Affirmed and Opinion Filed June 28, 2013




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                                                          In The
                                                   Court of Appeals
                                            Fifth District of Texas at Dallas

                                                      No. 05-11-01296-CV

                                       AMY SELF, Appellant
                                               V.
                            TINA KING AND ELIZABETH TUCKER, Appellees

                                 On Appeal from the County Court at Law No. 1
                                             Collin County, Texas
                                     Trial Court Cause No. 001-1286-2010

                                             MEMORANDUM OPINION

                                      Before Justices FitzGerald and Lang-Miers1
                                            Opinion by Justice FitzGerald

          Appellant Amy Self sued appellees for personal injuries she allegedly sustained in an

automobile accident. The trial judge put the case on a dismissal docket and ultimately dismissed

the case. The trial judge then refused to rule on Self’s motion to reinstate on the ground that her

plenary power over the dismissal had expired. We conclude that the trial judge did have plenary

power to rule on the motion to reinstate, and that the motion to reinstate was subsequently

overruled by operation of law. Ultimately, we affirm the dismissal of Self’s case.




     1
       The Honorable Mary L. Murphy was on the panel and participated at the submission of this case. Due to her retirement from the Court on
June 7, 2013, she did not participate in the issuance of this opinion. See TEX. R. APP. P. 41.1(a), (b).
                                        I. BACKGROUND

       Self filed her original petition against appellees Tina King and Elizabeth Tucker in May

2010. She alleged that Tucker negligently entrusted a car to King, and that King negligently and

recklessly caused an auto accident in which Self was injured. Appellees answered. The judge

set the case for trial on December 13, 2010.

       The judge later granted a motion for continuance by appellees and reset the case for trial

on March 21, 2011. On March 18, 2011, Self filed an agreed motion for continuance. On March

21, the trial judge signed an order in which she granted the motion. The record next contains a

March 24, 2011 letter from the court to all counsel setting the case for trial on May 16, 2011, and

instructing the parties to sign and return an enclosed scheduling order. The letter further advised,

“If the discovery control plan and scheduling order is not received by 8:00 a.m. April 8, 2011,

this matter may be placed on the court[’]s dismissal docket.” On April 7, 2011, an attorney for

appellees filed a letter indicating that he was enclosing a proposed discovery control plan and

scheduling order signed only by him. He explained that he had attempted unsuccessfully to

confer with Self’s counsel about the plan on three different days, so he was submitting the

proposed order without the signature of Self’s counsel.

       Next, the record contains notices by the trial court and addressed to the parties’ attorneys

advising that the case was set for hearing at 10:00 a.m. on April 21, 2011, regarding whether the

case should be dismissed for want of prosecution. The notices are dated April 8, 2011. On April

21, the judge signed an order of dismissal that stated as follows:

              The Court, having set this Cause for dismissal on April 21, 2011, and
       having found that neither Plaintiff nor her counsel have appeared, is of the
       opinion that said Cause should be dismissed with prejudice.

              IT IS THEREFORE, ORDERED, ADJUDGED, AND DECREED that all
       claims in this lawsuit are hereby dismissed with prejudice. All costs of court are
       assessed against Plaintiff.


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       On July 15, 2011, Self filed a document captioned “Agreed Motion to Reinstate and

Vacate Order of Dismissal.” In that motion she averred she was not aware of the dismissal until

June 18, and that neither she nor her attorney had received notice of “any setting or hearing or

trial date.” Self’s attorney verified the motion. Appellees filed a response in which they asserted

that the motion was not agreed. On August 17, 2011, the trial judge held a hearing on the motion

to reinstate. The judge stated on the record that she did not believe she had jurisdiction to

reinstate the case, and she accordingly declined to rule on the motion to reinstate. She further

stated on the record that she would deny the motion to reinstate if she believed she had

jurisdiction to do so. The judge never signed an order disposing of Self’s motion to reinstate.

Self filed her notice of appeal on September 15, 2011.

                                 II. APPELLATE JURISDICTION

       After oral argument we sent the parties a letter advising that we questioned our

jurisdiction over this appeal because it appeared that Self’s notice of appeal was not timely. See

TEX. R. APP. P. 4.2(c); Nedd–Johnson v. Wells Fargo Bank, N.A., 338 S.W.3d 612 (Tex. App.—

Dallas 2010, no pet.). Self filed a motion asking for an abatement of the appeal, and we granted

the motion, abated the appeal, and ordered the trial judge to issue an order finding the date on

which Self or her counsel first either received notice or acquired actual knowledge of the

dismissal, pursuant to Texas Rule of Appellate Procedure 4.2(c). The trial judge complied, and

we have received a supplemental clerk’s record that contains the trial judge’s order and fact

finding. In an order signed May 1, 2013, the judge found that “June 18, 2011 is the date when

the Plaintiff or her attorney first either received notice or acquired actual knowledge that the

Dismissal Order in this cause was signed.”

       Thus, the appealable order in the case was the dismissal order signed on April 21, 2011.

The judge’s May 1, 2013 order establishes that Self and her attorney did not receive notice or


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actual knowledge of the dismissal order until June 18, 2011, which was fifty-eight days after the

dismissal order was signed. Thus, Self’s appellate deadlines began to run on June 18, 2011. See

TEX. R. APP. P. 4.2(a)(1). Self timely filed her motion to reinstate on July 15, 2011, which was

within thirty days of June 18. This extended her deadline to file her notice of appeal to ninety

days after June 18, or September 16. See TEX. R. APP. P. 26.1(a). Thus, Self’s notice of appeal

filed on September 15, 2011, was timely.

       We have appellate jurisdiction over this appeal.

                                         III. ANALYSIS

       Self presents three issues on appeal. In her first issue, she argues that the trial judge erred

by concluding that she lacked the power to determine whether Self’s motion to reinstate was

untimely. In her second issue, she argues that the trial judge erred by dismissing the case

without proper notice to Self. In her third issue, Self argues that the trial judge erroneously

concluded that evidence of mailing of a notice created an irrebuttable presumption that Self

received that notice.

       Based on the trial judge’s recent fact finding, we agree with Self’s first issue on appeal.

The trial judge has now found that Self and her attorney did not receive notice or acquire actual

knowledge of the dismissal until June 18, 2011. This extended Self’s deadline to file a motion to

reinstate until July 18, 2011. See TEX. R. CIV. P. 165a(3) (providing that motion to reinstate

must be filed within thirty days of dismissal or “within the period provided by Rule 306a”); TEX.

R. CIV. P. 306a(4) (providing for extensions of deadlines if party and its attorney receive notice

of appealable order late). Accordingly, Self’s motion to reinstate filed on July 15, 2011 was

timely. The trial judge erred by concluding that she lacked plenary power to rule on Self’s

motion to reinstate.




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       In her second issue, Self argues that the trial judge abused her discretion by not granting

her motion to reinstate. As previously stated, the trial judge did not sign an order deciding Self’s

motion to reinstate, believing she had no jurisdiction to do so. However, she stated on the record

that she would have denied the motion to reinstate if she thought she had jurisdiction to do so.

With the benefit of the trial judge’s recent finding, we can determine that the motion to reinstate

was effectively overruled by operation of law seventy-five days after June 18, 2011 by virtue of

Texas Rules of Civil Procedure 165a and 306a. See TEX. R. CIV. P. 165a(3) (allowing seventy-

five-day period to commence “as may be allowed by Rule 306a”); TEX. R. CIV. P. 306a(1), (4)

(deferring commencement of postjudgment deadlines when party and attorney do not receive

notice or acquire actual knowledge of judgment within twenty days after its signing). We can

review Self’s second issue as a challenge to the overruling of her motion by operation of law.

       We conclude Self has not shown reversible error in her second issue on appeal because

she does not address all possible grounds for the dismissal of her case. If a dismissal order does

not state the grounds for the dismissal, a plaintiff seeking reinstatement must negate all possible

grounds. Hatcher v. TDCJ–Institutional Div., 232 S.W.3d 921, 925 (Tex. App.—Texarkana

2007, pet. denied); Manning v. North, 82 S.W.3d 706, 713 (Tex. App.—Amarillo 2002, no pet.);

see also Oliphant Fin. LLC v. Angiano, 295 S.W.3d 422, 423 (Tex. App.—Dallas 2009, no pet.)

(“An appellant must attack all independent bases or grounds that fully support a complained of

ruling or judgment.”). In this case, although the trial judge included a factual recital in the

dismissal order that Self did not appear at the dismissal hearing, the order is silent as to the

ground or grounds for the dismissal. The record shows that another possible reason for the

dismissal—and the apparent reason the court set the case on the dismissal docket in the first

place—was Self’s previous noncompliance with the trial court’s letter requiring all parties to

participate in the submission of a discovery control plan and scheduling order on pain of

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dismissal. Self did not address this possible ground for dismissal in her motion to reinstate or at

the reinstatement hearing. Nor does she address it in her appellate brief, which is limited to an

argument about the reason she did not appear at the dismissal hearing. Accordingly, she has not

shown reversible error. See Oliphant Fin. LLC, 295 S.W.3d at 424 (stating that when appellant

fails to challenge all independent grounds supporting the judgment, “we must accept the validity

of that unchallenged independent ground,” and any error identified by appellant is harmless).

        In her third issue, Self argues that the trial judge erred by treating the presumption that

Self’s counsel received the mailed notices as irrebuttable. In light of our disposition of Self’s

first issue, it is unnecessary for us to address this issue.

                                          IV. CONCLUSION

        For the foregoing reasons, we affirm the trial court’s judgment.




                                                         /Kerry P. FitzGerald/
                                                         KERRY P. FITZGERALD
111296F.P05                                              JUSTICE




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                                         S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

AMY SELF, Appellant                                  On Appeal from the County Court at Law
                                                     No. 1, Collin County, Texas
No. 05-11-01296-CV         V.                        Trial Court Cause No. 001-1286-2010.
                                                     Opinion delivered by Justice FitzGerald.
TINA KING and ELIZABETH TUCKER,                      Justice Lang-Miers participating.
Appellees

     In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.

        It is ORDERED that appellees TINA KING and ELIZABETH TUCKER recover their
costs of this appeal from appellant AMY SELF.


Judgment entered June 28, 2013




                                                     /Kerry P. FitzGerald/
                                                     KERRY P. FITZGERALD
                                                     JUSTICE




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