Alfonso Kennard Jr., Daniel J. Salas Jr., and Kennard Law, P.C. Attorneys at Law v. Dr. Tibor Toth, DMD D/B/A Toth Pediatric Dentistry

• Court: Court of Appeals of Texas
• Decided: October 19, 2023
• Docket: 13-22-00018-CV
• Status: Published

Opinion

NUMBER 13-22-00018-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

ALFONSO KENNARD JR., DANIEL J. SALAS JR., AND KENNARD LAW, P.C. ATTORNEYS AT LAW, Appellants,

v.

DR. TIBOR TOTH, DMD D/B/A TOTH PEDIATRIC DENTISTRY, Appellee.

On appeal from the 197th District Court of Cameron County, Texas.

MEMORANDUM OPINION Before Justices Tijerina, Silva, and Peña Memorandum Opinion by Justice Tijerina

Appellants Alfonso Kennard Jr., Daniel J. Salas Jr., and Kennard Law, P.C.,

attorneys at law, appeal the trial court’s order denying their motion to compel arbitration on January 11, 2022 in favor of appellee Dr. Tibor Toth, DMD, d/b/a Toth Peditaric

Dentistry.

On August 30, 2021, the trial court held a hearing on appellants’ motion to compel

arbitration. Dr. Toth did not attend the hearing. On September 3, 2021, the trial court

dismissed Dr. Toth’s claims against appellants with prejudice.

Dr. Toth filed a verified motion to reinstate the case, and the trial court held a

hearing. According to the case summary, the trial court “granted [Dr. Toth’s] motion to

reinstate” on December 2, 2021, but a written order reinstating the case was not signed

until October 6, 2023—over two years after the date of dismissal.

Rule 165a(3) provides that “a motion for reinstatement . . . not decided by [a]

signed written order within seventy-five days after the judgment is signed . . . shall be

deemed overruled by operation of law.” TEX. R. CIV. P. 165a(3). “Thereafter, the [trial]

court retains plenary power and jurisdiction over the cause for an additional [thirty] days.”

Emerald Oaks Hotel/Conference Ctr., Inc. v. Zardenetta, 776 S.W.2d 577, 578 (Tex.

1989) (orig. proceeding). “A trial court’s oral pronouncement and docket entry reinstating

a cause is not an acceptable substitute for the written order required by rule.” Id.

Here, the trial court did not sign an order reinstating the case during the trial court’s

plenary power. See TEX. R. CIV. P. 165a(3). Therefore, the August 30, 2021 judgment of

dismissal became final, terminating the trial court’s plenary power over its judgment. See

id.; Emerald, 776 S.W.2d at 578; see also Wallingford v. Trinity Universal Ins. Co., 253

S.W.3d 720, 726 (Tex. App.—Amarillo 2007, pet. denied) (holding that the trial court’s

oral pronouncement on the record at the hearing on the motion to reinstate, its printed

2 docket entry, the submission of a proposed order, and the conduct of the parties following

the hearing are not a substitute for the rule’s requirement of a signed written order); In re

Wal-Mart Stores, Inc., 20 S.W.3d 734, 740 (Tex. App.—El Paso 2000, no pet.) (orig.

proceeding) (“An oral pronouncement by the court reinstating the case, even when

accompanied by a docket entry, is ordinarily inadequate to reinstate the case.”). As a

result, the trial court had no authority to enter the order denying appellants’ motion to

compel arbitration on January 11, 2022, and that order is therefore void.

Because the trial court never properly reinstated the case, the September 3, 2021

dismissal order remains in effect. Thus, we vacate the January 11, 2022 order denying

appellants’ motion to dismiss, and we dismiss the case. See TEX. R. APP. P. 43.2(e).

JAIME TIJERINA Justice

Delivered and filed on the 19th day of October, 2023.