In re Bokeloh

• Decision Date: 28 June 2000
• Citation: 21 S.W.3d 784
• Parties: <!--21 S.W.3d 784 (Tex.App.-Houston 2000) IN RE FRANK BOKELOH, GABRIELE BOKELOH and JOHN DAUGHERTY REALTORS, INC. and MAUREEN BOYD, Relators NO. 14-00-00366-CV In The Fourteenth Court of Appeals Fourteenth Court of Appeals
• Court: Texas Court of Appeals

Page 784

21 S.W.3d 784 (Tex.App.-Houston [14th Dist.] 2000)

IN RE FRANK BOKELOH, GABRIELE BOKELOH and JOHN DAUGHERTY REALTORS, INC. and MAUREEN BOYD, Relators

NO. 14-00-00366-CV

In The Fourteenth Court of Appeals Fourteenth Court of Appeals

June 28, 2000.

ORIGINAL PROCEEDING WRIT OF MANDAMUS

[Copyrighted Material Omitted] Panel consists of Justices Amidei, Anderson and Frost.

O P I N I O N

Kem Thompson Frost, Justice.

In this original proceeding, relators seek a writ of mandamus directing the trial court to vacate its May 4, 1999, order of reinstatement entered in the trial court cause number 98- 37222, styled Thomas Bousquet Jr., et ux. v. Frank Bokeloh, et ux. Relators contend the order of reinstatement is void because the trial court's plenary power expired before the entry of the order. We agree and conditionally grant the writ of mandamus.

I. FACTUAL AND PROCEDURAL BACKGROUND

In August 1998, the real parties in interest, Thomas and Denise Bousquet (the "Bosquets"), filed suit in the 80th Judicial District Court of Harris County against relators, Frank Bokeloh, Gabriele Bokeloh, John Daugherty Realtors, Inc. and Maureen Boyd, for alleged misrepresentations arising out of the sale of real estate. The Bosquets encountered problems in their attempts to obtain service of process on the relators and on March 18, 1999, the trial court notified them of its intent to dismiss their case on March 29, 1999, for want of prosecution. Citing the absence of service or a filed answer as grounds for dismissal of the case, the trial court's notice informed the Bosquets that their case would be dismissed unless "a default judgment is signed, an answer is filed, or service is accomplished." In response, they filed a verified motion to retain on March 29, 1999. The motion explained that they diligently had attempted to serve relators, who were now back in the United States after having been out of the country "for some time."¹ The Bosquets claimed they needed additional time, not for delay, but to obtain service of process. They requested the trial court to retain the case on the docket until June 28, 1999.

The trial court dismissed the case on March 31, 1999; however, the court clerk's notice of the dismissal is postmarked April 29, 1999. The Bosquets claim their counsel received it on May 3, 1999, and immediately contacted the trial court's administrative staff to point out that they had filed a motion to retain before the dismissal. On May 4, 1999, the trial court reinstated the case on its own motion. Thereafter, relators were served and answered the lawsuit.

Trial was set for April 3, 2000. In February 2000, relators moved the trial court to vacate its order of reinstatement, alleging the court did not have jurisdiction to enter it. On March 6, 2000, the Bosquets filed a response that also purported to be a sworn motion establishing the date their counsel first received actual knowledge of the dismissal (via the clerk's post card notice of dismissal and final judgment). The Bosquets, however, insisted there was no need for a hearing on the matter because the trial court already had reinstated the case. The trial court denied relators' motion to vacate the order of reinstatement, prompting them to file a petition for writ of mandamus in this court. Relators claim the trial court's ruling attempting to reinstate the case is void, and ask this court to compel the trial court to vacate its order of reinstatement.

With the April 2000 trial setting fast approaching, relators moved for a continuance in the lower court. When, four days before trial, the court below had not ruled on that motion, relators filed an emergency motion for a stay in this court, seeking relief from the imminent trial setting.² We stayed the trial court proceedings to protect this court's jurisdiction pending our ruling on the petition for writ of mandamus.

II. STANDARD OF REVIEW

Mandamus is intended to be an extraordinary remedy, available only in very limited circumstances "involving manifest and urgent necessity and not for grievances that may be addressed by other remedies." Holloway v. Fifth Court of Appeals, 767 S.W.2d 680, 684 (Tex. 1989). Mandamus relief is available if the trial court abuses its discretion, either in resolving factual issues or in determining legal principles when there is no other adequate remedy by law. See Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992). A trial court abuses its discretion if "it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law." Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985). When alleging that a trial court abused its discretion in its resolution of factual issues, the party must show the trial court reasonably could have reached only one decision. See id. at 918. An abuse of discretion also occurs if the trial court clearly failed to analyze or apply the law correctly. See Walker, 827 S.W.2d at 840.

III. ANALYSIS OF THE ISSUES

The trial court entered its order of reinstatement more than thirty days after dismissing the case. Generally, a trial court loses plenary jurisdiction thirty days after entry of final judgment. See generally TEX. R. CIV. P. 329b; see also Thermex Energy Corp. v. Rantec Corp., 776 S.W.2d 402, 403 (Tex. App. Dallas 1989, no writ). The Bosquets, relying on Texas Rules of Civil Procedure 165a and 306a, argue that the trial court's jurisdiction was extended beyond the original period and, therefore, it had jurisdiction to reinstate the case.

A timely and proper motion to reinstate extends the trial court's plenary power until thirty days after the motion is overruled either by a written signed order or by operation of law. See South Main v. Wittig, 909 S.W.2d 243, 244 (Tex. App.- Houston [14th Dist.] 1995, orig. proceeding) (citing TEX. R. CIV. P. 165a(3)). Where, as here, a court dismisses a case for want of prosecution, a party may file a motion to reinstate within thirty days after the order of dismissal is signed or within the period provided by Rule 306a. See Levit v. Adams, 850 S.W.2d 469, 470 (Tex. 1993) (explaining that the period provided by Rule 306a must begin within 90 days of judgment; no provision for notice received more than 90 days after judgment, TEX. R. CIV. P. 165a(3)). Because the trial court dismissed the Bosquets' case on March 31, 1999, a motion to reinstate was due by April 30, 1999 one day after the postmark on the notice of dismissal and three days before the Bosquets claim their counsel received it. The trial court signed an order reinstating the case on May 4, 1999, after the original period of jurisdiction had expired. The Bosquets never filed a motion to reinstate the case. Now, they contend their motion to retain, filed before the trial court dismissed the case, should be treated as a premature motion to reinstate. Thus, they argue, their motion to retain extended the trial court's plenary power under Rule 165a(3). In addition, they claim the trial court had jurisdiction to reinstate their case because their response to relators' motion to vacate the r einstatement order satisfies Rule 306a(5). For reasons explained below, we reject both arguments.

A. Is the motion to retain the functional equivalent of a motion to reinstate?

A prematurely filed motion to reinstate extends the appellate timetables and the trial court's plenary jurisdiction. See Perez v. Texas Employers' Ins. Ass'n, 926 S.W.2d 425, 426 (Tex. App. Austin 1996, no writ). At issue in Perez was whether the plaintiff's verified motion to reinstate, filed before the final judgment, was effective to extend the appellate timetables. See id. First, the trial court signed an interlocutory order dismissing the plaintiff's case against two of the three defendants. See id. After the trial court denied the plaintiff's motions to reinstate, the court granted a non-suit as to the third defendant, thereby making the judgment final. See id. The Perez court, construing former Texas Rule of Appellate Procedure 58(a),³ held that a prematurely filed, verified motion to reinstate extended the appellate timetable because it is a "proceeding relating to an appeal." 926 S.W.2d at 427. Observing that Rule 58 did not contain a specific list of items that would extend the appellate timetable, the Perez court explained:

We do not think the language in Rule 58 compels the exclusion of a verified motion to reinstate, whereas interpreting Rule 58 to allow a prematurely filed motion to reinstate to extend the appellate timetables harmonizes with the general principle of liberally construing the rules of appellate procedure when possible.

Id. at 427. ⁴ Therefore, the Perez court reasoned, a motion to reinstate extends the appellate timetables in the same way as a motion for new trial. Id. at 426-27 (citing Butts v. Capitol City Nursing Home, Inc., 705 S.W.2d 696, 697 (Tex. 1986)).

Texas Rule of Civil Procedure 329b governs motions for new trial. The rule extends the trial court's plenary power to thirty days after the overruling of any motion for new trial or motion to modify, correct, or reform the judgment. Rule 329b does not include a specific list of items that operate to extend the appellate timetable. Thus, in determining whether a pleading operates to extend the trial court's plenary power under Rule 329b, the issue is whether it seeks a new trial or constitutes a motion to modify, correct, or reform a judgment. Unlike Rule 329b, however, Rule 165a, governing dismissal for want of prosecution, not an original petition filed in a separate cause; the substance was clearly a response to the motion specifically provides that filing a motion to reinstate extends the trial court's plenary jurisdiction.

In considering whether the Bosquets' motion to retain operated as a motion to reinstate, we recognize that the substance of a motion, not its title, determines the relief sought. See Surgitek v. Abel, 997 S.W.2d 598 (Tex....