









02-12-255-CV.REH.EN_BANC
























COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
 



 
 
 
NO.
02-12-00255-CV
 
 



In
  re Valliance Bank


§
 
§
 
§
 
 
§
 
§
 
§


Original
  Proceeding
 
From
  the 431st District Court
 
of
  Denton County (2008-60122-393)
 
November
  15, 2012
 
Opinion
  by Justice Gardner
 
(en
  banc)



 
 
JUDGMENT ON RELATOR’S
MOTION FOR EN BANC RECONSIDERATION
 
After
reviewing Relator’s motion for en banc reconsideration, we granted the motion
and issued a substitute opinion.  Therefore, we issue the following
judgment.
 
 
This
court has considered Relator’s petition for writ of mandamus and is of the
opinion that relief should be granted.  We conditionally grant Relator’s
petition for writ of mandamus and order that the trial court set aside its
September 13, 2010 order of reinstatement.  The writ will issue only if
the trial court fails to do so within thirty days of the date of this opinion.
It
is further ordered that Real Parties in Interest Linda R. Tedesco and Lucille
W. Shiver shall pay all costs of this appeal, for which let execution issue.
 
SECOND DISTRICT COURT OF APPEALS 
 
 
 
By_________________________________
   
Justice Anne Gardner
 
 
 
 
 
 
 
 


 














COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
 



 
 
 
NO.
02-12-00255-CV
 
 



In re Valliance Bank


 


RELATOR




 
 
 




 


 


 



 
 
----------
ORIGINAL PROCEEDING
----------
OPINION ON RELATOR’S
MOTION FOR EN BANC RECONSIDERATION
 
----------
The court
has considered the motion for en banc reconsideration filed by Relator Valliance Bank, the response filed by Real Parties in
Interest Linda R. Tedesco and Lucille W. Shiver, and Relator’s reply.  We
grant the motion for en banc reconsideration, withdraw our opinion of June 26,
2012, and substitute the following.
BACKGROUND
FACTS
Real
Parties filed the underlying suit as plaintiffs on April 23, 2008.  The
trial court’s record of filings reveals virtually no activity for two years
other than requests for discovery.  The trial court placed the suit on the
dismissal docket for hearing on April 12, 2010, and issued a notice for the
parties to present an agreed scheduling order at or prior to the hearing.
 Counsel for Relator and the other defendants appeared, but neither Real
Parties nor their counsel appeared at the hearing, nor did anyone present a
scheduling order to the trial court.  Although the notice provided that
failure to submit a scheduling order would result in dismissal for want of
prosecution, the trial court did not dismiss the lawsuit at that time.
The
trial court placed the case on the status conference docket for hearing on May
24, 2010, and issued a notice instructing the parties to appear and be prepared
to discuss the status of the case and to set pretrial and trial dates. 
The second notice stated that failure to appear would result in dismissal for
want of prosecution.  Neither Real Parties nor their counsel appeared at
the hearing.  The court placed the lawsuit on its status conference docket
for July 12, 2010, and issued a notice of status conference, again warning that
failure to appear would result in dismissal for want of prosecution.  When
neither Real Parties nor their counsel appeared for the third status conference
hearing, the trial court signed its order dismissing the case for want of
prosecution on July 12, 2010.
On
July 19, 2010, Real Parties timely filed a motion for reinstatement.  The
motion for reinstatement was signed by their counsel of record and set forth
that he had a plumbing emergency on the date of the third scheduled hearing,
that it took much of the day, and that in the rush to attend to the emergency
he forgot to call the court, such that the failure to appear was not
intentional nor the result of conscious indifference but was the result of
mistake or accident.  Although the motion and certificate of service were
signed by Real Parties’ counsel of record, he did not verify or swear to the
facts contained in the motion.  Instead, the motion contained an unsworn statement
titled “Verification” signed by another individual not identified either as a
party or as counsel for Real Parties.
On
August 12, 2010, thirty-one days after the order of dismissal was signed, Real
Parties’ counsel of record forwarded for filing a sworn affidavit dated August
12, 2010, setting forth and swearing to the same facts set forth in the motion
to reinstate that he had previously filed.  The clerk’s computerized
listing of documents filed shows that the affidavit was filed on August 13, 2010. 
Defendants, including Relator, filed written objections to the unsworn
verification to the motion to reinstate and to the late filing and content of
the affidavit of Real Parties’ counsel.  After a hearing on August 20,
2010, the trial court overruled the defendants’ objections and signed an order
granting reinstatement on September 13, 2010.
On
April 2, 2012, Relator filed a motion to vacate the order reinstating the
lawsuit, and the trial court denied the motion on June 8, 2012.  Relator
seeks by this mandamus proceeding to have the order reinstating the lawsuit
vacated.
APPLICABLE
LAW
A
trial court has plenary power to reinstate a case within thirty days after it
signs an order of dismissal for want of prosecution.  Tex. R. Civ. P. 165a(3),
(4); Neese v. Wray, 893 S.W.2d 169, 170 (Tex. App.―Houston [1st Dist.] 1995,
no writ) (recognizing trial court has plenary power to reinstate case within
thirty days of dismissal even in absence of motion to reinstate).  A
verified motion to reinstate a case filed within thirty days of a dismissal for
want of prosecution extends the trial court’s plenary power in the same manner
as a motion for new trial.  Tex. R. Civ. P. 165a(3), (4).  The
Supreme Court of Texas has made clear, however, that an unverified motion to
reinstate is a nullity and does not extend the trial court’s plenary
jurisdiction or the time in which to file a notice of appeal.  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); Butts v. Capitol
City Nursing Home, Inc., 705 S.W.2d 696,
697 (Tex. 1986).  The time limits provided in rule 165a
are mandatory and jurisdictional; orders of reinstatement entered after their
expiration are void.  Harris Cnty. v. Miller, 576 S.W.2d 808, 809 (Tex. 1979) (orig. proceeding); Danforth
Mem’l Hosp. v. Harris, 573 S.W.2d
762, 763 (Tex. 1978) (orig. proceeding); N-S-W Corp. v. Snell, 561 S.W.2d 798, 798 (Tex. 1977) (orig. proceeding); see United
Residential Props., L.P. v. Theis, No.
14-11-00330-CV, 2012 WL 3573882, at *2 (Tex. App.―Houston [14th
Dist.] Aug. 21, 2012, no pet.).
To
extend the trial court’s plenary jurisdiction beyond thirty days from the date
of dismissal, rule 165a(3) requires that a motion to reinstate be “verified by the
movant or his attorney” and be filed within thirty days after the signing of
the dismissal for want of prosecution.  Tex. R. Civ. P. 165a(3); McConnell,
800 S.W.2d at 194; Butts, 705 S.W.2d at 697; see Hosea v. Whittenburg,
311 S.W.3d 704, 705 (Tex. App.―Amarillo 2010,
pet. denied); Twist v. McAllen Nat’l Bank, 294 S.W.3d
255, 260 (Tex. App.―Corpus Christi 2009, no pet.).  The motion for
reinstatement here was timely filed but not verified.  Unless the
late-filed affidavit of Real Parties’ attorney—filed after thirty days had
expired from the date of the dismissal order—sufficed as a substitute for a
verification sufficient to support the factual averments in the motion to
reinstate, the motion did not extend the trial court’s plenary power, the order
granting the motion to reinstate after the thirty-day period had expired is
void, and mandamus relief is appropriate.  See In re Brookshire Grocery
Co., 250 S.W.3d 66, 68 (Tex. 2008) (orig. proceeding)
(“Mandamus relief is appropriate when a trial court issues an order after its
plenary power has expired.”); Estate of Howley v. Haberman, 878 S.W.2d 139, 140
(Tex. 1994) (orig. proceeding) (mandamus will issue when trial court
erroneously reinstates case after expiration of its plenary jurisdiction); In
re N.H. Ins. Co., No. 02-12-00281-CV, 2012 WL
3264392, at *1–2 (Tex. App.—Fort Worth Aug. 13, 2012, orig. proceeding) (mem. op.) (conditionally granting writ of mandamus to set
aside void order reinstating suit after plenary power expired); In re
Strickland, No. 01-01-00972-CV, 2002 WL 58482, at *2 (Tex.
App.―Houston [1st Dist.] Jan. 17, 2002, orig.
proceeding) (not designated for publication) (same).
UNSWORN
VERIFICATION
A
statement labeled “Verification” was signed on the last page of the motion to
reinstate, in which the signer stated that he had personal knowledge of the
facts recited in the motion, but the signer was not Real Parties’ counsel of
record and is not identified as a party or as an attorney in the case, nor is
the statement sworn to.  A 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.”  Andrews v. Stanton, 198 S.W.3d
4, 8 (Tex. App.―El Paso 2006, no pet.) (quoting
Black’s Law Dictionary 1556 (7th ed. 1999)); see also Frazier v. Dikovitsky, 144 S.W.3d
146, 149 (Tex. App.—Texarkana 2004, no pet.) (stating
“verified” under rule 107 requires acknowledgement before a notary
public”); McGraw-Hill, Inc. v. Futrell, 823
S.W.2d 414, 416 (Tex. App.—Houston [1st Dist.] 1992,
writ denied) (op. on reh’g) (stating that “[a]n
acknowledgment of an instrument before a notary public . . . verifies it for
[the] record”).[1] 
The statement purporting to verify the motion to reinstate does not reveal how
the signer had personal knowledge of counsel’s plumbing emergency or that he
forgot to call the court.[2]
SIGNATURE
OF COUNSEL
Nor
was the signature of Real Parties’ counsel of record
on the motion itself a sufficient verification, as Real Parties argued at the
hearing on the motion to vacate the reinstatement.  An attorney’s
signature on a pleading certifies that he has read the document and that to the
best of his knowledge, information, and belief, formed after reasonable
inquiry, the instrument is not groundless and not brought in bad faith or for
the purpose of harassment.  See Tex. R. Civ. P. 13.  The signature
of the attorney is not the equivalent of a verification, which represents the
facts to be true and based upon personal knowledge.  See Luxenberg v. Marshall, 835 S.W.2d
136, 140 & n.3 (Tex. App.―Dallas 1992,
orig. proceeding) (distinguishing between groundless pleadings and false
affidavits).  Moreover, even if counsel’s bare signature could be
considered a verification, the motion signed by Real
Parties’ counsel of record contained no language indicating that he swore that
the facts stated therein were true and were based on his personal
knowledge.  Cf. Residential Dynamics, LLC v. Loveless, 186 S.W.3d 192, 197 (Tex. App.—Fort Worth 2006, no pet.) (holding affidavit was valid
without jurat because it contained acknowledgement
and stated witness was “sworn”).
LATE-FILED
AFFIDAVIT
Real
Parties argue that the later-filed affidavit of their counsel of record should
be considered sufficient verification.  They cite Guest v. Dixon,
195 S.W.3d 687, 688 (Tex. 2006), in which the supreme
court held that the verification requirement of rule 165a(3) was satisfied by an
affidavit of the movant’s former attorney who had personal knowledge of most of
the relevant facts needed to support an unverified motion to reinstate. 
Real Parties also point to several intermediate appellate court cases that
signal a more liberal attitude toward what constitutes sufficient verification
under rule 165a.  See Twist, 294 S.W.3d at 262 (“[A]n unverified motion to reinstate must be
supported by an affidavit or other sufficient evidence in the record . .
. .”) (quoting Silguero
v. State, 287 S.W.3d 146, 150 (Tex.
App.―Corpus Christi 2009, orig. proceeding)); Andrews, 198 S.W.3d at 8 (holding timely-filed affidavit of counsel
attached to motion sufficient substitute for verification of motion); Fed. Lanes, Inc. v. City of Houston, 905 S.W.2d 686, 689–90 (Tex. App.―Houston [1st Dist.]
1995, writ denied) (holding timely-filed joint motion to reinstate within
thirty days of dismissal equivalent to a stipulation and satisfied rule 165a); see also In re Dobbins, 247 S.W.3d 394, 396–97 (Tex. App.―Dallas 2008, orig.
proceeding) (holding, despite unverified motion and lack of any supporting
affidavit, that combination of evidentiary hearing and court master’s
recommendation of approval of motion within the thirty-day period after
dismissal constituted adequate substitute for verification).
Each
of those cases is distinguishable.  The affidavits held to constitute
substitutes for verification of the motions to reinstate in those cases were
all filed within the initial thirty-day period following the dismissal. 
In Dobbins, a hearing—presumably with sworn testimony—was held within
the initial thirty days and resulted in a recommendation by the master within
that same time frame.  In contrast, the affidavit of Real Parties’ counsel
of record was not filed until after the expiration of the thirty-day period,
and the hearing on the motion to reinstate was not held until a month
later.  No affidavit or other evidence was filed within thirty days after
the dismissal that could be construed as a substitute for proper and timely
verification of the motion to reinstate as required by rule 165a(3) in this case. 
In other words, to “cure” an unverified motion to reinstate, an affidavit or
other evidence supporting the motion is acceptable, but it must be filed within
the same thirty-day period as required for filing of the motion to
reinstate.  See In re Garcia, 94 S.W.3d
832, 833 (Tex. App.―Corpus Christi 2002, orig. proceeding) (holding
mandamus would be granted because unverified motion to reinstate was not
“cured” by an affidavit filed after thirty days had expired); Owen v. Hodge,
874 S.W.2d 301, 303 (Tex. App.―Houston [1st
Dist.] 1994, no writ) (holding reinstatement properly denied on jurisdictional
grounds when unverified motion to reinstate was filed within thirty days but
movant did not seek leave to file verification until thirty-eight days after
dismissal); see also In re Trinity Universal Ins. Co. of Kan., No.
04-06-00471-CV, 2006 WL 2819767, at *1–2 (Tex. App.―San Antonio 2006,
orig. proceeding) (mem. op.) (holding
attorney’s verification filed after thirty days had expired could not cure
unverified motion, and attorney’s signature on unverified motion to reinstate
was not equivalent to verification).
Although
the supreme court admonished in Guest and has continued to stress that
courts should strive to reach the merits of cases when reasonably possible and
that litigants’ rights (whether of appeal or of a day in court) should not be
lost based upon procedural technicalities,[3] that line of cases has not overruled McConnell
or Butts, and we remain bound by those decisions.  An unverified
motion to reinstate is ineffective to extend the trial court’s plenary power
beyond thirty days, and rule 165a provides no
opportunity to cure the deficiency by affidavit once the trial court’s plenary
power has expired.  See Lubbock Cnty. v. Trammel’s Lubbock Bail Bonds, 80 S.W.3d 580, 585 (Tex. 2002) (holding court of appeals’s function not to abrogate or modify established
precedent).
DELAY
IN SEEKING MANDAMUS
Real
Parties further argue that Relator was dilatory in failing to seek mandamus
relief for eighteen months with no explanation or excuse as to the delay,
participating in the lawsuit and discovery, and otherwise treating the case as
validly reinstated, all of which resulted in prejudice to Real Parties. 
Thus, they contend that Relator slumbered on its rights or lay behind the log
and thereby waived its right to seek relief by mandamus.  As to Real
Parties’ contention that Relator lay behind the log regarding its position that
the reinstatement was void until it filed this proceeding, we note that the
defendants, including Relator, clearly addressed the same arguments raised in
this court by their objections and briefing filed in response to the motion to
reinstate in the trial court in 2010.  As to Real Parties’ contention that
Relator should have appealed from the order reinstating the lawsuit, no appeal
was available from the order of reinstatement, which merely placed the case
back on the docket as though it had never been dismissed.  It was neither
a final judgment nor an interlocutory order from which Relator was entitled
appeal.
Moreover,
doctrines such as laches, waiver, or estoppel are not applicable when the order
that is the subject of the mandamus proceeding is void.  See In re Aslam, 348 S.W.3d 299, 303 n.10 (Tex. App.—Fort Worth 2011, orig. proceeding) (stating
that laches does not preclude a challenge to a void order);  In re
Chester, 309 S.W.3d 713, 718–19 (Tex.
App.—Houston [14th Dist.] 2010, orig. proceeding) (citing Zimmerman v. Ottis, 941 S.W.2d 259, 262
(Tex. App.—Corpus Christi 1996, orig. proceeding) (“Since mandamus relief
in the present case 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.”); Twist, 294 S.W.3d at 263
(holding waiver did not apply when defectively verified motion to reinstate
failed to extend trial court’s plenary power or time limits for appeal).
For
the reasons stated, we are constrained to hold that the unverified motion to
reinstate did not extend the trial court’s plenary power beyond thirty days
after the dismissal was signed and that Real Parties’ counsel’s affidavit filed
after that period had expired was ineffective as an adequate substitute for
verification because rule 165a(3) plainly requires the verified motion to be filed within
thirty days.  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.  We conditionally grant Relator’s petition
for writ of mandamus and order that the trial court set aside its September 13,
2010 order of 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.
 
 
 
ANNE GARDNER
JUSTICE
 
EN
BANC
 
DELIVERED:  November
15, 2012
 
 







[1]Verification must be based on personal knowledge. 
Tex. R. Evid. 602 (“A
witness may not testify to a matter unless . . . the witness has personal
knowledge of the matter.”); see Marks v. St. Luke’s Episcopal Hosp., 319
S.W.3d 658, 666 (Tex. 2010) (op. on reh’g).  A party’s attorney may verify the
pleading when he has personal knowledge of the facts, but he does not have
authority to verify based merely on his status as counsel.  Twist,
294 S.W.3d at 262 (holding personal knowledge
required for verification of motion to reinstate); see Tex. R. Civ.
P. 14 (stating agent or attorney may verify facts).  Cf. Gorrell v. Tide Prods., Inc., 532 S.W.2d 390, 395–96 (Tex. Civ. App.—Amarillo 1975, no
writ) (holding that a company officer who did not have personal knowledge
of certain matters could not deny them under oath since they would be hearsay
as to him).


[2]Incidentally,
the verification also does not meet the requirements of civil practice and
remedies code section 132.001, which allows for an unsworn declaration if the
declaration meets the statute’s requirements.  See Tex. Civ. Prac. & Rem. Code Ann. § 132.001
(West Supp. 2012).


[3]See Milestone
Operating, Inc. v. ExxonMobil Corp., No. 11-0647, 2012 WL 5285085, at *2 (Tex.
Oct. 26, 2012) (reversing default judgment and noting court’s policy that
“adjudication on the merits is preferred”) (quoting Holt Atherton Indus.,
Inc. v. Heine, 835 S.W.2d 80, 86 (Tex. 1992)); Americo Life, Inc. v. Myer, 356 S.W.3d 496, 498 (Tex. 2011) (reversing court of appeals’s waiver holding); Ditta
v. Conte, 298 S.W.3d 187, 190 (Tex. 2009)
(broadly construing issues so that “‘a just, fair[,] and equitable adjudication
of the rights of the litigants’ is obtained”); Michiana Easy Livin’ Country, Inc. v. Holten,
168 S.W.3d 777, 784 (Tex. 2005) (reiterating that the
appellate rules “are designed to resolve appeals on the merits, and we must
interpret and apply them whenever possible to achieve that aim”); Gallagher
v. Fire Ins. Exch., 950 S.W.2d 370, 370–71 (Tex.
1997) (reiterating commitment to ensuring that courts do not unfairly apply the
rules of appellate procedure to avoid addressing a party’s meritorious claim); Crown
Life Ins. Co. v. Estate of Gonzalez, 820 S.W.2d
121, 121–22 (Tex. 1991) (stating that procedural rules should be “liberally
construed so that the decisions of the courts of appeals turn on substance
rather than procedural technicality”).



