Conditionally Granted and Opinion Filed July 31, 2017




                                         S    In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      No. 05-17-00121-CV

                      IN RE YOLANDA RUIZ RODRIGUEZ, Relator

                  Original Proceeding from the 44th Judicial District Court
                                   Dallas County, Texas
                            Trial Court Cause No. DC-14-07813

                             MEMORANDUM OPINION
                          Before Justices Francis, Evans, and Whitehill
                                   Opinion by Justice Francis
       In this original proceeding, relator complains the trial court’s order reinstating the case is

void because the order was issued outside the trial court’s plenary period. We conditionally

grant the writ.

       The underlying case was filed in 2014 and involves the partition of real property among

eleven parties. Relator has a 25% interest in the property as the heir to a decedent whose estate

is in probate court. Relator was a named defendant in the underlying case but did not appear

until January 13, 2017. The underlying case was originally dismissed for want of prosecution on

February 13, 2015 and was reinstated on March 27, 2015. The order of dismissal states the court

dismissed the case for want of prosecution “pursuant to Texas Rules of Civil Procedure 165a and

the Court’s inherent power” because plaintiff “failed to take certain actions specified by the

Court” and “failed to appear at a scheduling conference” set for February 13, 2015. The

scheduling conference referenced in the order was scheduled by the trial court in an “Order
Setting Scheduling Conference and Notice of Policies.”                        The Order Setting Scheduling

Conference ordered the parties or their attorneys to

           appear for a scheduling conference to address those matters stated in [rules 166,
           190, and 192] on the following date and time: February 13, 2015 @9:00 a.m., or
           alternatively dismissal for want of prosecution for failure to comply with the
           Courts [sic] order for the submission and entrance of a scheduling order. The
           Court prefers that counsel submit an agreed Scheduling Order in lieu of
           attending the scheduling conference hearing. Upon receipt of the signed order,
           the hearing will be cancelled.

The Order Setting Scheduling Conference also stated that the parties should use the court’s

attached forms when filing an agreed scheduling order and explained the procedure for verifying

those forms:

           Requests for variations from the attached forms, even if agreed, must be made at
           the scheduling conference. Failure to attend the scheduling conference may
           result in the entry of an order of dismissal for want of prosecution or other
           sanctions.

           Real parties in interest failed to appear at the February 13, 2015 scheduling conference,

and the trial court dismissed the case for want of prosecution the same day. The real parties in

interest filed an unverified motion to reinstate the case on March 2, 2015. The court entered an

order reinstating the case on March 27, 2015. The “agreed judgment” appointed a receiver to

sell the real property and also rendered a default judgment against relator for failure to appear.1

Thereafter, the receiver notified the court that she intended to sell the property. The trial judge

signed the receiver’s report to confirm the sale of the real property. Relator then appeared in the

case and moved the trial court to vacate the March 27, 2015 reinstatement order and all

subsequent orders. Relator contends the March 27, 2015 reinstatement order is void because the

court signed the order outside the plenary period. Relator seeks a writ of mandamus ordering the

trial court to vacate the reinstatement order and all subsequent orders.


   1
       Relator does not challenge the merits of the default judgment.



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         The Court has mandamus jurisdiction to order the trial court to vacate void orders, and

the doctrine of laches will not bar a mandamus proceeding seeking to vacate void orders. In re

Choice! Energy, L.P., 325 S.W.3d 805, 810 (Tex. App.—Houston [14th Dist.] 2010, orig.

proceeding) (laches is not applicable when the order subject to the mandamus proceeding is

void).

         The trial court’s authority to dismiss for want of prosecution stems from two sources: (1)

Rule 165a of the Texas Rules of Civil Procedure, and (2) the court’s inherent power. See

Veterans’ Land Bd. v. Williams, 543 S.W.2d 89, 90 (Tex. 1976); Bevil v. Johnson, 157 Tex. 621,

625, 307 S.W.2d 85, 87 (1957). Rule 165a enables a trial court to dismiss when a plaintiff fails

to appear for any scheduled hearing or trial of which the party had notice, or when the case is not

disposed of within the time periods set by the Texas Supreme Court. TEX. R. CIV. P. 165a(1),

(2). The common law also vests the trial court with the inherent power to dismiss when a

plaintiff fails to prosecute his or her case with due diligence. Villarreal v. San Antonio Truck &

Equip., 994 S.W.2d 628, 630 (Tex. 1999). Regardless of which vehicle the trial court uses to

dismiss the case for want of prosecution, however, the plaintiff must first be provided with notice

and an opportunity to be heard. See TEX. R. CIV. P. 165a(1) (“Notice of the court’s intention to

dismiss and the date and place of the dismissal hearing shall be sent by the clerk to each attorney

of record....”); Villarreal, 994 S.W.2d at 630.

         A motion to reinstate must be verified and filed with the clerk within 30 days of the

signing of the order of dismissal. McConnell v. May, 800 S.W.2d 194, 194 (Tex. 1990). A

timely filed and verified motion to reinstate will extend the trial court’s plenary power. TEX. R.

CIV. P. 165a(3). Filing a proper motion to reinstate has the same effect on appellate deadlines

and the court’s plenary power as the filing of a motion for new trial. Butts v. Capitol City

Nursing Home, Inc., 705 S.W.2d 696, 697 (Tex. 1986). But if a motion to reinstate is not

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verified, or is not timely, it does not extend the deadlines or the trial court’s plenary power.

McConnell, 800 S.W.2d at 194 (unverified motion to reinstate does not extend the trial court’s

plenary power). Orders signed after the trial court loses plenary power are void. In re Florance,

377 S.W.3d 837, 839 (Tex. App.—Dallas 2012, orig. proceeding); Malone v. Hampton, 182

S.W.3d 465, 468 (Tex. App.—Dallas 2006, no pet.) (citing State ex rel. Latty v. Owens, 907

S.W.2d 484, 486 (Tex. 1995) (per curiam)).

       It is undisputed that the motion to reinstate was not verified and did not, therefore, extend

the court’s plenary power. See, e.g. McConnell, 800 S.W.2d at 194 (conditionally granting writ

to vacate void reinstatement order where motion to reinstate was not verified). The trial court

signed the dismissal order on February 13, 2015. The trial court’s plenary power expired March

15, 2015 — thirty days after the dismissal order was signed. TEX. R. CIV. P. 165a(3), 306a,

329b. To extend the trial court’s plenary period beyond March 15, 2015, the real parties in

interest were required to file a verified motion to reinstate on or before March 15, 2015. The

motion they filed was not verified. Because the real parties in interest did not file a verified

motion to reinstate within thirty days of the signing of the order of dismissal, the trial court's

jurisdiction to reinstate the case expired on March 15, 2015. See McConnell, 800 S.W.2d at 194.

The March 27, 2015 order reinstating the case and all orders signed after that date are void.

       The real parties in interest argue the lack of verification is irrelevant because the trial

court’s Order Setting Scheduling Conference did not provide notice that their claims could be

dismissed for want of prosecution under the trial court’s inherent authority. The real parties

maintain the trial court could only dismiss the case for failure to submit a scheduling order.

They also argue they did not have notice of the possibility of dismissal because they did not

receive the Order Setting Scheduling Conference. We disagree with the real parties’ arguments.

Rule 165a requires a party to file a verified motion to reinstate within thirty days of the date the

                                                –4–
dismissal order is signed. The real parties filed a motion to reinstate within thirty days but it was

not verified. The motion, therefore, did not extend the trial court’s plenary period. Further,

notice was not lacking here. The Order Setting Scheduling Conference provided two bases for

dismissing the case, the dismissal order states the trial court was dismissing the case for both

reasons, and the record contradicts the real parties’ contention that they did not receive a copy of

the Order Setting Scheduling Conference. Under this record, the real parties’ failure to verify

their motion to reinstate barred the trial court from reinstating the case on March 27, 2015.

       The trial court’s reinstatement order was signed after the trial court’s plenary power had

expired. That order and all subsequent orders are void and must be vacated. We, therefore,

conditionally grant relator’s petition for writ of mandamus and direct the trial court to issue

written orders vacating the March 27, 2015 reinstatement order and vacating all subsequent

orders. A writ will issue only in the event the trial court fails to issue the orders as directed

within fifteen days of the date of this opinion. We direct our clerk not to issue the writ of

mandamus unless information is received that the district court has not so complied.




                                                      /Molly Francis/
                                                      MOLLY FRANCIS
                                                      JUSTICE



170121F.P05




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