Alfonso Pena, f/k/a Al Pena, Mary Alice Saam, and Elida Pena, Individually and as Successors in Interest to Epigmenio Pena v. Cooper Outdoor Advertising, Inc.--Appeal from County Court at Law No 2 of Nueces County

NUMBER 13-05-679-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG

ALFONSO PE A, ET AL., Appellants,

 
v.

COOPER OUTDOOR ADVERTISING,

INC., Appellee.

On appeal from the County Court at Law No. 2
of Nueces County, Texas.
MEMORANDUM OPINION
Before Justices Ya ez, Benavides, and Vela
Memorandum Opinion by Justice Ya ez

Through two points of error, appellants (collectively "the Pe as") complain that the trial court erred in granting appellee's unverified motion to reinstate. We affirm the trial court's order granting reinstatement and dismiss this appeal for want of jurisdiction.

Background

Appellee, Cooper Outdoor Advertising, Inc. ("Cooper"), filed suit against the Pe as. The Pe as subsequently filed counterclaims against Cooper. On September 8, 2003, Cooper's suit against the Pe as was dismissed for want of prosecution. Cooper then filed an unverified motion to reinstate on September 18. On November 19, the trial court granted Cooper's motion for reinstatement.

Discussion

A trial court has plenary power to reinstate a case within thirty days of dismissal for want of prosecution. (1) A verified motion to reinstate filed within thirty days of dismissal extends plenary power for the same amount of time as would a motion for new trial. (2) An unverified motion is a nullity and does not extend the trial court's plenary jurisdiction or the deadlines for perfecting an appeal. (3)

The Pe as contend that the trial court's plenary jurisdiction expired because Cooper did not file a verified motion within thirty days after the order of dismissal. (4) Accordingly, the trial court had no authority to grant the reinstatement motion after October 8, 2003, thirty days after the September 8, 2003 dismissal.

In response, Cooper accurately notes that the trial court's order of dismissal did not refer to or mention the Pe as' counterclaims. Under such circumstances, there is no presumption that the order of dismissal disposed of the issues in the counterclaims. (5) It follows that the dismissal order was interlocutory, rather than final, in nature. (6) Because the dismissal order was interlocutory, the trial court retained jurisdiction to reinstate the case. (7) Accordingly, we overrule the Pe as' points of error.

Conclusion

This appeal is dismissed for want of jurisdiction. (8)

 

LINDA REYNA YA EZ,

Justice

 

Memorandum opinion delivered and filed

this the 12th day of April, 2007.

 

1. Tex. R. Civ. P. 165a(3), (4); Neese v. Wray, 893 S.W.2d 169, 170 (Tex. App.-Houston [1st Dist.] 1995, no writ).

2. Tex. R. Civ. P. 165a(3), (4); McConnell v. May, 800 S.W.2d 194, 194 (Tex. 1990) (orig. proceeding).

3. McConnell, 800 S.W.2d at 194.

4. Id.

5. See PHB, Inc. v. Goldsmith, 539 S.W.2d 60, 60 (Tex. 1976).

6. Id.

7. See Chase Manhattan Bank, N.A. v. Lindsay, 787 S.W.2d 51, 53 (Tex. 1990).

8. See Zamarripa v. Sifuentes, 929 S.W.2d 655, 657 (Tex. App.-San Antonio 1996, no writ).