Opinion issued October 10, 2013
In The
Court of Appeals
For The
First District of Texas
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NO. 01-12-00126-CV
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ELEUTERIA M. VARGAS, Appellant
V.
LA REGIOMONTANA MEAT COMPANY, Appellee
On Appeal from the 80th District Court
Harris County, Texas
Trial Court Case No. 2008-69773
MEMORANDUM OPINION
Eleuteria Vargas appeals the trial court’s denial of her motion to reinstate
after her case was dismissed for want of prosecution. We conclude that the trial
court erred in concluding that it lacked jurisdiction to consider the merits of
Vargas’s motion and, accordingly, we reverse and remand this cause to the trial
court for a hearing on the motion to reinstate.
Background
Vargas sued her employer, La Regiomontana Meat Company, for an on-the-
job injury she sustained while cutting meat. A jury returned a unanimous verdict
in Vargas’s favor on May 10, 2011. The trial court set June 10, 2011 for the entry
of judgment, specifying Vargas was to prepare the judgment, but Vargas did not
appear in court on June 10.
On November 7, 2011, the trial court dismissed Vargas’s case for want of
prosecution. On December 6, Vargas timely moved to reinstate her case and sent a
notice of a hearing on the motion. On January 13, the trial court denied the motion
to reinstate. Vargas requested a rehearing of her motion to reinstate. On January
20, 2012, the trial court denied Vargas’s request, noting that it lacked jurisdiction
to consider the merits of the motion to reinstate because Vargas’s motion to
reinstate was not properly verified, and thus it failed to extend the trial court’s
plenary power. Vargas appeals.
Discussion
In two issues, Vargas contends that the trial court erred by denying her
motion to reinstate and by refusing to hold a hearing on the motion to reinstate.
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A. Applicable Law
A trial court may dismiss a civil suit for want of prosecution: (1) under
165a(1) when a party seeking affirmative relief fails to appear for hearing;
(2) under Rule 165a(2) when the case is not disposed of within the time limits
proscribed by the Texas Supreme Court; and (3) pursuant to the court’s inherent
power when a plaintiff fails to prosecute his case with due diligence. TEX. R. CIV.
P. 165a(1), (2), (4); Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628,
630 (Tex. 1999). After the trial court dismisses a case for want of prosecution,
“[it] shall reinstate the case upon finding after a hearing that the failure of the party
or his attorney was not intentional or the result of conscious indifference but was
due to an accident or mistake or that the failure has been otherwise reasonably
explained.” TEX. R. CIV. P. 165a(3); see, e.g., Wilson v. Wilson, No. 01-06-00908-
CV, 2010 WL 2545579, at *9 (Tex. App.—Houston [1st Dist.] June 24, 2010, no
pet.) (mem. op.).
A party seeking reinstatement must first timely file a verified motion to
reinstate. TEX. R. CIV. P. 165a(3). The motion must be verified by the movant or
her attorney and must be filed within 30 days after the order of dismissal was
signed. Id. A timely filed verified motion to reinstate extends the trial court’s
plenary power and the time for perfecting an appeal in the same manner as a
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motion for new trial. Id. 165a(3), (4); Andrews v. Stanton, 198 S.W.3d 4, 7 (Tex.
App.—El Paso 2006, no pet.); see McConnell v. May, 800 S.W.2d 194, 194 (Tex.
1990). An unverified motion, however, extends neither the trial court’s plenary
power nor the time for perfecting an appeal. McConnell, 800 S.W.2d at 194; Butts
v. Capitol City Nursing Home, Inc., 705 S.W.2d 696, 697 (Tex. 1986); Andrews,
198 S.W.3d at 7. Once the court’s plenary power expires, it lacks jurisdiction to
reinstate the case. McConnell, 800 S.W.2d at 194.
B. Did the trial court lack plenary power?
In her first issue, Vargas contends that the trial court erred by denying her
motion to reinstate on the grounds that the verification was deficient and failed to
extend the trial court’s plenary power. The trial court determined that the
verification was “fatally defective, and that it therefore lacked plenary power, i.e.,
jurisdiction, to entertain the motion to reinstate.” See id. at 194; Andrews, 198
S.W.3d at 7. The question of a court’s jurisdiction presents a legal question that
we review de novo. See City of Houston v. Swinerton Builders, Inc., 233 S.W.3d
4, 10 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (citing Mayhew v. Town of
Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998)).
Here, the trial court determined that Vargas’s counsel’s verification of the
motion to reinstate was defective. A verification is “[a] formal declaration made in
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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, 198 S.W.3d at 8 (quoting
BLACK’S LAW DICTIONARY 1556 (7th ed. 1999)). A motion to reinstate may be
verified by a separate affidavit. Id.; see also Guest v. Dixon, 195 S.W.3d 687, 689
(Tex. 2006) (finding timely filed motion to reinstate supported by affidavit
sufficient to extend trial court’s plenary power).
Vargas’s motion to reinstate states, “It was not through conscious
indifference or lack of good faith that Plaintiff[’]s counsel seemingly failed to
prosecute this case.” Vargas’s counsel verified the motion to reinstate in a separate
affidavit, in which counsel avers “I have read this affidavit and all statements
contained herein are true and correct.” La Regiomontana contends that the
verification was defective because Vargas’s counsel’s verification does not
expressly state that the statements in the motion are true. Rather it states, counsel
“read this affidavit and all statements contained herein are true and correct.”
(Emphasis added.) On January 20, 2012, the trial court stated that it agreed with
La Regiomontana and that the verification of Vargas’s motion to reinstate was
“fatally defective.” The trial court therefore concluded that the motion did not
extend its plenary power beyond December 6, 2011, the thirtieth day after the
dismissal, and accordingly denied the motion to reinstate. See, e.g., McConnell,
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800 S.W.2d at 194 (unverified motion to reinstate does not extend plenary power).
We disagree.
The facts in this case are substantially similar to the facts in Andrews. In
Andrews, just as here, the timely filed motion to reinstate was verified by the
affidavit of counsel. 198 S.W.3d at 8–9. Counsel did not expressly aver that the
facts stated in the motion to reinstate were true. Id. The motion, however,
expressly incorporated the affidavit, which stated that counsel mistakenly believed
that the matter was on the jury docket, not the dismissal docket. Id. at 6, 9. The El
Paso Court of Appeals held that the motion was verified and extended the trial
court’s plenary power. Id. at 9.
Here, Vargas’s motion to reinstate expressly incorporates counsel’s
affidavit. The motion to reinstate states that counsel did not fail to prosecute the
case “through conscious indifference or lack of good faith.” It also expressly
incorporates “the affidavit of Plaintiff’s counsel verifying the statements set forth
herein.” The affidavit of counsel, in turn, averred that all statements contained
herein are true and correct. We conclude that this was sufficient to verify the
statement that plaintiff’s counsel did not fail to prosecute the case through
conscious indifference or lack of good faith—the standard recited in Texas Rule of
Civil Procedure 165a(3). TEX. R. CIV. P. 165a(3). It follows that the verified
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motion extended the trial court’s plenary power and that the trial court did not lack
jurisdiction to entertain the motion. See Andrews, 198 S.W.3d at 9; see also Guest,
195 S.W.3d at 688 (addressing purported defect in affidavit verifying motion to
reinstate and stating, “[W]e have repeatedly stressed that procedural rules should
be construed and applied so that the right of appeal is not unnecessarily lost to
technicalities.”).
We sustain Vargas’s first issue.
C. Is Vargas entitled to a hearing on her motion to reinstate?
In her second issue, Vargas contends that the trial court erred by refusing to
hold a hearing on her motion to reinstate. A trial court has no discretion to fail to
hold an oral hearing on a timely filed, properly verified motion to reinstate.
Thordson v. City of Houston, 815 S.W.2d 550, 550 (Tex. 1991); see Gulf Coast
Inv. Corp. v. Nasa 1 Bus. Ctr., 754 S.W.2d 152, 153 (Tex. 1988) (affirming court
of appeals’ holding that trial court abused its discretion in failing to hold hearing
on motion to reinstate); Smith v. McKee, 145 S.W.3d 299, 305 (Tex. App.—Fort
Worth 2004, no pet.). Here, the trial court did not hold a hearing on Vargas’s
motion to reinstate because it determined that it lacked jurisdiction to do so.
Because we have concluded that the trial court had plenary power to entertain
Vargas’s motion to reinstate, it follows that Vargas was entitled to a hearing on her
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motion to reinstate.1 TEX. R. CIV. P. 165a(3) (“The clerk shall deliver a copy of the
motion [to reinstate] to the judge, who shall set a hearing on the motion as soon as
practicable.”); see Thordson, 815 S.W.2d at 550 (trial court has no discretion to
deny oral hearing on timely filed, properly verified motion to reinstate); Andrews,
198 S.W.3d at 9.
We sustain Vargas’s second issue.
Conclusion
We reverse the judgment of the trial court and remand this cause for further
proceedings consistent with this opinion.
Rebeca Huddle
Justice
Panel consists of Justices Jennings, Brown, and Huddle.
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We express no opinion about the merits of Vargas’s motion to reinstate.
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Eleuteria M. Vargas v. La Regiomontana Meat Company
Combined Opinion