in Re Valliance Bank

• Court: Court of Appeals of Texas
• Decided: November 15, 2012
• Docket: 02-12-00255-CV
• Status: Published

Opinion

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02-12-00255-CV

IN RE VALLIANCE BANK RELATOR

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ORIGINAL PROCEEDING

OPINION ON RELATOR’S MOTION FOR EN BANC RECONSIDERATION

The court has considered the motion for en banc reconsideration filed by

Relator Valliance Bank, the response filed by Real Parties in Interest Linda R.

Tedesco and Lucille W. Shiver, and Relator‘s reply. We grant the motion for en

banc reconsideration, withdraw our opinion of June 26, 2012, and substitute the

following. BACKGROUND FACTS

Real Parties filed the underlying suit as plaintiffs on April 23, 2008. The

trial court‘s record of filings reveals virtually no activity for two years other than

requests for discovery. The trial court placed the suit on the dismissal docket for

hearing on April 12, 2010, and issued a notice for the parties to present an

agreed scheduling order at or prior to the hearing. Counsel for Relator and the

other defendants appeared, but neither Real Parties nor their counsel appeared

at the hearing, nor did anyone present a scheduling order to the trial court.

Although the notice provided that failure to submit a scheduling order would

result in dismissal for want of prosecution, the trial court did not dismiss the

lawsuit at that time.

The trial court placed the case on the status conference docket for hearing

on May 24, 2010, and issued a notice instructing the parties to appear and be

prepared to discuss the status of the case and to set pretrial and trial dates. The

second notice stated that failure to appear would result in dismissal for want of

prosecution. Neither Real Parties nor their counsel appeared at the hearing.

The court placed the lawsuit on its status conference docket for July 12, 2010,

and issued a notice of status conference, again warning that failure to appear

would result in dismissal for want of prosecution. When neither Real Parties nor

their counsel appeared for the third status conference hearing, the trial court

signed its order dismissing the case for want of prosecution on July 12, 2010.

2 On July 19, 2010, Real Parties timely filed a motion for reinstatement. The

motion for reinstatement was signed by their counsel of record and set forth that

he had a plumbing emergency on the date of the third scheduled hearing, that it

took much of the day, and that in the rush to attend to the emergency he forgot to

call the court, such that the failure to appear was not intentional nor the result of

conscious indifference but was the result of mistake or accident. Although the

motion and certificate of service were signed by Real Parties‘ counsel of record,

he did not verify or swear to the facts contained in the motion. Instead, the

motion contained an unsworn statement titled ―Verification‖ signed by another

individual not identified either as a party or as counsel for Real Parties.

On August 12, 2010, thirty-one days after the order of dismissal was

signed, Real Parties‘ counsel of record forwarded for filing a sworn affidavit dated

August 12, 2010, setting forth and swearing to the same facts set forth in the

motion to reinstate that he had previously filed. The clerk‘s computerized listing

of documents filed shows that the affidavit was filed on August 13, 2010.

Defendants, including Relator, filed written objections to the unsworn verification

to the motion to reinstate and to the late filing and content of the affidavit of Real

Parties‘ counsel. After a hearing on August 20, 2010, the trial court overruled the

defendants‘ objections and signed an order granting reinstatement on September

13, 2010.

3 On April 2, 2012, Relator filed a motion to vacate the order reinstating the

lawsuit, and the trial court denied the motion on June 8, 2012. Relator seeks by

this mandamus proceeding to have the order reinstating the lawsuit vacated.

APPLICABLE LAW

A trial court has plenary power to reinstate a case within thirty days after it

signs an order of dismissal for want of prosecution. Tex. R. Civ. P. 165a(3), (4);

Neese v. Wray, 893 S.W.2d 169, 170 (Tex. App.―Houston [1st Dist.] 1995, no

writ) (recognizing trial court has plenary power to reinstate case within thirty days

of dismissal even in absence of motion to reinstate). A verified motion to

reinstate a case filed within thirty days of a dismissal for want of prosecution

extends the trial court‘s plenary power in the same manner as a motion for new

trial. Tex. R. Civ. P. 165a(3), (4). The Supreme Court of Texas has made clear,

however, that an unverified motion to reinstate is a nullity and does not extend

the trial court‘s plenary jurisdiction or the time in which to file a notice of appeal.

McConnell v. May, 800 S.W.2d 194, 194 (Tex. 1990) (orig. proceeding) (granting

mandamus relief to set aside order reinstating case more than thirty days after

dismissal on unverified motion); Butts v. Capitol City Nursing Home, Inc., 705

S.W.2d 696, 697 (Tex. 1986). The time limits provided in rule 165a are

mandatory and jurisdictional; orders of reinstatement entered after their

expiration are void. Harris Cnty. v. Miller, 576 S.W.2d 808, 809 (Tex. 1979) (orig.

proceeding); Danforth Mem’l Hosp. v. Harris, 573 S.W.2d 762, 763 (Tex. 1978)

(orig. proceeding); N-S-W Corp. v. Snell, 561 S.W.2d 798, 798 (Tex. 1977) (orig.

4 proceeding); see United Residential Props., L.P. v. Theis, No. 14-11-00330-CV,

2012 WL 3573882, at *2 (Tex. App.―Houston [14th Dist.] Aug. 21, 2012, no

pet.).

To extend the trial court‘s plenary jurisdiction beyond thirty days from the

date of dismissal, rule 165a(3) requires that a motion to reinstate be ―verified by

the movant or his attorney‖ and be filed within thirty days after the signing of the

dismissal for want of prosecution. Tex. R. Civ. P. 165a(3); McConnell, 800

S.W.2d at 194; Butts, 705 S.W.2d at 697; see Hosea v. Whittenburg, 311 S.W.3d

704, 705 (Tex. App.―Amarillo 2010, pet. denied); Twist v. McAllen Nat’l Bank,

294 S.W.3d 255, 260 (Tex. App.―Corpus Christi 2009, no pet.). The motion for

reinstatement here was timely filed but not verified. Unless the late-filed affidavit

of Real Parties‘ attorney—filed after thirty days had expired from the date of the

dismissal order—sufficed as a substitute for a verification sufficient to support the

factual averments in the motion to reinstate, the motion did not extend the trial

court‘s plenary power, the order granting the motion to reinstate after the thirty-

day period had expired is void, and mandamus relief is appropriate. See 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

plenary power has expired.‖); Estate of Howley v. Haberman, 878 S.W.2d 139,

140 (Tex. 1994) (orig. proceeding) (mandamus will issue when trial court

erroneously reinstates case after expiration of its plenary jurisdiction); In re N.H.

Ins. Co., No. 02-12-00281-CV, 2012 WL 3264392, at *1–2 (Tex. App.—Fort

5 Worth Aug. 13, 2012, orig. proceeding) (mem. op.) (conditionally granting writ of

mandamus to set aside void order reinstating suit after plenary power expired); In

re Strickland, No. 01-01-00972-CV, 2002 WL 58482, at *2 (Tex. App.―Houston

[1st Dist.] Jan. 17, 2002, orig. proceeding) (not designated for publication)

(same).

UNSWORN VERIFICATION

A statement labeled ―Verification‖ was signed on the last page of the

motion to reinstate, in which the signer stated that he had personal knowledge of

the facts recited in the motion, but the signer was not Real Parties‘ counsel of

record and is not identified as a party or as an attorney in the case, nor is the

statement sworn to. A verification is ―[a] formal declaration made in the presence

of an authorized officer, such as a notary public, by which one swears to the truth

of the statements in the document.‖ Andrews v. Stanton, 198 S.W.3d 4, 8 (Tex.

App.―El Paso 2006, no pet.) (quoting Black‘s Law Dictionary 1556 (7th ed.

1999)); see also Frazier v. Dikovitsky, 144 S.W.3d 146, 149 (Tex. App.—

Texarkana 2004, no pet.) (stating ―verified‖ under rule 107 requires

acknowledgement before a notary public‖); McGraw-Hill, Inc. v. Futrell, 823

S.W.2d 414, 416 (Tex. App.—Houston [1st Dist.] 1992, writ denied) (op. on reh‘g)

(stating that ―[a]n acknowledgment of an instrument before a notary public . . .

verifies it for [the] record‖).1 The statement purporting to verify the motion to

1 Verification must be based on personal knowledge. Tex. R. Evid. 602 (―A witness may not testify to a matter unless . . . the witness has personal

6 reinstate does not reveal how the signer had personal knowledge of counsel‘s

plumbing emergency or that he forgot to call the court.2

SIGNATURE OF COUNSEL

Nor was the signature of Real Parties‘ counsel of record on the motion

itself a sufficient verification, as Real Parties argued at the hearing on the motion

to vacate the reinstatement. An attorney‘s signature on a pleading 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 not

brought in bad faith or for the purpose of harassment. See Tex. R. Civ. P. 13.

The signature of the attorney is not the equivalent of a verification, which

represents the facts to be true and based upon personal knowledge. See

Luxenberg v. Marshall, 835 S.W.2d 136, 140 & n.3 (Tex. App.―Dallas 1992,

orig. proceeding) (distinguishing between groundless pleadings and false

affidavits). Moreover, even if counsel‘s bare signature could be considered a

knowledge of the matter.‖); see Marks v. St. Luke’s Episcopal Hosp., 319 S.W.3d 658, 666 (Tex. 2010) (op. on reh‘g). A party‘s attorney may verify the pleading when he has personal knowledge of the facts, but he does not have authority to verify based merely on his status as counsel. Twist, 294 S.W.3d at 262 (holding personal knowledge required for verification of motion to reinstate); see Tex. R. Civ. P. 14 (stating agent or attorney may verify facts). Cf. Gorrell v. Tide Prods., Inc., 532 S.W.2d 390, 395–96 (Tex. Civ. App.—Amarillo 1975, no writ) (holding that a company officer who did not have personal knowledge of certain matters could not deny them under oath since they would be hearsay as to him). 2 Incidentally, the verification also does not meet the requirements of civil practice and remedies code section 132.001, which allows for an unsworn declaration if the declaration meets the statute‘s requirements. See Tex. Civ. Prac. & Rem. Code Ann. § 132.001 (West Supp. 2012).

7 verification, the motion signed by Real Parties‘ counsel of record contained no

language indicating that he swore that the facts stated therein were true and

were based on his personal knowledge. Cf. Residential Dynamics, LLC v.

Loveless, 186 S.W.3d 192, 197 (Tex. App.—Fort Worth 2006, no pet.) (holding

affidavit was valid without jurat because it contained acknowledgement and

stated witness was ―sworn‖).

LATE-FILED AFFIDAVIT

Real Parties argue that the later-filed affidavit of their counsel of record

should be considered sufficient verification. They cite Guest v. Dixon, 195

S.W.3d 687, 688 (Tex. 2006), in which the supreme court held that the

verification requirement of rule 165a(3) was satisfied by an affidavit of the

movant‘s former attorney who had personal knowledge of most of the relevant

facts needed to support an unverified motion to reinstate. Real Parties also point

to several intermediate appellate court cases that signal a more liberal attitude

toward what constitutes sufficient verification under rule 165a. See Twist, 294

S.W.3d at 262 (―[A]n unverified motion to reinstate must be supported by an

affidavit or other sufficient evidence in the record . . . .‖) (quoting Silguero v.

State, 287 S.W.3d 146, 150 (Tex. App.―Corpus Christi 2009, orig. proceeding));

Andrews, 198 S.W.3d at 8 (holding timely-filed affidavit of counsel attached to

motion sufficient substitute for verification of motion); Fed. Lanes, Inc. v. City of

Houston, 905 S.W.2d 686, 689–90 (Tex. App.―Houston [1st Dist.] 1995, writ

denied) (holding timely-filed joint motion to reinstate within thirty days of

8 dismissal equivalent to a stipulation and satisfied rule 165a); see also In re

Dobbins, 247 S.W.3d 394, 396–97 (Tex. App.―Dallas 2008, orig. proceeding)

(holding, despite unverified motion and lack of any supporting affidavit, that

combination of evidentiary hearing and court master‘s recommendation of

approval of motion within the thirty-day period after dismissal constituted

adequate substitute for verification).

Each of those cases is distinguishable. The affidavits held to constitute

substitutes for verification of the motions to reinstate in those cases were all filed

within the initial thirty-day period following the dismissal. In Dobbins, a hearing—

presumably with sworn testimony—was held within the initial thirty days and

resulted in a recommendation by the master within that same time frame. In

contrast, the affidavit of Real Parties‘ counsel of record was not filed until after

the expiration of the thirty-day period, and the hearing on the motion to reinstate

was not held until a month later. No affidavit or other evidence was filed within

thirty days after the dismissal that could be construed as a substitute for proper

and timely verification of the motion to reinstate as required by rule 165a(3) in

this case. In other words, to ―cure‖ an unverified motion to reinstate, an affidavit

or other evidence supporting the motion is acceptable, but it must be filed within

the same thirty-day period as required for filing of the motion to reinstate. See In

re Garcia, 94 S.W.3d 832, 833 (Tex. App.―Corpus Christi 2002, orig.

proceeding) (holding mandamus would be granted because unverified motion to

reinstate was not ―cured‖ by an affidavit filed after thirty days had expired); Owen

9 v. Hodge, 874 S.W.2d 301, 303 (Tex. App.―Houston [1st Dist.] 1994, no writ)

(holding reinstatement properly denied on jurisdictional grounds when unverified

motion to reinstate was filed within thirty days but movant did not seek leave to

file verification until thirty-eight days after dismissal); see also In re Trinity

Universal Ins. Co. of Kan., No. 04-06-00471-CV, 2006 WL 2819767, at *1–2

(Tex. App.―San Antonio 2006, orig. proceeding) (mem. op.) (holding attorney‘s

verification filed after thirty days had expired could not cure unverified motion,

and attorney‘s signature on unverified motion to reinstate was not equivalent to

verification).

Although the supreme court admonished in Guest and has continued to

stress that courts should strive to reach the merits of cases when reasonably

possible and that litigants‘ rights (whether of appeal or of a day in court) should

not be lost based upon procedural technicalities,3 that line of cases has not

3 See Milestone Operating, Inc. v. ExxonMobil Corp., No. 11-0647, 2012 WL 5285085, at *2 (Tex. Oct. 26, 2012) (reversing default judgment and noting court‘s policy that ―adjudication on the merits is preferred‖) (quoting Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 86 (Tex. 1992)); Americo Life, Inc. v. Myer, 356 S.W.3d 496, 498 (Tex. 2011) (reversing court of appeals‘s waiver holding); Ditta v. Conte, 298 S.W.3d 187, 190 (Tex. 2009) (broadly construing issues so that ―‗a just, fair[,] and equitable adjudication of the rights of the litigants‘ is obtained‖); Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 784 (Tex. 2005) (reiterating that the appellate rules ―are designed to resolve appeals on the merits, and we must interpret and apply them whenever possible to achieve that aim‖); Gallagher v. Fire Ins. Exch., 950 S.W.2d 370, 370–71 (Tex. 1997) (reiterating commitment to ensuring that courts do not unfairly apply the rules of appellate procedure to avoid addressing a party‘s meritorious claim); Crown Life Ins. Co. v. Estate of Gonzalez, 820 S.W.2d 121, 121–22 (Tex. 1991) (stating that procedural rules should be ―liberally construed so that the decisions of the courts of appeals turn on substance rather than procedural technicality‖).

10 overruled McConnell or Butts, and we remain bound by those decisions. An

unverified motion to reinstate is ineffective to extend the trial court‘s plenary

power beyond thirty days, and rule 165a provides no opportunity to cure the

deficiency by affidavit once the trial court‘s plenary power has expired. See

Lubbock Cnty. v. Trammel’s Lubbock Bail Bonds, 80 S.W.3d 580, 585 (Tex.

2002) (holding court of appeals‘s function not to abrogate or modify established

precedent).

DELAY IN SEEKING MANDAMUS

Real Parties further argue that Relator was dilatory in failing to seek

mandamus relief for eighteen months with no explanation or excuse as to the

delay, participating in the lawsuit and discovery, and otherwise treating the case

as validly reinstated, all of which resulted in prejudice to Real Parties. Thus, they

contend that Relator slumbered on its rights or lay behind the log and thereby

waived its right to seek relief by mandamus. As to Real Parties‘ contention that

Relator lay behind the log regarding its position that the reinstatement was void

until it filed this proceeding, we note that the defendants, including Relator,

clearly addressed the same arguments raised in this court by their objections and

briefing filed in response to the motion to reinstate in the trial court in 2010. As to

Real Parties‘ contention that Relator should have appealed from the order

reinstating the lawsuit, no appeal was available from the order of reinstatement,

which merely placed the case back on the docket as though it had never been

11 dismissed. It was neither a final judgment nor an interlocutory order from which

Relator was entitled appeal.

Moreover, doctrines such as laches, waiver, or estoppel are not applicable

when the order that is the subject of the mandamus proceeding is void. See In re

Aslam, 348 S.W.3d 299, 303 n.10 (Tex. App.—Fort Worth 2011, orig.

proceeding) (stating that laches does not preclude a challenge to a void order);

In re Chester, 309 S.W.3d 713, 718–19 (Tex. App.—Houston [14th Dist.] 2010,

orig. proceeding) (citing Zimmerman v. Ottis, 941 S.W.2d 259, 262 (Tex. App.—

Corpus Christi 1996, orig. proceeding) (―Since mandamus relief in the present

case is premised on the entry of a void order, it would not serve the interests of

justice or those of the parties to invoke laches as an excuse to ignore that order,

and thus to allow the parties to expend further time and effort in connection with

a lawsuit that must ultimately be dismissed . . . or reversed on appeal for want of

jurisdiction.‖); Twist, 294 S.W.3d at 263 (holding waiver did not apply when

defectively verified motion to reinstate failed to extend trial court‘s plenary power

or time limits for appeal).

For the reasons stated, we are constrained to hold that the unverified

motion to reinstate did not extend the trial court‘s plenary power beyond thirty

days after the dismissal was signed and that Real Parties‘ counsel‘s affidavit filed

after that period had expired was ineffective as an adequate substitute for

verification because rule 165a(3) plainly requires the verified motion to be filed

within thirty days. Because the trial court signed the order of reinstatement after

12 its plenary power had expired, we hold that the order of reinstatement is void and

of no legal effect. We conditionally grant Relator‘s petition for writ of mandamus

and order that the trial court set aside its September 13, 2010 order of

reinstatement. The writ will issue only in the event the trial court fails to do so

within thirty days of the date of this opinion.

ANNE GARDNER JUSTICE

EN BANC

DELIVERED: November 15, 2012