchakarla, 602 S.W.3d 536, 539 (Tex. 2020) (orig. proceeding) (per curiam) (quoting In re Sw. Bell Tel. Co., 35 S.W.3d 602, 605 (Tex. 2000) (orig. proceeding) (per curiam)). Thus, 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). In such an event, the relator need not show that it lacks an adequate appellate remedy. See In re Vaishangi, Inc., 442 S.W.3d 256, 261 (Tex. 2014) (orig. proceeding) (per curiam); In re Sw. Bell Tel. Co., 35 S.W.3d at 605.
III. Delay
Adcock asserts that Mast waived his right to seek mandamus relief because he waited approximately ten months to file his petition for writ of mandamus. The record indicates that the order of reinstatement was signed on September 12, 2022, and this original proceeding was filed on July 10, 2023.
Mandamus is not an equitable remedy; however, its issuance is discretionary and is largely controlled by equitable principles. In re First Reserve Mgmt., L.P., 671 S.W.3d 653 (Tex. 2023) (orig. proceeding). "One such principle is that '[e]quity aids the diligent and not those who slumber on their rights.'" In re Am. Airlines, Inc., 634 S.W.3d 38, 42 (Tex. 2021) (orig. proceeding) (quoting Rivercenter Assocs. v. Rivera, 858 S.W.2d 366, 367 (Tex. 1993) (orig. proceeding) and Callahan v. Giles, 155 S.W.2d 793, 795 (Tex. 1941) (orig. proceeding)). "Thus, a relator who unduly or unreasonably delays filing a petition for mandamus relief may waive its right to such relief unless the delay is justified." In re Am. Airlines, Inc., 634 S.W.3d at 43; see In re Int'l Profit Assocs., Inc., 274 S.W.3d 672, 676 (Tex. 2009) (orig. proceeding) (per curiam). To invoke the equitable doctrine of laches, the moving party ordinarily must show an unreasonable delay by the opposing party in asserting its rights and also the moving party's good faith and detrimental change in position because of the opposing party's delay. In re Laibe, 307 S.W.3d 314, 318 (Tex. 2010) (orig. proceeding) (per curiam); Rogers v. Ricane Enters., Inc., 772 S.W.2d 76, 80 (Tex. 1989); In re Mabray, 355 S.W.3d 16, 22 (Tex. App.-Houston [1st Dist.] 2010, orig. proceeding [mand. denied]).
However, equitable doctrines such as laches are not applicable when the order subject to the mandamus proceeding is void. See In re Timberlake, 501 S.W.3d 105, 108 (Tex. App.-Houston [14th Dist.] 2015, orig. proceeding); In re Valliance Bank, 422 S.W.3d 722, 728 (Tex. App.-Fort Worth 2012, orig. proceeding [mand. denied]); Zimmerman v. Ottis, 941 S.W.2d 259, 262 (Tex. App.-Corpus Christi-Edinburg 1996, orig. proceeding). As we have stated, when mandamus
is premised on the entry of a void order, it would not serve the interests of justice or those of the parties to invoke laches as an excuse to ignore that order, and thus to allow the parties to expend further time and effort in connection with a lawsuit that must ultimately be dismissed . . . or reversed on appeal for want of jurisdiction.Zimmerman, 941 S.W.2d at 262. Therefore, if the order is void, laches is not a bar to mandamus relief in this case. We reject Adcock's arguments otherwise.
III. Analysis
Texas Rule of Civil Procedure 165a governs dismissals for want of prosecution and the procedure for reinstating such cases. See Tex. R. Civ. P. 165a. "When a plaintiff's lawsuit is dismissed for want [of] prosecution, the only available remedy is to file a motion for reinstatement." Gillis v. Harris County, 554 S.W.3d 188, 191 (Tex. App.-Houston [14th Dist.] 2018, no pet.). In relevant part, a motion for reinstatement following a dismissal "shall be filed with the clerk within 30 days after the order of dismissal is signed or within the period provided by Rule 306a." Tex.R.Civ.P. 165a(3). Rule 306(a) extends this period when the affected party has neither received notice from the court nor actual notice of the dismissal within twenty days after the order of dismissal was signed. See id. R. 306(a)(4); see also Tex. R. App. P. 4.2. In such cases, the thirty-day period within which to file a motion for reinstatement begins running on the day the party receives notice of the order of dismissal, "but in no event shall such periods begin more than ninety days after the original judgment or other appealable order was signed." Tex.R.Civ.P. 306a(4).
In the absence of a timely filed verified motion to reinstate, a trial court's plenary power expires thirty days after dismissal of the case. McConnell v. May, 800 S.W.2d 194 (Tex. 1990) (orig. proceeding) (per curiam); Cummings v. Billman, 634 S.W.3d 163, 168 (Tex. App.-Fort Worth 2021, no pet.); Jarrell v. Bergdorf, 580 S.W.3d 463, 466 (Tex. App.-Houston [14th Dist.] 2019, no pet.); Biederman v. Brown, 563 S.W.3d 291, 301 (Tex. App.-Houston [1st Dist.] 2018, no pet.) The time limits provided in Rule 165a are mandatory and jurisdictional, and an order of reinstatement signed after the expiration of the relevant time limits is void. See Walker v. Harrison, 597 S.W.2d 913, 915 (Tex. 1980) (orig. proceeding); Cummings, 634 S.W.3d at 168; United Residential Props., L.P. v. Theis, 378 S.W.3d 552, 557 (Tex. App.-Houston [14th Dist.] 2012, no pet.).
Here, the trial court signed the order dismissing the case for want of prosecution on April 26, 2021. Adcock's motion for reinstatement was not filed until September 8, 2022, more than sixteen months later. The motion was not filed within the thirty-day period provided by Rule 165a. See Tex. R. Civ. P. 165a(3). Adcock did not invoke the Rule 306a procedure or otherwise assert that she had first received notice of the dismissal order more than twenty, but less than ninety, days after the trial court signed the order. See id. R. 306a(4), (5). Further, even if Adcock had filed such a motion, it would have failed due to the time constraints inherent in Rule 306a. See id. any such attempt to invoke Rule 306a would have failed given Accordingly, the trial court's plenary jurisdiction over the case expired, and the order reinstating the case is void. See Walker, 597 S.W.2d at 915 ("[T]he time limits provided in rule 165a are mandatory and jurisdictional and . . . orders of reinstatement entered after their expiration are void."); Estate of Howley ex rel. Howley v. Haberman, 878 S.W.2d 139, 140 (Tex. 1994) (orig. proceeding) (per curiam) ("When a trial court erroneously reinstates a case after the expiration of the court's plenary jurisdiction, mandamus will issue."). Because the order is void, Mast need not show that he lacks an adequate remedy by appeal. See In re Vaishangi, Inc., 442 S.W.3d at 261; In re Sw. Bell Tel. Co., 35 S.W.3d at 605.
Adcock nevertheless contends that the doctrine of official mistake applies here, and that this doctrine provides grounds for the trial court to have set aside the dismissal after the expiration of its plenary power. According to Adcock, when the trial court clerk failed to send notice of the signing of the judgment, that constituted official mistake. She asserts that bedrock principles regarding notice and an opportunity to be heard support the trial court's decision to reinstate. In support of her contentions, Adcock cites cases concerning official mistake in the bill of review context. See, e.g., Petro-Chem. Transp., Inc., v. Carroll, 514 S.W.2d 240, 244-45 (Tex. 1974); Osterloh v. Ohio Decorative Prods., Inc., 881 S.W.2d 580, 581-82 (Tex. App.-Houston [1st Dist.] 1994, no writ). Adcock's counsel asserts that counsel's address was updated in its signature block as of December 2, 2019, and thus the clerk erroneously sent the notices and signed orders to counsel's former address.
See generally Manning v. Johnson, 642 S.W.3d 871, 880 (Tex. App.-Texarkana 2021, no pet.) (discussing the parties' obligation to keep the court and parties informed of their current address); Marathon Petrol. Co. v. Cherry Moving Co., 550 S.W.3d 791, 803 (Tex. App.-Houston [14th Dist.] 2018, no pet.) (discussing notices sent to attorneys); Withrow v. Schou, 13 S.W.3d 37, 41-42 (Tex. App.-Houston [14th Dist.] 1999, pet. denied) (stating that "the party has a continuing duty to specify where . . . notice will be sent").
Adcock's arguments regarding her failure to receive notice of the dismissal as an "official mistake" arise from the law pertaining to bill of review proceedings. "A bill of review is an equitable proceeding brought by a party seeking to set aside a prior judgment that is no longer subject to challenge by a motion for new trial or appeal." WWLC Inv., L.P. v. Miraki, 624 S.W.3d 796, 799 (Tex. 2021). A plaintiff in a bill of review proceeding must ordinarily plead and prove (1) a meritorious defense to the underlying cause of action, (2) which the plaintiff was prevented from making by the fraud, accident or wrongful act of the opposing party or official mistake, (3) unmixed with any fault or negligence on their own part. Id.; see Caldwell v. Barnes, 154 S.W.3d 93, 96 (Tex. 2004) (per curiam) (citations omitted). A plaintiff who alleges that they were not properly served is excused from proving the first two elements. WWLC Inv., L.P., 624 S.W.3d at 799; Caldwell, 154 S.W.3d at 96-97. A bill of review proceeding is an independent proceeding that is separate from the underlying suit. See Ross v. Nat'l Ctr. for the Emp't of the Disabled, 197 S.W.3d 795, 798 (Tex. 2006) (per curiam) (holding that "a bill of review is a separate proceeding from the underlying suit"); Kholaif v. Safi, 636 S.W.3d 313, 317 (Tex. App.- Houston [14th Dist.] 2021, pet. denied) ("A bill of review is a separate, independent suit to set aside a judgment that is no longer subject to a motion for new trial or appealable."); In re J.J., 394 S.W.3d 76, 81 (Tex. App.-El Paso 2012, no pet.) ("Although a bill of review directly attacks a judgment rendered in a particular case, it is nonetheless an independent, separate suit filed under a different cause number."). Accordingly, Adcock's contentions regarding "official mistake" are inapposite here. See Faulkner v. Culver, 851 S.W.2d 187, 188-89 & n.2 (Tex. 1993) (orig. proceeding) (per curiam). We express no opinion regarding these contentions in any separate context in which they may arise.
We conclude that the trial court's plenary jurisdiction over the case expired, and the trial court's September 12, 2022 order reinstating the case is void. See Walker, 597 S.W.2d at 915; Estate of Howley ex rel. Howley, 878 S.W.2d at 140. Thus, we sustain the sole issue presented in this original proceeding.
V. Conclusion
The Court, having examined and fully considered the petition for writ of mandamus and the applicable law, is of the opinion that Mast has met his burden to obtain relief. Accordingly, we conditionally grant the petition for writ of mandamus, and we direct the trial court to vacate its September 12, 2022 order and, if necessary, vacate any additional orders issued afterwards. Our writ will issue only if the trial court fails to promptly comply.