In re Valliance Bank

• Decision Date: 21 March 2013
• Docket Number: No. 02–12–00255–CV.,02–12–00255–CV.
• Citation: 422 S.W.3d 722
• Parties: In re VALLIANCE BANK, Relator.
• Court: Texas Court of Appeals

422 S.W.3d 722

In re VALLIANCE BANK, Relator.

No. 02–12–00255–CV.

Court of Appeals of Texas, Fort Worth.

Nov. 15, 2012.

Rehearing Overruled March 21, 2013.

Perry J. Cockerell and Randall K. Price, Cantey Hanger LLP, Dallas, TX, for Relator.

Michael J. Whitten, Michael J. Whitten & Associates, P.C., Denton, TX, for Real Parties in Interest.

Before the court en banc.

OPINION ON RELATOR'S MOTION FOR EN BANC RECONSIDERATION

ANNE GARDNER, Justice.

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.

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.

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. proceeding); see United Residential Props., L.P. v. Theis, 378 S.W.3d 552, 557–58 (Tex.App.-Houston [14th Dist.] 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 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 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. SeeTex.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 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...