In re General Motors Corp.

• Decision Date: 28 August 2009
• Docket Number: No. 03-07-00509-CV.,03-07-00509-CV.
• Citation: 296 S.W.3d 813
• Parties: In re GENERAL MOTORS CORPORATION, Chevrolet Motor Division and Austin Chevrolet, Inc. d/b/a Munday Chevrolet/Geo.
• Court: Texas Court of Appeals

296 S.W.3d 813

In re GENERAL MOTORS CORPORATION, Chevrolet Motor Division and Austin Chevrolet, Inc. d/b/a Munday Chevrolet/Geo.

No. 03-07-00509-CV.

Court of Appeals of Texas, Austin.

August 28, 2009.

A. Erin Dwyer, Figari & Davenport, P. Michael Jung, Strasburger & Price, L.L.P., Dallas, TX, Walter H. Mizell, Brown, McCarroll, L.L.P., Lawrence M. Dwyer, Lloyd E. Ferguson, Strasburger & Price, L.L.P., Austin, TX, Merritt N. Spencer, Spencer & Spencer, L.L.P., Tomball, TX, for relator.

Leon VadimKomkov, Baskin, Bennett & Komkov, J. Bruce Bennett, Cardwell, Hart & Bennett, L.L.P., Austin, TX, Dent M. Morton, Joseph W. Letzer, Burr & Forman, L.L.P., Birmingham, AL, for real party in interest.

Before Chief Justice JONES, Justices WALDROP and HENSON.

OPINION

G. ALAN WALDROP, Justice.

This original proceeding involves the duration of the district court's plenary power over a suit that was inadvertently dismissed for want of prosecution while the suit was abated in the district court. The suit had been abated to allow an administrative proceeding to take place to resolve certain issues that were predicates to the district court acquiring jurisdiction over all of the claims and issues in the suit. The suit was inadvertently dismissed in 2003 during the period of abatement and while the administrative proceeding was still pending. Over four years later, in 2007, the trial court vacated the inadvertent order of dismissal and reinstated the suit. Relators General Motors Corporation, Chevrolet Motor Division and Austin Chevrolet, Inc. d/b/a Munday Chevrolet/Geo¹ seek a writ of mandamus compelling the district court to vacate the 2007 order that vacated the district court's 2003 order of dismissal for want of prosecution, contending that the 2007 order attempting to vacate the previous dismissal is void because it was issued after the expiration of the district court's plenary power. We conditionally grant the writ.

Factual and Procedural Background

Respondent Landmark, a Chevrolet vehicle dealership, filed the underlying suit against GM and Munday in 1998, alleging that they defrauded Landmark of its right to protest Munday's 1993 dealership application, lobbied the legislature in bad faith, and discriminated against Landmark in the allocation of Chevrolet's "most profitable" vehicles.

The underlying dispute relates back to a 1993 administrative proceeding before the Texas Department of Transportation's Motor Vehicle Board.² See Austin Chevrolet, Inc. v. Motor Vehicle Bd., 212 S.W.3d 425 (Tex.App.-Austin 2006, pet. denied). In that proceeding, Munday filed an application for a new franchised motor vehicle dealer's license, and Landmark filed a protest to the application. GM intervened on Munday's behalf, and after a pre-hearing conference and some discovery, the Board scheduled a hearing on the merits. Before the hearing on the merits, Landmark dismissed its protest, ostensibly because it had reached an agreement with GM regarding its concerns about the Chevrolet dealership that Munday proposed to open in Houston. Munday then obtained the license to operate its new Chevrolet dealership.

In 1997, Munday filed an application with the Board seeking to relocate his dealership from FM 1960 to a proposed site on IH-45, a distance of less than a mile. Landmark did not approve of this relocation. However, Landmark was not in a position to protest the relocation of Munday's dealership because of an amendment to the Texas Motor Vehicle Commission Code (the "Code"), which provided that "the relocation of a dealership is not subject to protest by a franchised dealer ... if the proposed relocation is not farther than one mile from the site from which the dealership is being relocated." See Act of May 22, 1997, 75th Leg., R.S., ch. 639, § 26, sec. 4.06(e)(1), 1997 Tex. Gen. Laws 2185, 2197, repealed by Act of May 22, 2001, 77th Leg., R.S., ch. 1421, § 13, 2001 Tex. Gen. Laws 4570, 5020 (current version at Tex. Occ.Code Ann. § 2301.652(c)(1) (West 2004)).

Landmark filed this lawsuit seeking damages for breach of a duty of good faith and fair dealing, violation of the Deceptive Trade Practices Act, fraud and conspiracy against GM, and for fraud and conspiracy against Munday. In its suit, Landmark claimed that it had been misled by Defendants into dismissing the protest of Munday's original application, that GM had lobbied the legislature to amend the Code in bad faith to Landmark's detriment, and that GM unreasonably discriminated against Landmark in the allocation of certain vehicles after Munday opened its Chevrolet dealership in Houston. Landmark's petition alleged specifically that its claims against GM (under the DTPA and for breach of a duty of good faith and fair dealing) were based on alleged violations of the Code. The fraud claim in the original petition is not based on a violation of the Code.

The district court entered an unopposed order of abatement of the suit in August 2001, referring two issues to the Board that the court and the parties concluded were fundamental to Landmark's claims and were within the "primary jurisdiction" of the Board (1) If Landmark had not withdrawn its protest of the license application at issue in William F. Munday d/b/a Bill Munday Chevrolet/Geo, Applicant v. Landmark Chevrolet Corp., Protestant and General Motors Corporation, Intervenor, before the Texas Department of Transportation, Division of Motor Transportation; Docket No. 93-094, under § 4.06(c) of the Texas Motor Vehicle Commission Code ("Code") would Landmark have obtained a final order denying the license application?

(2) Did GM violate Code § 5.02 by unreasonably discriminating between or among Landmark and Munday in the allocation of Suburbans and Tahoes, beginning with Munday's initial allocation in 1994 and extending through January of 1997?

On April 2, 2003, while the administrative proceeding before the Board was on-going, the district court inadvertently sent notice to the parties of its intent to dismiss the abated district court suit for want of prosecution. The notice that the case was subject to dismissal for want of prosecution ("DWOP") unless a motion to retain was filed was received by counsel for the Defendants. However, because of a failure of the DWOP system in the district clerk's office to note a change of address, counsel for Landmark did not receive the notice.³ Consequently, Landmark did not respond to the DWOP notice or file a motion to retain. Without a motion to retain or any response from the parties, the routine DWOP process continued, and the court dismissed the case for want of prosecution on May 13, 2003. Landmark, being unaware that the case had been dismissed, did not challenge the order of dismissal by filing a motion to reinstate the case, a motion for new trial, any motion that would have extended the district court's plenary power, an appeal, or a bill of review.

Meanwhile, the administrative proceeding before the Board continued. The Board issued a final order in December 2004. GM and Munday sought judicial review of the Board's final order. This Court affirmed the Board's order in June 2006. See Austin Chevrolet, 212 S.W.3d at 439. The supreme court declined review, and this Court's mandate issued on March 27, 2007, bringing the administrative proceeding before the Board to conclusion.

Landmark filed a motion to lift the abatement of the district court suit on May 10, 2007, nearly four years after the district court dismissed the suit for want of prosecution. Some time after the filing of the motion to lift the abatement and before the hearing on the motion, Landmark discovered that the suit had been dismissed for want of prosecution in May 2003. At the hearing on the motion to lift the abatement, held on July 3, 2007, Landmark asserted that the 2003 order of dismissal was void because it was entered while the case was abated and while related issues over which the Board had exclusive jurisdiction were still pending before the Board. Agreeing with Landmark, on July 12, 2007, the district court lifted the abatement, found that its 2003 order of dismissal was "null and void," and vacated it. The district court expressly found that the suit had been "inadvertently included on a list of cases dismissed for want of prosecution."

Defendants seek a writ of mandamus to compel the district court to vacate its 2007 order vacating the 2003 order of dismissal. They contend that the 2003 order of dismissal was a final judgment and that the 2007 order is void because it was entered after the expiration of the district court's plenary power. Landmark contends that the 2003 order of dismissal may be vacated by the district court as void at any time because the district court lacked jurisdiction to dismiss the case for want of prosecution at a time that the Board had exclusive jurisdiction over claims in the suit and the litigation before the Board involving those claims was not final.

Plenary Power of District Court

If a case is dismissed for want of prosecution, a party seeking reinstatement must file a verified motion to reinstate within thirty days after the date on which the order of dismissal was signed. Tex.R. Civ. P. 165a(3); In re Montemayor, 2 S.W.3d 542, 545 (Tex.App.-San Antonio 1999, orig. proceeding). In the absence of a verified motion to reinstate, the trial court's plenary jurisdiction expires thirty days after the date on which the court signed the order of dismissal. See Tex.R. Civ. P. 165a(3); Montemayor, 2 S.W.3d at 545 (citing McConnell v. May, 800 S.W.2d 194, 194 (Tex.1990) (orig. proceeding)). There is an exception to this rule if a party learns of the order of dismissal more than twenty but less than ninety days after it was signed. See Tex.R. Civ. P. 306a(4); Tex.R.App. P. 4.2. In such an event, the thirty-day period begins running on the day the party receives actual notice or acquires actual knowledge of the order, but in no event does the thirty-day period...