                        COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                             NO. 02-12-00281-CV


IN RE NEW HAMPSHIRE                                                 RELATOR
INSURANCE CO.




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                          ORIGINAL PROCEEDING

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                       MEMORANDUM OPINION1

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      Relator New Hampshire Insurance Co. seeks a writ of mandamus ordering

the trial court to vacate its March 17, 2011 order,2 which vacated its December

30, 2009 order dismissing the underlying suit for want of prosecution. Relator

contends that the trial court’s plenary power over its December 30 dismissal



      1
      See Tex. R. App. P. 47.4.
      2
      We requested a response from real party in interest Magellan
Reinsurance Company, Ltd., but a response was not filed.
order had expired when, fifteen months later, it signed the March 17 order

reinstating the case.

      The law is well-settled that a trial court possesses plenary jurisdiction over

a dismissal order for thirty days or—if a timely, verified motion to reinstate is

filed—for thirty days after the motion to reinstate is ruled on or is overruled by

operation of law.    See Tex. R. Civ. P. 165a(3), (4); McConnell v. May, 800

S.W.2d 194, 194 (Tex. 1990) (orig. proceeding) (explaining that a verified motion

to reinstate filed within thirty days of dismissal extends plenary power for the

same amount of time as a motion for new trial); Neese v. Wray, 893 S.W.2d 169,

170 (Tex. App.––Houston [1st Dist.] 1995, no writ) (recognizing that a trial court

possesses plenary jurisdiction to reinstate a case within thirty days of dismissal

order even in the absence of motion to reinstate).            If no written order of

reinstatement is signed during the trial court’s plenary power, the order of

dismissal becomes final. See, e.g., McConnell, 800 S.W.2d at 194 (holding that

“since Blanchard did not file a verified motion to reinstate within 30 days of the

signing of the order of dismissal, the trial court’s jurisdiction to reinstate the case

expired”); Emerald Oaks Hotel/Conference Ctr., Inc. v. Zardenetta, 776 S.W.2d

577, 578 (Tex. 1989) (orig. proceeding) (holding that because no written order of

reinstatement was signed during the trial court’s plenary power, “the judgment of

dismissal became final, terminating the trial court’s plenary power”); cf. 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


                                          2
plenary power has expired.”); Clewis v. Safeco Ins. Co. of America, 287 S.W.3d

197, 203 (Tex. App.—Fort Worth 2009, no pet.) (explaining that “[w]hen the trial

court loses plenary power over a judgment, it also generally lacks the authority to

vacate the judgment”).

      A few additional facts exist here. First, prior to signing the December 30,

2009 dismissal order, the trial court had signed an order abating the underlying

case.3 And second, real party in interest alleged—in a motion for reinstatement

filed approximately one year after the dismissal order—that it did not receive

notice of the dismissal order. Neither of these facts, however, cause the trial

court to retain plenary jurisdiction over a case it had dismissed over a year

earlier. See, e.g., Gnatt v. Getz, No. 14-10-00003-CV, 2011 WL 1849085, at *5

(Tex. App.––Houston [14th Dist.] May 12, 2011, no pet.) (mem. op.) (involving

inadvertent dismissal following abatement and holding that trial court possessed

authority to sign dismissal order while case was abated); In re Gen. Motors

Corp., 296 S.W.3d 813, 820–21, 825–26 (Tex. App.––Austin 2009, orig.

proceeding) (involving inadvertent dismissal following abatement, alleged lack of

notice of dismissal, and reinstatement, holding that trial court’s action in

inadvertently dismissing the case during the abatement was not a void act so that

the dismissal was not subject to being vacated by the trial court after the

expiration of its plenary power, and holding also that “even if a party does not


      3
       The abatement was not based on a bankruptcy filing.


                                        3
receive actual notice or acquire actual knowledge of the entry of an order

dismissing a case for want of prosecution, the trial court’s plenary power over the

case ends no later than the 120th day after the order of dismissal is signed”).

      Because the trial court lacked plenary power on March 17, 2011 to vacate

the dismissal order it had signed on December 30, 2009, we conditionally grant

the writ of mandamus. The writ will issue only if the trial court refuses to vacate

and to set aside its March 17, 2011 order within ten (10) days of the issuance of

this opinion.4


                                                   PER CURIAM

PANEL: WALKER, DAUPHINOT, and MEIER, JJ.

DELIVERED: August 13, 2012




      4
      This court’s stay of the trial court proceedings previously granted will
remain in effect until the trial court complies with our opinion.


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