In re Trinity Universal Insurance Company of Kansas--Appeal from 37th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-06-00471-CV
IN RE TRINITY UNIVERSAL INSURANCE COMPANY OF KANSAS

Original Mandamus Proceeding (1)

PER CURIAM

Sitting: Sarah B. Duncan , Justice

Karen Angelini , Justice

Phylis J. Speedlin , Justice

Delivered and Filed: October 4, 2006

PETITION FOR WRIT OF MANDAMUS CONDITIONALLY GRANTED

Trinity Universal Insurance Company of Texas ("Trinity") challenges the trial court's reinstatement of the underlying cause following an order of dismissal. Because the trial court lacked jurisdiction to reinstate the case, we conditionally grant the writ of mandamus.

Factual and Procedural Background

Real party in interest Shirley Bowser filed an original petition in district court seeking judicial review of her worker's compensation case in December 2000. More than five years later, Bowser's attorney was notified the case was set on the April 18, 2006 dismissal docket. The notice stated that "[i]f no party seeking affirmative relief appears at the hearing, the case will be DISMISSED pursuant to Rule 165a(1)." Bowser's attorney did not appear at the dismissal hearing, and the trial court signed a dismissal order on April 19, 2006. A motion to reinstate was filed by Bowser's attorney on May 10, 2006. Significantly, the motion was not verified. The trial court held a hearing on Bowser's motion to reinstate on June 16, 2006. The same day, Bowser's attorney filed a verification to support the motion. The trial court then signed an order reinstating the underlying cause on June 27, 2006.

Reinstatement Requirements

Texas Rule of Civil Procedure 165a(3) sets out the procedure for reinstating cases dismissed for want of prosecution. Rule 165a(3) provides " [a] motion to reinstate shall set forth the grounds therefor and be verified by the movant or his attorney. It shall be filed with the clerk within 30 days after the order of dismissal is signed or within the period provided by Rule 306a." (2)

See Tex. R. Civ. P. 165a(3). The Texas Supreme Court has held that Rule 165a(3) requires the filing of a verified motion to reinstate no later than 30 days after the dismissal order is signed. McConnell v. May, 800 S.W.2d 194, 194 (Tex. 1990) (orig. proceeding); Tex. R. Civ. P. 165a(3); see Butts v. Capitol City Nursing Home, Inc., 705 S.W.2d 696, 696 (Tex. 1986) (unverified motion to reinstate did not extend the time for perfecting appeal). An affidavit may be filed in lieu of a verification. Guest v. Dixon, 195 S.W.3d 687, 688-89 (Tex. 2006); 3V, Inc. v. JTS Enterprises, Inc., 40 S.W.3d 533, 539 (Tex. App.--Houston [14th Dist.] 2000, no pet.).

A reinstatement motion lacking a verification or an affidavit is a nullity, and the trial court's plenary power expires 30 days after the dismissal order is signed. McConnell, 800 S.W.2d at 194;In re Garcia, 94 S.W.3d 832, 833 (Tex. App.--Corpus Christi 2002, orig. proceeding). Thus, an unverified motion to reinstate may not be cured after the trial court's plenary power expires. In re Garcia, 94 S.W.3d at 834 (refusing to treat late-filed affidavit as amended reinstatement motion);Owen v. Hodge, 874 S.W.2d 301, 303 (Tex. App.--Houston [1st Dist.] 1994, no writ) (the trial court properly denied reinstatement on jurisdictional grounds when an unverified motion to reinstate was filed within 30 days of dismissal but movant did not seek leave to file a verification until 38 days after dismissal). When a trial court erroneously reinstates a case after its plenary power has expired, there is no adequate remedy by appeal and mandamus is the appropriate remedy. Estate of Howley v. Haberman, 878 S.W.2d 139, 140 (Tex. 1994) (orig. proceeding); South Main Bank v. Wittig, 909 S.W.2d 243, 244 (Tex. App.--Houston [14th Dist.] 1995, orig. proceeding).

Bowser concedes the law required her motion to be verified but urges this court to construe Rule 165a(3) liberally. (3) Bowser argues her attorney's signature on the motion satisfies the verification requirement. We disagree. An attorney's signature on a pleading is not the equivalent of a verification, and therefore, cannot serve as a substitute. See Luxenberg v. Marshall, 835 S.W.2d 136, 140 n.3 (Tex. App.--Dallas 1992, orig. proceeding) (distinguishing between groundless pleadings and false verifications). By signing a pleading, an attorney 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 brought in bad faith or groundless and brought for the purpose of harassment." See Tex. R. Civ. P. 13. However, by signing an affidavit or a verification, a person represents the facts to be true and based on personal knowledge. See Humphreys v. Caldwell, 888 S.W.2d 469, 470 (Tex. 1994). We conclude that by signing the motion to reinstate, Bowser's attorney did not fulfill Rule 165a(3)'s verification requirement.

Bowser also argues mandamus relief should be denied based on circumstances surrounding the dismissal. Bowser cites her attorney's scheduling conflicts on the day of the dismissal hearing and the trial court's failure to take her case off the dismissal docket as soon as she filed a motion to remove. (4) These arguments do not relate to the trial court's authority to reinstate Bowser's case, and therefore, are not properly addressed in this proceeding. See Texas Sting, Ltd. v. R.B. Foods,Inc., 82 S.W.3d 644, 648 (Tex. App.--San Antonio 2002, pet. denied) (final dismissal order is reviewable on appeal).

Conclusion

Bowser's motion was neither verified, nor accompanied by an affidavit as required by Rule 165a. As a result, thirty days after the dismissal order was signed--May 19, 2006--the trial court's plenary power expired. Bowser's subsequent verification did not extend the trial court's plenary power. When the trial court signed the reinstatement order on June 27, 2006, it had no jurisdiction to reinstate Bowser's case. Texas appellate courts have consistently granted mandamus relief under similar circumstances. See In re Garcia, 94 S.W.3d at 833-34; South Main Bank, 909 S.W.2d at 244. Accordingly, we conditionally grant the writ of mandamus and direct the trial court to vacate its reinstatement order within ten days from the date of this opinion. We are confident that the trial court will promptly comply, and the writ will issue only if it does not.

PER CURIAM

1. This proceeding arises out of Cause No. 2000-CI-18334 , styled Shirley M. Bowser v. Trinity Universal Insurance Company of Kansas, pending in the 37th Judicial District Court, Bexar County, Texas. However, the Honorable Karen H. Pozza, presiding judge of the 407th Judicial District Court, Bexar County, Texas presided over the hearing and made the challenged ruling. The Honorable Lori D. Massey , presiding judge of the 288th Judicial District Court, Bexar County, Texas, signed the challenged order.

2. Texas Rule of Civil Procedure 306a(4) extends the time period for filing a motion to reinstate when a party fails to receive notice of the judgment or acquire actual knowledge of the dismissal order. See Tex. R. Civ. P. 306a(4);see also Powell v. McCauley, 126 S.W.3d 158, 161 (Tex. App.--Houston [1st Dist.] 2003, no pet.) (trial court's jurisdiction to hold a 306a hearing was invoked when a sworn motion to reinstate asserted the dismissal order was not timely received). Bowser does not assert she failed to receive notice of the dismissal order.

3. In support of this argument, Bowser cites Guest, 195 S.W.3d at 688-89 (holding Rule 165a(3)'s verification requirement was satisfied by a former attorney's affidavit filed with the motion to reinstate). In Guest, the supreme court assumed Butts and McConnell survived notwithstanding recent cases construing and applying procedural rules so that the right to appeal is not unnecessarily lost to technicalities. Id.

4. The day before the dismissal hearing, Bowser's attorney filed a motion to remove the case from the dismissal docket but failed to obtain a signed order granting the motion. The dismissal notice requires "[a]ll final orders that will remove a case from the Dismissal Docket must be submitted to the DISMISSAL DEPARTMENT [] on or before the date the docket is called."