Reversed and Remanded and Opinion filed November 19, 2015.




                                        In The

                     Fourteenth Court of Appeals

                                NO. 14-14-00094-CV

                      ALAN NELSON CROTTS, Appellant
                                          V.
                   JESSALYN ELIZABETH COLE, Appellee

                    On Appeal from the 149th District Court
                           Brazoria County, Texas
                         Trial Court Cause No. 73368


                                 OPINION
      A man sued a woman he alleged was his wife, asserting various claims for
money damages.       The trial court ultimately dismissed the action for lack of
jurisdiction. On appeal, the plaintiff asserts that the trial court erred in doing so,
and the defendant asserts that the plaintiff failed to timely appeal. We conclude
that the plaintiff timely appealed and that the trial court erred in dismissing for lack
of jurisdiction.   Accordingly, we reverse the trial court’s dismissal order and
remand for further proceedings.
                I.     FACTUAL AND PROCEDURAL BACKGROUND

      Appellant/plaintiff Alan Nelson Crotts, acting pro se, filed suit against
appellee/defendant Jessalyn Elizabeth Cole, claiming that Cole was Crotts’s wife
and asserting various claims for money damages against Cole. Cole denied ever
being married to Crotts. Cole asserted that none of Crotts’s claims against her had
any basis in law or fact, and she moved to dismiss these claims under Texas Rule
of Civil Procedure 91a. Crotts filed a written opposition to the motion, but did not
appear at the oral hearing.

      The trial court signed a final order on October 14, 2013, granting Cole’s
motion and dismissing all of Crotts’s claims under Rule 91a. The trial court did
not dismiss any of Crotts’s claims for want of prosecution. Later that day, Crotts
filed a “Motion to Reinstate,” in which he asserted that he did not appear at the
hearing on the motion to dismiss because he was mistaken as to the time of the
hearing. Crotts moved the trial court to reinstate the case under Texas Rule of
Civil Procedure 165a(3), which applies to dismissals for want of prosecution.

      Crotts filed a “First Amended Motion to Reinstate and Motion to Quash,” on
November 12, 2013, adding an argument that the trial court should have denied
Cole’s Rule 91a motion and adding a request that the trial court “quash” its
dismissal order under Rule 91a and Cole’s motion to dismiss.         Cole opposed
Crotts’s motion on various grounds and argued that a reinstatement under Rule
165a(3) would be improper because the trial court dismissed Crotts’s claims under
Rule 91a rather than for want of prosecution under Rule 165a. The trial court
signed an order on December 6, 2013, reinstating Crotts’s claims for defamation
and breach of contract on the court’s docket (the “Reinstatement Order”). Cole
then filed a motion in which she asked the trial court to declare that the


                                         2
Reinstatement Order was void, to vacate the Reinstatement Order, and to dismiss
the action for lack of jurisdiction. On January 27, 2014, the trial court signed a
final order in which it granted Cole’s motion, declared that the Reinstatement
Order was void, and dismissed the action. Two days later, Crotts perfected this
appeal from the trial court’s final order.

                                   II.       ANALYSIS

      On appeal, Crotts presents four appellate issues and asserts, among other
things, that the trial court erred in signing its final order of January 27, 2014. Cole
argues that this court lacks appellate jurisdiction because Crotts did not timely
appeal. We address appellate jurisdiction first.

   A. Does this court have appellate jurisdiction?

      Under the unambiguous language of the trial court’s October 14, 2013 order,
the trial court dismissed all of Crotts’s claims under Rule 91a; the trial court did
not dismiss any of Crotts’s claims for want of prosecution. See Wilde v. Murchie,
949 S.W.2d 331, 332 (Tex. 1997) (requiring appellate courts to give effect to
unambiguous language of trial-court orders) (per curiam).

      In his “First Amended Motion to Reinstate and Motion to Quash,” Crotts
asserted that he did not appear at the hearing on the motion to dismiss because he
was mistaken as to the time of the hearing, and he argued that the trial court should
have denied Cole’s Rule 91a motion. Crotts asked the trial court to reinstate the
case on its docket under Rule 165a(3) and to “quash” the order dismissing Crotts’s
claims under Rule 91a. Crotts submitted a proposed order with his amended
motion. That proposed order contains language stating that a dismissal under Rule
91a is not applicable to this case because Crotts’s claims are based on law and fact
and, if taken as true, would entitle Crotts to the relief sought. There is also

                                              3
language by which the trial court would order the Rule 91a motion and dismissal
order to be “quashed.” One dictionary defines the infinitive “to quash” to mean “to
put an end to: make void: ABATE, ANNUL, OVERTHROW.” Webster’s Third
New Int’l Dictionary 1861 (1993).

       Even if part of Crotts’s motion was a motion to reinstate under Rule 165a(3),
the substance of the motion also included Crotts’s request for a substantive change
to the trial court’s final dismissal order under Rule 91a.1 See In re Estate of
Gibbons, 451 S.W.3d 115, 124 (Tex. App.—Houston [14th Dist.] 2014, pet
denied) (stating that courts give effect to the substance of a motion rather than to
its form or title). Crotts filed this motion within thirty days of the trial court’s
rendition of the final dismissal order under Rule 91a. Therefore, the substance of
this filing included a timely motion to modify the trial court’s final order that
extended the trial court’s plenary power over its final order.2 See Tex. R. Civ. P.
329b(g); Lane Bank Equipment Co. v. Smith Southern Equipment, Inc., 10 S.W.3d
308, 313–14 (Tex. 2000) (holding that a timely filed postjudgment motion that
seeks a substantive change in an existing judgment qualifies as a motion to modify
under Rule 329b(g) that extends the trial court’s plenary power over the judgment);
Mann v. Kendall Home Builders Construction Partners I, Ltd., 464 S.W.3d 84, 89
(Tex. App.—Houston [14th Dist.] 2015, no pet.) (holding that motion was a
1
  Cole argues that the substance of Crotts’s amended motion does not include a motion for new
trial under this court’s decision in Mercer v. Band. See 454 S.W.2d 833, 835–36 (Tex. Civ.
App.—Houston [14th Dist.] 1970, no writ). Presuming for the sake of argument that the legal
standard in Mercer applies to the determination of whether a motion includes a motion for new
trial, the Mercer case is not on point; we are determining whether the amended motion included
a motion to modify, correct, or reform the judgment or a motion for new trial that would extend
plenary power under Texas Rule of Civil Procedure 329b. See Tex. R. Civ. P. 329b (e), (g).
2
  Cole argues that the substance of this part of the amended motion is a further response in
opposition to her motion to dismiss under Rule 91a. We disagree. The amended motion sought
relief from the trial court’s order; the trial court already had granted Cole’s motion to dismiss
Crotts’s claims under Rule 91a.

                                               4
motion to modify that extended the trial court’s plenary power because motion
sought substantive change in judgment, even though motion did not contain an
explicit request for a modification of the judgment); Kashan v. McLane Co., No.
03-11-00125-CV, 2012 WL 2076821, at *2 (Tex. App.—Austin 2012, no pet.)
(holding that motion asking court to vacate the judgment was a motion to modify
that extended the trial court’s plenary power because motion sought substantive
change in the judgment).3

         Because Crotts’s motion extended the trial court’s plenary power over its
order, the trial court still had plenary power when it signed the Reinstatement
Order on December 6, 2013. In that order, the trial court found that Crotts’s failure
to appear for the hearing on the Rule 91a motion was not intentional or the result
of conscious indifference. The trial court ordered that “pursuant to Rule 165a(3) of
the Texas Rules of Civil Procedure and applicable Texas state case law, this case
be reinstated on the Court’s docket, effective immediately[] only as to the Causes
of Action alleging Defamation and Breach of Contract.”4 Because the trial court
had dismissed all of Crotts’s claims under Rule 91a rather than for want of
prosecution under Rule 165a, the wording of the Reinstatement Order is unusual.
Nonetheless, in the Restatement Order, the trial court necessarily modified its prior
final order so that it no longer dismissed Crotts’s claims for defamation and breach
of contract. See Urelift Gulf Coast, L.P. v. Bennett, No. 14-13-0949-CV, 2015 WL


3
  Cole relies upon First Freeport Nat’l Bank v. Brazoswood Nat’l Bank, in which this court
concluded that a motion seeking a completely different judgment than the judgment the trial
court had rendered was not a motion to modify and did not extend the appellate deadlines under
Rule 329b. See 712 S.W.2d 168, 169–70 (Tex. App.—Houston [14th Dist.] 1986, no writ). But
this precedent conflicts with subsequent precedent from the Supreme Court of Texas and is no
longer good law on this point. See Lane Bank Equipment Co., 10 S.W.3d at 313–14; Mann, 464
S.W.3d at 89; Kashan, 2012 WL 2076821, at *2.
4
    (emphasis omitted).

                                              5
495020, at *2 (Tex. App.—Houston [14th Dist.] Feb. 5, 2015, no pet.) (mem. op.).
This action meant that there no longer was a final judgment in the case and that
there no longer was any timetable for the expiration of the trial court’s plenary
power under Rule 329b.5          See In re Fischer, No. 14-11-0482-CV, 2011 WL
2899138, at *2 (Tex. App.—Houston [14th Dist.] Jul. 21, 2011, orig. proceeding
[mand. denied]) (holding that Rule 329b applies only to final judgments) (mem.
op.).

        Cole then filed a “Motion To Dismiss for Lack of Jurisdiction.” In this
motion, Cole asked the court to dismiss “this action” for lack of jurisdiction. Cole
argued that the trial court’s plenary power had expired on November 13, 2013, and
that the trial court lacked plenary power to render the Reinstatement Order. Cole
asked the trial court to declare that the Reinstatement Order was void, to vacate the
Reinstatement Order, and to dismiss the action for lack of jurisdiction.

        The trial court signed a final order in which it granted Cole’s motion,
declared that the Reinstatement Order was void, vacated that order, and dismissed
the “cause.” The trial court later issued findings of fact and conclusions of law, in
which it stated that it did not have plenary power to render the Reinstatement
Order because neither the motion to reinstate nor the amended motion to reinstate
was properly verified as required by Rule 165a and therefore neither motion
extended the trial court’s plenary power beyond November 13, 2013.

        We conclude that, in the January 27, 2014 order, the trial court declared the
Reinstatement Order void and dismissed all of Crotts’s claims for lack of

5
  Cole argues that even if Crotts’s amended motion extended the trial court’s plenary power, the
plenary power still would have expired on January 5, 2014, thirty days after the Reinstatement
Order. This argument lacks merit because the result of the Reinstatement Order was that, until
the trial court’s January 27, 2014 order, there was no final judgment that would trigger a new
timetable for the expiration of the trial court’s plenary power under Rule 329b.

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jurisdiction, necessarily vacating the trial court’s order of October 14, 2013, in
which the court dismissed all of Crotts’s claims under Rule 91a. See Urelift Gulf
Coast, L.P., 2015 WL 495020, at *2. The trial court had not lost plenary power
when it signed the January 27, 2014 order, dismissing the entire action for lack of
jurisdiction.6 Crotts timely perfected an appeal from this order two days after the
trial court rendered it.

       Cole asserts that the trial court’s plenary power expired on November 13,
2013, because Crotts filed no motion that would extend the trial court’s plenary
power beyond that date. In support of this argument, Cole relies on a line of cases
that applies in the context of a final order dismissing all claims for want of
prosecution. In this context, courts have held that a motion for reinstatement is the
only remedy available to a party whose claims have been dismissed for want of
prosecution. Watson v. Clark, No. 14-14-00031-CV, 2015 WL 780563, at *1 (Tex.
App.—Houston [14th Dist.] Feb. 24, 2015, no pet.) (mem. op.). In addition, courts
have concluded that any postjudgment motion in which the movant seeks to
change a final order dismissing claims for want of prosecution is a motion to
reinstate and that a motion to reinstate not properly verified does not extend the
trial court’s plenary power. See id. at *2. Cole correctly notes that neither Crotts’s
“Motion to Reinstate” nor his “First Amended Motion to Reinstate and Motion to
Quash” was properly verified. But, the line of cases on which Cole relies applies
only to a dismissal for want of prosecution. See id. at *1–2. The trial court did not
dismiss any claims for want of prosecution, and therefore this line of cases does
not apply. See id. Though Crotts did move to reinstate under Rule 165a, which

6
  In any event, even after the apparent expiration of plenary power over a judgment, a trial court
still may sign an order declaring its prior judgment in the case to be void because the trial court
lacked subject-matter jurisdiction to render the judgment. In re Martinez, — S.W.3d. —, —,
2015 WL 5770829, at *2 (Tex. App.—Houston [14th Dist.] (Oct. 1, 2015, orig. proceeding).

                                                7
applies only to dismissals for want of prosecution, this action did not transform the
trial court’s dismissal order under Rule 91a into a dismissal for want of prosecution
under Rule 165a.7

       Cole also cites the line of cases in which courts have held that trial courts
lose plenary power over a case thirty days after signing an order transferring
venue, even if parties file motions during this period seeking reconsideration or
modification of the venue-transfer order. See In re Chester, 309 S.W.3d 713, 716–
18 (Tex. App.—Houston [14th Dist.] 2010, orig. proceeding). Cole argues that
this line of cases should be extended to orders dismissing all claims under Rule
91a, and therefore, no motion could have extended the trial court’s plenary power
beyond November 13, 2013. This argument appears to raise an issue of first
impression in Texas.

       The line of cases upon which Cole relies rests on the language of Texas Rule
of Civil Procedure 89 and considerations relating to venue-transfer orders. See id.
Rule 91a requires Rule 91a motions to be filed within sixty days after the first
pleading containing the challenged claim is served on the movant and ruled on
within forty-five days after filing. Tex. Civ. P. 91a.3. Nonetheless, Rule 91a does
not contain any language like that in Rule 89, upon which this court relied in the In
re Chester case. See Tex. Civ. P. 91a, 89; In re Chester, 309 S.W.3d at 716–18.
Nothing in Rule 91a or in the nature of a final order dismissing all claims under
Rule 91a would justify an exemption of such an order from application of Rule

7
  As discussed above, under the legal standard applicable outside of the dismissal-for-want-of-
prosecution context, the substance of Crotts’s amended motion also included a timely motion to
modify the trial court’s final order that extended the trial court’s plenary power over its October
14, 2013 order. See Lane Bank Equipment Co., 10 S.W.3d at 313–14; Mann, 464 S.W.3d at 89;
Kashan, 2012 WL 2076821, at *2.



                                                8
329b.       See Tex. Civ. P. 91a, 329b; In re Chester, 309 S.W.3d at 716–18.
Therefore, we conclude that final Rule 91a dismissal orders are subject to Rule
329b. See In re Fischer, 2011 WL 2899138, at *2.

         Crotts timely appealed from the trial court’s final order of January 27, 2014.
Thus, this court has jurisdiction over Crotts’s appeal.

      B. Did the trial court err in signing the final jurisdictional dismissal order?

         In its final order, the trial court vacated its Reinstatement Order and declared
it to be void. The trial court based its action on Cole’s argument that the trial court
lost plenary power on November 13, 2013. As discussed in the previous section,
the substance of Crotts’s amended motion included a timely motion to modify the
trial court’s final order that extended the trial court’s plenary power over its
October 14, 2013 order beyond November 13, 2013. See Lane Bank Equipment
Co., 10 S.W.3d at 313–14; Mann, 464 S.W.3d at 89; Kashan, 2012 WL 2076821,
at *2.        The trial court had plenary power and jurisdiction to render the
Reinstatement Order, and the trial court erred in vacating that order and declaring
it to be void. See Lane Bank Equipment Co., 10 S.W.3d at 313–14; Watson, 2015
WL 780563, at *1–2; Mann, 464 S.W.3d at 89; Kashan, 2012 WL 2076821, at *2.
The trial court had jurisdiction over Crotts’s claims against Cole, and the trial court
erred in dismissing the claims for lack of jurisdiction. See Tex. Const. art V, §8;
Tex. Gov’t Code §§ 24.007, 24.008 (West Supp. 2015); Lane Bank Equipment Co.,
10 S.W.3d at 313–14; Watson, 2015 WL 780563, at *1–2; Mann, 464 S.W.3d at
89; Kashan, 2012 WL 2076821, at *2. Accordingly, we sustain Crotts’s third issue
to the extent Crotts asserts that the trial court erred in signing its final order of
January 27, 2014.8

8
    We need not and do not address the remainder of Crotts’s appellate issues.
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                                         III.         CONCLUSION

       The trial court had plenary power and jurisdiction to render the
Reinstatement Order, which made the trial court’s prior final order interlocutory.
Crotts timely appealed from the trial court’s subsequent final order, and so we have
jurisdiction over this appeal. The trial court erred by (1) concluding that it lacked
plenary power or jurisdiction to render the Reinstatement Order, (2) vacating that
order and declaring it to be void, and (3) dismissing the case for lack of
jurisdiction. We reverse that the trial court’s final order and remand for further
proceedings consistent with this opinion.9




                                                /s/     Kem Thompson Frost
                                                        Chief Justice



Panel consists of Chief Justice Frost and Justices Boyce and McCally.




9
  Though Crotts’s appellate brief contains a general prayer, Crotts does not specifically request a
reverse-and-remand judgment on appeal. Nonetheless, Crotts did not expressly state that he did
not want such a judgment. This court may reverse and remand because that is the proper
appellate judgment. See Tex. R. App. P. 43.3 (“When reversing a trial court’s judgment, the
court must render the judgment that the trial court should have rendered, except when . . . a
remand is necessary for further proceedings....”); Garza v.Cantu, 431 S.W.3d 96, 108–10 (Tex.
App.—Houston [14th Dist.] 2013, pet. denied) (sub.op.).


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