Opinion
NO. 14-20-00370-CV
08-28-2020
IN RE OPRONA, INC., Relator
ORIGINAL PROCEEDING WRIT OF MANDAMUS
269th District Court Harris County, Texas
Trial Court Cause No. 2016-14025
DISSENTING OPINION
This court should grant mandamus relief and compel the respondent trial judge to set aside (1) the trial court's April 1, 2020 order granting the real party in interest Erika Arroyo's motion for new trial ("April Order") and (2) the trial court's May 3, 2020 order denying relator Oprona, Inc.'s motion to declare the new-trial order void ("May Order"). Because the majority instead denies mandamus relief, I respectfully dissent.
THE APRIL ORDER
Today's controversy centers on two motions Arroyo filed following the trial court's grant of summary judgment in Oprona's favor.
The First Motion
Arroyo filed the first motion on February 17, 2020 ("First Motion"). Though Arroyo entitled the First Motion "Plaintiff Arroyo's Opposed Verified Motion to Reinstate," we are to give effect to the substance of the motion, not its title or form. In the First Motion Arroyo says (1) she moves to reinstate the case under Texas Rule of Civil Procedure 165a; (2) her counsel did not have knowledge or notice that Oprona had filed a summary-judgment motion until two days before the hearing; (2) she challenges the trial court's final summary judgment signed at a hearing at which her counsel did not appear and of which her counsel allegedly had no knowledge until after the hearing took place; (3) her counsel's failure to appear was not intentional or the result of conscious indifference, under an argument applying the Craddock factors; (4) the final summary judgment was signed because her counsel did not appear at the hearing; and (5) "[t]he granting of the summary judgment must be reversed and the case reopened on such terms as the Court might deem appropriate."
See State Bar of Tex. v. Heard, 603 S.W.2d 829, 833 (Tex. 1980).
See Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex. 1939).
Oprona responded that Texas Rule of Civil Procedure 165a, which governs dismissal for want of prosecution, did not govern the First Motion because, in substance, the First Motion was not a motion to reinstate but a motion for new trial, which falls under Texas Rule of Civil Procedure 329b and is subject to its deadlines. The trial court denied the First Motion on February 26, 2020.
The Second Motion
Arroyo filed another motion on March 11, 2020, labeling it a "Motion for New Trial" ("Second Motion"), asking the trial court for the same essential relief she had requested a few weeks before in the First Motion.
Arroyo argued that to the extent the trial court granted the summary-judgment motion merely because Arroyo's counsel did not attend the summary-judgment hearing, the trial court erred in adjudicating the merits of the case without notice and a hearing. Arroyo repeated the arguments contained in the First Motion, again asserting that her counsel was not served with the motion for summary judgment and did not know of the summary-judgment hearing. Arroyo again cited Texas Rule of Civil Procedure 165a. Arroyo asked the trial court to vacate the summary judgment and restore the case to the trial docket. The Second Motion was the First Motion in different packaging.
Just as putting a "milk" label on a carton of orange juice would not change the substance within, the new packaging did not change the substance of the motion. Both the First Motion and the Second Motion, in substance, were motions for new trial. They contained the same grounds and the same requests for relief. In both, Arroyo asked the court to vacate the summary judgment and restore the case to the trial docket. The only real difference is the captions on the motions, and the law says labels do not matter. Although Arroyo mistakenly invokes Rule165a, in neither motion does she say that she seeks to set aside a dismissal for want of prosecution. Instead, she relies on the Craddock factors and seeks to set aside a final summary judgment because her lawyer allegedly did not know of the summary-judgment hearing. The substance of both the First Motion and the Second Motion is a motion for new trial.
See Heard, 603 S.W.2d at 833.
See Carson v. El Capitan Apartments, No. 05-13-01481-CV, 2015 WL 169879, at *2 (Tex. App.—Dallas Jan. 14, 2015, no pet.) (holding that substance of motion was motion for new trial in a case in which the motion requested reinstatement and cited Texas Rule of Civil Procedure 165a in response to summary judgment on the merits after movants' counsel did not appear at summary-judgment hearing) (mem. op.); Duncan v. City of Houston, No. 01-05-00079-CV, 2006 WL 181399, at *5 (Tex. App.—Houston [1st Dist.] Jan. 26, 2006, pet. denied) (concluding that substance of "motion to reinstate" in response to summary judgment was a motion for new trial) (mem. op.); Metal Enterprises, Inc. v. Don Love, Inc., 559 S.W.2d 90, 92 (Tex. Civ. App.—Houston [1st Dist.] 1977, no writ) (holding that substance of "Plaintiff's Motion to Set Aside Dismissal and Reinstate" was a motion for new trial).
Because the law does not look to captions or titles to determine the substance of a motion, it matters not what Arroyo called her First Motion. If it amounts to a motion for new trial (and it does), the law demands that the court treat it as a motion for new trial. The majority does not do so, and that failure leads the court into error today. Given that the substance of each motion is a motion for new trial, under binding precedent from the Supreme Court of Texas, the trial court lacked plenary power to grant the Second Motion because the trial court already had denied the First Motion — in substance a motion for new trial — and thus the Second Motion was untimely and did not extend the trial court's plenary power, which expired before it granted the new trial.
See Heard, 603 S.W.2d at 833.
See Heard, 603 S.W.2d at 833; Carson, 2015 WL 169879, at *2; Duncan, 2006 WL 181399, at *5; Metal Enterprises, Inc., 559 S.W.2d at 92.
See In re Brookshire Grocery Co., 250 S.W.3d 66, 69-71 (Tex. 2008) (orig. proceeding).
Having lost plenary power to rule, the trial court stood powerless to grant the Second Motion. The law views the granting of that motion as an empty act and deems the resulting order void. The void act accomplished nothing. The timeline proves the point.
See id.
Thirty days after the trial court denied the First Motion (in substance a motion for new trial), the trial court's plenary power expired. The denial occurred on February 26, 2020, and the trial court lost plenary power thirty days later on March 27, 2020. By the time the trial court signed the April Order, the trial court had no jurisdiction to grant a new trial.
See id.
Because the law did not permit the trial court to grant a new trial, in doing so the trial court clearly abused its discretion. The majority errs in concluding that the First Motion was not in substance a motion for new trial and in failing to grant mandamus relief in the face of a void order.
See id.
See id.; Carson, 2015 WL 169879, at *2; Duncan, 2006 WL 181399, at *5; Metal Enterprises, Inc., 559 S.W.2d at 92.
THE MAY ORDER
Oprona brought the problem to the trial court's attention through a motion to set aside the new-trial order and declare it void. The trial court abused its discretion in denying this motion. Resting entirely on its erroneous conclusion that the First Motion was not a motion for new trial, the majority does not address Arroyo's alternative argument that emergency orders in effect as a result of the ongoing Covid-19 pandemic extended the deadline after the First Motion. Nor does the majority address the trial court's implicit finding that the First Motion amounted to a motion for new trial.
No Extension of the Motion-for-New-Trail Deadline Under the Supreme Court of
Texas's Emergency Order
Arroyo asserts that the Supreme Court of Texas's "Twelfth Emergency Order Regarding the Covid-19 State of Disaster" extended the deadline for her to file a motion for new trial. This argument holds no merit because the trial court's plenary power expired before the supreme court entered that emergency order. Moreover, in the Emergency Order the high court does not purport to endow trial courts that lack plenary power with jurisdiction to extend deadlines.
In any event, a purported extension under the Emergency Order would be necessary only if Arroyo's First Motion in substance were a motion for new trial. In granting relief under the Emergency Order, the trial court implicitly acknowledged that the First Motion in substance amounted to a motion for new trial and that the trial court's order denying the First Motion triggered the deadlines under Rule 329b. The majority does not address this point.
Governor Abbott issued a proclamation on March 13, 2020, declaring a state of disaster in Texas. The same day, the supreme court issued its first emergency order permitting Texas courts to "[m]odify or suspend any and all deadlines . . . for a stated period ending no later than 30 days after the Governor's state of disaster has been lifted." The deadline-extension provision was carried through the supreme court's Twelfth Emergency Order, which is dated April 27, 2020. The Governor's disaster declaration and the supreme court's emergency orders all came after March 11, 2020, the day Arroyo filed the Second Motion. Nothing in the emergency orders suggests that any extensions applied retroactively.
No Need for Relator to Show Lack of Appellate Remedy
Because the trial court lacked plenary power, the law declares the new-trial order void and does not require Oprona to show that it lacks an adequate remedy by appeal to get mandamus relief.
See In re Brookshire Grocery Co., 250 S.W.3d at 72; In re S.W. Bell Tel. Co., 35 S.W.3d 602, 605 (Tex. 2000) (orig. proceeding) (per curiam).
CONCLUSION
The trial court abused its discretion in granting a new trial and in denying the motion to declare the new-trial order void. Because Oprona established its entitlement to mandamus relief, this court should conditionally grant the petition for writ of mandamus.
/s/ Kem Thompson Frost
Chief Justice Panel consists of Chief Justice Frost and Justices Zimmerer and Poissant (Poissant. J., majority).